Federal Trade Commission v. AMG Services, Inc. et al, No. 2:2012cv00536 - Document 1099 (D. Nev. 2016)

Court Description: ORDER Granting 1095 Motion to Enter Stipulated Order Appointing Monitor and Freezing Assets. Signed by Chief Judge Gloria M. Navarro on 11/30/16. (Copies have been distributed pursuant to the NEF - MMM)
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Federal Trade Commission v. AMG Services, Inc. et al Doc. 1099 Case 2:12-cv-00536-GMN-VCF Document 1095 Filed 11/28/16 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 DANIEL G. BOGDEN United States Attorney District of Nevada BLAINE T. WELSH Assistant United States Attorney Nevada Bar. No. 4790 333 Las Vegas Blvd. South, Suite 5000 Las Vegas, Nevada 89101 Phone: (702) 388-6336 Facsimile: (702) 388-6787 Email: Blaine.Welsh@usdoj.gov KIMBERLY L. NELSON Federal Trade Commission 600 Pennsylvania Avenue, NW Mailstop CC-9528 Washington, D.C. 20580 Phone: (202) 326-3304 Facsimile: (202) 326-3197 Email: knelson@ftc.gov Attorney for Plaintiff Federal Trade Commission UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 14 15 FEDERAL TRADE COMMISSION, 16 Plaintiff, 17 v. 18 19 AMG Services, Inc. et al., 22 JOINT MOTION TO ENTER STIPULATED ORDER APPOINTING MONITOR AND FREEZING ASSETS Defendants, and 20 21 Case No. 2:12-cv-536 Park 269 LLC, et al., Relief Defendants. 23 24 25 26 27 28 Dockets.Justia.com Case 2:12-cv-00536-GMN-VCF Document 1095 Filed 11/28/16 Page 2 of 4 Plaintiff, Federal Trade Commission (“FTC”), Defendants Scott Tucker, AMG Capital 1 2 Management, LLC, Level 5 Motorsports, LLC, Black Creek Capital Corporation, and Broadmoor Capital 3 Partners (collectively, “Tucker Defendants”), and Relief Defendants Kim Tucker and Park 269, LLC 4 (together, “Relief Defendants”) have conferred to resolve various post-judgment motions pending before 5 the Court. Those negotiations resulted in the attached, proposed Stipulated Order Appointing Monitor and 6 Freezing Assets (the “Proposed Stipulated Order”). The Proposed Stipulated Order resolves the pending 7 Motion for Order Directing Turnover of Assets (ECF No. 1059, “Turnover Motion”), the Motion for 8 Appointment of a Receiver (ECF No. 1064 (filed under seal), “Receiver Motion”), the oppositions filed to 9 those motions, and issues related to a stay of execution that will arise once the Tucker Defendants, or the 10 Tucker Defendants and Relief Defendants file a notice of appeal (due November 29, 2016). Specifically, 11 the parties have agreed, inter alia, to: (i) a stay of execution upon filing a notice of appeal by the Tucker 12 Defendants or by the Tucker Defendants and Relief Defendants; (ii) the imposition of a post-judgment 13 asset freeze while the anticipated appeal is pending (but subject to certain carve-outs and time limitations); 14 and (iii) the appointment of a monitor to oversee the asset freeze and the orderly sale of certain assets the 15 Tucker Defendants have agreed to liquidate while the appeal is pending. Thus, the FTC, Tucker Defendants and Relief Defendants respectfully request that the Court enter 16 17 the attached proposed order. Entry of the Proposed Stipulated Order will make adjudication of the 18 Turnover Motion and Receiver Motion unnecessary, as the issues addressed in each motion have been 19 resolved in the Proposed Stipulated Order. 20 / 21 / 22 / 23 / 24 / 25 / 26 / 27 / 28 / 1 Case 2:12-cv-00536-GMN-VCF Document 1095 Filed 11/28/16 Page 3 of 4 1 Dated: November 28, 2016 2 Respectfully submitted by: 3 /s/ Kimberly L. Nelson Kimberly L. Nelson Federal Trade Commission 600 Pennsylvania Ave., NW Mailstop CC-9528 Washington, DC 20580 knelson@ftc.gov Tel. (202) 326-3304 Fax (202) 326-3197 4 5 6 7 8 9 10 11 12 13 14 15 Attorney for Plaintiff Federal Trade Commission /s/ Jeffrey D. Morris Jeffrey D. Morris Berkowitz Oliver LLP 2600 Grand Boulevard, Suite 1200 Kansas City, MO 64108 jmorris@berkowitzoliver.com Phone: (816) 561-7007 Fax: (816) 561-1888 Attorney for Defendants Scott Tucker, Black Creek Capital Corporation, Level 5 Motorsports LLC, Broadmoor Capital Partners, LLC, and AMG Capital Management, LLC /s/ Linda C. McFee Linda C. McFee R. Pete Smith McDowell, Rice, Smith & Buchanan 605 West 47th Street, Suite 350 Kansas City, MO 64112 Tel: (816) 753-5400 lmcfee@mcdowellrice.com petesmith@mcdowellrice.com 16 17 Attorneys for Relief Defendants Kim C. Tucker and Park 269, LLC 18 19 20 21 22 23 24 25 26 27 28 2 Case 2:12-cv-00536-GMN-VCF Document 1095 Filed 11/28/16 Page 4 of 4 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 I, Kimberly L. Nelson, certify that, as indicated below, all parties were served by ECF with JOINT MOTION TO ENTER STIPULATED ORDER APPOINTING MONITOR AND FREEZING ASSETS and proposed order filed with the Court. Von S. Heinz (vheinz@lrrc.com) Darren J. Lemieux (dlemieux@lrrc.com) E. Leif Reid (lreid@lrrc.com) Jeffrey D. Morris (jmorris@berkowitzoliver.com) Ryan C. Hudson (rhudson@berkowitzoliver.com) Nick J. Kurt (nkurt@berkowitzoliver.com) Justin C. Griffin (justingriffin@quinnemanuel.com) Sanford I. Weisburst (sandyweisburst@quinnemanuel.com) Kathleen Sullivan (kathleensullivan@quinnemanuel.com) Attorneys for Defendants AMG Capital Management, LLC; Level 5 Motorsports, LLC; LeadFlash Consulting, LLC; Black Creek Capital Corporation; Broadmoor Capital Partners, LLC; Scott A. Tucker; Nereyda M. Tucker, as Executor of the Estate of Blaine A. Tucker Patrick J. Reilly (preilly@hollandhart.com) Linda C. McFee (lmcfee@mcdowellrice.com) Robert Peter Smith (petesmith@mcdowellrice.com) Attorneys for Relief Defendants Kim C. Tucker and Park 269 LLC Victoria W. Ni (vni@publicjustice.net) Craig B. Friedberg (attcbf@cox.net) Attorneys for Intervenor Americans for Financial Reform 17 18 November 28, 2016 /s/ Kimberly L. Nelson Kimberly L. Nelson 19 20 21 22 23 24 25 26 27 28 3 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 1 of 27 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 Case No. 2:12-cv-536 FEDERAL TRADE COMMISSION, 3 Plaintiff, 4 v. 5 6 7 8 ORDER APPOINTING MONITOR AND FREEZING ASSETS AMG Services, Inc. et al., Defendants, and Park 269 LLC, et al., 9 Relief Defendants. 10 11 12 13 14 15 The Federal Trade Commission (“FTC”) and Defendants Scott Tucker, AMG Capital Management, LLC, Level 5 Motorsports, LLC, Black Creek Capital Corporation, and Broadmoor Capital Partners (collectively, “Tucker Defendants”), Kim Tucker and Park 269, LLC (together, “Relief Defendants”) request that the Court enter the following post-judgment asset freeze and appoint Thomas W. McNamara as a monitor with the rights and powers identified herein. 16 17 18 19 20 21 22 23 24 25 26 27 28 FINDINGS 1. On September 30, 2016, this Court entered an Order granting the FTC’s summary judgment motion on Phase 2, and entered judgment against the Tucker Defendants and the Relief Defendants. Order (ECF No. 1057). In the Order, the Court ordered, inter alia, the Tucker Defendants to pay the Commission $1,266,084,156 within fourteen days of entry; and similarly ordered relief defendants Kim Tucker and Park 269 LLC to pay $19,072,774 and $8,000,000, respectively. Order, Section VI.B-C. To date, the FTC has not received any payments from the Tucker Defendants or the Relief Defendants. 2. To facilitate post-judgment collection and enforcement of the Court’s Order, the FTC filed a Motion for Order Directing Turnover of Assets (ECF No. 1059, “Turnover Motion”) and a Motion for Appointment of a Receiver (ECF No. 1064 (filed under seal), “Receiver Motion”). The Tucker Defendants have opposed each motion. See generally, Tucker Defendants’ Response in Opposition to FTC’s Motion for Order Directing Turnover of Assets (ECF No. 1061); Tucker Defendants’ Opposition to Motion for Appointment of a Receiver (ECF No. 1071). 1 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 2 of 27 1 3. The parties have negotiated a resolution to the Turnover Motion and Receiver Motion that 2 includes the appointment of a monitor, the imposition of a post-judgment asset freeze and a suspension of 3 collection efforts pending appeal. 