Case 8:15-cv-02231-MSS-CPT Document 234 Filed 09/14/18 Page 1 of 42 PageID 10955 

UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

ROCA LABS, INC., a corporation, 

ROCA LABS NUTRACEUTICAL USA, 

INC., a corporation, DON JURAVIN, 

individually, DON JURAVIN, as an

officer of Roca Labs, Inc. and Roca 

Labs Nutraceutical USA, Inc. Must 

Cure Obesity, Co and Juravin, Inc., 

GEORGE C. WHITING, individually, 

GEORGE C. WHITING, as an officer of 

Roca Labs, Inc. and Roca Labs 

Nutraceutical USA, Inc. and Zero 

Calorie Labs, Inc., MUST CURE 

OBESITY, CO., a corporation, 

JURAVIN, INCORPORATED, a 

corporation, and ZERO CALORIE

LABS, INC., a corporation, 

Defendants. 

/ 

Case No: 8:15-cv-2231-T-35TBM 

ORDER 

THIS CAUSE comes before the Court for consideration of Plaintiff’s Amended 

Motion for Summary Judgment Against All Defendants (Dkt. 210); Defendants’ response 

in opposition thereto (Dkt. 221); Plaintiff’s reply (Dkt. 228); Defendants’ [Amended] Motion 

for Partial Summary Judgment as to Count Three of the Amended Complaint (Dkt. 212); 

and Plaintiff’s response in opposition thereto. (Dkt. 216) Upon consideration of all 

relevant filings, case law, and being otherwise fully advised, the Court GRANTS Plaintiff’s 

Amended Motion for Summary Judgment (Dkt. 210) and DENIES Defendants’ [Amended] 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Motion for Partial Summary Judgment as to Count Three of the Amended Complaint. 

(Dkt. 212) 

I. BACKGROUND 

A. The Plaintiff 

The Federal Trade Commission (“FTC” or “Plaintiff”) is an independent agency of 

the United States Government established by statute. 15 U.S.C. §§ 41–58. The FTC 

has the power to enforce Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits 

unfair or deceptive acts or practices in or affecting commerce, and Section 12 of the FTC 

Act, 15 U.S.C. §§ 52, 55, which prohibits false advertisements for food, drugs, devices, 

services, or cosmetics in or affecting commerce. 

B. The Defendants 

There are seven named defendants in this action, including five corporate 

defendants. Defendants Roca Labs, Inc. (“RLI”), Roca Labs Nutraceutical USA, Inc. 

(“RLNU”), Must Cure Obesity, Co. (“MCO”), Juravin, Incorporated (“JI”), and Zero Calorie 

Labs, Inc. (“ZCL”) (collectively, “Corporate Defendants”) are Florida entities. (Dkt. 48) 

Defendant Don Juravin (“Juravin”) owns MCO and JI and has been an officer of RLI and 

RLNU. (Dkts. 210, 219) Defendant George Whiting (“Whiting”) owns and has been an 

officer of RLI, RLNU, and ZCL. (Id.) The FTC alleges that the Corporate Defendants 

operated a common enterprise to sell Roca Labs products through deceptive and unfair 

practices. (Dkt. 48) It also alleges that Defendants Juravin and Whiting “formulated, 

directed, controlled, had the authority to control, or participated in the acts and practices 

of RLI, RLNU, MCO, JI, and ZCL.” (Id. at 6) 

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C. Factual Background 

On September 24, 2015, the FTC filed this action, alleging that Defendants 

engaged in acts and practices that violated Sections 5 and 12 of the Federal Trade 

Commission Act, 15 U.S.C. §§ 45, 52, in connection with the advertising and sale of 

weight-loss products and the use of contractual provisions prohibiting purchasers from 

providing negative commentary. (Dkt. 1) At the same time, the FTC moved for a 

temporary restraining order. (Id.) On September 29, 2015, the Court entered a 

Stipulated Temporary Restraining Order (“TRO”) agreed to by the FTC and Defendants 

Juravin, Whiting, RLI, and RLNU (collectively, “the Four Enjoined Defendants”). (Dkt. 

13) The Parties stipulated to preserve their assets while the case remained pending. 

(Dkt. 13-1) On October 29, 2015, the Court issued a Preliminary Injunction, imposing 

various restraints against the Four Enjoined Defendants. (Dkt. 38) 

On February 19, 2016, the FTC filed an Amended Complaint for Permanent 

Injunction and Other Equitable Relief (“Complaint”). (Dkt. 48) On September 13, 2016, 

the Court issued a Stipulated Preliminary Injunction Freezing Assets with Other Equitable 

Relief applicable to all Defendants, except Defendant Whiting. (Dkt. 90) 

In the Complaint, the FTC alleges the following: Since at least 2009, Defendants 

have advertised, marketed, sold, and distributed weight-loss products, including Roca 

Labs Formula (“Formula”) and Roca Labs Anti-Cravings (“Anti-Cravings”). (Dkt. 48 ¶ 15) 

Defendants’ revenues from the sale of these products since 2010 were at least $20 

million. (Id. ¶ 18) The products were sold in powder form that consumers could mix 

with water or other liquid to drink. (Id. ¶ 15) Defendants marketed the weight-loss 

products as a safe and cost-effective alternative to gastric bypass surgery to combat 

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obesity and achieve substantial weight loss. (Id.) Defendants have used the terms 

“Gastric Bypass No Surgery” or “Gastric Bypass alternative” in the promotions of their 

products. (Id. ¶¶ 19, 23) Defendants also have used illustrations, such as the one 

below, to depict how the formula is used. 

(Id. at 10; Dkt. 2 at 2, 5) Defendants also stated that the products are safe for children 

as young as six years old, although they recommended parental supervision and 

consultation with a doctor. (Dkt. 48 at 13 ¶ 27h) 

Defendants promoted their products in a variety of ways, such as through their 

websites, including RocaLabs.com and Mini-Gastric-Bypass.me (“Roca Labs Websites”), 

and by using online advertisements to direct consumers to the Roca Labs Websites. (Id. 

¶¶ 19, 22–24) In videos on the Roca Labs Websites and Defendants’ social media 

pages, Defendants also made representations about the Roca Labs products, such as: 

What is the Formula? Roca Labs’ Formula is a medical innovation that 

creates a natural gastric bypass effect in the stomach. It’s based on healthy 

fibers, and it’s classified as a food supplement. Just mix with water, take it 

each morning, and it immediately expands to physically fill your stomach. 

For the next 10 to 16 hours, only 20% of your stomach will be available for 

food intake. Your new, small stomach will force you to eat 50% less from 

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day one. 

(Id. ¶ 28a) The Roca Labs Websites also included links to documents, such as “Letter 

to Your Doctor V1-Aug12,” purportedly written by a doctor or other medical professional, 

that describe the benefits of Roca Labs products and summarize scientific literature 

regarding those benefits. (Id. ¶¶ 30–31) At times, the Letter to Your Doctor segment was 

attributed to “Dr. Ross Finesmith, Director of Medical Team” or “Ross Finesmith, M.D. 

