Case: 1:17-cv-00194 Document #: 183 Filed: 01/14/18 Page 1 of 5 PageID #:3605 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

FEDERAL TRADE COMMISSION, 

 

 Plaintiff, 

 

vs. 

 

CREDIT BUREAU CENTER, LLC 

and MICHAEL BROWN, 

 

 Defendants. 

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) Case No. 17 C 194 

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ORDER ON DEFENDANTS' MOTION TO MODIFY PRELIMINARY 

INJUNCTION, PLAINTIFF'S MOTION TO STRIKE JURY DEMAND 

AND DEFENDANTS' PETITION FOR ATTORNEY'S FEES 

The Federal Trade Commission (FTC) sued Credit Bureau Center, LLC (CBC), 

Michael Brown, Danny Pierce, and Andrew Lloyd, seeking a permanent injunction and 

equitable relief for alleged violations of the Federal Trade Commission Act, the Fair 

Credit Reporting Act (FCRA), and the Restore Online Shoppers' Confidence Act 

(ROSCA). Together with the filing of the suit, the FTC sought an ex parte temporary 

restraining order, including an asset freeze and appointment of a receiver. Another 

judge of this Court, acting as emergency judge in the undersigned judge's absence, 

granted the motion. 

The FTC then moved for a preliminary injunction. Pierce and Lloyd agreed to 

entry of a preliminary injunction against them. In February 2017, the Court held an 

evidentiary hearing on the FTC's motion with regard to CBC and Brown and then issued 

a written decision granting a preliminary injunction. FTC v. Credit Bureau Center, LLC, 

235 F. Supp. 3d 1054 (N.D. Ill. 2017). The preliminary injunction, among other terms, 
 

 

 

 

 

 

 

 

 

Case: 1:17-cv-00194 Document #: 183 Filed: 01/14/18 Page 2 of 5 PageID #:3606 

prohibits the defendants from making certain types of misrepresentations and material 

omissions and from violating the ROSCA and certain regulations under the FCRA; 

continues the asset freeze; requires defendants to maintain certain records and report 

certain types of new business activity; and continues the appointment of a receiver with 

authority to take possession of and manage assets and documents in the defendants' 

control. See dkt. no. 59. In July 2017, the Court held Brown in contempt for violating 

certain provisions of the preliminary injunction order and imposed a compensatory 

sanction in the amount of $141,522. See dkt. no. 106. 

Brown and CBC later retained new counsel. They have now moved to modify 

the preliminary injunction to eliminate the asset freeze, dismiss the receiver, and return 

all documents and property seized or turned over as a result of the TRO or the 

preliminary injunction. New counsel has also petitioned for $30,000 in attorney's fees 

from the frozen funds. Finally, the FTC has moved to strike a jury demand recently filed 

by Brown and CBC. 

1. Motion to modify preliminary injunction 

Brown and CBC argue that the preliminary injunction's asset freeze and 

receivership are improper because they are intended to hold assets for disgorgement 

and restitution, remedies that Brown and CBC contend are not properly authorized 

under the FTC Act. Specifically, they argue that the Supreme Court, in addressing 

purportedly parallel securities fraud statutes in Kokesh v. SEC, 137 S. Ct. 1635 (2017), 

"found that disgorgement and restitution were penalties designed to deter potential 

violators and therefore not authorized under the securities statute." Defs.' Mot. to 

Modify Prelim. Inj. at 1. 

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This is a considerable overstatement of Kokesh. The Supreme Court held in that 

case that disgorgement under the securities laws "operates as a penalty" and thus is 

governed by the five-year statute of limitations in 28 U.S.C. § 2462 for any "action, suit 

or proceeding for the enforcement of any civil fine, penalty, or forfeiture pecuniary or 

otherwise." Kokesh, 137 S. Ct. at 1645. That is all; the Court did not say anything 

about whether disgorgement and restitution were, as defendants claim, "authorized" 

under the securities statute. To the contrary, the Court specifically stated that "[n]othing 

in this opinion should be interpreted as an opinion on whether courts possess authority 

to order disgorgement in SEC enforcement proceedings." Id. at 1642 n.3. 

Because there is no contrary Supreme Court authority, controlling Seventh 

Circuit law, which specifically authorizes disgorgement and restitution in FTC suits, still 

governs. See, e.g., FTC v. Febre, 128 F.3d 530, 534 (7th Cir. 1997); FTC v. Amy 

Travel Serv., Inc., 875 F.2d 564, 571-72 (7th Cir. 1989). The Court sees nothing in the 

"principles" of Kokesh, Defs.' Mot. to Modify Prelim. Inj. at 1, undermining these 

decisions. And although defendants point to questioning during oral argument of 

Kokesh before the Supreme Court that suggests some justices may question whether 

the securities laws confer authority for disgorgement and restitution, it is rather reckless 

to contend that questions at oral argument render existing precedent infirm. 

Defendants also argue that the seizure or required turnover of their documents 

and electronic records, as well as passwords, violates the Fourth Amendment; they ask 

the Court to require the FTC and the receiver to relinquish these materials. Defendants 

have forfeited this argument on multiple occasions, including by their failure to object to 

use of these materials during the preliminary injunction hearing and their failure to 

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object to the terms of the preliminary injunction on this basis. Even were the argument 

not forfeited, it lacks merit. There is no authority applying the Fourth Amendment's 

exclusionary rule in a civil proceeding like this one, and in any event the evidence 

submitted in support of the temporary restraining order and the preliminary injunction 

was more than sufficient to establish probable cause authorizing the Court's entry of an 

order permitting seizure or turnover of the materials in question. 

For these reasons, the Court denies defendants' motion to modify the preliminary 

injunction. 

2. Motion for attorney's fees 

In dealing with previous counsel's petition for attorney's fees, the Court reviewed 

the principles governing a request to carve out from frozen assets funds to be used for 

attorney's fees and expenses. See dkt. no. 112 (order of Aug. 3, 2017). Those same 

principles govern here. Counsel has no legitimate reliance interest, because he came 

into the case with no understanding or representations regarding the availability of any 

of the frozen funds for fees. And as the Court stated in the earlier order, there is a 

significant interest in maintaining funds to satisfy claims by consumers. On the other 

hand, Brown and CBC have a legitimate interest in obtaining representation. 

After considering these factors, the Court concludes, in its equitable discretion, 

that $15,000 should be released from the frozen funds to pay counsel, about half the 

amount requested. Counsel needs to understand, however, that this is it. The Court 

will not entertain further fee petitions prior to the final disposition of the case, barring an 

extraordinary change of circumstances. 

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3. Motion to strike jury demand 

Because the case is not yet set for trial, there is no need to adjudicate at this 

point the FTC's motion to strike defendants' jury demand. The motion is entered and 

continued generally. 

Conclusion 

For the reasons stated above, the Court denies defendants' motion to modify the 

preliminary injunction [156] and enters and continues general plaintiff's motion to strike 

defendants' jury demand [154]. The Court grants defendants' motion for attorney's fees 

in part [160, 161] and directs the release of $15,000 from the frozen funds to 

defendants' counsel of record. The case remains set for a status hearing, to be 

conducted by telephone, on January 19, 2018, but the time of the status hearing is 

advanced to 8:45 a.m. on that date. Counsel should be prepared to set a trial date. 

Date: January 14, 2018 

________________________________ 

MATTHEW F. KENNELLY 

United States District Judge 

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