4 5 6 4. The Tucker Defendants have indicated they intend to appeal the Court’s Order. The deadline for the Tucker Defendants and Relief Defendants to file a notice of appeal is November 29, 2016. 5. Good cause exists to appoint a monitor and impose an asset freeze to preserve the status quo 7 during the pendency of the appeal, and to facilitate the liquidation of assets that absent such liquidation 8 would waste in value during the pendency of the appeal. 9 Accordingly, the Court orders as follows: DEFINITIONS 10 11 For the purpose of this order, the following definitions shall apply: 12 A. “Asset” means assets disclosed in each Defendant’s “Federal Trade Commission Financial 13 Statement of Individual Defendant” or “Federal Trade Commission Financial Statement of Corporate 14 Defendant,” any legal or equitable interest in, right to, or claim to, any real, personal, or intellectual 15 property wherever located, including, but not limited to, chattel, goods, instruments, equipment, fixtures, 16 general intangibles, effects, leaseholds, contracts, mail or other deliveries, shares of stock, futures, 17 securities, partnership interests, inventory, checks, notes, accounts, credits, receivables, cash or currency, 18 trusts, including but not limited to asset protection trusts and trusts held for the benefit of a Defendant, and 19 reserve funds or other accounts associated with any payments processed on behalf of any Defendant, 20 including, but not limited to, such reserve funds held by a payment processor, credit card processor, or 21 bank, regardless of when any Defendant acquired such interest, right, or claim. 22 B. “Defendants” means (a) each Tucker Defendant and (b) each Relief Defendant. In 23 addition, any person insofar as he or she is acting in the capacity of an officer, agent, employee, or attorney 24 of any Tucker Defendant or any Relief Defendant, and any person or entity in active concert or 25 participation with any of the foregoing who receives actual notice of this Order by personal service or 26 otherwise, is bound to comply with this Order, see FED. R. CIV. P. 65(d), whether these persons or entities 27 are acting directly or through a trust, corporation, subsidiary, division, or other device. 28 2 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 3 of 27 1 C. “Document” is synonymous in meaning and equal in scope to the terms “Document” and 2 “electronically stored information,” as described and used in the Federal Rules of Civil Procedure. This 3 includes, but is not limited to, electronic mail, instant messaging, videoconferencing, and other electronic 4 correspondence (whether active, archived, or in a deleted items folder), word processing files, 5 spreadsheets, databases, and video and sound recordings, whether stored on: cards; magnetic or electronic 6 tapes; disks; computer hard drives, network shares or servers, or other drives; cloud-based platforms; cell 7 phones, PDAs, computer tablets, or other mobile devices; or other storage media. 8 9 D. “Financial Institution” means any bank, savings and loan institution, credit union, payment processor, trust, or any financial depository of any kind, including but not limited to, any 10 brokerage house, trustee, broker-dealer, escrow agent, title company, commodity trading company, or 11 precious metal dealer. 12 E. “Person” means a natural person, organization, or other legal entity, including a 13 corporation, partnership, proprietorship, association, cooperative, government or governmental subdivision 14 or agency, or any other group or combination acting as an entity. 15 F. “Plaintiff” or “Commission” or “FTC” means the Federal Trade Commission. 16 G. “Monitor” means the person or entity appointed pursuant to Section VI of this order. 17 H. The “Monitor Entities” means: 18 a. The corporate defendants and corporate relief defendant: AMG Capital 19 Management, LLC, Level 5 Motorsports, LLC, Black Creek Capital Corporation, Broadmoor 20 Capital Partners, LLC, Park 269, LLC; and their successors, assigns, affiliates, and subsidiaries; 21 b. BA Services LLC, C5 Capital LLC, DF Services Corp., DFTW Consolidated [UC] 22 LLC, Impact BP LLC, Level 5 Apparel LLC, Level 5 Capital Partners LLC, Level 5 Eyewear 23 LLC, Level 5 Scientific LLC, NM Service Corp. (f/k/a/ National Money Service), PSB Services 24 LLC, Real Estate Capital LLC (f/k/a/ Rehab Capital I, LLC), Sentient Technologies, ST Capital 25 LLC, Westfund LLC, Eclipse Renewables Holdings LLC, Scott Tucker Declaration of Trust, 26 dated February 20, 2015, West Race Cars, LLC, and Level 5 Management LLC, and their 27 successors, assigns, affiliates, and subsidiaries; and 28 3 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 4 of 27 c. 1 Any other entity identified by the Monitor that, upon motion granted by the Court, is 2 found to be a proper Monitor Entity because, for example, such entity holds Assets of a 3 Defendant or existing Monitor Entity, or is owned or controlled by a Defendant or Monitor 4 Entity. d. 5 entity is included as a Monitor Entity. 6 I. 7 8 This Court shall have exclusive jurisdiction over any dispute regarding whether any “Relief Defendants” means Kim Tucker, Park 269, LLC, and their successors, assigns, affiliates, and subsidiaries. J. 9 “Representatives” means Defendants’ and Tucker Entities’ officers, agents, employees, 10 and attorneys, and all other persons or entities directly or indirectly under the control of them, and any 11 other person or entity in active concert or participation with them who receives actual notice of this Order 12 by personal service or otherwise. K. 13 “Tucker Entities” means BA Services LLC, C5 Capital LLC, DF Services Corp., DFTW 14 Consolidated [UC] LLC, Impact BP LLC, Level 5 Apparel LLC, Level 5 Capital Partners LLC, Level 5 15 Eyewear LLC, Level 5 Scientific LLC, NM Service Corp. (f/k/a/ National Money Service), PSB Services 16 LLC, Real Estate Capital LLC (f/k/a/ Rehab Capital I, LLC), Sentient Technologies, ST Capital LLC, 17 Westfund LLC, Eclipse Renewables Holdings LLC, Scott Tucker Declaration of Trust, dated February 20, 18 2015, West Race Cars, LLC, and Level 5 Management LLC, and their successors, assigns, affiliates, or 19 subsidiaries. L. 20 “Tucker Defendants” means Scott A. Tucker, AMG Capital Management, LLC, Level 5 21 Motorsports, LLC, Black Creek Capital Corporation, Broadmoor Capital Partners, LLC, and their 22 successors, entities, assigns, affiliates, and subsidiaries. 23 24 25 I. SUSPENSION OF COLLECTIONS ACTIVITIES IT IS ORDERED that: A. Upon the timely filing of a notice of appeal by the Tucker Defendants, or Tucker 26 Defendants and Relief Defendants, the FTC is stayed from acting to collect the monetary relief awarded in 27 favor of the FTC and against the Tucker Defendants, or Tucker Defendants and Relief Defendants (the 28 “Collection Stay”), in the amounts set forth in the Court’s September 30, 2016 Order. The Collection Stay 4 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 5 of 27 1 shall remain in effect until the Collection Stay terminates as set forth in Paragraph C below (including sub- 2 parts), or the Collection Stay and Suspension are otherwise terminated by order of the Court. 3 B. Upon entry of this Order and for the duration of the Collection Stay in Section I.A., the 4 Tucker Defendants and relief defendant Kim Tucker shall deposit into a segregated account (Country Club 5 Bank Checking Account x8808, the “Earnings Account”): (1) all earnings, including but not limited to 6 earnings from services performed by the Tucker Defendants and Kim Tucker, except as set forth below, 7 and (2) all income received by the Tucker Defendants and Kim Tucker, except as set forth below. The 8 Earnings Account shall be an Asset and frozen pursuant to Section II herein. Until the Collection Stay 9 terminates, no money or other property may be withdrawn from the Earnings Account or any other Asset, 10 except as follows: 1. Kim Tucker’s W-2 or Form 1099 wages up to $8,000 per month earned as an employee, 11 12 at Restoration Hardware or any independent employer not a Monitorship Entity or 13 otherwise owned or controlled by any Defendant, shall not be deposited into the 14 Earnings Account and shall be Mrs. Tucker’s free and clear of any freeze or other 15 restraint. 