Medical Consultant.” (Id. ¶ 31) Finesmith made statements regarding his experience 

with the Formula and the products’ efficacy. (Id.) The Roca Labs Websites used 

medical images, such as the Caduceus symbol and people dressed in white lab coats, 

and medical terminology, including “medical team,” “medical innovation,” and “research 

center.” (Id. ¶ 33) In fine print, as part of the “Terms and Conditions” section of the 

RocaLabs.com website, Defendants stated that “[n]o clinical study has been performed 

on this product.” (Id. ¶ 32) The Roca Labs Websites included testimonials and thirdparty reviews as promotional material. (Id. ¶ 34) Defendants solicited the testimonials, 

called “Success Videos,” by offering to pay customers who purchased the Roca Labs 

products up to $1,000.00 upon meeting certain conditions, such as achieving a certain 

interim weight loss goal, providing an inspirational and convincing success story, and 

demonstrating that the weight loss is evident in “before & after” images. (Id. ¶¶ 35–36) 

Defendants did not disclose that the people in the videos were paid or received offers of 

pay for their testimonials. (Id. ¶ 38) Defendants also did not disclose that they, or 

someone working on their behalf, posted testimonials or other information about Roca 

Labs products on third-party blogs or websites. (Id. ¶ 39) Defendants failed to disclose 

that they operated Gastricbypass.me, a website that discusses bariatric surgery and 

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features a “Surgical Alternatives” page devoted to positive commentary on Roca Labs 

products and which also sells the Roca Labs products. (Id. ¶ 40) Defendants did not 

disclose that Gastricbypass.me is affiliated with RLI or RLNU. (Id.) 

Defendants advertised that the basic package of Roca Labs products costs 

$480.00 with “valid health insurance.” (Id. ¶¶ 18, 41) Without insurance, the basic 

package costs $640.00. 1 (Id.) The basic package included a three to four-month 

supply of the Formula and an approximate three-month supply of the Anti-Cravings 

product. (Id. ¶ 41) Consumers who desired to purchase the Roca Labs products 

through the Roca Labs Website were required to enter their information through the 

“Qualify & Order” pages, which featured videos about the qualification process and stated 

that the information consumers provided would be kept confidential and would not be 

shared. (Id. ¶ 42) The prospective customers were required to provide complete a 

“Questionnaire” or “Health Application,” which included questions about cholesterol, high 

blood pressure, diabetes, digestion, and other health conditions. (Id. ¶ 43) The Health 

Application also asked consumers about psychological or emotional issues relating to 

weight, past weight-loss failures, depression, and binge eating. (Id.) 

When the products were shipped to customers, Defendants included in the 

package, among other items and documents, a “Summary” document that stated the 

customers’ information would not be shared with anyone. (Id. ¶ 45) A “Thanks for 

purchasing” document, also included in the shipped packaging, warned that there are no 

returns or refunds and that those who cancel or dispute installment payments may face 

legal action and $3,500 in charges. (Id.) The “Roca Labs Procedure Rules & Diet” 

1 There is nothing in the record to indicate that Defendants ever billed health insurance companies. 

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insert listed the rules: eat between 11 a.m. and 8 p.m. only or any nine-hour interval; eat 

a healthy, 100-calorie snack before 11 a.m.; and eat vegetables or occasionally lowcalorie popcorn as a snack between 8 p.m. and 10 p.m. (Id. ¶ 46) Customers also were 

advised that “[t]o maintain the gastric bypass effect, [they should] drink at least six 1⁄2 liter 

bottles of water a day,” exercise at least five times a week, and document their success 

by video weekly. (Id.) The “Roca Labs Procedure Rules & Diet” insert also was 

available online at Roca Labs Websites to prospective customers. (Id.) 

Since at least September 2012, Defendants have included a non-disparagement 

clause, also known as a “gag clause,” in the Terms and Conditions that prohibited 

customers from publishing disparaging comments about Roca Labs products. (Id. ¶¶ 

47–53) The Terms and Conditions also indicated that the purchase price was 

“conditional,” “discounted,” or “subsidized” in exchange for the customer’s agreement to 

the gag clause and other provisions in the Terms and Conditions. (Id. ¶ 51) The Terms 

and Conditions stated that the purchaser agrees to pay the full price of the product, 

$1,580.00, if the purchaser breached the gag clause. (Id. ¶¶ 49, 51) In the September 

2012 version, the Terms and Conditions stated that customers would have to compensate 

Defendants $100,000 for talking “badly about the Formula.” (Id. ¶ 52; Dkt. 2-1 at 56) In 

the August 2014 version of the Terms and Conditions, customers were subject to being 

sued for an injunction and being billed $3,500.00 for legal fees and court costs for 

publishing any negative comments about the Defendants’ products, services, or 

employees. (Dkt. 48 ¶ 52; Dkt. 2-1 at 26) That version also provided that Defendants 

could force purchasers to sign a notarized affidavit stating that the disparaging remarks 

were incorrect, contained factually incorrect material, and breached the Terms and 

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Conditions. (Dkt. 48 ¶ 52; Dkt. 2-1 at 26–27) These alleged acts form the basis of the 

FTC’s seven-count Complaint. 

In Count I, the FTC asserts deceptive weight-loss claims. The FTC alleges that 

Defendants have made deceptive weight-loss claims by representing that: 

a. Use of Defendants’ products, including Roca Labs Formula and Roca 

Labs Anti-Cravings, enables the user to reduce food intake by fifty percent 

and to lose substantial amounts of weight quickly, including as much as 21 

pounds in one month, and as much as 100 pounds in seven to ten months; 

b. Ninety percent of users of Defendants’ products, including Roca Labs 

Formula and Roca Labs Anti-Cravings, will lose substantial amounts of 

weight; 

c. Defendants’ products, including Roca Labs Formula and Roca Labs AntiCravings, are comparable or superior to bariatric surgery in providing weight 

loss benefits; and 

d. Defendants’ products, including Roca Labs Formula and Roca Labs AntiCravings, are safe and effective for weight loss in children as young as six 

years old. 

(Id. ¶ 61) The FTC alleges that these representations were false or misleading or were 

not substantiated at the time they were made. The representations, the FTC contends, 

constitute deceptive acts or practices and false advertisement, in or affecting commerce, 

in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. (Id. ¶¶ 

62–63) 

In Count II, the FTC asserts a false establishment claim. Plaintiff alleges that 

Defendants’ representation that the use of the products, including the Formula and AntiCravings, is scientifically proven to have a ninety percent success rate in forcing users to 

eat half their usual food intake and cause substantial weight loss is false or misleading. 

(Id. ¶ 64) The FTC also alleges that this representation constitutes a deceptive act or 

practice and a false advertisement, in or affecting commerce, in violation of 5(a) and 12 

of the FTC Act, 15 U.S.C. §§ 45(a) and 52. (Id. ¶ 66) 

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In Count III, the FTC contends that Defendants’ use of the non-disparagement 

provision, or gag clause, in the sale of the products constitutes unfair acts or practices in 

violation of Section 5 of the FTC Act, 15 U.S.C. §§ 45(a) and (n). (Id. ¶ 69) 

In Count IV, the FTC alleges that Defendants misrepresented Gastricbypass.me 

as an independent, objective resource for information regarding bariatric surgery, 

alternatives to bariatric surgery for weight loss, and Roca Labs products. (Id. ¶ 70) The 

FTC alleges that this representation was false or misleading and constitutes a deceptive 

act or practice and a false advertisement, in or affecting commerce, in violation of 

Sections 5(a) of the FTC Act, 15 U.S.C. § 45(a). (Id. ¶ 72) 

In Count V, the FTC alleges that Defendants failed to disclose that people who 

appeared in their advertising providing testimonials were paid or received offers of pay. 

(Id. ¶ 74) Plaintiff also alleges that Defendants failed to disclose that Defendants own 

Gastricbypass.me and that they sell the Formula and Anti Cravings products. (Id.) The 

failure to disclose this information, the FTC argues, is a deceptive act or practice and a 

false advertisement, in or affecting commerce, in violation of Sections 5(a) of the FTC 

Act, 15 U.S.C. § 45(a). (Id. ¶ 75) 

In Count VI, the FTC asserts a deceptive privacy claim. The FTC contends that 

Defendants’ representation that they do not disclose consumers’ information, including 

health information, and keep consumers’ information confidential is false or misleading. 

(Id. ¶¶ 76, 78) Such a representation, according to the FTC, constitutes a deceptive act 

or practice, in or affecting commerce, in violation of Section 5(a) of the FTC Act, 15 U.S.C. 

