Federal Trade Commission v. Wellness Support Network, Inc. et al

Filing 78

ORDER GRANTING re 76 STIPULATION To Extend Continuance and to Set New Schedule; Declaration of Laura Fremont in Support filed by Federal Trade Commission. Case Management Statement due by 10/5/2012. Further Case Management Conference set for 10/12/2012 01:30 PM in Courtroom G, 15th Floor, San Francisco.. Signed by Judge Joseph C. Spero on 8/23/12. (klhS, COURT STAFF) (Filed on 8/23/2012)

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WILLARD K. TOM
General Counsel

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LAURA FREMONT
Calif. Bar No. 159670
KENNETH H. ABBE
Calif. Bar No. 172416
Federal Trade Commission
901 Market Street, Suite 570
San Francisco, CA 94103
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiff
Federal Trade Commission

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Francisco Division

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Case No. 3:10-cv-04879-JCS

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FEDERAL TRADE COMMISSION,

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Plaintiff,

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v.

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WELLNESS SUPPORT NETWORK, INC.,
a corporation, ROBERT HELD,
individually and as an officer of Wellness
Support Network, Inc., and ROBYN HELD,
individually and as an officer of Wellness
Support Network, Inc.,

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STIPULATION AND [PROPOSED]
ORDER TO EXTEND CONTINUANCE
AND TO SET NEW SCHEDULE;
DECLARATION OF LAURA FREMONT
IN SUPPORT
Date of next CMC: August 31, 2012
Time: 1:30 p.m.
Place: Courtroom G, 15th Floor
Judge: Hon. Joseph C. Spero

Defendants.

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STIP. TO EXTEND CONTINUANCE &

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Pursuant to L. R. 6-2 and L.R. 7-12, Plaintiff Federal Trade Commission (“FTC”) and

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defendants Wellness Support Network, Inc., Robert Held, and Robyn Held (“Defendants”)

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respectfully request that the Court extend the continuance in this case to September 30, 2012

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to facilitate settlement, and approve the below schedule the parties propose to follow in the

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event settlement is not achieved.

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A.

Extension of Continuance to September 30, 2012

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With the assistance of the Honorable Magistrate Judge Corley, the parties have agreed

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in principle to a stipulated judgment and final order that will fully resolve this case. The

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parties, as a condition of settlement, agreed to consult on certain steps that would be required

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for Defendants to comply with the order. To facilitate the completion of these steps, the

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parties stipulated, and on May 21, 2012 this court ordered, that deadlines in this matter be

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continued three months (Dkt. #74). The parties also agreed to meet for a subsequent

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settlement conference with Judge Corley towards the end of the process. Due to the need to

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coordinate the schedules of counsel and Judge Corley, the settlement conference will take

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place on September 7, 2012 (see Clerk’s Notice Scheduling Settlement Conference, entered

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into the ECF system on July 19, 2012; no document number assigned). Because the existing

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continuance granted by the Court’s previous Order (Dkt. 74) would expire before the

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settlement conference, the parties respectfully request the Court to extend the existing

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continuance until September 30, 2012.

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Should Defendants sign the stipulated judgment and order, counsel for the FTC will

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submit the proposed final order to the five members of the Federal Trade Commission, with a

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recommendation that the Commission approve it. All settlements negotiated by FTC

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attorneys and signed by defendants must be voted on by the Commission. The approval

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process takes some time given the number and breadth of matters pending votes of the

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Commission. The parties are not requesting, however, a continuance past September 30 at

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this time.

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B.

Proposed Schedule Should Settlement Not be Reached

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The parties remain hopeful that the settlement the parties have reached in principle

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will be finalized. In the event that by September 30 it is obvious that litigation must resume,

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however, counsel have conferred and stipulated to a proposed schedule.

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At the time deadlines were continued to provide time for settlement (Dkt. #74), the

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parties had already propounded lengthy discovery on opponents. Although deadlines were

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continued, counsel for the parties have nevertheless attempted to resolve known issues so that

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discovery can continue expeditiously should litigation resume. The parties have, for example,

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agreed to a protective order (filed concurrently with this Stipulation). The protective order

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addresses concerns Defendants expressed regarding production of certain documents and

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information. The protective order will thus enable prompt provision of withheld documents

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and information at the expiration of the continuance, without resort to motion practice. The

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parties have also committed to providing all other outstanding discovery responses

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immediately upon expiration of the continuance.