2. Scott and Kim Tucker shall submit records concerning the Earnings Account to the 16 17 Monitor beginning thirty (30) days from entry of this Order and every thirty days 18 thereafter, unless otherwise agreed to in writing by the FTC. 19 20 21 22 C. The Collection Stay shall automatically terminate, without further order, at the earliest of the following: 1. The date that the Ninth Circuit panel enters its decision on the Tucker Defendants’ pending appeal; 23 2. The date the appeal is dismissed or withdrawn; or 24 3. Twenty-six (26) months after the date of entry of this Order, if no extension has been 25 granted by written agreement of the FTC or order of the Court. 26 27 28 5 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 6 of 27 1 II. ASSET FREEZE 2 IT IS FURTHER ORDERED that: 3 A. Defendants, Tucker Entities and their Representatives, whether acting directly or indirectly 4 through any entity, corporation, subsidiary, division, director, manager, member, affiliate, independent 5 contractor, accountant, financial advisor, or other device, are hereby restrained and enjoined from: 6 1. Transferring, liquidating, converting, encumbering, pledging, loaning, selling, 7 concealing, dissipating, disbursing, assigning, relinquishing, spending, withdrawing, granting a lien 8 or security interest in, or otherwise disposing of any Assets, wherever located, including outside the 9 United States, that are: 10 a. owned or controlled, directly or indirectly, by any Defendant or Tucker Entity, in 11 whole or in part, or held, in whole or in part, for the benefit of any Defendant or 12 Tucker Entity; 13 b. in the actual or constructive possession of any Defendant or Tucker Entity; 14 c. held by an agent of any Defendant or Tucker Entity as a retainer for the agent’s 15 16 provision of services to any Defendant or Tucker Entity; d. owned, controlled by, or in the actual or constructive possession of or otherwise held 17 for the benefit of, any corporation, partnership, asset protection trust, or other entity 18 that is directly or indirectly owned, managed, or controlled by any of the Defendants 19 or Tucker Entities, or of which any Defendant or Tucker Entity is an officer, 20 director, member, or manager. This includes, but is not limited to, any Assets held 21 by, for, or subject to access by any of the Defendants or Tucker Entities at any bank 22 or savings and loan institution, or with any broker-dealer, escrow agent, title 23 company, commodity trading company, precious metal dealer, or other Financial 24 Institution or depository of any kind; or 25 26 e. owned, controlled, or held in any account for which any Defendant or Tucker Entity is an authorized signer. 27 28 6 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 7 of 27 2. 1 Opening or causing to be opened any safe deposit boxes titled in the name of or held 2 for the benefit of any Defendant or Tucker Entity, either individually or jointly, or subject to access 3 by any Defendant or Tucker Entity; 4 3. Obtaining a personal or secured loan; 5 4. Incurring liens or other encumbrances on real property, personal property, or other 6 Assets in the name, singly or jointly, of any Defendant or Tucker Entity, or of any corporation, 7 partnership, or other entity directly or indirectly owned, managed, or controlled by any Defendant 8 or Tucker Entity; or 5. 9 Incurring charges or cash advances on any credit card, debit card, or checking card 10 issued in the name, individually or jointly, of any Defendant or Tucker Entity, or of any 11 corporation, partnership, or other entity directly or indirectly owned, managed, or controlled by any 12 Defendant or Tucker Entity or of which any Defendant or Tucker Entity is an officer, director, 13 member, or manager. This includes, but is not limited to, any corporate bank or credit card account 14 for which any Defendant or Tucker Entity is an authorized signer. 15 B. The asset freeze includes the education savings plans (accounts x0803 and x0804 at 16 Learning Quest) held for the benefit of Scott and Kim Tucker’s two children (“529 Accounts”). Provided 17 however, that the funds in the 529 Accounts shall be released upon written consent of the Monitor, which 18 consent shall be provided for any qualified 529 expenses that arise during the pendency of this asset freeze. 19 C. The asset freeze excludes Defendants’ Assets restrained by the United States District Court 20 for the Southern District of New York (“SDNY Court”) or subject to lis pendens filed in conjunction with 21 the criminal case pending in the SDNY Court, unless the United States Attorney’s Office for the Southern 22 District of New York has directed the release of such asset or lis pendens in writing, in which case such 23 assets become Assets frozen under this Order. 24 25 D. The asset freeze excludes the Park 269 account at Country Club Bank (account x8282) (the “Park 269 Account”), subject to the terms and restrictions set forth below in Section VIII. 26 E. The asset freeze does not preclude the Monitor from exercising the control set forth under 27 Sections VIII-XI. 28 7 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 8 of 27 F. 1 IT IS FURTHER ORDERED that the assets affected by this Section shall include Assets 2 (a) existing as of the date this Order is entered, (b) acquired by any Defendant or Tucker Entity following 3 entry of this Order, and (c) proceeds from the sale of any Assets of any Defendant or Tucker Entity. G. 4 5 IT IS FURTHER ORDERED that the asset freeze imposed by this Order shall remain in effect until the earlier of: 1. the Collection Stay terminates under Section I.C above, as conditioned by the following: 6 7 a. if the Ninth Circuit panel issues a mandate that affirms the Court’s Order, the frozen 8 Assets will be transferred to the Monitor for liquidation and payment pursuant to 9 Sections VI to XVIII; 10 b. if the Collection Stay terminates under Sections I.C.2 or I.C.3, then the frozen Assets 11 will be transferred to the Monitor for liquidation and payment pursuant to Sections 12 VI to XVIII; or c. if the Ninth Circuit panel issues a mandate that vacates the finding of liability and 13 14 the monetary judgment against the Tucker Defendants and/or Relief Defendants the 15 asset freeze shall terminate as to that party or parties, but if the Ninth Circuit panel 16 issues a mandate that otherwise rules in a manner other than affirming the Order in 17 its entirety, the Assets will remain frozen until further ruling by this Court regarding 18 the duration of the asset freeze; or 2. this Court enters an order otherwise terminating the asset freeze. 