§ 45(a). (Id. ¶ 78) 

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In Count VII, the FTC asserts a deceptive discount claim. The FTC challenges 

Defendants’ representation that purchasers agreed to pay the difference between the “full 

price” and the purported “discount” price if they post negative comments or reviews about 

Defendants, their products, or employees. This representation, the FTC contends, is 

false or misleading and constitutes a deceptive act or practice, in or affecting commerce, 

in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). (Id. ¶¶ 79, 81) 

On April 26, 2018, the FTC filed an amended motion for summary judgment on all 

claims. (Dkt. 210) Defendants moved for partial summary judgment as to Count III. 

(Dkt. 212) 

II. LEGAL STANDARD 

Summary judgment is appropriate when the movant can show there is no genuine 

issue of material fact and that the movant is entitled to judgment as a matter of law. 

Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (citing Welding Servs., Inc. v. 

Forman, 509 F.3d 1351, 1356 (11th Cir. 2007)). Which facts are material depends on 

the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). The moving party bears the burden of showing that no genuine issue 

of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). 

Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 

559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party 

discharges its burden on a motion for summary judgment by showing or pointing out to 

the Court that there is an absence of evidence to support the non-moving party’s case. 

Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted). 

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When a moving party has discharged its burden, the non-moving party must then 

designate specific facts (by its own affidavits, depositions, answers to interrogatories, or 

admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 

F.3d 1315, 1320–1321 (11th Cir. 2006) (citation omitted). The party opposing a motion 

for summary judgment must rely on more than conclusory statements or allegations 

unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) 

(“conclusory allegations without specific supporting facts have no probative value.”). “If 

a party fails to properly support an assertion of fact or fails to properly address another 

party’s assertion of fact . . . the court may grant summary judgment if the motion and 

supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). 

“The standard of review for cross-motions for summary judgment does not differ 

from the standard applied when only one party files a motion, but simply requires a 

determination of whether either of the parties deserves judgment as a matter of law on 

the facts that are not disputed.” S. Pilot Ins. Co. v. CECS, Inc., 52 F. Supp. 3d 1240, 

1242–43 (N.D. Ga. 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 

1331 (11th Cir. 2005)). “Cross-motions may, however, be probative of the absence of a 

factual dispute where they reflect general agreement by the parties as to the controlling 

legal theories and material facts.” Id. at 1243 (citing United States v. Oakley, 744 F.2d 

1553, 1555–56 (11th Cir.1984)). 

III. DISCUSSION 

A. Deceptive and False Advertisement (Counts I, II, IV, V, VI, VII) 

Section 5(a) of the FTC Act prohibits unfair or deceptive acts or practices in or 

affecting commerce. 15 U.S.C. § 45(a). Section 12 of the FTC Act prohibits the 

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dissemination of false advertisements for food, drugs, devices, services, or cosmetics in 

or affecting commerce. 15 U.S.C. §§ 52, 55. The dissemination of such false 

advertisement is an unfair or deceptive practice as outlined in Section 5(a). 15 U.S.C. § 

52(b). “Thus, a violation of Section 12, dissemination of false advertising, constitutes a 

violation of Section 5(a).” FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d 1167, 

1188 (N.D. Ga. 2008), aff'd, 356 F. App’x 358 (11th Cir. 2009). Under the statute, a 

“false advertisement” is “an advertisement, other than labeling, which is misleading in a 

material respect.” 15 U.S.C. § 55(a)(1). 

To demonstrate liability for unfair and deceptive commercial practices under 

Section 5 or Section 12 of the FTC Act, the plaintiff must establish that “(1) there was a 

representation; (2) the representation was likely to mislead customers acting reasonably 

under the circumstances, and (3) the representation was material.” FTC v. Tashman, 

318 F.3d 1273, 1277 (11th Cir. 2003) (citations omitted); 15 U.S.C. § 45. 

Under this standard, courts first evaluate whether the advertisement made the 

purported claims. Nat’l Urological Group, Inc., 645 F. Supp. 2d at 1189. The 

determination is made by evaluating either the terms of the advertisements or “evidence 

of what consumers interpreted the advertisement to convey.” Id. To determine the 

meaning and representations of an advertisement, the court must consider the overall net 

impression of the advertisement and whether reasonable consumers would interpret a 

particular message. Id. 

Under the second element of the standard, the FTC may establish that the 

representation was likely to mislead customers under a “falsity theory” or a “reasonable 

basis theory.” Id. at 1190. In other words, the FTC may demonstrate (a) that the 

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message conveyed by the advertisement was false or (b) that “the advertiser lacked a 

reasonable basis—or adequate substantiation—for asserting that the message was true.” 

Id. 

Under the third prong, the FTC may demonstrate that the challenged 

representation was material in several ways. A representation is material if a reasonable 

prospective buyer is likely to rely upon it. FTC v. Washington Data Resources, 856 F. 

Supp. 2d 1247, 1272 (M.D. Fla. 2012), aff’d sub nom. FTC v. Washington Data 

Resources, Inc., 704 F.3d 1323 (11th Cir. 2013). Additionally, an express claim, an 

intentionally-implied claim made by seller, and claims “that significantly involve health, 

safety, or other areas with which reasonable consumers would be concerned” are 

presumed material. Kraft Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992) (citation 

omitted); FTC v. Transnet Wireless Corp., 506 F. Supp. 2d 1247, 1266, 1267 (S.D. Fla. 

2007). 

1. Defendants’ Weight-Loss Claims (Counts I, II) 

The FTC alleges that Defendants’ five weight-loss claims, discussed above, are 

false and deceptive. (Dkt. 210 at 26–27) In their response, Defendants raise no dispute 

as to the existence of the representations or the materiality. (Dkt. 221) Thus, the Court 

focuses its analysis of the alleged deceptive misrepresentations on the second element 

of the three-part standard: whether consumers were likely to be misled by the claims in 

the advertisements. For the reasons that follow, the Court finds that the FTC is entitled 

to summary judgment on Counts I and II. 

The FTC contends that Defendants’ claims are deceptive for two reasons: (1) the 

claims are false, and (2) Defendants had no reasonable basis, or adequate 

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substantiation, for their claims. (Dkt. 210 at 40–41) See Nat’l Urological Group, Inc., 645 

F. Supp. 2d at 1190; FTC v. Pantron I Corp., 33 F.3d 1088, 1096 (9th Cir. 1994) (claim 

may be deemed deceptive if the advertiser had no reasonable basis to assert the claims 

as true or if the claim is demonstrably false). 

The FTC has established that Defendants’ claims are false in that they were 

material and likely to mislead consumers. As discussed above, Defendants made 

express claims regarding weight loss. Those express claims, which significantly involve 

health, are inherently material. See Kraft, 970 F.2d at 322. Defendants disseminated 

their claims online—through the Roca Labs Websites and online advertisements—to 

direct consumers to the Roca Labs Websites to purchase the products. The ads 

intentionally contained medical images and terminology to bolster the credibility of 

Defendants’ claims and induce customers to believe that the claims were scientifically 

validated by the medical community. Thus, the Court concludes that the claims were 

likely to mislead consumers acting reasonably under the circumstances. 

The FTC also has established that Defendants had no reasonable basis to assert 

the claims because they lack competent and reliable scientific evidence. For healthrelated claims, including weight-loss claims, an advertiser must demonstrate that it has 

competent and reliable scientific evidence to support any claimed reasonable basis to 

assert that the claims are true. FTC v. NPB Adver., Inc., No. 8:14-cv-115, 2016 U.S. 

