Federal Trade Commission v. MOBE Ltd. et al
Filing
246
ORDER denying 219 Motion to Intervene; granting 222 Amended Motion to Approve Settlement with Matthew Lloyd McPhee and Related Entities; adopting 228 Report and Recommendations; adopting 229 Report and Recommendations. Signed by Judge Roy B. Dalton, Jr. on 12/19/2019. (ctp) (JLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
Case No. 6:18-cv-862-Orl-37DCI
MOBE LTD.;
MOBEPROCESSING.COM, INC.;
TRANSACTION MANAGEMENT
USA, INC.; MOBETRAINING.COM,
9336-0311 QUEBEC INC.; MOBE PRO
LIMITED; MOBE INC.; MOBE ONLINE
LTD.; MATT LLOYD
PUBLISHING.COM PTY LTD.;
MATTHEW LLOYD MCPHEE; SUSAN
ZANGHI; and INGRID WHITNEY,
Defendants.
ORDER
Before the Court are Synovus Bank’s (“Synovus”) Motion to Intervene (Doc. 219)
and Receiver’s Amended Motion to Approve Settlement with Matthew Lloyd McPhee
and Related Entities (Doc. 222 (“Settlement Motion”)). The Federal Trade Commission
(“FTC”) and the Special Receiver both oppose Synovus’ Motion to Intervene. (Docs. 224,
225.) The Settlement Motion is unopposed. United States Magistrate Judge Daniel C. Irick
prepared reports and recommendations (“R&Rs”) for both motions. (Docs. 228, 229.)
Synovus objected to the R&R on the Motion to Intervene (Doc. 232 (“Objection”)); the
FTC and the Special Receiver both responded (Docs. 235, 236). No objections were filed
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to the R&R on the Settlement Motion. All motions ripe, the Court denies the Motion to
Intervene and grants the Settlement Motion. In so doing, the Court adopts both R&Rs in
full and overrules the Objection.
I.
BACKGROUND
The FTC sued MOBE Ltd. and its related entities (collectively, “MOBE”), Matthew
Lloyd McPhee and a related entity, Susan Zanghi, and Ingrid Whitney (collectively,
“Defendants”) for alleged violations of Section 5(a) of the Federal Trade Commission
Act, 15 U.S.C. § 45(a). (Doc. 1 (“Complaint”).) The Complaint alleged Defendants
operated a fraudulent internet business education program called “My Online Business
Education” or “MOBE” for short. (Id.) Defendants claimed the MOBE program would
“reveal a simple 21-step system that will show consumers how to quickly and easily start
their own online business and make substantial income.” (Id. at 2.) Alas, like most get rich
quick schemes, MOBE failed to deliver on its promises. (See id. at 3.) According to the
FTC, “the vast majority of consumers who join the MOBE program and purchase the
costly MOBE memberships lose money.” (Id.) The FTC claimed Defendants defrauded
thousands of consumers who collectively paid Defendants over $125,000,000. (Id. at 3–4.)
With the Complaint, the FTC moved for a temporary restraining order (“TRO”)
and a temporary receiver. (Docs. 3, 6.) The Court granted the motions and appointed
Mark J. Benet as temporary receiver (“Receiver”). (Doc. 13.) The TRO: (i) enjoined the
Defendants from violating Section 5(a) of the FTC Act; (ii) imposed an asset freeze on
Defendants and certain third parties; and (iii) appointed the Receiver as temporary
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receiver of the “Receivership Entities.” (Id.) 1
Two third parties, Qualpay and Synovus (“Proposed Intervenors”), were
unhappy with the TRO. Qualpay is the credit card processing company that processed
MOBE’s transactions. (Doc. 38, p. 3.) Synovus is the bank where Qualpay maintains
accounts on behalf of merchants during credit card processing. (See id.) They claimed an
ownership interest in a portion of the frozen assets (“Reserve Fund”). (Doc. 32, pp. 1–4;
Doc. 57, pp. 7–8, 14.).
The dispute over the Reserve Fund arises from the convoluted structure credit
card companies employ to avoid direct interaction with consumers and merchants.2
(Doc. 83, pp. 4–5.) The ownership of the MOBE Reserve Fund, held in Qualpay’s Reserve
Account at Synovus Bank, was hotly contested during the TRO. And the stakes weren’t
small—the Reserve Fund contained about $6.3 million. (Doc. 57, pp. 6–7.) So who did that
money belong to?