19 20 21 III. DUTIES OF ASSET HOLDERS IT IS FURTHER ORDERED that, except as provided in Section IX, any Financial Institution, 22 business entity, or Person who receives actual notice of this Order (by personal service or otherwise) that 23 (a) holds, controls, or maintains custody of any Asset of any Defendant or Tucker Entity, (b) holds, 24 controls, or maintains custody of any Asset associated with credit or debit card charges made on behalf of 25 any Defendant or Tucker Entity, including but not limited to, reserve funds held by payment processors, or 26 (c) has held, controlled, or maintained custody of any such Asset at any time since the date of entry of this 27 Order shall: 28 8 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 9 of 27 A. 1 Hold, preserve, and retain within its control and prohibit the withdrawal, removal, 2 alteration, assignment, transfer, pledge, encumbrance, disbursement, dissipation, relinquishing, conversion, 3 sale, liquidation or other disposal of any such Asset except by further order of this Court; B. 4 Deny any person access to any safe deposit box that is: 1. titled in the name of or held for the benefit of any Defendant or Tucker Entity, either 5 individually or jointly; or 6 2. otherwise subject to access by any Defendant or Tucker Entity; 7 C. 8 9 Provide the FTC’s counsel, within three (3) business days of receiving a copy of this Order, a sworn statement (attached as Exhibit A) reaffirming the financial statements previously provided in 10 response to the March 31, 2016 Preliminary Injunction Asset Freeze, at Section III and Attachment 11 A/Attachment B. 12 D. Upon the request of the FTC, promptly provide the FTC with copies of all records or other 13 documentation pertaining to such account or Asset, including, but not limited to, originals or copies of 14 account applications, account statements, signature cards, checks, drafts, deposit tickets, transfers to and 15 from the accounts, including wire transfers and wire transfer instructions, all other debit and credit 16 instruments or slips, currency transaction reports, 1099 forms, and safe deposit box logs. 17 IV. REPATRIATION OF ASSETS AND DOCUMENTS 18 IT IS FURTHER ORDERED that, within three (3) business days following entry of this Order on 19 the docket, Defendants and Tucker Entities shall provide the FTC’s counsel a sworn statement (attached as 20 Exhibit A) reaffirming their prior statements previously provided in response to the March 31, 2016 21 Preliminary Injunction Asset Freeze that none have assets or documents to repatriate. 22 V. NOINTERFERENCE WITH REPATRIATION 23 IT IS FURTHER ORDERED that Defendants and Tucker Entities, and their successors, assigns, 24 members, officers, agents, servants, employees, and attorneys, and those persons in active concert or 25 participation with them who receive actual notice of this Order by personal service or otherwise, whether 26 acting directly or through any entity, corporation, subsidiary, division, affiliate or other device, are hereby 27 restrained and enjoined from taking any action, directly or indirectly, that may result in the encumbrance or 28 9 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 10 of 27 1 dissipation of foreign Assets, or in the hindrance of the repatriation required by the preceding “Repatriation 2 of Assets and Documents” Section of this Order, including, but not limited to: A. 3 Sending any statement, letter, fax, email or wire transmission, or telephoning or engaging in 4 any other act, directly or indirectly, that results in a determination by a foreign trustee or other entity that a 5 “duress” event has occurred under the terms of a foreign trust agreement, until such time that all Assets 6 have been fully repatriated pursuant to the “Repatriation of Assets” Section of this Order; or B. 7 Notifying any trustee, protector, or other agent of any foreign trust or other related entities 8 of either the existence of this Order, or of the fact that repatriation is required pursuant to a court order, 9 until such time that all Assets have been fully repatriated pursuant to the “Repatriation of Assets” Section 10 of this Order. 11 VI. APPOINTMENT OF MONITOR 12 IT IS FURTHER ORDERED that Thomas W. McNamara is appointed as Monitor over the 13 Monitorship Estate. The Monitor shall be the agent of this Court and solely the agent of this Court in acting 14 as Monitor under this Order and under 28 U.S.C. § 959. The Monitor shall be accountable directly to this 15 Court. The Monitor shall comply with any laws and Local Rules of this Court governing receivers, 16 including but not limited to Local Rules LR 66-4 to 66-9. 17 The Monitorship Estate constitutes: All of Scott Tucker’s, Kim Tucker’s, and the Monitor Entities’ 18 Assets, wherever they may be located, in whosever possession they may be found, whether owned directly 19 or indirectly, except as excluded below (“Monitorship Estate”): 20 A. The Monitorship Estate does not include any of the Defendants’ Assets restrained by the 21 SDNY Court or subject to lis pendens filed in connection with the criminal case in the SDNY 22 Court, unless the United States Attorney’s Office for the Southern District of New York has 23 directed the release of such asset in writing, in which case the asset becomes an Asset of the 24 Monitorship Estate. 25 B. 26 x0804 at Learning Quest) held for the benefit of Scott and Kim Tucker’s two children (“529 27 Accounts”). Provided however, that prior to withdrawing or using any of the funds in the 529 28 Accounts, Scott and Kim Tucker will first submit documentation concerning the expenditure to the The Monitorship Estate does not include the education savings plans (accounts x0803 and 10 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 11 of 27 1 Monitor, who shall timely approve the expense so long as it qualifies as a valid educational 2 expense, and funds for the approved education expense may be released from the 529 Accounts. 3 C. 4 earned as an employee, at Restoration Hardware or any independent employer not a Monitorship 5 Entity or otherwise affiliated with or associated with any Defendant, or which shall be Mrs. 6 Tucker’s free and clear of any freeze or other restraint. The Monitorship Estate does not include Kim Tucker’s W-2 wages up to $8,000 per month 7 This Court shall have exclusive jurisdiction regarding any dispute regarding whether any Asset is included 8 in the Monitorship Estate. 9 VII. 10 11 MONITOR NOT TO INTRUDE ON OR IMPAIR LEGAL PRIVILEGES IT IS FUTHER ORDERED that the Monitor is directed as follows: A. Notwithstanding any term, provision or language within this Order, the Monitor shall have 12 no right, claim, interest or any basis to gain access to, or otherwise review, control, inspect, demand or 13 possess Documents or any information or material to the extent they contain attorney-client privileged 14 information, attorney work product or other privileged information relating to or implicated by: (i) the 15 Defendants’ and the Tucker Entities’ litigation of the present case, including their appeal of the judgment 16 entered in this case, (ii) Scott Tucker’s defense of any and all grand jury investigations and the criminal 17 charges pending in the SDNY Court, or (iii) Defendants’ defense in Felts v. Paycheck Today, et al., Case 18 No. D-202-CV-2008-13084 (2d District, State of New Mexico 2008) and Internet Lending Cases, Case No. 19 JCCP004688 (Superior Court of California, County of Alameda). 20 B. Nothing in this Order shall be construed to waive or modify any attorney-client privilege, 21 work product or other privilege protections that pertain to the Defendants and Tucker Entities relating to or 22 implicated by: (i) the Defendants’ and the Tucker Entities’ litigation of the present case, including their 23 appeal of the judgment entered in this case, (ii) Scott Tucker’s defense of any and all grand jury 24 investigations and the criminal charges pending in the SDNY Court, or (iii) Defendants’ defense in Felts v. 25 Paycheck Today, et al., Case No. D-202-CV-2008-13084 (2d District, State of New Mexico 2008) and 26 Internet Lending Cases, Case No. JCCP004688 (Superior Court of California, County of Alameda). 27 28 11 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 12 of 27 1 VIII. DUTIES AND AUTHORITY OF MONITOR 2 IT IS FURTHER ORDERED that the Monitor is directed and authorized to accomplish the 3 following: 4 A. Monitor compliance with the Asset Freeze imposed by this Order. 