September 16, 2015
Vemma Battles FTC to Restart Operations
Arizona-based Vemma Nutrition Co. had its day in court Sept. 15, making its case and asking Judge John J. Tuchi to lift or modify the terms of the court order that has put a halt to the company’s business.
In August, the Federal Trade Commission sued Vemma, accusing the company of being a pyramid scheme, making false and misleading income claims, and failing to provide appropriate income disclosures. The FTC requested and received an ex parte temporary restraining order with asset freeze and the appointment of a receiver, which meant Vemma executives did not have an opportunity to offer a defense prior to the order being issued. The FTC has asked the judge to extend the government’s control of the company with a preliminary injunction. It is the first significant FTC action in the direct selling space since the Ninth Circuit of the U.S. Court of Appeals’ 2014 ruling that BurnLounge Inc. was an illegal pyramid scheme. The court’s final decision will join existing case law in shaping the legal standards that govern direct selling in the United States and may provide new insight into how federal regulators view the distribution channel.
The more immediate issue for Vemma, however, is that the temporary receiver appointed in the case has shut down all company operations, including its international business units and retail sales. “There is no doubt that if this injunction is left in place we are never going back,” Vemma’s counsel said in his closing summary before the judge. The temporary restraining order expires at 2 p.m. local time on Friday, Sept. 18, and Judge Tuchi said he will issue his ruling before that deadline.
The courtroom was packed for the all-day hearing, which included cross examination of witnesses on both sides of the case: FTC investigator Matthew Thacker; professor Stacie Bosley, who provided an analysis of Vemma’s compensation plan for the FTC; Truth in Advertising Executive Director Bonnie Patten; Kenton Johnson, Executive Vice President of Robb Evans & Associates, the temporary receiver currently running the company; professor Emre Carr, Vemma’s compensation analysis expert; Allison Tengan, Vemma’s Vice President of Legal Affairs; and Vemma COO Brad Wayment.
During the hearing, the FTC continued to shape a sweeping case that Vemma’s compensation plan improperly paid Affiliates for recruiting and not for product sales to end users, its marketing materials made inaccurate income claims, and its compliance efforts were ineffective. The defense offered testimony to refute those assertions, arguing that the government built its case without using actual purchasing data from the company and by cherry-picking often out-of-date marketing materials. The defense also focused much of its time before the judge on building a case for why the TRO should be lifted or modified, including establishing that the receiver spent a combined 90 minutes with company management before deciding that he could not continue any aspect of Vemma’s operations under the terms of the TRO.