Synovus and Qualpay claimed the money belonged to them, while the FTC
insisted it was MOBE’s. (Id.) Synovus and Qualpay filed motions for relief from the TRO
and, “to the extent necessary,” to intervene to obtain the release of the Reserve Fund.
(Doc. 32, pp. 1–4; Doc. 57, pp. 7–8, 14.) The Court allowed them to appear and argue the
merits of their objections to the TRO (see Docs. 32, 42, 60, 89, 98), then denied both motions
The TRO was converted into a series of preliminary injunctions, containing
essentially the same terms. (See Docs. 94, 95, 107.)
2 This structure was described in the Court’s Order on August 8, 2018. (See Doc. 83,
pp. 4–5.)
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in full (Doc. 83 (“August 2018 Order”)). The Court concluded “MOBE is the rightful
owner of the reserve account” and Qualpay and Synovus were merely “’middleman’
processors without additional entitlement to the funds.” (Id. at 9.) The undersigned
ordered the funds turned over to the Receiver and placed in a constructive trust. 3 (Id. at
p. 13–14.)
Approximately nine months after Synovus was ordered to turn over the Reserve
Fund, the Receiver moved for appointment of a special receiver regarding potential
claims against Qualpay and Synovus. (Doc. 181.) The Receiver explained Synovus had
threatened to move to disqualify the Receiver, alleging he was in a position of conflict.
(Id. at 1.) The Court appointed Burton Wiand (“Special Receiver”) to handle the
receivership estate’s potential claims against Qualpay and Synovus. (Id.)
On June 3, 2019, almost a year after intervention was first attempted, Synovus
moved for return of the $6.3 million Synovus had “conditionally paid” to the Receiver.
(Doc. 189 (“Claims and Defenses”).) Synovus asserted “defenses” to the FTC and the
Receiver and a “claim” for affirmative relief against Qualpay and the Special Receiver.
(Id. at 1.) Qualpay filed its “answer” to Synovus’ Claims and Defenses. (Doc. 196
(“Qualpay’s Reply”).) No less than four motions were filed attacking the propriety of
these pleadings. The FTC moved to limit Synovus’s intervention (Doc. 194) and a motion
to set aside Qualpay’s Reply (Doc. 208). The Special Receiver moved to dismiss the Claims
Synovus and Qualpay sought to appeal the Order, but the appeal was voluntarily
withdrawn. (Docs. 96, 97, 129.)
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and Defenses (Doc. 195) and a motion to strike or dismiss Qualpay’s Reply (Doc. 210).
At a hearing on a separate matter, 4 U.S. Magistrate Judge Irick, sua sponte, turned
his attention to Qualpay’s and Synovus’ appearance. Both Proposed Intervenors had filed
motions with the Court and appeared at the hearing—but compliance with Rule 24 for
intervention was questionable. See Fed. R. Civ. P. 24. The Proposed Intervenors had
moved for a “special appearance” and, “to the extent necessary, to intervene” to challenge
the TRO (see Docs. 32, 57) but (1) after allowing Qualpay and Synovus to appear to argue,
the motions were denied (see Doc. 83); and (2) these latest filings and appearances far
exceeded the scope of challenging the TRO. (See Doc. 219; Doc. 219-1.)
When U.S. Magistrate Judge Irick pressed the Proposed Intervenors, neither
contended they complied with Rule 24. (Doc. 214, p. 3.) Neither had obtained leave to
intervene to file their latest pleadings (Docs. 189, 196) nor filed a “motion accompanied
by a pleading that sets out the claim or defense for which intervention is sought.” (Doc.
214, p. 3 (quoting Fed. R. Civ. P. 24(c)).) U.S. Magistrate Judge Irick struck the Claims
and Defenses and Qualpay’s Reply with leave to file motions to intervene. (Id. at 3–4.)
On September 3, 2019, almost one year and three months after the Complaint had
been filed, Synovus moved to intervene, arguing both intervention as of right and for
The parties filed a joint motion to stay all case proceedings (Doc. 209 (“Joint
Motion to Stay”)) and a hearing was held before U.S. Magistrate Judge Irick, where the
parties explained they had not conferred with Qualpay or Synovus because they only
sought to stay the Case Management and Scheduling Order (“CMSO”) deadlines, none
of which involved the Proposed Intervenors. (Doc. 212; Doc. 214, p. 3.) The court granted
the Joint Motion to Stay, extending the deadlines in the CMSO. (Doc. 214.)