5 B. Perform all acts necessary or advisable to preserve the value of the assets under the Asset 6 Freeze, in order to prevent any wasting, irreparable loss, damage, or injury to consumers, including but not 7 limited to obtaining or creating an accounting of the Assets and preventing the transfer, withdrawal, or 8 misapplication of the Assets. In fulfilling this obligation, the Monitor may: 1. Upon motion by the Monitor and order of the Court, sell Assets of the Monitorship Estate 9 10 that the Monitor, in exercising reasonable business judgment, finds are wasting in value, or 11 likely to suffer imminent irreparable loss or damage, and the proceeds of such sales shall be 12 deposited into the Monitor’s account designated for this case; or 2. Upon written request or consent by Defendants or Tucker Entities, sell Assets of the 13 14 Monitorship Estate, subject to the Monitor’s exercise of his business judgment and in a 15 commercially reasonable manner, with the proceeds of such sales deposited into the 16 Monitor’s account designated for this case; C. 17 18 Sell all assets of Level 5 Motorsports, LLC in a commercially reasonable manner, with the proceeds of such sale to be deposited into the Monitor’s account designated for this case; D. 19 Monitor the receipt of rental income generated by the Park 269 residence located in Aspen, 20 Colorado, as coordinated by the rental broker, with all rental income deposited into the Park 269 Account 21 and the only allowable disbursements from that account to be reasonable expenses, as coordinated by the 22 property management company with the cooperation of the Tuckers, associated with the maintenance, 23 upkeep, and taxes owed by Park 269, LLC; with all account information, rental information and 24 maintenance/upkeep information being provided to the Monitor; the use and expenditure of income from 25 the Park 269 Account shall be subject to the Monitor’s claims, such as for mismanagement, wasting, and 26 fraud; 27 28 12 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 13 of 27 E. 1 If the Asset Freeze terminates under Section II.G.1.a or Section II.G.1.b above, the Monitor 2 shall take immediate possession of all frozen Assets and liquidate all Assets of the Defendants and Tucker 3 Entities; F. 4 Monitor the Earnings Account by reviewing the accounting of all deposits and withdrawals 5 from the Earnings Account provided by Scott and Kim Tucker beginning thirty (30) days from entry of this 6 Order and every thirty days thereafter, unless otherwise agreed to in writing between the FTC, Monitor and 7 Scott and Kim Tucker; G. 8 Conduct such investigation and discovery (including but not limited to discovery permitted 9 under Rule 69(a)(2) of the Federal Rules of Civil Procedure) as may be necessary to locate and account for 10 additional Assets (including Assets held by either Persons or entities other than a Defendant) belonging to, 11 or held by others for the benefit of, any Defendant or Monitorship Entity, for inclusion in the Monitorship 12 Estate; 13 H. For the Monitor Entities, upon motion by the Monitor setting forth the grounds therefor and 14 the granting of the motion by the Court, remove any director, officer, independent contractor, employee, 15 attorney, or agent of a Monitor Entity from control of, management of, or participation in, the affairs of 16 Monitorship Entities, except as limited by Section VII; 17 I. Publish this Order to any Persons as the Monitor deems necessary or appropriate in carrying 18 out his powers and duties under this Order, and/or to serve this Order upon any Person whom the Monitor 19 deems appropriate to inform them of the status of this matter and/or the financial condition of the 20 Monitorship Estate; 21 J. In order to review compliance with the Asset Freeze ordered above, obtain copies of all 22 statements and Documents from Financial Institutions which have possession, custody, or control of any 23 Assets of Defendants or Monitorship Entities; 24 K. Monitor and provide instructions regarding the businesses of the Monitorship Entities in 25 such manner, to such extent, and for such duration as the Monitor may in good faith deem to be necessary 26 or appropriate to operate the businesses profitably and lawfully, if at all, using solely the Assets of the 27 Monitorship Estate; 28 13 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 14 of 27 1 2 3 L. Employ McNamara Benjamin LLP as the Monitor’s attorneys, for the services and at the rates of compensation set forth in the Monitor’s verified application; M. Choose, engage, and employ such additional attorneys, accountants, appraisers, 4 investigators, employees, and other independent contractors and technical specialists, as the Monitor deems 5 advisable or necessary in the performance of duties and responsibilities under the authority granted by this 6 Order pursuant to the procedures and limitations set forth in LR 66-6 and LR 66-7; 7 8 9 10 11 N. Make payments and disbursements from the Monitorship Estate that are necessary or advisable to secure, manage, and maintain the Assets in the Monitorship Estate; O. Enter into contracts and purchase insurance as advisable or necessary to maintain Assets in the Monitorship Estate or prevent the wasting of such Assets; P. Prevent the inequitable distribution of the Assets in the Monitorship Estate and to 12 determine, adjust, and protect the interests of consumers and creditors who have transacted business with 13 the Monitorship Entities; 14 Q. Collect any money due or owing to the Defendants or Monitorship Entities including, 15 without limitation, membership dues, salaries, and royalties payable to the Defendants or Monitorship 16 Entities or on behalf of Defendants or Monitorship Entities or persons or entities Defendants or 17 Monitorship Entities control. Provided, however: 18 19 20 1. the Monitor shall not attempt to collect or receive any amount from a consumer if the consumer was a victim of the unlawful conduct alleged in the complaint in this matter; 2. The Monitor shall monitor the receipt of rental income generated by the Park 269 21 residence located in Aspen, Colorado, as coordinated by the rental broker, with all rental 22 income deposited into the Park 269 Account and the only allowable disbursements from 23 that account to be reasonable expenses, as coordinated by the property management 24 company with the cooperation of the Tuckers, associated with the maintenance, upkeep, 25 and taxes owed by Park 269, LLC; with all account information, rental information and 26 maintenance/upkeep information being provided to the Monitor; the use and expenditure 27 of income from the Park 269 Account shall be subject to the Monitor’s claims, such as 28 for mismanagement, wasting, and fraud. 14 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 15 of 27 R. 1 Institute, compromise, adjust, appear in, intervene in, or become a party to such actions or 2 proceedings in state, federal or foreign courts that the Monitor deems necessary and advisable to preserve 3 or recover the Monitorship Estate or to carry out the Monitor’s mandate under this order. Provided 4 however, that the monitor may not appear in, intervene in, or become a party to the legal matters identified 5 at Section VII.A; 6 S. Defend, compromise, adjust, or otherwise dispose of any or all actions or proceedings, 7 except those identified in Section VII, against any Monitorship Entity or the Monitor, that the Monitor 8 deems necessary and advisable to preserve the Monitorship Estate or to carry out the Monitor’s mandate 9 under this order; 10 T. Take depositions and issue subpoenas to obtain documents and records to carry out the 11 Monitor’s mandate under this order. Subpoenas may be served by the Monitor’s agents or attorneys and by 12 agents of any process server the Monitor retains; U. 13 14 Issue requests pursuant to the Cooperation and Compliance Monitoring provisions in any order for permanent injunction previously entered in this case; V. 15 Request the assistance of the U.S. Marshals Service, in any judicial district, to take 16 possession, custody, and control of, or