Dist. LEXIS 151840, at *4, *13 (M.D. Fla. Nov. 2, 2016). Additionally, the FTC’s expert, 

Dr. Steven Heymsfield (“Dr. Heymsfield”), a medical doctor at the Pennington Biomedical 

Research Center at Louisiana State University and an expert in obesity treatment and 

weight loss, opined that no competent and reliable scientific evidence for Defendants’ 

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claims existed. (Dkt. 210-3) To prove a weight-loss claim, “experts in the field of 

obesity treatment and weight loss would require well-designed and properly conducted 

clinical trials.” (Dkt. 210-3 at 14) Dr. Heymsfield explained that a trial should be doubleblind and placebo-controlled so that the testers and participants are unaware of who is 

assigned to a particular group. (Id.) Dr. Heymsfield also explained that a valid clinical 

trial would have at least eighty participants and last at least three months. (Id. at 14–15) 

He stated that a clinical trial should test the substance, not the individual ingredients, for 

which the claims are made because it is well established in the scientific community that 

the efficacy of individual ingredients is insufficient to establish the efficacy of those 

ingredients combined. (Id. at 16) 

In their response, Defendants argue that the randomized controlled test (“RCT”) 

described by Dr. Heymsfield is not required to provide competent and reliable scientific 

evidence. (Dkt. 221 at 18–22) Defendants’ contention is rooted, primarily, in United 

States v. Bayer Corp., 2015 WL 5822595 (D.N.J. Sept. 24, 2015). In Bayer, the 

Government sought a contempt order against Bayer for violating a consent decree. Id. 

at *2. The Government alleged that Bayer failed to provide an RCT as competent and 

reliable scientific evidence to substantiate its advertising claims. Id. at *14. The court 

noted the absence of a legal requirement for RCTs and concluded that the “four corners” 

of the consent decree did not contain any language that required Bayer to provide RCTs 

to substantiate the claims; ultimately, the court ruled that the Government failed to carry 

its burden. Id. at *3, 14–15. However, the Bayer decision is inapposite both 

procedurally and factually. Here, the moving party is not challenging a consent decree 

such that it carries a legal burden to establish a violation by clear and convincing 

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evidence. Moreover, the FTC is not precluded from requiring RCTs or challenging 

claims for lack of an RCT, and the absence of the RCT is just one piece of evidence 

demonstrating the lack of competent and reliable evidence of the truth of the claims or 

their reasonableness. 

Defendants failed to produce any competent and reliable scientific evidence to 

substantiate their claims. In September 2015, the same month that the FTC filed this 

Complaint, Defendants’ products were studied by the Center for Applied Health Sciences, 

which issued a report after a clinical trial on the Roca Labs products. (Dkt. 210-4 at 17) 

Dr. Heymsfield reviewed the study, which Defendants provided to the FTC. (Id. at 8–9) 

The study tested thirty-one overweight adults, including seventeen adults who used the 

Roca Labs products for twenty-eight days. (Id. at 17) The results showed that the 

participants did not lose weight after taking the Roca Labs products and that there was a 

“slight but statistically insignificant ‘trend’ that active users reported feeling less hungry 

three hours after taking the product.” (Id. at 18) He noted the study reflected that there 

was no “lasting reduction in gastric capacity.” (Id.) Dr. Heymsfield determined that the 

trial did not provide any competent or reliable scientific evidence because the trial design 

was flawed. (Id.) 

Additionally, Dr. Heymsfield opined that the scientific articles on weight loss and 

individual dietary fibers, the specific articles posted on Roca Labs Websites, and other 

materials provided by Roca Labs do not offer any competent and reliable scientific 

evidence in support of Defendants’ claims.2 (Dkt. 210-3 at 11–12) Defendants offer the 

2 Defendants specifically highlight two research study articles, and both are sponsored by 

Corporate Defendant MCO. (Dkts. 221-3, 221-4) One of the authors is Defendant Juravin, who 

has not been identified as an expert, and the other three authors’ qualifications are not listed. 

(Id.) 

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affidavit of Dr. Marcus Free (“Dr. Free”), who is a board-certified surgeon and was recently 

hired as medical director for MCO, as evidence that the Regimen “does appear to be 

safer, more effective, and superior in several ways to currently available bariatric surgical 

procedures.” (Dkt. 201-1 ¶¶ 6, 9–13) Defendants have not established that Dr. Free is 

a pertinent professional or expert in the field of obesity treatment and weight loss. As 

such, Dr. Free’s opinion cannot be used as a basis for competent reliable and scientific 

evidence. 

As it relates specifically to Count II, the FTC also has demonstrated that 

Defendants’ claim that the use of Formula and Anti-Cravings is scientifically proven to 

have a ninety-percent success rate in forcing users to eat half their usual food intake and 

cause substantial weight loss is false. This representation of success is an 

establishment claim because the claim purports to be supported by scientific evidence. 

By law, an establishment claim is required to have a certain level of scientific proof to 

support of the claim. Thompson Med. Co., Inc. v. FTC, 791 F.2d 189, 194 (D.C. Cir. 

1986) (explaining that an advertiser “must possess the level of proof claimed in the ad” to 

support an establishment claim). The advertiser must have sufficient evidence to satisfy 

the relevant scientific community of the claim’s truth. POM Wonderful, LLC v. FTC, 777 

F.3d 478, 491 (D.C. Cir. 2015). Defendants have advertised the “scientifically proven” 

claim online, but they have not produced any evidence to support the claim. (Dkt. 2 at 

36) As discussed above, Defendants have failed to provide any evidence of a valid 

clinical study on the Roca Labs products. Hence, the unsubstantiated claim is false and 

likely to mislead consumers into believing that it was supported when it was not. 

Transnet Wireless Corp., 506 F. Supp. 2d at 1266–67 (concluding that the express claims 

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are presumptively material and inherently misleading); Thompson Med., 791 F.2d at 194 

(affirming the FTC’s ruling that an unsubstantiated establishment claim was misleading). 

As to Counts I and II, the FTC has established no competent or reliable scientific 

evidence substantiates Defendants’ express claims, which are material 

misrepresentations likely to mislead reasonable customers. Defendants offer no 

evidence to raise a dispute of fact. Consequently, the FTC is entitled to summary 

judgment on Counts I and II. 

2. Defendants’ Representations About Gastricbypass.me (Counts 

IV, V) 

The FTC is entitled to summary judgment on Counts IV and V. The FTC alleges 

that Defendants deceived consumers by failing to disclose that the testimonials were 

made by people who were compensated and that Defendants owned an informational 

website. Specifically, the FTC alleges that Defendants failed to disclose the financial 

incentives paid to or offered to people who provided testimonials for the Roca Labs 

products and who posted positive comments on blogs and social media. (Dkt. 210 at 

42) The FTC also contends that “Defendants misrepresented Gastricbypass.me as an 

independent, objective resource for research and information related to bariatric surgery 

and alternatives to bariatric surgery for weight loss, and about Roca Labs products.” (Id.) 

The evidence to support the FTC’s allegations is undisputed. 

Material misrepresentations or omissions on which a consumer would likely rely to 

decide whether to make a purchase constitute deceptive advertising. Tashman, 318 

F.3d at 1277. Juravin testified that he created Gastricbypass.me to “educate and scare 

people about” gastric bypass surgery. (Dkt. 210-8 at 59, 174:9–177:4) Only Roca Labs 

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products were discussed favorably on the site, although there was no disclosure of the 

affiliation with Defendants. (Id. at 59, 175:15–17) Juravin stated that Gastricbypass.me 

was controlled by Roca Labs and that he was responsible for the content, but he did not 

see any value in letting consumers know “[h]ey we are Roca Labs.” (Id. at 59–60, 

175:22–177:4) 

Purportedly satisfied customers—“Carla” and “Roxie”—depicted in the videos 

posted on RocaLabs.com were actually Defendants’ employees. (Dkt. 210-19 at 8, 

36:3–18; Dkt. 210-19 at 40, 193:11–194:10; Dkt. 210-19 at 33–34, 168:11–169:20; Dkt. 

