Case: 1:03-cv-03904 Document #: 769 Filed: 10/15/13 Page 1 of 3 PageID #:13794

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) ) ) ) ) ) ) )

Case No.: 03-C-3904 Hon. Robert W. Gettleman

RECEIVERS MOTION FOR LEAVE TO FILE A REPLY IN SUPPORT OF THE IMPOSITION OF COERCIVE SANCTIONS Robb Evans & Associates, LLC (the Receiver), in its capacity as court-appointed receiver over the assets of Kevin Trudeau and the Trudeau Entities, respectfully move for leave to file the Receivers Reply in Support of the Imposition of Coercive Sanctions, which is attached to this Motion. In further support of its Motion, the Receiver states as follows: 1. On September 26, 2013, the Court entered an order granting in part the FTCs

Motion to Modify the August 7, 2013 Order to Terminate Trudeaus Personal Expense Allowance. [Dkt. #760.] In that order the Court found that Trudeau violated its previous orders by failing to disclose assets and income to the Receiver and indicated that the Court would address the consequences of such violations at the next hearing, which is now set for October 16, 2013 at 1:30 pm. 2. On September 30, the FTC filed a statement urging the Court to impose coercive

sanctions. On October 4, the Receiver likewise filed a statement supporting the imposition of coercive sanctions. That same day, the Court granted Defendant leave to respond to the FTCs and Receivers respective statements by no later than October 11, 2013. 3. On October 11, Defendant filed his response.

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4. On October 14, the FTC moved for leave to file a reply, noticing its motion for

the hearing on October 16. 5. The Receiver now also seeks leave to file a reply and has noticed this Motion for

the October 16 hearing. Given the seriousness of relief urged by the FTC and Receiver, the Receiver believes that a brief reply in advance of the hearing to address a number of issues raised in the Defendants response will benefit the Court and all parties by affording them a fuller opportunity to review and consider the Receivers reasoning. WHEREFORE, the Receiver respectfully requests the Court grant it leave to file the attached Receivers Reply in Support of the Imposition of Coercive Sanctions, and grant such other relief as the Court deems just and proper. Dated: October 15, 2013 Respectfully submitted, ROBB EVANS & ASSOCIATES LLC, RECEIVER By: /s/ Blair Zanzig (One of Its Attorneys) Blair R. Zanzig (No. 6273293) John F. Hiltz (No. 6289744) Kathy Wantuch (No. 6294034) HILTZ WANTUCH & ZANZIG LLC 53 West Jackson Blvd., Suite 205 Chicago, Illinois 60604 Telephone: 312.566.9008 Fax: 312.566.9015 Counsel for Robb Evans & Associates, Receiver

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CERTIFICATE OF SERVICE I, Blair R. Zanzig, an attorney, hereby certify that, on the 15th day of October, 2013, I caused a true and correct copy of the foregoing Receivers Motion for Leave to File a Reply in Support of the Imposition of Coercive Sanctions to be served through the Courts Electronic Case Filing System on the following:

Kimball Richard Anderson kanderson@winston.com Thomas Lee Kirsch, II tkirsch@winston.com Katherine E. Rohlf kcroswell@winston.com Michael Mora mmora@ftc.gov Jonathan Cohen Jcohen2@ftc.gov Amanda B. Kostner akostner@ftc.gov David OToole dotoole@ftc.gov

/s/ Blair R. Zanzig

Case: 1:03-cv-03904 Document #: 769-1 Filed: 10/15/13 Page 1 of 6 PageID #:13797

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) ) ) ) ) ) ) )

Case No.: 03-C-3904 Hon. Robert W. Gettleman

RECEIVERS REPLY IN SUPPORT OF THE IMPOSITION OF COERCIVE SANCTIONS In his opposition, Kevin Trudeau ignores the fact that he has already been afforded a fair trial and concomitant opportunity to prove that he is unable pay the $37 million judgment against him. Trudeau ignores the fact that the Court has already held a sufficient legal and factual basis exists to incarcerate him for contempt, finding that the overwhelming evidence at trial demonstrated that Trudeau had the current ability to pay a substantial portion of the $37 million judgment and that he had engaged in an elaborate scheme to put his assets out of reach of the FTC through his de facto control of a myriad of companies and their finances. Rather than coming clean, as the Court urged in its July 26, 2013 ruling, Trudeau has instead used the now more than two-month old receivership as a new opportunity to recycle arguments that he was unable to prove to the Court during his trial, i.e. that he lacks any substantial assets and lacks any control over, or material financial information about, the network of overseas companies and persons that constituted his asset protection scheme. In the course of its July 26 ruling, the Court expressed its concern that incarcerating Trudeau might limit his ability to pull the necessary strings to maximize recovery to consumers. (Ex. A (7/26/2013 Tr.) at 31:3-6.) Unfortunately, Trudeau has done nothing during the receivership that would demonstrate an