identify the location of any Monitorship Entities’ Assets, and to 17 request similar assistance from any other federal, state, county, or civil law enforcement officer(s) or 18 constable(s) of any jurisdiction; W. 19 Open one or more bank accounts as designated depositories for Assets of the Monitorship 20 Estate. As appropriate, the Monitor shall deposit such Assets in such a designated account and shall make 21 payments and disbursements from the Monitorship Estate from such an account; and X. 22 23 IX. Maintain accurate records of all receipts and expenditures made by the Monitor. DELIVERY OF MONITORSHIP PROPERTY 24 IT IS FURTHER ORDERED that: 25 A. The Asset Freeze in Section II notwithstanding, immediately upon service of this Order 26 upon them or upon obtaining actual knowledge of this Order, or within a period permitted by the Monitor, 27 Defendants and the Monitorship Entities and any person or entity acting in concert with the Defendants and 28 the Monitorship Entities, including but not limited to any law firm, financial or brokerage institution or 15 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 16 of 27 1 depository, escrow agent, title company, commodity trading company, or trust shall cooperate with all 2 requests of the Monitor relating to implementation of this order, including, without limitation, transferring 3 funds at the Monitor’s or Court’s direction upon circumstances set forth at Section II.G.1.a or Section 4 II.G.1.b, producing records related to the Assets and sales of Defendants and the Monitorship Entities, and 5 delivering to the Monitor possession and custody of: 6 1. All Assets of Level 5 Motorsports, LLC; 7 2. All Documents of the Monitorship Entities, including but not limited to the books and 8 records of the Monitorship Entities, all financial and accounting records, balance sheets, 9 income statements, bank records (including monthly statements, canceled checks, 10 records of wire transfers, records of ACH transactions, and check registers), corporate 11 minutes, contracts, customer and consumer lists, title documents, and electronic records; 3. All insurance information for both existing and prior insurance policies insuring 12 13 Defendants or Assets, including all applications, policies, riders, correspondence, 14 endorsements, claims and other information; 4. Any mobile phones, computers, or devices (e.g., cell phone, smart phone, tablet, laptop) 15 used predominantly for the benefit of, or issued by, any Monitorship Entity; 16 5. All keys, computer and other passwords, entry codes, combinations to locks required to 17 18 open or gain or secure access to any Assets of the Defendants or the Monitorship 19 Entities ordered to be sold by or placed in the custody of the Monitor, wherever located; 20 and 6. Information identifying the accounts, employees, properties, or other Assets or 21 obligations of the Defendants or the Monitorship Entities. 22 23 B. In the event any person or entity fails to deliver or transfer immediately any Asset as set 24 forth above or otherwise fails to comply with any provision of this Section IX, the Monitor may file ex 25 parte with the Court an Affidavit of Non-Compliance regarding the failure. Upon filing of the affidavit, 26 the Court may authorize, without additional process or demand, Writs of Possession or Sequestration or 27 other equitable writs requested by the Monitor. The writs shall authorize and direct the United States 28 16 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 17 of 27 1 Marshal or any sheriff or deputy sheriff of any county (pursuant to Fed. R. Civ. P. 4(c)(1)) to seize the 2 asset, document, or other thing and to deliver it to the Monitor. 3 X. ACCESS TO BUSINESS PREMISES AND RECORDS 4 IT IS FURTHER ORDERED that: 5 A. Monitorship Entities, and all their employees or agents shall provide the Monitor with any 6 necessary means of access to Documents, devices, and records, including, without limitation, the locations 7 of Monitorship Entities’ business premises, keys and combinations to locks, computer access codes, device 8 passwords, and storage area access information, if any. Defendants are required to provide the Monitor 9 access to their personal residence in Leawood, Kansas on one occasion and with 48-hours’ written notice 10 to allow the Monitor to inventory Assets. However, consistent with Section VII, the Tuckers shall not be 11 required to provide the Monitor access to any attorney-client or privileged information addressed in that 12 Section. The Monitor shall not interfere with or otherwise encroach on the defense of the criminal action 13 pending in the SDNY Court and/or the appeal of the Defendants challenging the judgment and rulings in 14 this case. 15 B. If any computers or other electronic data devices (including but not limited to mobile 16 devices) containing information related to the business practices or finances of Monitorship Entities are at 17 a location other than a business premises, including, but not limited to, the personal residences of 18 Defendants, then immediately upon service of this Order upon them, such Defendant and its agents, 19 employees, and officers and those persons in active concert and participation with it shall produce to the 20 Monitor all such information concerning Monitorship Entities. In order to prevent the destruction of 21 electronic data, upon service of this Order upon them, such Defendant and its agents, employees, officers, 22 and those persons in active concert and participation with it shall maintain such computers or other 23 electronic data devices containing such information and remove any automatic delete or destruction 24 processes used in the normal course of the operating systems on such devices and systems. 25 C. Within forty-eight (48) hours of service of this Order, each Defendant shall produce to the 26 Monitor a list of all agents, employees, officers, and those persons in active concert and participation with 27 any Monitorship Entity. 28 17 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 18 of 27 1 2 XI. COOPERATION WITH THE MONITOR IT IS FURTHER ORDERED that the Defendants and the Monitorship Entities, their successors, 3 assigns, members, officers, agents, employees, and attorneys shall fully cooperate with and assist the 4 Monitor as limited by the mandate of this Order and Section VII. Such cooperation and assistance shall 5 include but not be limited to providing any information to the Monitor that the Monitor reasonably deems 6 necessary to exercise the authority and discharge the responsibilities of the Monitor under this Order; 7 providing any login and password required to access any Monitorship Entity computer or electronic files or 8 information in any medium; and advising all persons who owe money to Monitorship Entities that all debts 9 should be paid directly to the Monitor. Defendants and the Monitorship Entities, and their successors, 10 assigns, members, officers, agents, employees, and attorneys are hereby restrained and enjoined from 11 directly or indirectly: 12 A. Transacting any of the business of the Monitorship Entities without the Monitor’s written consent, other than matters set forth at Section VII.A; 13 14 B. Excusing debts owed to the Monitorship Entities; 15 C. Destroying, secreting, defacing, transferring, or otherwise altering or disposing of any Documents of the Monitorship Entities; 16 17 D. Transferring, receiving, altering, selling, encumbering, pledging, assigning, liquidating, 18 or otherwise disposing of any Assets owned, controlled, or in the possession or custody 19 of, or in which an interest is held or claimed by, the Monitorship Entities or the Monitor; 20 E. contract (whether written or oral) or insurance policy; 21 22 Directing the modification or cancellation (other than at the Monitor’s request) of any F. Failing to notify the Monitor of any Asset of a Monitorship Entity held in any name 23 other than the name of such entity, or by any person or entity other than a Monitorship 24 Entity, or failing to provide any assistance or information requested by the Monitor in 25 connection with obtaining possession, custody, or control of such Asset; or 26 G. Doing any act or thing whatsoever to interfere with the Monitor’s taking and keeping 27 custody, control, possession, or managing of the Assets or Documents subject to this 28 Monitorship; or to harass or interfere with the Monitor in any way, or to interfere in any 18 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 19 of 27 1 manner with the exclusive jurisdiction of this Court over the Assets or Documents of the 2 Monitorship Entities, or to refuse to cooperate with the Monitor or the Monitor’s duly 3 authorized agents in the exercise of their duties or authority under any Order of this 4 Court. 