210-23 at 10, 39:20–24) Defendants directed their employees to create blogs or fictitious 

posts. For example, Roca Labs General Manager Sharon King (“King”) testified that she 

wrote a Roca Labs product review under the name of “Fran,” which was a fictitious name, 

and that Juravin edited the review. (Dkt. 210-19 at 48, 238:24–239:23; Dkt. 210-19 at 

48, 239:3–14) Juravin also directed King to instruct “the Customer Service people” to 

write posts or reviews and comment on Roca Labs Facebook advertisements. (Dkt. 210-

8 at 69, 237:16–238:8, 238:16–17; Dkt. 210-8 at 72, 281:24–282:24; Dkt. 210-19 at 45, 

226:15–227:8) Defendants did not instruct the employees to disclose their affiliation with 

Defendants. (Dkt. 210-19 at 45, 227:5–8) Roca Labs employee Sharon Hensley 

(“Hensley”), who appeared on video as “Roxie,” testified that she was asked to post 

positive comments monthly on Facebook about Roca Labs monthly and did not state her 

association with Defendants. (Dkt. 210-23 at 19, 138:13–140:10; Dkt. 210-19 at 7, 

27:20–24) 

Defendants admit that Gastricbypass.me did not state its affiliation with RLI. (Dkt. 

221 at 30) Yet, they argue that Roxie’s testimonial is valid because the weight loss 

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occurred prior to her employment, although Roxie’s video was recorded after she was 

employed by Defendants. (Dkt. 221 at 30–31; Dkt. 210-23 at 8, 30:9–18; Dkt. 210-23 at 

8, 32:17–33:3) Defendants’ argument misses the point. The fact that Roxie 

experienced weight loss success prior to her employment has no bearing on the fact that 

Defendants failed to disclose their financial relationship with Roxie and others who gave 

testimonials. As such, the FTC has established that Defendants failed to disclose that 

they owned the website, provided reviews of their own products, or had a financial 

relationship with those who provided testimonials. Thus, there is no genuine issue of 

fact in dispute on this issue. 

The financial relationship with the testimonialists and ownership of 

Gastricbypass.me is material. Defendants exclusively marketed their products online 

and used testimonials and the website to entice prospective buyers to purchase the Roca 

Labs products. (Dkt. 210-24) The financial relationship also is material because 

Gastricbypass.me website and testimonials involve health matters, weight loss claims, 

and other information important to the consumer in deciding whether to purchase Roca 

Labs products. NPB Adver., Inc., No. 8:14-cv-115, 2016 U.S. Dist. LEXIS 151840, at 

*13 (granting summary judgment in favor of the FTC after concluding, in part, that the 

defendant failed to disclose that the testimonialists were compensated and a reasonable 

consumer likely would rely on the testimonials). The Court finds that the FTC has 

demonstrated that Defendants made material misrepresentations and omitted material 

facts upon which reasonable consumers and prospective customers would likely rely. 

Thus, the FTC is entitled to summary judgment on Counts IV and V. 

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3. Defendants’ Privacy Claim (Count VI) 

The FTC is entitled to summary judgment on Count VI because there is no genuine 

issue of material fact regarding Defendants’ misrepresentation that they would keep 

private health information confidential. Defendants do not rebut that they made the 

express privacy promise, which is presumptively material. Kraft, 970 F.2d at 322. 

Prospective customers who purchased Roca Labs products online entered their 

health information through the “Qualify & Order” pages that included a Questionnaire, 

also called a Health Application. The Qualify & Order page stated that the information 

that prospective customers enter would be kept confidential and would not be shared. 

(Dkt. 210-8 at 54, 156:1–157:3; Dkt. 210-14 at 75; Dkt. 210-19 at 17, 95:14–24) Prior to 

submitting their order, prospective customers were required to enter their height, weight, 

gender, age, and information regarding their health issues and weight-related 

psychological issues on the Questionnaire or Health Application. (Dkt. 210-8 at 55, 

157:23–159:24) 

Despite a confidentiality promise, Defendants published customers’ sensitive 

details and disclosed their personal information to payment processors.3 In responding 

to other customers’ disputes about credit card charges for Roca Labs products, RLI 

stated, in part, that the customer had completed a “Qualification Form and provided 

personal and medical information.” (Dkt. 6-7 at 13) (citation omitted) RLI disclosed 

the personal information to payment processors, such as the height, weight, age, and sex 

of the customers. (Id. at 13–14) RLI also disclosed the customers’ personal responses 

3 The Court does not rely on the Defendants’ publication of sensitive information in court filings. 

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regarding why they wanted to lose weight, such as “[b]ecause I want to feel good and 

stop being sick and tired.” (Id.) 

Defendants admit that customers’ information from the Questionnaire or Health 

Application was included in communications with credit card payment processors. (Dkt. 

221 at 33) Defendants argue that the information was publicly available and was 

necessarily disclosed to address disputes with the credit card payment processors. (Id. 

at 33–34) Defendants also contend that in 2014 the Terms and Conditions stated: “Your 

information will not be shared or sold for as long as you do not breach the Terms and we 

will have to use the information provided.” (Dkt. 210-10 at 3) These arguments are 

without merit. Defendants offer no evidence that the customers’ current weight, desired 

weight loss, and other health information was publicly available. Defendants also offer 

no supporting evidence that disclosure of customers’ sensitive information was necessary 

to respond to disputes regarding the credit card charges. Further, the 2014 Terms and 

Conditions that Defendants cite is dated June 2014, and Alice King and the Broward 

Customers purchased the products prior to the June 2014 version of the Terms and 

Conditions. (Dkt. 210-10 at 2; Dkt. 6-5 at 44, 99-100, 103, 104) 

In light of the disclosures, it is undisputed that Defendants’ express claims that 

customers’ information would remain private were material and false. See 15 U.S.C. § 

52(b) (providing that the dissemination of false advertisements constitutes an unfair or 

deceptive practice under Section 5(a)). Thus, as to Count VI, the Court concludes that 

there are no triable issues on this point and the FTC is entitled to summary judgment. 

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4. Defendants’ Discount Claim (Count VII) 

The FTC is entitled to summary judgment on Count VII because Defendants’ postpackaging materials misrepresented that consumers had agreed to pay hundreds of 

dollars more for the Roca Labs products than what they actually paid if they posted 

negative reviews about the products or Defendants. Defendants do not dispute that they 

made the discount claim or that it is material. Instead, Defendants argue that the 

discount claim is not deceptive because customers agreed to the discount and its 

associated requirements. 

When customers received the package of Roca Labs products, two documents 

were included in the package. In the “Summary” of the Terms and Conditions and a 

“Thanks for purchasing” packaging insert, customers were told they were given a 

“discount off the unsubsidized price of $1580 in exchange for [their] agreement to promote 

[Defendants’] products” and would owe the full price of $1,580 if they did not honor the 

agreement. (Dkt. 210-14 at 84; Dkt. 58 ¶ 53; Dkt. 2-1 at 61–62; Dkt. 6-3 at 30) 

Defendants argue that the discount claim is not deceptive because customers 

were aware of and agreed to the discount and the non-disparagement clause prior to 

purchase. They contend that customers were provided sufficient notice in the Terms and 

Conditions prior to purchase and after the purchase in the documents shipped with the 

products. (Dkt. 221 at 36–37) Defendants suggest that the prior notice in the Terms 

and Conditions dispels the deception. These arguments fail for two reasons. 

