“Entities constitute a typical enterprise whenever they display either straight or horizontal commonalityвЂ”qualities which may be demonstrated by a showing of strongly interdependent economic passions or the pooling of assets and profits.” F.T.C. v. System Servs. Depot, Inc., 617 F.3d 1127, 1142-43 (9th Cir. 2010). In determining whether a standard enterprise exists, courts may give consideration to such facets as if the businesses had been under typical ownership and control; if they pooled resources and staff; if they shared cell phone numbers, workers, and e-mail systems; and if they jointly took part in a “common endeavor” by which they benefited from the provided company scheme or referred clients one to the other. Id. at 1243.
Meant for its declare that the Tucker Defendants involved with a standard enterprise, the FTC points out that “the Tucker business Defendants, wholly owned and managed by Scott Tucker and Blaine Tucker, shared a workplace with one another and provided workers with AMG.” (Mot. for Prelim. Inj. 24:13-14; see also Ex. 57 to Singhvi Decl., ECF No. 57; Cert. of Int. Events, ECF No. 58; Tucker Defs.’ Am. Ans. В¶В¶ 10-12, 15, ECF No. 397). Further, the FTC additionally shows that the Tucker business Defendants as well as the Lending Defendants commingled corporate funds through “a huge number of excessive and apparently random payments produced by the Lending Defendants into the Tucker business Defendants.” (Mot. for Prelim. Inj. 24:13-14; see also Ex. 5 to Singhvi Decl. at 5-7, 22-25, 45, 53, 57, 67-70, ECF No. 781-11).
The “Tucker Corporate Defendants” are: AMG; amount 5 Motorsports, LLC; LeadFlash asking LLC; Ebony Creek Capital Corporation; and Broadmoor Capital Partners.
Although the Tucker Defendants acknowledge that “the majority of the Motion for Preliminary Injunction is specialized in attempting to establish that Scott and Blaine Tucker had been people in the so-called typical enterprise,” they neither reveal nor refute the FTC’s proof that lenders involved in an enterprise that is common. (Tucker Defs.’ Resp. 21:10-11, ECF No. 797). Properly, centered on FTC’s proof showing that a standard enterprise existed, plus the Tucker Defendants’ tacit agreement for this claim by neglecting to refute it, the Court discovers that the FTC probably will flourish in demonstrating that the Tucker Defendants involved in an enterprise that is common.
The Relief Defendants are Liable
District courts receive broad authority underneath the FTC Act to fashion equitable treatments into the degree required to guarantee relief that is effective. System Servs. Depot, 617 F.3d at 1141-42. “The broad equitable capabilities associated with the federal courts may be employed to recover sick gotten gains for the benefit of the victims of wrongdoing, whether held by the initial wrongdoer or by one that has gotten the profits following the incorrect.” S.E.C. v. Colello, 139 F.3d 674, 676 (9th Cir. 1998). “The creditor plaintiff must show that the relief defendant has received ill gotten funds and therefore he won’t have a genuine claim to those funds.” Id. at 677. The remedy is an equitable monetary judgment in the amount of the funds that the relief defendant received upon such a showing. See id.; see additionally S.E.C. v. Banner Fund Int’l, 211 F.3d 602, 617 (D.C. Cir. 2000) (“Disgorgement can be an obligation that is equitable get back a amount corresponding to the total amount wrongfully acquired, instead of a necessity to replevy a certain asset.”).
The Relief Defendants received funds based on the fraudulent tasks associated with the other defendants. Kim Tucker received at the very least $19 million in non-salary re payments, frequently orchestrated by Scott Tucker, originating from a Lending Defendant or an associate associated with typical enterprise. (See, e.g., Ex. 109 to Singhvi Decl., ECF No. 781-115). Park 269, wholly owned by Kim Tucker and nominal owner of a $8 million mansion in Aspen, Colorado, additionally received re re payments arranged by Scott Tucker when it comes to home’s purchase, home loan, home fees, furnishing, upkeep, and housekeeping. (See, e.g., Ex. 118 to Singhvi Decl., ECF No. 781-124). According to this proof of commingling of funds, and given that the Court has preliminarily discovered Scott Tucker become really responsible for violations associated with the FTC Act, the Court discovers that the FTC has demonstrated a likelihood of success so it shall get over the Relief Defendants.