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uncoerced willingness to pull such strings. Tellingly, Trudeau makes no argument in his opposition that he is willing to change his conduct going forward. Rather, he clings to his already rejected claims that he has done all he can do even while the evidence continues to mount that that is simply not true. A. TRUDEAU MISCONSTRUES HIS ROLE WITH RESPECT TO THE RECEIVERSHIP ORDER AND IN DOING SO DEMONSTRATES EXACTLY WHY COERCIVE SANCTIONS ARE NECESSARY. Trudeau misconstrues the receivership as some type of new opportunity to re-try his claims that he unable to pay the $37 million judgment. Trudeau chastises the Receiver for not simply finishing the forensic accounting and reporting the results. Of course, if the Court merely contemplated the Receiver as some final arbiter of the Trudeaus claims, the Court could have dispensed with a trial and the preceding year of litigation, and ordered a forensic accounting from the start. The forensic accounting is only now necessary because Trudeau has not lived up to the Courts admonitions to change his behavior, make a full accounting, and turnover assets. Trudeau (as he has throughout) fails to take responsibility for the role the Court contemplated he would play with respect to the receivership. The Court found: So theres no question in my mind that Mr. Trudeau, from that June 2010 date, and probably before, no doubt, that he currently has the ability to comply with the order of the Court, or at least to make a substantial effort in complying with the Courts order to pay the 37 million, and that he has deliberately failed to do so. (Ex. A. at 29:1-6.)1 The Court rejected Trudeaus defense of an inability to pay. (Id. at 29:25.) Instead, the Court told Trudeau that because he does in fact control the assets, and the people, that are identified in [the FTCs Proposed Findings] he is to transfer those assets

Ex. A refers to the transcript of the July 26, 2013 hearing in this matter, which is attached as Exhibit A of the Receivers Statement Supporting the Imposition of Coercive Sanctions [Dkt. #764]. 2

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to the Receiver, to cause the people and entities that he has controlled to transfer the actual assets to the Receiver and to account for all revenues that have come in since June 2010. ( Id. at 32:516.) Having rejected Trudeaus defenses, the Court left Trudeau free so that he could take steps to pay the $37 million judgment. There is no dispute that Trudeau has not heeded those directions. Two-months into the receivership, it is clear that, uncoerced, Trudeau will hold fast to his rejected defenses. Although the Court contemplated that Trudeau would cooperate with the Receiver by using his control of the Trudeau Entities to turn over assets and make a full accounting, Trudeau seems to believe that cooperate means simply showing up to meetings with the Receiver, responding to emails, and signing direction letters proposed by the Receiver all the while maintaining a lack of material knowledge and inability to pay the judgment. If merely showing up to meetings and providing substantively empty responses were sufficient to satisfy Trudeaus obligations to cooperate with the Receiver, Trudeau would have absolutely no incentive to actually disclose or turnover any assets and could stonewall indefinitely by claiming a lack of memory or by adopting ridiculously narrow interpretations of the questions posed to him. Trudeau could wait around for the Receiver to find any assets, turn them over then, and keep whatever the Receiver might not be able to find. The Court made clear that the mere appearance of cooperation would be insufficient. Instead, the Court made results the standard for determining whether Trudeau would avoid coercive sanctions: [I]f . . . what I am about to tell you Im going to do doesnt work, that [incarceration] will be the next thing that happens. (Ex. A. at 31:6-8.) While the FTC in its statement and reply sets forth the full evidentiary detail of Trudeaus troubling conduct, the Receiver highlights two examples here to illustrate that Trudeaus