First, Defendants created an overall net impression that the price of the product 

was $480 without reference to a discount or any concessions as to publishing negative 

comments. Defendants advertised that the basic package of Roca Labs products costs 

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$480 for purchasers with a “valid health insurance.” (Dkt. 6-2 at 64) In multiple online 

advertisements, including those that appeared on Google, Bing, and Facebook, 

Defendants advertised the cost as simply $480, at least for a basic package of Roca Labs 

products. (Dkt. 210-11, Dkt. 210-12; Dkt. 210-13) At the top of the “Roca Labs 

Procedure Cost” page of Defendants’ Websites, Defendants state “Only $480 and NO 

surgery to gastric bypass cost of $8,000 + health insurance payments. Save yourself from 

surgery that can cost your life. Save 90%.” (Dkt. 6-2 at 64) Farther down on that page, 

in smaller print, Defendants state that the “Roca Labs Formula is available for as low as 

$480” and display a chart showing the various packages, from the basic package for $480 

to the customized package for $1,080. (Dkt. 6-2 at 64) The price differences in the 

packages reflect the quantity of products ordered and the level of customer service 

provided. (Id.) Several of the banner ads that appear online typically have five words: 

“GASTRIC BYPASS NO SURGERY $480.” (Dkt. 210-10) Scores of search 

advertisements also convey the price as $480, stating, for example, “Mini Gastric Bypass 

$480” followed by “Official Site: No Surgery Solution! Reduce Stomach Size & Lose 

Weight.” (Dkt. 210-12 at 34–87, 93) The advertisements did not contain any 

disclaimers that the price was discounted or subsidized in exchange for a customer’s 

agreement to refrain from publishing negative comments. As such, Defendants created 

an overall net impression that the price was $480, with no exceptions or limitations. 

Second, the disclaimer in the Terms and Conditions did not dispel the net 

impression. Although the Terms and Conditions were disclosed on a hyperlinked page, 

it was unlikely that consumers would have noticed or clicked on the link. The link to the 

Terms and Conditions was at the bottom of the RocaLabs.com page, just above the 

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“Submit” button. (Dkt. 6-3 at 28) Prior to purchasing the Roca Labs products, 

customers were required to check a box next to the statement “I have checked and do 

not have any medical reason that can prevent me from suing the Roca Labs Gastric 

Bypass Alternative procedures and I have read and agree to the terms, privacy and 

money back reward / return policy.” (Id.) However, customers were not required to read 

the Terms and Conditions prior to purchasing. (Dkt. 221 at 37) For customers who may 

have accessed the Terms and Conditions, the disclaimer about the discounted price and 

non-disparagement clause was inconspicuous and buried among legal, contractual 

language. (Dkt. 2-1at 10, 11, 23, 26, 48, 53) 

Hence, the disclaimer in the Terms and Conditions fails to dispel the net 

impression that the price was $480 with no strings attached. See FTC v. Commerce 

Planet, Inc., 878 F. Supp. 2d 1048, 1065 (C.D. Cal. 2012) (holding that terms disclosed 

in a separate, hyperlinked page is insufficient to overcome net impression that the auction 

kit was free; stating that “disclosures do not automatically exonerate deceptive activities”), 

aff'd in part and rev’d on other grounds, 815 F.3d 593 (9th Cir. 2016); Washington Data 

Resources, 856 F. Supp. 2d at 1275 (concluding that a disclaimer buried in a contract 

provided late in the purchase process is insufficient to dispel a deceptive net impression); 

FTC v. Cyberspace.com LLC, 453 F.3d 1196, 1200 (9th Cir. 2006) (concluding that smallprint disclosure on back of a check was insufficient to defeat net impression that the check 

was a rebate or refund). Defendants cannot avoid liability by exclusively advertising that 

the product costs $480 without any caveats and then burying the conditions of the 

discount in a separate disclaimer. 

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Defendants’ misrepresentation is material and deceptive because it is an express 

claim that involves important information to customers: the price of the product and 

limitations on what customers could say about the products or Defendants. A customer 

would likely be misled to believe that he or she had the option to purchase the product at 

“full” price and maintain the ability to post negative but truthful comments. Customers 

also would likely to be misled to believe that they had actually agreed to refrain from 

posting negative comments, when they had not agreed to do so, by paying the purportedly 

discounted price.4 Accordingly, the Court finds that the FTC is entitled to summary 

judgment as to Count VII. 

B. Defendants’ Gag Clause Practices (Count III) 

The FTC alleges that Defendants’ practices related to the gag clause, which 

prevents customers from making negative comments about Defendants or their products, 

are unfair under Section 5 of the FTC Act. (Dkt. 210 at 45) In the response and their 

own motion for partial summary judgment as to this count, Defendants contend that the 

clause is not illegal and that the FTC cannot demonstrate that the practices are unfair. 

(Dkt. 221; Dkt. 212) Defendants also argue that they lacked fair notice that the FTC 

would interpret their practices as unfair. (Dkt. 221 at 29) For the reasons that follow, 

the Court finds that the FTC is entitled to summary judgment on Count III. 

1. Legality of the Gag Clause 

Defendants argue that the FTC cannot assert that the gag clause was unfair 

because it was part of a valid contract between Defendants and the customers. (Dkt. 

4 In her declaration, customer LaShawn Baker stated that she “did not see or ready anything on 

the Roca Labs website explaining that [she] was not allowed to talk badly about the product.” 

(Dkt. 6-15 at 2) Other customers made similar statements in their declarations. (Dkt. 210-25– 

210-31) 

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212 at 11–14) Defendants contend that the gag clause was part of the Terms and 

Conditions that customers agreed to because they were required to click on a box next 

to a sentence stating, inter alia, that they had read and agreed to the terms before buying 

the product. (Id. at 13) Defendants cite to a plethora of cases about the enforceability 

of online “clickwrap” contracts. As Defendants concede, the enforceability of the contract 

is not at issue or before the Court. (Id. at 14) The issue is whether Defendants’ 

practices related to the gag clause were unfair under Sections 5 of the FTC Act. Thus, 

the Court finds no merit in Defendants’ contention that the FTC is unable to proceed 

against Defendants on this basis. 

2. Unfairness of the Gag Clause 

Under Section 5 of the FTC Act, an act or practice is unfair if it “causes or is likely 

to cause substantial injury to consumers which is not reasonably avoidable by consumers 

themselves and not out weighed by countervailing benefits to consumers or to 

competition.” 15 U.S.C. § 45(n). Additionally, the FTC “may consider established public 

policies” in its determination of an unfair act or practice. Id. 

a. Likely to Cause Substantial Injury 

The FTC alleges that restricting the flow of information to consumers and the 

marketplace causes or is likely to cause substantial injury. (Dkt. 210 at 44) To support 

its claim, the FTC cites to the declaration and expert report of Dr. Paul Pavlou (“Dr. 

Pavlou”), who is an associate dean and professor of information technology and strategy 

at Temple University. (Dkt. 210-5). Dr. Pavlou stated that suppressing truthful negative 

reviews negatively affects consumers and the marketplace. (Id. at 8) He opined that 

the absence of such reviews inflates the perception of Defendants and the products and 

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also prevents future customers from learning about potential problems. (Id. at 8, 12 ) 

Consequently, Dr. Pavlou stated, prospective customers are encouraged to buy products 

that ultimately may not be desirous or appropriate. (Id. at 8) Without any, or even with 

very few, negative reviews, it is likely that “[c]onsumers are more inclined to purchase 

Roca Labs’ products due to their inflated perceptions of product quality, misled by the 

manipulated absence of negative reviews that artificially inflate[s] their expectations of 

product quality,” according to Dr. Pavlou. (Id. at 13) The FTC asserts that Juravin’s 

testimony supports its claim. Juravin testified that he paid a company $40,000 to “make 

the false comments not show up up front” because false comments “create the wrong 

impression” and hurt Defendants’ sales by at least $40,000. (Dkt. 210-8 at 29–31, 

56:22–62:7) 

The FTC also argues that Defendants’ threats to sue and filing of lawsuits caused 

or were likely to cause substantial injury. Defendants threatened legal action against 

customers who complained or said they would complain to the Better Business Bureau 

or who said they had plans to post negative comments online. (Dkt. 216 at 11) For 

example, customer Marie McGaha (“McGaha”) stated in a declaration that she saw no 

negative online reviews prior to buying Roca Labs products. (Dkt. 6-14 at 2) 

“Compared to gastric bypass surgery, [i]t seemed like a good option.” (Id. at 2) She 

bought the products; however, she asked for a refund because she did not like the texture 

of the mixture and it made her sick. (Id. at 2–3) Defendants declined to give her a 

refund. McGaha wrote a blog about her experience, and readers called the company to 

complain. (Id. at 3) Then, she received a letter from Defendants’ counsel, who wrote: 

Your statements are defamatory, you are committing tortious interference 

with business and inducing harassment, you have breached your contract 

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with Roca Labs, and you are violating the Federal Lanham Act. 