5 XII. STAY OF ACTIONS 6 IT IS FURTHER ORDERED that: 7 A. Except by leave of this Court, during pendency of the Monitorship ordered herein, 8 Defendants and Monitorship Entities and all other persons and entities be and hereby are stayed from 9 taking any action to collect against, recover, or to otherwise seek to gain possession of a Monitorship 10 Estate Asset, including, but not limited to, the following actions: 1. Accelerating the due date of any obligation or claimed obligation against a Monitorship 11 12 Estate Asset; filing or enforcing any lien against a Monitorship Estate Asset; taking or 13 attempting to take possession, custody, or control of any Monitorship Estate Asset; 14 attempting to foreclose, forfeit, alter, or terminate any interest in any Monitorship Estate 15 Asset, whether such acts are part of a judicial proceeding, are acts of self-help, or 16 otherwise; 2. Executing, issuing, serving, or causing the execution, issuance or service of, any legal 17 18 process, including, but not limited to, attachments, garnishments, subpoenas, writs of 19 replevin, writs of execution, or any other form of process whether specified in this Order 20 or not, against a Monitorship Estate Asset; or 21 3. Doing any act or thing whatsoever to interfere with the Monitor taking custody, control, 22 possession, or management of the Monitorship Estate’s Assets or Documents, or to 23 harass or interfere with the Monitor in any way, or to interfere in any manner with the 24 exclusive jurisdiction of this Court over the Monitorship Estate. 25 B. This Section XII does not stay: 26 1. The commencement or continuation of any criminal action or proceeding; 27 2. The commencement or continuation of a civil action or proceeding against the 28 Monitorship Entities or Defendants, so long as that proceeding or action does not 19 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 20 of 27 1 include collecting against, recovering, or to otherwise seeking to gain possession of a 2 Monitorship Estate Asset, or that otherwise interferes with the powers of the Monitor or 3 the jurisdiction of this Court over the Monitorship Estate, which actions are stayed; 4 3. The commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power; 5 4. The enforcement of a judgment, other than a money judgment, obtained in an action or 6 7 proceeding by a governmental unit to enforce such governmental unit’s police or 8 regulatory power; or 5. The issuance of a notice of tax deficiency. 9 10 XIII. DEFENDANTS’ ACCESS TO BUSINESS PREMISES AND RECORDS 11 IT IS FURTHER ORDERED that the Monitor shall allow Defendants and their representatives 12 reasonable access to the premises of the Monitorship Entities, if any. The purpose of this access shall be to 13 inspect, inventory, and copy any Documents and other property owned by, or in the possession of, the 14 Monitorship Entities, provided that those Documents are not removed from the premises without the 15 permission of the Monitor. The Monitor shall have the discretion to determine the time, manner, and 16 reasonable conditions of such access. 17 XIV. TRANSFER OF FUNDS TO THE MONITOR BY FINANCIAL INSTITUTIONS AND 18 OTHER THIRD PARTIES 19 IT IS FURTHER ORDERED that, if the Asset Freeze terminates under Section II.G.1.a, b, or if 20 the Court otherwise orders the Monitor to liquidate an Asset, upon service of a copy of this Order, any law 21 firm, financial or brokerage institution or depository, escrow agent, title company, commodity trading 22 company, payment processing company, or trust shall cooperate with all reasonable requests of counsel for 23 the FTC and the Monitor relating to implementation of this Order, including transferring funds at the 24 Monitor’s direction and producing records related to Defendants’ or Monitorship Entities’ Assets, and 25 providing the Monitor immediate and complete electronic access to the accounts of Defendants and 26 Monitorship Entities. 27 28 20 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 21 of 27 1 XV. COMPENSATION FOR MONITOR IT IS FURTHER ORDERED that the Monitor and all personnel hired by the Monitor as herein 2 3 authorized, including counsel to the Monitor and accountants, are entitled to reasonable compensation for 4 the performance of duties pursuant to this Order, and for the cost of actual out-of-pocket expenses incurred 5 by them, from the Assets now held by or in the possession or control of, or which may be received by, the 6 Defendants or Monitorship Entities. The Monitor shall file with the Court and serve on the parties periodic 7 requests for the payment of such reasonable compensation, with the first such request filed no more than 8 sixty (60) days after the date of this Order. The Monitor shall not increase the hourly rates used as the 9 bases for such fee applications without prior approval of the Court. 10 XVI. MONITOR’S BOND 11 IT IS FURTHER ORDERED that the Monitor shall file with the Clerk of this Court a bond in the 12 sum of $10,000 with sureties to be approved by the Court, conditioned that the Monitor will well and truly 13 perform the duties of the office and abide by and perform all acts the Court directs. 14 XVII. REPORTS OF MONITORS AND NOTICE OF HEARINGS IT IS FURTHER ORDERED that the Monitor shall report to the Court as provided in LR 66-4(b) 15 16 within 60 days of being appointed and at intervals of no less than 90 days thereafter. The Monitor shall 17 also comply with LR 66-5 regarding petitions for approval of the matters set forth therein, including but 18 not limited to petitions to confirm real or personal property sales, for authority to sell property at private 19 sale, and for applications for fees and for discharge. Provided, however, if any of the required information 20 would hinder the Monitor’s ability to pursue and maximize Monitorship Assets, the portions of the 21 Monitor’s report containing such information may be filed under seal and not served on the parties. 