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Case 8:15-cv-02231-MSS-CPT Document 241 Filed 11/06/18 Page 1 of 11 PageID 11041

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

v. Case No: 8:15-cv-2231-T-35TBM

ROCA LABS, INC., a corporation,


ROCA LABS NUTRACEUTICAL USA,
INC., a corporation, DON JURAVIN,
individually, DON JURAVIN, as an
officer of Roca Labs, Inc. and Roca
Labs Nutraceutical USA, Inc. Must
Cure Obesity, Co and Juravin, Inc.,
GEORGE C. WHITING, individually,
GEORGE C. WHITING, as an officer of
Roca Labs, Inc. and Roca Labs
Nutraceutical USA, Inc. and Zero
Calorie Labs, Inc., MUST CURE
OBESITY, CO., a corporation,
JURAVIN, INCORPORATED, a
corporation, and ZERO CALORIE
LABS, INC., a corporation,

Defendants.
/

ORDER FOR PERMANENT INJUNCTION AND MONETARY JUDGMENT

THIS CAUSE comes before the Court for consideration of Plaintiff’s Amended

Motion for Summary Judgment (Dkt. 210); Defendants’ response in opposition thereto

(Dkt. 221); Plaintiff’s reply (Dkt. 228); and Plaintiff’s Supplemental Brief on Monetary

Relief. (Dkt. 237) On February 19, 2016, Plaintiff, the Federal Trade Commission

(“FTC”), filed an Amended Complaint for Permanent Injunction and Other Equitable Relief

(“Complaint”) in this matter against Defendants Roca Labs, Inc., Roca Labs Nutraceutical

USA, Inc., Must Cure Obesity, Co., Juravin, Incorporated, and Zero Calorie Labs, Inc.
Case 8:15-cv-02231-MSS-CPT Document 241 Filed 11/06/18 Page 2 of 11 PageID 11042

(collectively “Corporate Defendants”), and individual Defendants Don Juravin and George

Whiting. (Dkt. 48) The FTC asserted that Defendants violated Sections 5(a) and 12 of

the FTC Act, 15 U.S.C. §§ 45(a), 52, in connection with the advertising and sale of weight-

loss products and in connection with the use of contractual provisions between

Defendants and its consumers that prohibit purchasers from speaking or publishing

truthful or non-defamatory negative comments or reviews about Defendants, their

products, or their employees. (Id.) On September 29, 2015, the Court entered a

Stipulated Temporary Restraining Order (“TRO”) agreed to by the FTC and Defendants

Juravin, Whiting, RLI, and RLNU (collectively, “the Four Enjoined Defendants”). (Dkt. 13)

The Parties stipulated to preserve their assets while the case remained pending. (Dkt.

13-1) On October 29, 2015, the Court issued a Preliminary Injunction, imposing various

restraints against the Four Enjoined Defendants. (Dkt. 38) On September 13, 2016, the

Court issued a Stipulated Preliminary Injunction Freezing Assets with Other Equitable

Relief applicable to all Defendants, except Defendant Whiting. (Dkt. 90)

On September 14, 2018, the Court granted Plaintiff’s Amended Motion for

Summary Judgment against all Defendants on all counts. 1 (Dkt. 234) However,

regarding damages, the Court ruled that while disgorgement was the proper remedy,

measured “by the amount of gross sales revenue minus the amount of customer refunds

returned to consumers,” Plaintiff’s reasonable approximation of $1,354,000.00 as to the

customer refund amount was not supported anywhere in the record. (Id.) Consequently,

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Defendant George Whiting was found to be liable for injunctive relief due to his knowledge of
the deceptive practices and authority over the acts as a corporate owner and officer. However,
the Court did not find Defendant Whiting liable for monetary relief. The Court found all remaining
Defendants liable for both injunctive and monetary relief based on the record evidence.

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the Court took the amount of damages under advisement and ordered the Parties to file

supplemental memoranda addressing the appropriate amount of customer refunds. (Id.)