Additionally, your actions amount to criminal extortion, which is defined as 

follows: “The obtaining of property or money from another induced by 

wrongful use of actual or threatened force, violence, or fear, or under color 

of official right.” This is exactly what you are doing. If this posting is not 

IMMEDIATELY removed, Roca Labs will have no choice but to file suit 

against you. Roca Labs will also have no choice but to contact law 

enforcement regarding the harassing phone calls and the extortion. 

(Id. at 7–8) (emphasis in original) McGaha also received an email from Defendants 

asking for her “SS or driving license” so that Defendants could file a police report 

regarding her “Slander, Defamation and Extortion.” (Id. at 10) After the email and the 

letter, McGaha’s blog was removed by WordPress, which was also threatened by 

Defendants with a lawsuit about the blog posts, according to McGaha. (Id. at 4) 

Subsequently, McGaha stopped writing about the product and abated her pursuit of a 

Better Business Bureau complaint because she “couldn’t afford to get sued.” (Id. at 5) 

McGaha stated she never received a refund. Another customer, Amina Di’Leonardi 

(“Di’Leonardi”), stated in a declaration that she was threatened with legal action after filing 

a complaint with the Better Business Bureau following an unsuccessful pursuit of a $173 

refund for her first installment payment on the nearly $500 purchase. (Dkt. 210-27 at 3– 

4) After being contacted by Defendants’ attorney, Di’Leonardi withdrew her complaint 

because she did not want to be sued. (Id. at 4) Joyce Agbetunsin (“Agbetunsin”), a 

customer, stated that she was threatened with a lawsuit after telling a Roca Labs 

customer service representative that she did not think the product was legitimate and that 

she wanted a refund. (Dkt. 210-26 at 4) Agbetunsin filed a complaint with the Better 

Business Bureau in June 2011, but “[w]hen they became aggressive and threatening, I 

gave up. I already lost too much time and money dealing with the issue.” (Id. at 5) 

Agbetunsin never received her $440 refund. 

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Defendants contend that the FTC provided no evidence of tangible harm, either 

economic or physical, and relies solely on intangible harm to make its claim. Their 

contention is without merit. Defendants offer no factual or legal basis to support their 

argument that the FTC is required to provide evidence of tangible harm. Defendants cite 

to the FTC Act’s legislative history, which explained “[i]n most cases, substantial injury 

would involve monetary or economic harm or unwarranted health and safety risks. 

Emotional impact and more subjective types of harm alone are not intended to make an 

injury unfair.” S. Rep. No. 103-130, at 13, 1993 WL 322671 (1993). But neither the 

legislative history nor the current law requires proof of tangible harm to the exclusion of 

intangible harm, as Defendants assert. Further, the FTC is not required to prove that an 

actual harm has occurred because “the FTC Act contemplates the possibility that conduct 

can be unfair before actual injury occurs.” FTC v. Wyndham Worldwide Corp., 799 F.3d 

236, 264 (3d Cir. 2015). 

Because Defendants admittedly suppressed negative information about the 

products and because Dr. Pavlou testified that the absence of negative information could 

make a consumer more inclined to purchase Roca Labs products, the Court finds that 

Defendants’ practices have caused or were likely to cause substantial injury to 

consumers. The record demonstrates that some consumers paid hundreds of dollars for 

the Roca Labs products and unsuccessfully sought refunds because of Defendants’ 

practice of issuing threats under the guise of enforcing the gag clause. Thus, the Court 

finds that there is no genuine issue of fact on this basis that would preclude summary 

judgment in favor of the FTC. 

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b. Not Reasonably Avoidable by Consumers 

The FTC contends that Defendants’ practices related to the gag clause cause were 

likely to cause injury that was not reasonably avoidable because prospective customers 

who search for information about Roca Labs products would not necessarily be made 

aware of previous buyers’ negative but truthful experiences. (Dkt. 210 at 48) For 

example, in her declaration, customer Rolisa Harper (“Harper”) stated that, after watching 

YouTube videos, she was interested in the products. (Dkt. 210-32 at 2–3) She 

“researched further and didn’t find any negative reviews for the product. This influenced 

my decision to purchase the product. I always look at product reviews before I purchase 

a product, especially when a product costs several hundred dollars.” (Id. at 3) 

Ultimately, without any or very little access to consumers’ negative experiences, 

prospective buyers like Harper are prohibited from making an informed choice. 

Defendants offer no evidence that their practices did not prohibit the availability of 

negative reviews or that their practices were reasonably avoidable by the prospective 

consumer. Rather, Defendants argue that prospective customers could have 

reasonably avoided any injury by reading the contract that contained the gag clause or 

joining another weight loss program. (Dkt. 212 at 17–18) Defendants’ argument 

misses the mark. Under this prong of the FTC Act, the FTC alleges that Defendants’ 

practices relating to the gag clause, not the gag clause itself, were unfair. Further, 

because Defendants offer no facts to support a claim that prospective customers could 

reasonably avoid a dearth of negative reviews, which the Defendants assiduously 

prevented from being available, there is no genuine issue of a material fact in dispute on 

this issue. 

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c. Countervailing Benefits to Consumers or Competition 

The FTC contends that there is no countervailing benefit to competition or 

consumers that outweighs the injury caused or likely to be caused by Defendants’ gag 

clause practices. (Dkt. 210 at 49) As discussed, the FTC has presented evidence that 

consumers were injured or likely to be injured by the absence of negative reviews. 

Defendants present no evidence to the contrary, only arguing that the practices benefited 

consumers or competition and that a cost-benefits analysis is required. 

Defendants assert that consumers benefited from the products by losing weight, 

increasing their confidence, and taking steps toward a healthier lifestyle. (Dkt. 212 at 

18) Defendants also argue that the FTC has provided no cost-benefit analysis, which 

they assert is required by 15 U.S.C. § 45(n). (Dkt. 221 at 28) Specifically, Defendants 

contend that the statute requires courts to 

compare (1) the sum of (a) the costs to Defendants of false negative reviews 

and (b) the additional costs associated with Defendants’ compliance with 

any order forbidding the disparagement clause going forward (collectively, 

the “Relevant Costs”), with (2) the magnitude of any substantial consumer 

injury caused or likely to be caused by the disparagement clause and the 

attempts to enforce same (the “Relevant Benefits”). 