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cooperation is really no cooperation.2 First, the Receiver asked Trudeau about a $378,143.00 payment by Website Solutions USA to the Ukraine to pay off a mortgage on an apartment. Trudeau claimed a lack of any material knowledge, suggesting that his wife and Neil Sant orchestrated the payment without his involvement. In his opposition here, Trudeau again claims that he did not hold any formal title with Website Solutions USA and thus had no reason to know anything about the transaction. (Opp. at 9.) To the contrary, the Court has already found that Trudeau, with Marc Lane, created that company as one of seven-companies that Trudeau used to operate GIN, and exercised control over it and its assets. (Findings of Fact [Dkt. #713] at II.A.2 & 2.e.) In his opposition (as he did in interviews with the Receiver), Trudeau further asserts that he was not directly involved in the transaction. (Opp. at 9.) However, Trudeau sent contemporaneous emails evidencing the fact that he was directly involved in the transaction asking Marc Lane and Neil Sant: are we all square with he [sic] kiev apartment? ..natalie wants to sell it..GIN wants to buy it. . . thoughts? (FTC PXA:25.) Second, notwithstanding the Courts findings that Trudeau controlled the GIN-related entities, Trudeau claimed to the Receiver that he knew nothing material about the finances of Website Solutions Switzerland (WSS) one of the GIN-related entities. As described in the Receivers statement, the Receiver discovered that GIN FDN (another of the GIN-related entities that the Court found Trudeau controlled) was funneling more than $644,000 of Trudeaus commission payments to WSS through an entity called Office Pool. (See Receivers Stmt. [Dkt. #764] at 6-7; see also FTCs Reply [Dkt. 767-1] at 7.) Moreover, Office Pool was also apparently funneling money back to Marc Lane, Trudeaus asset protection advisor. (FTCs

The Receiver previously adopted and joined Sections II-IV of the FTCs Statement Regarding the Need for Coercive Sanctions [Dkt. # 759]. The Receiver now also adopts and joins the FTCs Reply in Support of Coercive Incarceration [Dkt. #767-1]. 4

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Reply at 7 (citing exhibits).) Trudeau offers no explanation in his Opposition here. Given this nexus of activity with Trudeau at the center, Trudeaus pleas of ignorance are simply not credible and are contrary to the Courts findings. Taken together with the balance of his conduct, Trudeau has failed to demonstrate any intention of providing a full and forthcoming disclosure without being coerced. B. THE RECEIVER REMAINS GUIDED BY THE BEST INTERESTS OF THE RECEIVERSHIP ESTATE. Apparently unable to more substantively rebut the grounds the Receiver set out for why imposing coercive sanctions is called for in the context of this case and in light of the findings of the Court, Trudeau resorts to smearing the Receiver by calling the Receiver the FTCs favorite, and hardly impartial and later scolding the Receiver to stop trying to curry favor with its favorite employer. (Opp. at 10-11.) These (and other) gratuitous and derisive commentary in Trudeaus Opposition about the Receivers motivations and abilities are disappointing; they distract from the seriousness of the matter before the Court. In its 18-year record, including this appointment, the members and staff of the Receiver have remained always mindful that the Receiver is the Courts officer directed to impartially apply and impose the dominion of the Court and the directions of the Courts order. The Receiver is not the FTCs nor any nominating partys receiver. The Receivership staff locates facts and information and submits its own recommendations and reasoning to the appointing Court. Indeed, here, the Receiver only supported imposition of coercive sanctions after nearly two-months of attempting to work through Trudeau and concluding that his cooperation as outlined in the FTCs and Receivers respective statements fell far short of the parameters set forth by the Court. In light of these circumstances, the Receiver remains convinced that coercive sanctions are necessary to

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maximize the receivership estate and minimize the expense of completing the forensic accounting.

Dated: October 15, 2013

Respectfully submitted, ROBB EVANS & ASSOCIATES LLC, RECEIVER By: /s/ Blair Zanzig (One of Its Attorneys) Blair R. Zanzig (No. 6273293) John F. Hiltz (No. 6289744) Kathy Wantuch (No. 6294034) HILTZ WANTUCH & ZANZIG LLC 53 West Jackson Blvd., Suite 205 Chicago, Illinois 60604 Telephone: 312.566.9008 Fax: 312.566.9015 Counsel for Robb Evans & Associates, Receiver

Case: 1:03-cv-03904 Document #: 770 Filed: 10/15/13 Page 1 of 2 PageID #:13803

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) Case No.: 03-C-3904 ) ) Hon. Robert W. Gettleman ) ) ) ) )

NOTICE OF MOTION PLEASE TAKE NOTICE that, on Wednesday, October 16, 2013, at 1:30 p.m., or as soon thereafter as counsel may be heard, the undersigned shall appear before the Honorable Robert W. Gettleman, United States District Court for the Northern District of Illinois, Eastern Division, or such other judge as may be sitting in his place in Courtroom 1703, 219 S. Dearborn Street, Chicago, Illinois 60604, and shall present the attached Receivers Motion for Leave to File Receivers Reply in Support of the Imposition of Coercive Sanctions, a copy of which is hereby served upon you. Dated: October 15, 2013 Respectfully submitted, ROBB EVANS & ASSOCIATES LLC, RECEIVER By: /s/ Blair Zanzig (One of Its Attorneys) Blair R. Zanzig (No. 6273293) John F. Hiltz (No. 6289744) Kathy Wantuch (No. 6294034) HILTZ WANTUCH & ZANZIG LLC 53 West Jackson Blvd., Suite 205 Chicago, Illinois 60604 Telephone: 312.566.9008 Fax: 312.566.9015 Counsel for Robb Evans & Associates, Receiver