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In spite of these good faith efforts to expedite this litigation, after frank discussion

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both parties believe some discovery motion practice is likely. The proposed schedule reflects

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a very modest amount of time to account for that likelihood, and to permit provision of any

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disputed materials in time for use at deposition. In addition, the schedule reflects the

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unavailability of expert witnesses for deposition over the December holidays (although the

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schedule does contemplate production of expert reports shortly after the holidays end).

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Lastly, the proposed schedule provides a slightly longer dispositive motion briefing schedule

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than provided for motions under the local rules, to allow the parties sufficient time to

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thoroughly brief the myriad issues in this case and increase the possibility of resolving this

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matter without need for a trial.

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C.

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The parties propose the following schedule should litigation resume:

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1. Parties shall exchange identities and curriculum vitae of primary experts by

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Proposed Revised Schedule

November 13, 2012.

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2. All non-expert discovery shall be completed by December 10, 2012.

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3. All primary expert reports shall be exchanged by January 10, 2013.

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4. All expert rebuttal reports shall be exchanged by February 8, 2013.

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5. All expert discovery shall be completed by March 15, 2013.

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6. Dispositive motions shall be filed by April 26, 2013.

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7. Oppositions to dispositive motions shall be filed by May 17, 2013.

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8. Replies to oppositions to dispositive motions shall be filed by May 31, 2013.

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IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN THE

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PARTIES through their respective attorneys of record as follows:
WHEREAS the parties have proposed a settlement in principle, approval of the

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proposed settlement appears likely, and the settlement will preclude the need for further trial

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preparation; and

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WHEREAS should it become clear by September 30, 2012 that litigation must resume,
the parties have consulted on a schedule therefor;
THEREFORE, the parties have stipulated and agreed, subject to the approval of the

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Court, that the existing continuance in this matter be extended to September 30, 2012, and that

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should litigation resume at the end of the continuance, the parties will abide by the schedule

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proposed in this stipulation.

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SO STIPULATED:

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DATED: August 21, 2012

/s/ Laura Fremont___
Laura Fremont

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Kenneth H. Abbe
Attorneys for Plaintiff
Federal Trade Commission

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(The filer attests that concurrence in the filing of this document has been obtained from the
other signatories.)

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DATED: August 21, 2012

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__s/Andrew S. Ittleman___
Mitchell Fuerst
Andrew S. Ittleman
Fuerst Ittleman David & Joseph PL
Attorneys for Defendants
Wellness Support Network, Inc., Robert Held,
and Robyn Held

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PURSUANT TO STIPULATION, IT IS SO ORDERED. IT IS HEREBY FURTHER

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ORDERED THAT the further case management conference scheduled for August 31, 2012, at

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1:30 p.m., has been continued to October 12, 2012, at 1:30 p.m. The updated joint case

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management conference statement shall be due by October 5, 2012.

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DATED: August 23, 2012

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/s/ Joseph C. Spero
JOSEPH C. SPERO
UNITED STATES MAGISTRATE JUDGE

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DECLARATION OF LAURA FREMONT

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IN SUPPORT OF STIPULATION TO EXTEND CONTINUANCE AND SET NEW

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SCHEDULE

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I, LAURA FREMONT, declare as follows:

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1.

I am an attorney with the Federal Trade Commission, the plaintiff in the above-

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captioned action. I make this Declaration in support of the foregoing Stipulation to Extend

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Continuance and Set New Schedule. I have personal knowledge of each of the following

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facts, and would and could competently testify thereto if called upon to do so in a court of

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law.

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2.

Reasons for the requested enlargement of time (Local Rule 6-2(a)(1)):

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With the assistance of the Honorable Magistrate Judge Jacqueline Scott Corley, the parties

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have agreed in principle to a stipulated judgment and final order that will fully resolve this

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case. The parties, as a condition of settlement, agreed to consult on certain steps that would

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be required for Defendants to comply with the order, and agreed to meet with Judge Corley

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towards the end of the process. Due to the necessity of coordinating the schedules of counsel

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and Judge Corley, the settlement conference will take place on September 7, 2012. Because

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the existing continuance (see Dkt. #74) would expire before the settlement conference is held,

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however, the parties respectfully request the Court to extend the existing continuance until

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September 30, 2012. Once completed, counsel for the FTC will submit the proposed final

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order to the Commission, with a recommendation that the Commission approve it.. All

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settlements negotiated by FTC attorneys and signed by defendants must be voted on and

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approved by the Commission.

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3.

Disclosure of all previous time modifications (Local Rule 6-2(a)(2)): The

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FTC filed its Complaint (Dkt #1) in this matter on October 28, 2010. Defendants’ initial

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deadline to respond to the Complaint was November 26, 2010. On November 24, 2010, the

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parties filed a stipulation (Dkt #5) to extend that deadline to December 29, 2010; to set the

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deadline for Plaintiff to file its opposition to any papers filed by Defendants responsive to the

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Complaint to January 14, 2011; and to set the hearing on such matters for February 4, 2011.