On October 4, 2018, Plaintiff timely filed its Supplemental Brief on Monetary Relief,

asserting that the $1,354,000.00 figure does not represent customer refunds. (Dkt. 237)

FTC asserts that Defendants’ 2011 – 2015 gross receipts already reflect the total amount

of refunds to customers. 2 (Id. at 2) Therefore, in order to determine a reasonable

approximation of Defendants’ ill-gotten gains for the time period at issue, the FTC

“calculated Defendants’ net revenue . . . based on ‘Gross receipts or sales’ shown in the

corporate tax returns for some years; for others, the FTC used lower ‘Actual Receipts’

amounts to which the Defendants stipulated.” 3 (Id. at 3) Thus, the $1,354,000.00

deduction amount appears to be the difference between the rounded total revenue

amount based on “‘gross receipts’ (including refunds)” listed on Defendants’ 2011 – 2015

tax returns ($26,600,000.00) and the rounded total revenue amount based on “Actual

Receipts” to which Defendants stipulated ($25,246,000.00). (Id. at n. 3, 4; see also Dkt.

237-4) Accordingly, the Court is satisfied that the disgorgement amount of

$25,246,000.00 reflects a conservative approximation of Defendants’ total net revenue

based on calculations from Defendants’ tax returns and stipulated actual receipts. (Id. at

3–5; Dkt. 237-4)

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In its supplemental brief, FTC asserts that “Defendants’ corporate tax returns show that they
refunded consumers no money beyond what was already reflected in their gross receipts
calculations based on ‘the summation of the processing’ (Dkt. 210-8, PageID 8532 (40:23–24))
for each year.” (Dkt. 237 at 2–3)
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The FTC asserts that its “calculation of $25,246,000” is “a reasonable approximation of
[Defendants’] net revenue and ill-gotten gain[s] between January 1, 2011 and entry of the
September 29, 2015 Stipulated Temporary Restraining Order,” (Dkt. 13), based on the “rounded
total of ‘Gross receipts or sales’ amounts from Defendant Roca Labs, Inc.’s (“RLI”) federal income
tax returns, and stipulated ‘Actual Receipts’ amounts, as follows: 2011 ($3,861,000), 2012
($4,419,000), 2013 ($6,999,000); 2014 ($6,777,318); and 2015 ($3,189,974).” (Dkt. 237 at 2)

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The Court ordered that Defendants had fourteen days from the date the FTC filed

its supplemental brief to provide a response. (Dkt. 234 at 42) Accordingly, Defendants’

response to Plaintiff’s supplemental brief was due on or before October 18, 2018. (Id.)

To date, Defendants have failed to file a response. As such, the Court considers FTC’s

disgorgement estimation to be unopposed. 4

Upon consideration of all relevant filings, case law, and being otherwise fully

advised, it is hereby ORDERED as follows:

1. The Clerk is directed to enter FINAL JUDGMENT in favor of the Plaintiff,

Federal Trade Commission, and against all Defendants.

2. The Clerk is directed to enter a MONETARY JUDGMENT against Defendant

Juravin and the Corporate Defendants for a total disgorgement amount of

$25,246,000.00. This award shall bear post-judgment interest at the rate

prescribed by 28 U.S.C. § 1961, accruing from the date final judgment is

entered.

3. Defendants and their officers, agents, servants, employees and attorneys, and

all other persons in active concert or participation with any of them, who receive

actual notice of this Order by personal service or otherwise, in connection with

4
The Court notes that on October 31, 2018, Defendant Don Juravin filed a Suggestion of
Bankruptcy, notifying the Court that he filed a voluntary petition for relief under Title 11, United
States Code, in the United States Bankruptcy Court. (Dkt. 239) Pursuant to the “police-
regulatory” exception in the bankruptcy code, however, FTC enforcement actions are not subject
to the automatic stay. See, e.g., In re Dolen, 265 B.R. 471, 481 (Bankr. M.D. Fla. 2001) (automatic
stay does not preclude FTC from enforcing conduct provisions of preliminary injunction); see also
SEC v. First Fin. Grp., 645 F.2d 429, 437-38 (5th Cir. 1981) (SEC’s continuing civil action and
request for preliminary injunction against debtor defendant are exempt from the automatic stay
provision); Brock v. Rusco Indus., Inc., 842 F.2d 270, 273 (11th Cir. 1988) (recognizing a similar
exception in an enforcement action brought by the Secretary of Labor pursuant to the Fair Labor
Standards Act).