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CERTIFICATE OF SERVICE I, Blair R. Zanzig, an attorney, hereby certify that, on the 15th day of October, 2013, I caused a true and correct copy of the foregoing Notice of Motion to be served through the Courts Electronic Case Filing System on the following:

Kimball Richard Anderson kanderson@winston.com Thomas Lee Kirsch, II tkirsch@winston.com Katherine E. Rohlf kcroswell@winston.com Michael Mora mmora@ftc.gov Jonathan Cohen Jcohen2@ftc.gov Amanda B. Kostner akostner@ftc.gov David OToole dotoole@ftc.gov

/s/ Blair R. Zanzig

Case: 1:03-cv-03904 Document #: 771 Filed: 10/15/13 Page 1 of 6 PageID #:13805

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. KEVIN TRUDEAU, Defendant. ) ) ) ) ) ) )

Civil Action No. 03-C-3904 Honorable Robert W. Gettleman

DEFENDANT KEVIN TRUDEAUS OPPOSITION TO THE FTCS AND THE RECEIVERS MOTIONS TO FILE REPLY BRIEFS I. INTRODUCTION Defendant Kevin Trudeau respectfully opposes the FTCs and the Receivers motions to file reply briefs (Docket Nos. 767 & 769), as there is currently no motion pending under the Federal Rules of Civil Procedure (and therefore no reply is warranted). In addition, the FTCs and the Receivers proposed reply briefs contain new matter that should be stricken as a matter of law. In the alternative, Trudeau moves for leave to file a response to the FTCs and the Receivers reply briefs within seven days of the filing of this opposition (to be due on October 22, 2013). II. ARGUMENT A. The FTC Filed A Statement, Not A Motion, And Is Not Entitled To A Reply.

On September 30, 2013, the FTC filed an unsolicited statement not a motion explaining why it believes coercive incarceration of Trudeau is warranted. (Docket No. 759.) The Receiver filed a similar statement (again, not a motion) on October 4, 2013. (Docket No. 764.) The Court allowed Trudeau the opportunity to file a response to these statements, but provided no prospect for the FTC or the Receiver to then file any additional papers. (Docket Nos. 763 & 765.) Then, just two days before the October 16, 2013 hearing in this matter, the 1

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FTC moved for leave to file a reply brief, attaching its proposed brief. (Docket No. 767.) And just one day before the hearing, the Receiver followed suit and requested leave to file a reply, also attaching its proposed brief. (Docket No. 769.) Because there is currently no motion pending, and because this Court did not request such briefing, the FTCs and the Receivers motions for leave to file reply briefs should be denied. B. The FTCs and the Receivers Reply Briefs Should Be Stricken Because They Contain New Matter.

Even if the FTC and the Receiver were entitled to file reply briefs (they are not), their proposed reply briefs are impermissible under settled law that new material is not permitted in reply briefs as explained further below. 1. New Matter Is Not Permitted In A Reply Brief.

It is settled in this Circuit that new matter is not permitted in a reply brief unless the opposing party has an opportunity to respond. Black v. TIC Invest. Corp., 900 F.2d 112, 116 (7th Cir. 1990) (a court should not consider new evidence in reply unless the opposing party has an opportunity to respond). A reply brief is for replying not for raising essentially new matter that could have been advanced in the opening brief. Autotech Tech. Ltd. Pship v.

Automationdirect.com, Inc., 235 F.R.D. 435, 437 (N.D. Ill. 2006) (citing Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 360 (7th Cir. 1987) (Posner, J., concurring)); see also Third Wave Techs., Inc. v. Stratagene Corp., 405 F. Supp. 2d 991, 1002 (W.D. Wis. 2005) (A party cannot bring up new matter in a reply brief to which its opponent has no opportunity to respond.). Similarly, arguments that first appear in a reply brief are deemed waived. Hart v. Transit Mgmt. of Racine, Inc., 426 F.3d 863, 867 (7th Cir. 2005); Pampered Chef v. Alexanian, 804 F. Supp. 2d 765, 788 n.17 (N.D. Ill. 2011) (In order to prevent the sandbagging that results from 2