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permissive joinder. (Doc. 219 (“Motion to Intervene”).) Both the FTC and the Special
Receiver oppose intervention. (Docs. 224, 225.)
Meanwhile, the parties made great strides towards resolution. On September 6,
2019, the Receiver moved for the approval of a settlement between the FTC and
Defendants Matthew Lloyd McPhee and related entities. (Doc. 222.) And on December 6,
2019, the FTC filed a Consent Motion for Approval and Entry of Stipulated Order for
Monetary Judgment as to Russell W. Whitney’s Estate. (Doc. 239.) U.S. Magistrate Judge
Irick recommends denying the Motion to Intervene and granting the Settlement Motion.
(Docs. 228, 229.) The Court agrees.
II.
LEGAL STANDARDS
When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the district court.” Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). The district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court must consider the record
and factual issues based on the record independent of the magistrate judge’s report.
Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).
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III.
ANALYSIS
The objected-to R&R on the Motion to Intervene is reviewed de novo. The R&R on
the Settlement Motion is reviewed only for clear error.
A.
R&R on Motion to Intervene
Synovus claims the right to intervene or requests permission to intervene under
Federal Rule of Civil Procedure 24(a), (b). (Doc. 219, pp. 1–2.) Synovus argues it has a
legal interest in the Reserve Fund and disposing of this action “may, as a practical matter,
impair or impede Synovus’s ability to protect that interest.” (Id.) Synovus also argues
permissive intervention is appropriate because it seeks to assert a claim and defense that
shares common questions of law or facts with the action, namely who is entitled to the
Reserve Fund. (Id. at 2.) The FTC opposes the motion, arguing the sole purpose of
Synovus’s present intervention “is to retrieve the $6.3 million . . . —the same funds this
Court already ordered be frozen and held by the Receiver until resolution of the FTC’s
underlying lawsuit against the MOBE defendants.” (Doc. 224, p. 2.) And Synovus’ claim
should be “assessed through a claims process that can determine the validity and priority
of every claim held by MOBE’s numerous creditors and victims,” pointing out Synovus,
through its processing agent Qualpay, “enabled MOBE to process nearly $80 million in
consumer credit card payments over an 18-month period.” (Id.)
The Special Receiver also opposes intervention, arguing Synovus cannot satisfy
the requirements of Rule 24 and “Synovus’ proposed plenary litigation would undermine
the orderly administration of the Receivership by the Court.” (Doc. 225, p. 2.) Like the
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FTC, the Special Receiver claims Synovus is attempting to use the intervention process to
“circumvent the claims process,” to the exclusion of other MOBE creditors. (Id.)
On referral, U.S. Magistrate Judge Irick found the Motion to Intervene was
untimely and failed to comply with the requisites of Rule 24(a)(2). (See Doc. 228, pp. 8–
23); see also Fed. R. Civ. P. 24(a)(2). He recommended permissive intervention be denied,
finding even if there was “some overlap” between the FTC’s case and Synovus’ claims,
“the existing parties would suffer prejudice and undue delay” if intervention was
permitted. (Id. at 25.)
Synovus objected to the entire R&R. (See Doc. 232.) Synovus claims it has a
constitutional right to appear, litigate, and present argument and evidence to support its
rights to the Reserve Fund, relying heavily on two Eleventh Circuit cases, SEC v. Torchia,
922 F.3d 1307 (11th Cir. 2019), and SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339 (11th Cir.
2017). (Doc. 232, p. 1.) Synovus also argues it complied with the requirements of Rule 24.
(Id.); see also Fed. R. Civ. P. 24. The FTC and the Special Receiver both responded to the
Objection. (Docs. 235, 236.) The Motion to Intervene is denied; the Objection overruled.
1.
Background Objections
Synovus first argues it already intervened, with its appearance in the TRO dispute,
and should have been permitted to proceed via its Claims and Defenses. (Doc. 232, pp.
4–7, 13–14.) While Synovus was permitted to appear to argue the merits of its relief from
the TRO, the Court determined the Reserve Fund belonged to MOBE, was properly
frozen, and ordered it turned over to the receivership. (Docs. 32, 57, 83.) At that point,
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Synovus’ permission for its limited intervention ended. Synovus’ own description of these
events reflects as much: “Synovus is a non-party who made a special appearance to
contest the Court’s [TRO].” (Doc. 85, p. 1.) Synovus was never granted full throated
intervention.
