Beware of SBH – Review

The initial preliminary injunction ruling, as well as the FTC’s allowed petition for penalties and summary judgment, are all slated to be appealed by Success by Health and Jay Noland.

SBH’s second preliminary injunction appeal is the result of a late September order, which was the result of SBH’s first injunction appeal being denied.

That interim injunction related to the Supreme Court’s AMG ruling earlier this year, which SBH said indicated the preliminary injunction should be lifted.

The Ninth Circuit disagreed and remanded the matter to the District Court.

On September 23rd, the District Court refused SBH’s preliminary injunction dissolution petition.

That order is currently being challenged in the Ninth Circuit.

Concerning the FTC’s approved requests for contempt penalties and liability summary judgment, SBH filed a move on October 6th seeking that the orders be certified for interlocutory appeal.

SBH argues in favour of their proposal.

The Court’s decision in this aspect essentially reflects the Court’s assessment that Individual Defendants are dishonest and lack credibility based solely on papers—that is, without oral debate, much alone an evidentiary hearing.

The Court not only determined that an adverse inference was justified based on the missing evidence, but also that Individual Defendants had a malicious intent to “conceal and destroy evidence.”

Individual Defendants’ motives, intent, and character are reflected not only in the Court’s ruling on the motion for sanctions, but also in the Court’s denial of Individual Defendants’ motion for leave to supplement the summary judgment record and in the summary judgment Order, which is also presented for certification in this motion.

The FTC writes in opposition to the motion;

Individual Defendants make no reference to a “controlling point of law” and make no claim that “a substantial foundation for difference of opinion exists.”

Furthermore, allowing their request will lengthen rather than shorten this dispute.

Individual Defendants just seek to re-litigate a “credibility and character” determination about their evidence spoliation, as well as a broad review of the Court’s summary judgment ruling on VOZ Travel.

A ruling on SBH’s certification motion was still pending at the time of publishing.

When the Ninth Circuit rules on the September preliminary injunction order appeal, I’ll post an update here.

Success by Health’s certification motion was refused on November 6, 2021.

The court determined that the request did not fulfill the requisite requirements.

Update: The SBH defendants have voluntarily dropped their injunction appeal on December 24, 2021.

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