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the advertising, marketing, promotion, offering for sale, or sale of any Covered

Product, are hereby PERMANENTLY RESTRAINED AND ENJOINED from

making, assisting others in making, including through the use of a product

name, endorsement, depiction, or illustration, any representation, expressly or

by implication, that:

A. Use of such Covered Product enables the user to reduce food intake,

including by as much as by fifty percent;

B. Use of such Covered Product enables the user to lose weight, including

as much as 21 pounds in one month and as much as 100 pounds in

seven to ten months;

C. A significant percentage of users, including as much as ninety percent

of users, of such Covered Product will lose substantial amounts of

weight;

D. Such Covered Product is comparable or superior to bariatric surgery in

providing weight-loss benefits;

E. The efficacy of such Covered Product for achieving weight loss is

scientifically proven; or

F. Such Covered Product is safe and effective for weight loss in children;

unless the representation is non-misleading and, at the time of making such

representation, Defendants possess and rely upon competent and reliable

scientific evidence in the form of adequate, well-controlled, human clinical

testing, that is sufficient in quality and quantity based on standards generally

accepted by experts in the relevant scientific fields, when considered in light of

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the entire body of relevant and reliable scientific evidence, to substantiate that

the representation is true.

4. Defendants and their officers, agents, servants, employees and attorneys, and

all other persons in active concert or participation with any of them, are hereby

PERMANENTLY RESTRAINED AND ENJOINED from:

A. Purporting to bind, including through any notice, warning, threat to

enforce or attempt to enforce, any purchaser of a Covered Product—

regardless of when purchased—to any contractual provision that

purports to prohibit purchasers from speaking or publishing truthful or

non-defamatory negative comments or reviews about Defendants, their

products, or their employees;

B. Defendants may, however, purport to bind, including through notices,

warnings, threats to enforce or attempts to enforce, any purchaser of a

Covered Product—regardless of when purchased—to a contractual

provision that purports to prohibit purchasers from speaking or

publishing untruthful and defamatory negative comments about

Defendants, their products, or their employees, provided that in any

contractual provision the Defendants use after entry of this Order to

restrict future customers from publishing untruthful and defamatory

statements, Defendants shall include the entirety of Paragraph 4 of this

Order in bold print. In the event that the Defendants believe they have

been defamed or that untruthful statements have been made about them

in a context that would be actionable under this subsection (B), the

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Defendants must notify the FTC and give the FTC fourteen (14) days to

review said alleged untruthful and defamatory statement in order to

determine whether it would object to any pursuit of such statement by

the Defendants against such customer, including such action as future

litigation against, or submission of any type of warning or cease and

desist letter or communication to, such consumer;

C. Representing that any purchaser of a Covered Product—regardless of

when purchased—owes or has agreed to pay the difference between

any purported “discount price,” “subsidized price,” or other price the

purchaser was actually charged at the time of purchase of a Covered

Product and the purported “full price” for a Covered Product, if the

purchaser speaks or publishes negative comments or reviews about

Defendants, their products, or their employees; or

D. Retaliating, threatening to take, or taking any adverse action against any

person who communicates or cooperates with, provides statements,

documents, or information to, or testifies on behalf of, the FTC or other

party in connection with any law enforcement investigation or filed

litigation, including by enforcing or threatening to enforce any

contractual provision that purports to prohibit the person from speaking

or publishing negative or disparaging comments or reviews about

Defendants, their products, or their employees. Nothing in this

subsection, however, shall bar Defendants from filing an action or from

taking any legally required steps to file or maintain an action, provided

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that the action: (1) does not violate subsections A-C, above; and (2) is

not based upon cooperation with any law enforcement organization, or

any statement made or information provided in connection with any law

enforcement investigation, filed litigation or proposed litigation.