Next, Synovus “objects” to the portrayal of Synovus in the R&R’s recitation of the
facts. (See, e.g. Doc. 232, p. 6.) But characterization aside, the recitation of events is
accurate. (See supra, Section I (with citations); cf. Doc. 228, pp. 2–8.) Next, at some length,
Synovus disputes the use of the word “purported” in Magistrate Judge Irick’s description
of Synovus’ interest in the introduction section of the R&R. (See Doc. 232, pp. 10–13; cf.
Doc. 228, p. 8.) This imagined slight is not only unwarranted—some might say petty—
but unfounded. “Purported” means “reputed, alleged.” Purported, MERRIAM-WEBSTER
(online). This is an accurate description of Synovus’ interest—it has repeatedly alleged an
interest in the Reserve Fund. (See, e.g., Doc. 219-1.) The use of the word “purported” here
is of no consequence. Objection is overruled. (Doc. 232, pp. 3–10.)
2.
Constitutional Arguments
Synovus objects to the R&R’s treatment of its constitutional arguments and
Eleventh Circuit precedent in Torchia and Wells Fargo. (Doc. 232, 1, 7–9, 13–14, 16, 21–24.)
U.S. Magistrate Judge Irick did not address these cases as they were contained in Section
III of the Motion to Intervene, titled “The Complaint is the Practical Way to Proceed,”
(emphasis added) and neither Torchia nor Wells Fargo is relevant to intervention. (Doc.
228, p. 7). Synovus now argues Torchia and Wells Fargo give Synovus a constitutional right
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to intervene. (Doc. 232, 1, 7–9, 13–14, 16, 21–24; see also Doc. 219, pp. 10–12.) This argument
is not well taken.
SEC v. Torchia stands for the proposition that once a claims process is begun,
claimants have some entitlement to due process in the summary procedures used to
adjudicate claims over assets held by the receiver. 922 F.3d 1307, 1316, 1319–20. (11th Cir.
2019). SEC v. Wells Fargo similarly deals with the claims process, holding a federal court,
during its supervision of a receivership, “does not have the authority to extinguish a
creditor’s pre-existing state law security interest.” 848 F.3d 1339, 1344 (11th Cir. 2017).
Nothing in Torchia or Wells Fargo implicates intervention much less a constitutional right
to intervene.
By denying this Motion to Intervene, the Court is not extinguishing Synovus’
claim. Synovus can choose whether to participate in the claims process, and if it does, it
will have certain constitutional protections. See Torchia, 922 F.3d 1307; Wells Fargo, 848
F.3d 1339. But, as the Special Receiver pointed out, “Synovus cannot merely hypothesize
that the claims process will be inadequate to address its claims before that claims process
even occurs.” (Doc. 225, p. 7.). Synovus is not entitled to intervene as of right in agency
enforcement actions where the summary claims process provides adequate due process.
See, e.g., CFTC v. Heritage Capital Advisory Servs., Ltd., 736 F.2d 384, 386–87 (7th Cir. 1984).
At heart, Synovus wants special treatment—it wants to cut the line of the other
creditors and scheme victims. But a desire for special treatment is not a factor for
determining whether a would-be intervener satisfies the dictates of Rule 24, nor does it
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transform a Rule 24 motion into a constitutional right. See Fed. R. Civ. P. 24. Finding no
error in the R&R as it pertains to the holdings of Torchia and Wells Fargo, the Court
overrules these objections. (See Doc. 232, pp. 1, 7–9, 13–14, 16, 21–24.)
3.
Rule 24 and Intervention as of Right
A party seeking to intervene as of right must: (1) timely move to intervene; (2)
show it has an interest relating to the subject matter of this suit; (3) show that its ability
to protect that interest may be impaired or impeded by the disposition of the suit; and (4)
show that the existing parties to the suit cannot adequately represent that interest. See
Fed. R. Civ. P. 24(a); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989). The
applicant must establish its right to intervene by satisfying all four elements. Chiles, 865
F.2d at 1213. Magistrate Judge Irick found Synovus failed to establish every element.
(Doc. 228, pp. 9–23.) Synovus claims it met its burden. (Doc. 232, 14–24.)
a.
Timeliness
Rule 24 requires a motion to be “timely” but does not set forth actual time limits.