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The Court so ordered on November 29, 2010 (Dkt #6).

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On December 15, 2010, the parties filed a stipulation (Dkt #7) to modify the times set

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in the Court’s Order Setting Initial Case Management Conference and ADR Deadlines (Dkt

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#3). The Court so ordered on December 15, 2010 (Dkt #8).

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On January 26, 2011, the parties filed a Second Stipulation to Revise Schedule (Dkt
#21) to modify the times set in the Court’s Order Setting Initial Case Management

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Conference and ADR Deadlines (Dkt #3). The Court so ordered on January 27, 2011 (Dkt

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#22).

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On April 4, 2011, the Court entered an Order (Dkt #24) granting in part and denying in

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part Defendants’ Motion to Dismiss Complaint. As a result of this Order, the parties filed a

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Joint Stipulation (Dkt # 25) on April 18, 2011 to provide time frames for Plaintiff to re-plead

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its Complaint in part and for Defendants to file responsive papers. The Court so ordered on

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April 18, 2011 (Dkt #26).

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On May 12, 2011, the parties filed a Joint Stipulation to Revise Schedule (Dkt. #28) to

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extend by 20 days the time for Defendants to file pleadings responsive to Plaintiff’s First

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Amended Complaint (Dkt. #27), and to extend by 20 days the deadlines for the parties to

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perform the tasks required by the Court’s case management orders. The Court so ordered on

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May 16, 2011. (Dkt. #29).

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On June 15, 2011, the parties filed a Joint Stipulation (Dkt. #32) to extend the

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deadlines for the Plaintiff to file its opposition to Defendants’ Motion to Dismiss, the

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Defendants’ reply, and the deadlines for the parties to perform the tasks required by the

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Court’s case management orders. The Court so ordered on June 16, 2011. (Dkt. #33).

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On June 28, 2011, the parties filed a Joint Stipulation to Revise Schedule (Dkt. #34) to

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extend the deadlines for the Defendants to file their Reply to Plaintiff’s Opposition to

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Defendants’ Motion to Dismiss. The Court so ordered on June 29, 2011. (Dkt. #36).

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On September 7, 2011, the parties filed a Joint Stipulation to Revise Schedule (Dkt.

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#42) to extend the deadlines for the parties to exchange initial disclosures. The Court so

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ordered on September 29, 2011. (Dkt. #43).

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On November 8, 2011, the parties filed a Joint Stipulation to Revise Schedule Re:

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Exchange of Reports and Settlement Conference (Dkt. #53) to extend deadlines for the

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exchange of expert reports for settlement purposes only and to reschedule the case settlement

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conference in this matter. The Court so ordered on November 9, 2011. (Dkt. #54).
On January 18, 2012, the parties filed a Joint Stipulation to Revise Schedule (Dkt. #62)

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to extend deadlines for the exchange of expert reports for settlement purposes only, to

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reschedule the case management conference in this matter, and to reschedule the case

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settlement conference in this matter. The Court so ordered on January 23, 2012. (Dkt. # 63).

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On March 13, 2012, the parties filed a Joint Stipulation to Revise Schedule (Dkt. #65)

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to reschedule the Settlement Conference before the Honorable Judge Corley from May 4 to

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May 11, 2012. The Court so ordered on March 15, 2012 (Dkt. #66).

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On May 18, 2012, the parties filed a Stipulation and Proposed Order Continuing

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Deadlines for Three Months Pending Settlement Review (Dkt. #73), to give the parties the

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opportunity to take certain steps agreed to at the May 11, 2012 settlement conference with

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Judge Corley. The Court so ordered on May 21, 2012 (Dkt.#74).

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A subsequent settlement conference is scheduled to take place on September 7, 2012

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(No document number; see Clerk’s Notice Scheduling Settlement Conference, entered into the

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ECF system on July 19, 2012).

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4.

Description of the effect the requested time modification would have on

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the schedule for the case (Local Rule 6-2(a)(3)): The proposed time modifications would

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(1) extend the current continuance to September 30, 2012; and (2) set a schedule for

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resumption of litigation should settlement not be reached.

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I declare under penalty of perjury under the laws of the United States of America that

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the foregoing is true and correct, and that this Declaration was executed on August 21, 2012, at

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San Francisco, California.

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____s/ Laura Fremont________

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Laura Fremont
Attorney for Plaintiff
Federal Trade Commission

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