22 XVIII. MONITOR’S FINAL REPORT AND DISBURSEMENT OF ASSETS 23 IT IS FURTHER ORDERED that: 24 A. No later than three-hundred sixty (360) days from the date the Asset Freeze terminates and 25 triggers Section VIII.E of this Order, or at some later date that the Monitor may request of the Court for 26 good cause shown, the Monitor shall file and serve on the parties a report (the “Final Report”) to the Court 27 that details the steps taken to dissolve the Monitorship estate. The Final Report must include an accounting 28 of the Monitorship Estate’s finances and total assets and a description of what other actions, if any, must be 21 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 22 of 27 1 taken to wind-up the Monitorship. Promptly thereafter, but no later than thirty (30) days after submission 2 of the Final Report, the Monitor shall file an application for payment of compensation and expenses 3 associated with his performance of duties as Monitor under this Order which have not previously been 4 approved by the Court. The Monitor shall mail copies of the Final Report to all known creditors of the 5 Defendants with a notice stating that any objections to paying any assets of the Defendants to satisfy the 6 Monitor’s costs and expenses and the monetary judgment must be submitted to the Court and served by 7 mail upon the Monitor and the parties within thirty days of the mailing of the Final Report. If subsequent 8 actions (such as the completion of tax returns or further actions to recover funds for the Monitorship) are 9 appropriate, the Monitor shall file additional report or reports (the “Supplemental Reports”) describing the 10 subsequent actions and a subsequent application for the payment of fees and expenses related to the 11 subsequent acts; 12 B. 13 The Court will review the Final Report and any objections to the report and, absent a valid objection, will issue an order directing that the Monitor: 1. Pay the reasonable costs and expenses of administering the Monitorship, including 14 15 compensation of the Monitor and the Monitors’ personnel, and the actual out-of pocket 16 costs incurred by the Monitor in carrying-out his duties; and 2. To the extent that funds remain, pay all remaining funds to the FTC or its designated 17 agent to reduce the monetary judgment owed by Defendants to the FTC. 18 19 XIX. CREDIT REPORTS IT IS FURTHER ORDERED that the Monitor or the FTC may obtain credit reports concerning 20 21 any of the Defendants pursuant to Section 604(a)(1) of the Fair Credit Reporting Act, 15 U.S.C. 22 §1681b(a)(1), and that, upon written request, any credit reporting agency from which such reports are 23 requested shall provide them to the Monitor or the FTC. 24 XX. 25 SERVICE ON FINANCIAL INSTITUTIONS, ENTITIES OR PERSONS IT IS FURTHER ORDERED that copies of this Order may be served by any means, including 26 facsimile transmission, e-mail, and overnight delivery service, upon any Financial Institution or other 27 entity or person that may have possession, custody, or control of any documents or assets of any 28 22 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 23 of 27 1 Defendant, or that may otherwise be subject to any provision of this Order. Service upon any branch or 2 office of any Financial Institution shall effect service upon the entire Financial Institution. 3 XXI. GENERAL SERVICE OF ORDER IT IS FURTHER ORDERED that pursuant to Rule 4(c)(2), FED. R. CIV. P., this Order and the 4 5 initial papers filed in this matter may be served on Defendants, upon the business premises of Defendants, 6 and upon any Financial Institution or other entity or person that may have possession, custody or control of 7 any Documents or Assets of any Defendant or Tucker Entity, or that may be subject to any provision of 8 this Order, by employees of the FTC, by employees of any other law enforcement agency, by any agent of 9 Plaintiff, or by any agent of any process service retained by Plaintiff. 10 XXII. IT IS FURTHER ORDERED that, for the purpose of this Order, all correspondence and service 11 12 13 14 15 16 17 18 19 CORRESPONDENCE of pleadings on Plaintiff shall be addressed to: Kimberly L. Nelson Federal Trade Commission 600 Pennsylvania Avenue NW, CC-9528 Washington, DC 20580 Fax: 202-326-3197 Email: knelson@ftc.gov XXIII. RETENTION OF JURISDICTION IT IS FURTHER ORDERED that this Court shall have exclusive jurisdiction regarding any dispute regarding this Order, including whether an entity or person should be included as a Tucker Entity or in the Monitorship Estate. 20 21 30 Dated this __ day of November, 2016. 22 _____________________________ Gloria M. Navarro, Chief Judge United States District Court, District of Nevada 23 24 25 26 27 28 23 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 24 of 27 1 2 3 Seen and agreed to by: Date: November __, 2016 Date: November __, 2016 __________________________ __________________________ Defendant Scott Tucker Authorized Representative for Defendant Black Creek Capital Corporation Date: November __, 2016 Date: November __, 2016 __________________________ __________________________ Authorized Representative for Defendant Level 5 Motorsports LLC Authorized Representative for Defendant Broadmoor Capital Partners, LLC 4 5 6 7 8 9 10 Date: November __, 2016 11 __________________________ 12 13 14 Authorized Representative for Defendant AMG Capital Management, LLC Date: November __, 2016 Date: November __, 2016 __________________________ __________________________ Relief Defendant Kim C. Tucker Authorized Representative for Defendant Park 269, LLC Date: November 28, 2016 Date: November 28, 2016 25 /s/ Kimberly L. Nelson Kimberly L. Nelson Federal Trade Commission 600 Pennsylvania Ave., NW Mailstop CC-9528 Washington, DC 20580 knelson@ftc.gov Tel. (202) 326-3304 Fax (202) 326-3197 /s/ Jeffrey D. Morris Jeffrey D. Morris Nick J. Kurt Berkowitz Oliver LLP 2600 Grand Boulevard, Suite 1200 Kansas City, MO 64108 jmorris@berkowitzoliver.com nkurt@berkowitzoliver.com Phone: (816) 561-7007 Fax: (816) 561-1888 26 Attorney for Plaintiff Federal Trade Commission 15 16 17 18 19 20 21 22 23 24 Attorney for Defendants Scott Tucker, Black Creek Capital Corporation, Level 5 Motorsports LLC, Broadmoor Capital Partners, LLC, and AMG Capital Management, LLC 27 28 24 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 25 of 27 Date: November 28, 2016 1 /s/ Linda C. McFee Linda C. McFee R. Pete Smith McDowell, Rice, Smith & Buchanan 605 West 47th Street, Suite 350 Kansas City, MO 64112 Tel: (816) 753-5400 lmcfee@mcdowellrice.com petesmith@mcdowellrice.com Attorneys for Relief Defendants Kim C. Tucker and Park 269, LLC 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 26 of 27 1 2 3 4 5 6 2016 2016 7 8 9 epresentative for Defendant Level 5 LLC Autho;rzed Representative for Defendant Broadmoor Capital Partners, LLC 10 11 12 13 14 Authfized Representative for Defendant AMG Capitgl Management, LLC Date: November / , 2016 Date: November_, 2016 Relief Defendant Kim C. Tucker Authorized Representative for Defendant Park 269, LLC Date: November Date: November _J_, 2016 15 16 17 18 19 20 , 2016 25 Isl Kimberly L. Nelson Kimberly L. Nelson Federal Trade Commission 600 Pennsylvania NW Mailstop CC-9528 Washington, DC 20580 knelson@ftc.gov Tel. (202) 326-3304 Fax (202) 326-3197 26 Attorney for Plaintiff Federal Trade Commission 21 22 23 24 Jeffrey D. Morris Nick J. Kurt Berkowitz Oliver LLP 2600 Grand Boulevard, Suite 1200 Kansas City, MO 64108 jmorris@berkowitzoliver.com nkurt@berkowitzoliver.com Phone: (816) 561-7007 Fax: (816) 561-1888 Attorney for Defendants Scott Tucker, Black Creek Capital Corporation, Level 5 Motorsports LLC, Broadmoor Capital Partners, LLC, and AMG Capital Management, LLC 27 28 24 Case 2:12-cv-00536-GMN-VCF Document 1095-1 Filed 11/28/16 Page 27 of 27 Seen and agreed to by: · Date: November_, 2016 Date: November_, 2016 Defendant Scott Tucker Authorized Representative for Defendant Black Creek Capital Corporation Date: November_, 2016 Date: November_, 2016 Authorized Representative for Defendant Level 5 Motorsports LLC Authorized Representative for Defendant Broadmoor Capital Partners, LLC Date: November_, 2016 Authorized Representative for Defendant AMG Capital Management, LLC ReliefDefendant Kim C. Tucker Date: November , 2016 Isl Kimberly L. Nelson Kimberly L. Nelson Federal Trade Commission 600 Pennsylvania Ave., NW Mailstop CC-9528 Washington, DC 20580 knelson@ftc.gov Tel. (202) 326-3304 Fax (202) 326-3197 Attorney for PlaintiffFederal Trade Commission Authorized Representative for Defendant Park 269, LLC Date: November____:) 2016 Jeffrey D. Morris Berkowitz Oliver LLP 2600 Grand Boulevard, Suite 1200 Kansas City, MO 64108 jmorris@berkowitzoliver.com Phone: (816) 561-7007 Fax: (816) 561-1888 Attorney for Defendants Scott Tucker, Black Creek Capital Corporation, Level 5 Motorsports LLC, Broadmoor Capital Partners, LLC, and AMG Capital Management, LLC 01929099.DOCX;-l . ·- -· - · --· --------------------------- ----