See Fed. R. Civ. P. 24. Courts have broad discretion in assessing timeliness and consider
four factors: (1) the length of time during which the intervenor knew, or reasonably
should have known, of his interest in the case before he petitioned for leave to intervene;
(2) the extent of prejudice to existing parties because of the intervenor’s failure to apply
as soon as he knew or reasonably should have known of his interest; (3) the extent of
prejudice to the intervenor if the petition is denied; and (4) the existence of unusual
circumstances militating either for or against a determination that the application is
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untimely. United States v. Jefferson Cty., 720 F.2d 1511, 1516 (11th Cir. 1983) (citations
omitted). No one factor is dispositive, and “[t]imeliness is to be determined from all the
circumstances.” Nat’l Ass’n for Advancement of Colored People v. N.Y., 413 U.S. 345, 366
(1973); see also Chiles, 865 F.2d at 1213.
Synovus knew of this case for at least a year before moving to intervene. (See Docs.
57, 219.) This weighs heavily against a finding of timeliness and against allowing
intervention. As U.S. Magistrate Judge Irick pointed out, the other factors support a
finding of untimeliness. The parties have settled (Docs. 221, 239) and allowing
intervention at this late stage would be highly prejudicial. As U.S. Magistrate Judge Irick
found, “allowing Synovus to intervene at this juncture stands to prolong discovery,
prolong the resolution of the underlying case, and increase receivership expenditures.”
(Doc. 228, p. 13.) Synovus will not be prejudiced—it simply won’t be given an advantage
over other creditors and victims. (See Doc. 228, p. 13.) Finally, no unusual circumstances
militate against a finding of untimeliness.
Synovus objects, arguing a one-year delay was reasonable, allowing intervention
would not be prejudicial to the parties and would be highly prejudicial to Synovus, and
unusual circumstances exist, relying on Torchia and Wells Fargo for much of its argument.
(See Doc. 232, pp. 14–16.) Synovus’ Objection unavailing, the Court finds no error. (See
id.)
b.
Legally Protectable Interest
Federal Rule of Civil Procedure 24(a)(2) provides Synovus must also show it has
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“an interest relating to the property or transaction that is the subject of the action.” Fed.
R. Civ. P. 24(a)(2). An interest is sufficient when it is “direct, substantial and legally
protectable.” Georgia v. U.S. Army Corps, 302 F.3d 1242, 1249 (11th Cir. 2002). An
“economic interest” alone cannot establish legal protection. See U.S. v. S. Fla. Water Mgmt.
Dist., 922 F.2d 704, 710 (11th Cir. 1991). Rather, the interest must “be one which the
substantive law recognizes as belonging to or being owned by the applicant.” Id.
(quotation marks and citations omitted).
U.S. Magistrate Judge Irick found Synovus failed to demonstrate a direct,
substantial, and legally protectable interest relating to the property or the transaction that
is the subject of this action. (Doc. 228, p. 17.) The Court agrees.
Synovus’ Objection centered on its state law claims in attachments to its Motion to
Intervene, 5 relying on Chiles and Mt. Hawley to argue it has a protectable interest. (See
Doc. 232, pp. 16–21; see also Docs. 219-1, 219-2, 219-3.) These cases are unhelpful to
Synovus, who must show a non-economic interest in the reserve fund. See Chiles, 865
F.2d at 1214 (explaining the prisoners in Chiles unquestionably satisfied the interest
requirement of Rule 24(a)(2) based on their claims they were being held in violation of
minimum federal and state prison standards and faced an imminent risk of harm); see also
Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th Cir. 2005)
Synovus also objected to the R&R’s conclusion that its arguments had been
“perfunctory.” (Doc. 232, p. 16–18.) This objection is not well-taken. Synovus attached 190
pages of exhibits to its Motion to Intervene. (See Doc. 219 and attached exhibits.)
Attaching 190 pages of exhibits without pin citations isn’t argument.
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(explaining “[t]he proposed intervenor must show that it has an interest in the subject
matter of the suit . . . . [A] legally protectable interest is something more than an economic
interest.” (quotation marks and citations omitted) (emphasis added)).
Synovus could not identify any direct protectable interest it has in the subject of
the FTC’s action against MOBE. (See Doc. 232, p. 20; see also Doc. 235, p. 11.) Contrary to
Synovus’ assertions, this action will not resolve Synovus’ contract or state law claims, as
Synovus seems to admit when it claims its dispute with MOBE “would not impact
rendition of a judgment versus the MOBE defendants.” (Doc. 232, p. 25.) Synovus has, at
best, an economic right in this action—it wants $6 million. This is insufficient to establish
a protectable interest under Rule 24. See Fed. R. Civ. P. 24. Finding no error, the objection
is overruled. (See Doc. 232, p. 16–21.)
c.
