Success by Health and Jay Noland are set to appeal three orders against them; the original preliminary injunction order, and the FTC’s granted motion for sanctions and summary judgment.

SBH’s second preliminary injunction appeal stems from a late September order, which in turn stemmed from denial of SBH’s first injunction appeal.

That injunction pertained to the Supreme Court’s AMG decision earlier this year, which SBH put forth meant the preliminary injunction should be dissolved.

The Ninth Circuit disagreed, punting the case back to the District Court.

The District Court denied SBH’s preliminary injunction dissolve motion on September 23rd.

That order is now being appealed, again in the Ninth Circuit.

With respect to the FTC’s granted motions for contempt sanctions and liability summary judgment, on October 6th SBH filed a motion requesting the court certify the orders for interlocutory appeal.

In support of their motion, SBH argues

the Court’s finding in this regard effectively reflects the Court’s determination, on papers alone—i.e., without oral argument, let alone an evidentiary hearing— that Individual Defendants are dishonest and lack credibility.

The Court did not merely find that an adverse inference was appropriate based upon the lost evidence, but also found that there was a malicious intent by Individual Defendants to “conceal and destroy evidence.”

The Court’s determination of Individual Defendants’ motives, intent, and character is reflected in not only the 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 that is also presented for certification in this motion.

In opposition to the motion, the FTC writes;

Individual Defendants specify no “controlling question of law” and present no argument that “a substantial ground for difference of opinion exists.”

Further, granting their motion would prolong this litigation, not shorten it.

Individual Defendants merely seek to re-litigate a “credibility and character” decision regarding their spoliation of evidence as well as a generic review of the Court’s summary judgment decision on VOZ Travel.

At time of publication a decision on SBH’s certification motion remains pending.

I’ll leave an update below when the Ninth Circuit has ruled on the September preliminary injunction order appeal.

 

Update 6th November 2021 – Success by Health’s certification motion has been denied.

The court found the motion failed to meet the required criteria.