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belated presentations in reply briefs, issues that could and should have been raised in an opening brief are waived.); In re Subpoena to Huawei Tech. Co., Ltd., 720 F. Supp. 2d 969, 975 n.7 (N.D. Ill. 2010) (noting arguments in support of a motion are generally waived if not raised in the initial motion). 2. The FTC and the Receiver Have Violated The Settled No New Matter Rule

In its proposed reply, the FTC has discussed and attached over 20 new exhibits that were not attached or discussed in its initial statement regarding coercive incarceration. (See Docket No. 767-2.) Beyond the sheer number of new exhibits, the FTCs discusses new material at length in its proposed reply brief. By way of a non-limiting example, the FTC provides

extensive argument regarding alleged offshore activity of GIN FDN and WSS. (Docket No. 7671 at 4-5.) But this argument did not appear in the FTCs initial statement, nor did the exhibits used in support. (Id. (citing new exhibits PXA:4, PXA:5, PXA:6, PXA:8, PXA:9, PXA:10).) The FTC also presents additional arguments regarding N.T. Trading S.A. and NBT Trading Ltd. which, again, appeared nowhere in the FTCs previous statement. (Docket No. 767-1 at 5 (citing new exhibit PTX:15).) The FTC next presents new argument and exhibits regarding the supposed gold bars and coins that the FTC believes Trudeau is hiding, most of which do not appear in the FTCs initial statement. (Id. at 5-6 (citing new exhibits PXA:16, PXA:18, PXA:20).) Finally, the FTC makes arguments regarding supposed asset transfers, citing to several new exhibits in support. (Docket No. 767-1 at 7 (citing PXA:4, PXA:10, PXA:11, PXA:23, PXA:24, PXA:25, PXA:26).) The Receivers brief incorporates some of the FTCs new evidence and arguments, including PXA:25 regarding the Kiev apartment. (Docket No. 769-1 at 4.)

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None of these arguments have any relevance to the instant issue i.e. whether Trudeau should be coercively incarcerated because all of this evidence is backward looking and does not bear on the current position of assets and Trudeaus present ability to assist the Receiver in collecting the $37.6 million judgment. (See Docket No. 766, Trudeaus Responsive Br. at 2-4.) But regardless, the FTCs and the Receivers briefs should be stricken, as they include new evidence and argument that is not permitted under the well-settled no new matter rule for reply briefs. See Black v. TIC Invest. Corp., 900 F.2d 112, 116 (7th Cir. 1990); Autotech Tech. Ltd. Pship v. Automationdirect.com, Inc., 235 F.R.D. 435, 437 (N.D. Ill. 2006). 3. At The Very Least, Trudeau Must Have An Opportunity To Respond To The FTCs Reply Brief.

As noted above, the FTC filed and discussed more than 20 new exhibits with its proposed reply brief, and the Receiver has referred to at least one of those exhibits in its reply brief. As a result of this new matter, Trudeau maintains that these briefs should be stricken in their entirety. However, if the Court is inclined to allow the reply briefs to stand, in fairness Trudeau must be permitted to file a response to these briefs to address the new material to which he has not yet had an opportunity to respond. Black v. TIC Invest. Corp., 900 F.2d 112, 116 (7th Cir. 1990) (a court should not consider new evidence in reply unless the opposing party has an opportunity to respond). III. CONCLUSION The FTC and the Receiver should not be permitted to file successive statements in this matter. No reply briefs are warranted. Moreover, the FTCs and Receivers proposed reply briefs address new matter and exhibits to which Trudeau has not had the opportunity to respond. These briefs should be stricken or Trudeau should be given additional time to respond.

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October 15, 2013 Respectfully submitted, KEVIN TRUDEAU By: /s/ Kimball R. Anderson One of His Attorneys

Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 312-558-5600

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CERTIFICATE OF SERVICE I, Kimball R. Anderson, an attorney, hereby certify that on October 15, 2013, I caused to be served true copies of DEFENDANT KEVIN TRUDEAUS OPPOSITION TO THE FTCS AND THE RECEIVERS MOTIONS TO FILE REPLY BRIEFS by filing such documents through the Courts Electronic Case Filing System, which will send notification of such filing to: Michael Mora Jonathan Cohen Amanda Kostner Federal Trade Commission 601 New Jersey Avenue NW, Suite 2215 Washington, DC 20001 David OToole Federal Trade Commission 55 West Monroe Street, Suite 1825 Chicago, IL 60603

/s/ Kimball R. Anderson Kimball R. Anderson