Impaired or Impeded Interests
Rule 24(a)(2) requires Synovus show its ability to protect its interest may be
impaired or impeded by the disposition. Fed. R. Civ. P. 24(a)(2). “[A]ll that is required
under Rule 24(a)(2) is that the would-be intervener be practically disadvantaged by his
exclusion from the proceedings.” Huff, 743 F.3d at 800 (citation omitted). U.S. Magistrate
Judge Irick correctly determined that participation in the claims process will protect its
interest. Even if Synovus established a sufficient interest in the Reserve Fund, it has not
demonstrated that refusing to allow intervention may practically impede or impair
Synovus’s ability to protect that interest. (Doc. 228, p. 21.) Finding no error in the R&R,
the Court overrules the Objection. (Doc. 232, pp. 21–24.)
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d.
Adequate Representation
The final requirement of Rule 24(a)(2) is that Synovus show its interest cannot be
adequately represented by existing parties to the suit. Fed. R. Civ. P. 24(a)(2). This
requirement “is satisfied if the [proposed intervenor] shows that representation of his
interest ‘may be’ inadequate” and “the burden of making that showing should be treated
as minimal.” Chiles, 865 F.2d at 1214 (quotation marks and citation omitted). U.S.
Magistrate Judge Irick concluded “Synovus has not established that it has an interest in
the Reserve Fund sufficient to warrant intervention, and for that reason alone its
argument that existing parties to the case cannot adequately represent its purported
interest must fail.” (Doc. 228, p. 22.) As discussed, supra Section III.A.3.b, the Court agrees.
See id. The Court finds no error. Synovus’s objection is overruled.
4.
Permissive Intervention
A party seeking permissive intervention under Rule 24(b)(2) must show: (1) its
application is timely; and (2) its claim or defense and the main action have a question of
law or fact in common. Fed. R. Civ. P. 24(b)(2); Chiles, 865 F.2d at 1213. Even if these
elements are met, the Court may deny intervention if it “will unduly delay or prejudice
the adjudication of the original parties’ rights.” Fed. R. Civ. R. 24(b)(3). As discussed, infra
Section III.A.3.a, and as noted in the R&R, the argument for permissive intervention is
doomed as untimely. (See Doc. 228, p. 24.) U.S. Magistrate Judge Irick found even if the
motion was timely and there was some overlap between the claims, intervention should
be denied for the delay and prejudice to the original parties. (Id. at p. 25.) The Court
agrees.
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Finding no error, the objection to the R&R is overruled. (See Doc. 232, pp. 24–26.)
B.
Settlement Motion
U.S. Magistrate Judge Irick also issued a report and recommendation on the
Settlement Motion. (Doc. 229 (“Settlement R&R”).) After carefully considering the terms
of the proposed settlement and the arguments and representations of the Receiver, U.S.
Magistrate Judge Irick recommended granting the Settlement Motion. (Doc. 229, p. 9.)
The Receiver explained many of the real property interests are in foreign countries and
each involve unique circumstances that make it difficult—if not impossible—for the
Receiver to take possession of the assets without significant assistance from Matthew
Lloyd McPhee and the entities he controls. (Doc. 229, p. 5.) U.S. Magistrate Judge Irick
found “the settlement agreement is fair, reasonable, and in the best interest of the
receivership estate and the affected consumers as a whole, especially given the unique
circumstances described by the Receiver concerning each of the assets.” (Id.)
No objections were filed, and the time for objecting has now passed. Absent
objection, the Court reviewed the Settlement R&R only for clear error. See Wiand v. Wells
Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016);
see also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Finding none, the Court
adopts the Settlement R&R in full.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED:
1.
The Objection of Synovus Bank to Report and Recommendations (Doc. 232)
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on Synovus Bank’s Motion to Intervene is OVERRULED.
2.
U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation (Doc.
228) on Synovus Bank’s Motion to Intervene is ADOPTED, CONFIRMED,
and made a part of this Order.
3.
Synovus Bank’s Motion to Intervene (Doc. 219) is DENIED.
4.
U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation (Doc.
229) on the Receiver’s Amended Motion to Approve Settlement with
Matthew Lloyd McPhee and Related Entities is ADOPTED, CONFIRMED,
and made a part of this Order.
5.
The Receiver’s Amended Motion to Approve Settlement with Matthew
Lloyd McPhee and Related Entities (Doc. 222) is GRANTED.
6.
The Settlement Agreement (Doc. 222-1) is APPROVED.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 19, 2019.
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Copies to:
Counsel of Record
Pro se party
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