A May 10th Case Management Report has revealed a proposed 2020 MOBE trial date.

Matt Lloyd McPhee’s response to production of evidence also suggests he might be anticipating criminal charges.

Before we get into that, just an update on Russel Whitney’s representation.

Whitney, as an alleged top earner in MOBE, is a defendant in the FTC’s case.

Whitney passed away in November 2018. In March of this year a relative (his mother) was appointed representative of this estate.

For all matters going forward concerning Whitney as a defendant, his mother will represent and act on behalf of his estate.

On May 10th the FTC filed a Case Management Report.

In the report scheduling agreed upon by the parties reveals a penciled in April 7th, 2020 trial date.

That said, mediation is also tentatively scheduled for September 23rd. In the “settlement” section of the report, the parties also agree that settlement prior to trial remains likely.

Russel Whitney’s settlement with the FTC is still pending court approval.

Last we heard a possible settlement between the FTC and Lloyd had broken down, although the latest suggests negotiations are ongoing.

In any event the other point of interest in the Case Management Report pertains to Lloyd’s production of electronically stored information (ESI).

On a May 3rd conference call between the parties, the topic of ESI was discussed.

As per the Case Management Report;

McPhee expressed discomfort answering the FTC’s questions on the call and requested the FTC to send him the questions in writing.

On May 7, 2019, the FTC emailed McPhee a list of written questions relating to ESI.

On May 9, Defendant McPhee replied: “Regarding the questions attached to your last email; I’m not comfortable testifying or answering questions at this stage.

I may assert my fifth amendment privilege, and / or the act of production privilege where applicable.

The FTC and McPhee will continue their discussion about ESI once McPhee decides whether he will be asserting his Fifth Amendment privilege.

If Lloyd asserted his Fifth Amendment privilege, it would be under the self-incrimination clause.

The self-incrimination clause provides various protections against self-incrimination, including the right of an individual to not serve as a witness in a criminal case in which they are the defendant.

If the FTC challenged Lloyd, as I understand it he’d be required to provide evidence that an indictment and/or criminal proceedings were pending.

As it stands I’m not aware of any evidence of criminal proceedings against Lloyd, pending or otherwise.

This exact scenario came up in the USFIA case, wherein owner Steve Chen refused to provide the SEC with requested financial information.

Chen attempted to stay the SEC’s request, but was knocked back because he couldn’t ‘point to any concrete evidence that a criminal prosecution is imminent‘.

As per the Case Management Report, a discovery deadline has been set for September 23rd. Stay tuned…