Any person, including any purchaser of a Covered Product, may cooperate with

and provide statements to the FTC and any outside party without regard to any

existing agreement purporting to limit or prevent purchasers from

communicating with any party about Defendants, their products, or their

employees.

5. Defendants and their officers, agents, servants, employees and attorneys, and

all other persons in active concert or participation with any of them, who receive

actual notice of this Order by personal service or otherwise, are hereby

PERMANENTLY RESTRAINED from:

A. misrepresenting that any website, including but not limited to

Gastricbypass.me, is an independent, objective resource for research

and information related to bariatric surgery and alternatives to bariatric

surgery for weight loss, and about Roca Labs products;

B. failing to disclose, or disclose adequately:

i. any material connection, including but not limited to

compensation, incentives, refunds, or discounts, when such a

connection exists between any user or endorser of any Covered

Product and Defendants or any other person manufacturing,

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advertising, labeling, promoting, offering for sale, selling, or

distributing such Covered Product; and

ii. If applicable, that the content of any website, publication, or

testimonial has not been authored by an independent objective

source but is in fact an advertisement placed for compensation

6. Defendants and their officers, agents, servants, employees and attorneys, and

all other persons in active concert or participation with any of them, who receive

actual notice of this Order by personal service or otherwise, are hereby

PERMANENTLY RESTRAINED from disclosing to any third party any health

or medical information consumers submitted in the process of qualification for

or purchase of Defendants’ products, unless such disclosure is reasonably

necessary to protect the health or safety of any person, is required by law or

court order, is made in a non-public court filing, or is provided in response to a

discovery request and subject to confidential treatment by the requesting party.

7. Defendants shall immediately provide a copy of this Order to each of their

companies, corporations, subsidiaries, affiliates, divisions, directors, officers,

agents, partners, successors, assigns, employees, attorneys, agents,

representatives, sales entities, sales persons, telemarketers, independent

contractors, and any other persons in active concert or participation with them.

Within from the date of entry of this Order, each Defendant shall serve on the

Commission an affidavit identifying the name, title, address, telephone number,

date of service, and manner of service of each person or entity that said

Defendant served with a copy of this Order in compliance with this Section.

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8. For purposes of this Order for Permanent Injunction, the following definitions

shall apply:

A. “Covered Product” means any dietary supplement, food, or drug that

contains glucomannan, guar gum, beta glucan, or xanthan gum,

including, but not limited to, Roca Labs “Formula,” Roca Labs “Anti-

Cravings,” Roca Labs Gastric Bypass Alternative, Roca Labs Gastric

Bypass No Surgery, and any other Roca Labs “Procedure.”

B. “Person” means a natural person, an organization or other legal entity,

including a corporation, partnership, sole proprietorship, limited liability

company, association, cooperative, or any other group or combination

acting as an entity.

C. “Representative” or “Representatives” means Defendants’ officers,

directors, managers, members, agents, servants, employees,

contractors, and attorneys, and any other Person or entity in active

concert or participation with them, who receives actual notice of this

Order by personal service or otherwise.

D. “Competent and Reliable Scientific Evidence” means tests,

analyses, research, or studies that have been conducted and evaluated

in an objective manner by qualified persons and are generally accepted

in the profession to yield accurate and reliable results.

E. “Document” or “Documents” means any materials listed in Federal

Rule of Civil Procedure 34(a) and includes writings, drawings, graphs,

charts, photographs, audio and video recordings, computer records, and

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other data compilations from which information can be obtained and

translated, if necessary, into reasonably usable form through detection

devices. A draft or non-identical copy is a separate Document within the

meaning of the term.

F. “Material connection” shall mean any relationship that materially

affects the weight or credibility of any endorsement and that would not

be reasonably expected by consumers.

9. The Court reserves jurisdiction to determine the amount of attorney’s fees,

costs, and expenses to be awarded to Plaintiff. Such a motion shall be filed

within fourteen (14) days of the date of this Order.

10. The Clerk is directed to TERMINATE any pending motions and CLOSE this

case.

DONE and ORDERED in Tampa, Florida, this 6th day of November, 2018.

Copies furnished to:


Counsel of Record
Any Unrepresented Person

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