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Federal Trade Commission v. Health Formulas, LLC

United States District Court, D. Nevada

June 7, 2017

FEDERAL TRADE COMMISSION, Plaintiff,
v.
HEALTH FORMULAS, LLC, a California limited liability company, also doing business as SIMPLE PURE NUTRITION, et al., Defendants.

          SHLOMO S. SHERMAN KOLESAR & LEATHAM, CHTD., GARY OWEN CARIS, LESLEY ANNE HAWES DIAMOND McCARTHY LLP Attorneys for Receiver ROBB EVANS & ASSOCIATES LLC

         [PROPOSED] ORDER APPROVING FINAL REPORT AND FINAL ACCOUNTING, FINAL REQUEST FOR APPROVAL AND PAYMENT OF FEES AND EXPENSES OF RECEIVER AND ITS PROFESSIONALS FROM MARCH 1, 2016 THROUGH CLOSING, FOR DISCHARGE AND EXONERATION OF BOND, AND RELATED RELIEF, AND GRANTING RELIEF FROM NOTICE UNDER LOCAL RULE 66-5 IN CONNECTION THEREWITH

          RICHARD F. BOULWARE, II United States District Judge

         The matter of the Motion for Order Approving Final Report and Final Accounting, Final Request for Approval and Payment of Fees and Expenses of Receiver and Its Professionals from March 1, 2016 Through Closing, for Discharge and Exoneration of Bond, and Related Relief and Granting Relief from Notice under Local Rule 66-5 in Connection Therewith (“Wind Up Motion”) filed by Robb Evans & Associates LLC ("Receiver"), initially appointed Temporary Receiver ("Receiver") in this action pursuant to the Court's Order Granting Ex Parte Motion for Temporary Restraining Order (#5) and Appointing Receiver (#9) ("Temporary Restraining Order") issued October 9, 2014 (Doc. No. 12) and whose appointment was continued under the Stipulated Preliminary Injunction as to Defendants Chapnick, Smukler & Chapnick, Inc., Brandon Chapnick and Keith Smukler ("Stipulated Preliminary Injunction") issued November 17, 2014 (Doc. No. 61), the Court's Opinion and Order ("Miller Preliminary Injunction") issued May 6, 2015 (Doc. No. 149), and the Stipulated Final Order for Permanent Injunction as to Defendants Jason Miller, Danelle Miller, 458 Media LLC; Alpha Brands, LLC; Barrel Roll, LLC; Blue Stella, LLC; Brilliant Skin LLC; BSC Marketing, LLC; Cherry Hill Marketing, LLC; CSA Ventures, LLC; Diet Concepts, LLC; Discount Provisions L.L.C.; DJD Distribution, LLC; Extamax, LLC; F12 Media LLC; Flex Formulas, LLC; GCB Marketing LLC; Health Formulas, LLC; Health Products Direct LLC; KMS Marketing LLC; Longhorn Marketing, LLC; Luminous Skin LLC; MDCC, LLC; Men's Health Formulas, LLC; Metabolic Labs, LLC; Method Direct, LLC; Method Films, LLC; Miracle Male, LLC; Moringa Marketing LLC; Natural Products Direct LLC; Northbound Marketing LLC; Northern Health Products LLC; Pure and Natural Health Products LLC; Pure and Simple Health Products LLC; Pure Vitamins, LLC; Radiant Skin LLC; Shimmering Skin LLC; Skinny 7 LLC; Tindy Films LLC; Weight Loss Dojo, LLC; Wellness Labs, LLC; Wellness Products, LLC; VIP Savings, LLC; and Yacon Marketing LLC filed July 12, 2016 (Doc. No. 205) ("Miller Final Judgment"), came on regularly for determination before the Honorable Richard F. Boulware, II, United States District Judge presiding. The Court, having reviewed and considered the Wind Up Motion and all pleadings and papers filed in support thereof, the Receiver's Final Report and Final Accounting, and the Notice of Filing of Receiver's Final Report and Final Accounting as to Miller Receivership Entities and Opportunity to Object (“Report Notice”), and any response, opposition or objection thereto, and good cause appearing therefor, IT IS ORDERED that:

         1. The Wind Up Motion and all relief sought therein is granted;

         2. Without limiting the generality of the foregoing:

A. The Receiver's Final Report and Final Accounting as it concerns the Miller Receivership Entities[1], copies of which are attached collectively as Exhibit 1 to the Declaration of Brick Kane filed in support of the Wind Up Motion and as Exhibit 1 to the Report Notice on file with the Court, are hereby approved;
B. The Receiver is authorized to wind up the receivership estate created under the Stipulated Preliminary Injunction concerning the Miller Receivership Entities;
C. All actions and activities taken by or on behalf of the Receiver and all payments made by the Receiver in connection with the administration of the receivership estate as they concern the Miller Receivership Entities are hereby approved and confirmed;
D. The Court hereby approves and authorizes payment of all actual fees and expenses incurred by the Receiver related to the Miller Receivership Entities for the period from March 1, 2016 through the closing of the Miller Receivership Entities receivership estate, estimated to be in the total sum of $240, 454.92 to be paid from assets of the Miller Receivership Entities, including (1) for the services by the Receiver and the Receiver's professionals from March 1, 2016 through and including December 31, 2016 (a) fees of $30, 588.95 and costs of $42, 782.24 incurred by the Receiver during that period, including costs of $41, 550.05 incurred for the services of the Receiver's outside accountant Squar Milner LLP (“Squar Milner”) which prepare tax returns and receivership tax returns, and (b) fees of $25, 367.25 and costs of $171.60 for attorneys' fees and expenses for the services of the Receiver's counsel Dentons U.S. LLP, (c) fees of $42, 533.30 and costs of $825.41 for the services of the Receiver's lead counsel Diamond McCarthy LLP, (d) fees of $525.00 and costs of $642.48 for attorneys' fees and expenses for the services of the Receiver's Nevada counsel Kolesar & Leatham, Chtd. (“Kolesar Firm”); and (2) a reserve for estimated fees and expenses of the Receiver and its professionals incurred from January 1, 2017 through the closing of the Miller Receivership Entities estate, comprised of (a) estimated Receiver fees of $16, 519.75 and estimated costs of $57, 498.94, including estimated accountant fees of $54, 400 for the services of Squar Milner for the preparation of 2016 final tax returns for the Miller Receivership Entities and tax returns for the receivership estate for 2016 and 2017, (b) estimated Receiver attorneys' fees of $20, 000 and legal expenses of $1, 500 anticipated to be incurred to Diamond McCarthy, and (c) estimated attorneys' fees of $750 and costs of $750 anticipated to the Kolesar Firm, all as set forth in the Final Accounting included in Exhibit 1 to the Declaration of Brick Kane;
E. The Receiver is authorized to make payment from the Miller Receivership Entities funds on hand after payment of receivership expenses, including all administrative expenses (“Net Funds on Hand”), the allowed claims of the local, state and federal taxing agencies identified on the Tax Claims Schedule, Tab 2 of the Receiver's Final Report attached as Exhibit 1 to the Declaration of Brick Kane, in the amounts set forth on the Tax Claims Schedule, prior to turn over of the remaining assets of the Miller Receivership Entities estate to plaintiff Federal Trade Commission (“FTC”);
F. The Receiver is authorized to distribute the remaining assets of the receivership estate held by the Receiver after payment of receivership expenses, including administrative expenses, and after payment of the taxing agencies as set forth in the Tax Claims Schedule, to plaintiff FTC in accordance with Section XIII.D. and E. of the Miller Final Judgment, upon the closing of the receivership;
G. The Receiver is authorized to destroy all records of the Miller Receivership Entities in the Receiver's possession or custody within 30 days after the Receiver serves written notice on the FTC of the Receiver's intention to destroy such records, unless the FTC requests possession and custody of such records or another government agency issues a subpoena for such records, in which case the Receiver is authorized to turn over the Miller Receivership Entities' records to the FTC or to the government agency which issued the subpoena;
H. Effective upon completion of the administration of the Miller Receivership Defendants' receivership estate and distribution of the remaining funds in the Receiver's possession and custody to the FTC, (1) neither the Receiver nor any agent, employee, member, officer, independent contractor, attorney or representative of the Receiver shall have any liability to any person or entity for any action taken in connection with carrying out the Receiver's administration of the receivership estate, and the exercise of any powers, duties and responsibilities in connection therewith, and (b) the Receiver, its agents, employees, members, officers, independent contractors, attorneys and representatives shall be: (i) discharged; (ii) released from all claims and liabilities arising ...

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