(Dkt. 221 at 28–29) 

Their arguments fail two primary reasons. First, Defendants’ recitation of the 

benefits they claim consumers received from using the products ignores the issue 

presented in this claim, which is whether Defendants’ gag clause practices, not their 

products and services, presented a countervailing benefit. Second, the Court is 

unpersuaded that such a quantitatively precise cost-benefits analysis is required. The 

statute, 15 U.S.C. § 45(n), does not provide for such a detailed analysis. The case cited 

by Defendants to support their contention that a detailed cost-benefit analysis is required 

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is inapposite. In Wyndham Worldwide Corp., the court noted that 15 U.S.C. § 45(n) 

suggests that a cost-benefit analysis is a relevant inquiry in the context of analyzing 

whether the defendant had fair notice of the FTC’s interpretation of a statute but went on 

to say that such an inquiry considers several relevant factors. 799 F.3d at 255–56 (citing 

Pa. Funeral Dirs. Ass’n, Inc. v. FTC, 41 F.3d 81, 91 (3d Cir. 1994) (stating that 

“quantitative data is not necessary in such an evaluation” of whether the benefits of 

banning casket handling fees outweigh the cost and the absence of quantitative data is 

not fatal to the FTC’s analysis.)). The Wyndham court did not review a cost-benefits 

analysis, as no such analysis was presented, no argument was made for an analysis to 

be provided to the court, and the defendant’s fair notice claim was rejected on other 

grounds. 

Based on the evidence presented by the FTC, the Court finds that the FTC has 

met its burden to establish that Defendants’ practices related to the gag clause were 

unfair. Only the FTC is entitled to summary judgment on this claim; Defendants’ 

amended motion for partial summary judgment as to Count III is due to be denied. 

3. Fair Notice of the FTC’s Interpretation 

Defendants argue that the FTC’s unfairness claim is barred by the fair notice 

doctrine. (Dkt. 221 at 29) The fair notice doctrine prevents “deference [to the regulator] 

from validating the application of a regulation that fails to give fair warning of the conduct 

it prohibits or requires.” Global Green, Inc. v. S.E.C., 631 F. App’x 868, 870 (11th Cir. 

2015) 5 (citing Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C.Cir.1986)). 

5 The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it is 

persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289 

(11th Cir. 2000). 

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However, this doctrine is only applied in very limited circumstances. Global Green, 631 

F. App’x at 870 (citing Suburban Air Freight, Inc. v. Transp. Sec. Admin., 716 F.3d 679, 

684 (D.C.Cir.2013)). For example, the doctrine has been applied where the FCC 

changed course regarding its interpretation of statutory provision and failed to provide fair 

notice to two broadcasters. FCC v. Fox TV Stations, Inc., 567 U.S. 239, 253–58 (2012). 

Defendants assert that they did not have fair notice that the FTC “would adopt 

these interpretations in this case.” (Dkt. 221 at 29) Specifically, Defendants state they 

had no knowledge that the FTC would consider that an intangible injury could constitute 

a substantial injury under the statute. (Id. at 30) Defendants argue that neither the 

FTC’s policy statements nor any FTC commissioner’s testimony provided them with 

“ascertainable certainty” that an intangible harm would constitute a substantial injury. 

(Dkt. 221 at 25–27) These arguments are unpersuasive. 

In FTC Policy Statement on Unfairness, the FTC stated that: 

the injury must be substantial. The Commission is not concerned with 

trivial or merely speculative harms. In most cases a substantial injury 

involves monetary harm, as when sellers coerce consumers into purchasing 

unwanted goods or services or when consumers buy defective goods or 

services on credit but are unable to assert against the creditor claims or 

defenses arising from the transaction. Unwarranted health and safety risks 

may also support a finding of unfairness. Emotional impact and other more 

subjective types of harm, on the other hand, will not ordinarily make a 

practice unfair. 

FTC’s Policy Statement on Unfairness, Sen. Comm. on Commerce, Science and 

Transportation (Dec. 17, 1980), appended to In the Matter of Int’l Harvester Co., 104 

F.T.C. 949 (1984). The Unfairness Statement further clarified that an “injury may be 

sufficiently substantial, however, if it does a small harm to a large number of people, or if 

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it raises a significant risk of concrete harm.” Id. at p.5, n.12 The Policy Statement and 

supplemental explanation harmoniously characterize substantial injury. Further, neither 

states that intangible injury is excluded from the definition of substantial injury. 

Defendants offer no evidence that the FTC abruptly changed course in its enforcement 

guidelines or in its statutory provisions. Accordingly, the Court rejects Defendants’ 

argument that the FTC’s claim is prohibited under the fair notice doctrine. 

C. Remedies 

Under Section 13(b) of the FTC Act, the FTC seeks permanent injunctive relief 

against Defendants and monetary relief against Juravin and the Corporate Defendants. 

15 U.S.C. § 53(b). The Court finds that a permanent injunction against all Defendants is 

warranted.6 

A permanent injunction is appropriate when there is a “cognizable danger of 

recurrent violation.” Washington Data Resources, 856 F. Supp. 2d at 1282 (citing United 

States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)). Juravin testified that he has moved 

away from using the Roca Labs brand and is now using “gastric.care,” but “[t]he formula 

is the same formula.” (Dkt. 210-8 at 75, 367:7–368:2, 386:19–387:7) Juravin also 

stated that he is marketing the products on Facebook, a “Lost 100” Website, and online 

videos and chat. (Dkt. 210-16 at 31, 574:12–575:21) In his deposition, Juravin also 

6 Defendants assert that they have complied with the preliminary injunction and, consequently, 

the Court lacks subject matter jurisdiction. (Dkt. 221 at 45–47) The Court rejects their 

argument. Defendants assert no factual basis to suggest that they have fully complied with the 

injunction or that full compliance divests the Court of jurisdiction. The Court also is unpersuaded 

by Defendants’ citation to FTC v. Shire ViroPharma Inc., CV 17-131-RGA, 2018 WL 1401329, at 

*1 (D. Del. Mar. 20, 2018), appeal docketed No. 18-1807 (3d Cir. Apr. 11, 2018). In Shire, the 

Court dismissed the FTC’s complaint after finding, in relevant part, that the FTC had not 

adequately pled that the defendant was “about to violate” the law “when the alleged misconduct 

ceased almost five years before filing of the complaint.” Id. at *6. The court did not find that it 

lacked subject matter jurisdiction. 

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said he told his Facebook boot camp customers: “I’m allowed to tell you anything I want; 

to do anything I want with you that would lead you to a healthy weight . . .” (Dkt. 210-16 

at 24, 542:1–17) He also testified that he will show the customers “any images I want. 

I will do anything I want for them for as long as I lead them to achieve a healthy weight.” 

(Id.) Based on Defendants’ extended history of deceptive and unfair practices and 

Defendants’ continued promotion of their products and comparisons to gastric bypass 

surgery, the FTC has proven that a cognizable danger of recurrent violation exists. Thus, 

a permanent injunction prohibiting Defendants’ deceptive and unfair practices is justified. 

Because the Court has found Defendants liable for violating Section 5 of the FTC 

Act, it also finds the FTC is entitled to monetary relief under Section 13(b) for consumer 

redress, including disgorgement. As to the formula for calculating damages, in accord 

with Eleventh Circuit precedent, FTC contends that the “proper measure of disgorgement 

is the amount of the defendants’ unjust gains.” (Dkt. 210 at 53) The “amount of net 

revenue (gross receipts minus refunds) . . . is the correct measure of unjust gains under 

section 13(b).” Washington Data, 704 F.3d at 1327. 

In contrast, Defendants invite the Court to calculate disgorgement by: 

. . . tak[ing]the number of complaints registered with the Better Business 

Bureau that are based on the customer’s assertion that the product did not 

work as advertised from March of 2011 (the time of the first complaint 

lodged with the BBB) to the date of this filing, September 29, 2018. That 

number should then be multiplied by $350, the average selling price of the 

Roca Labs Product during this time period. Finally, that number should be 

multiplied by twenty-five (25) to account for customers that might feel the 

product did not work as advertised, but who did not register a complaint with 

the BBB. 

(Dkt. 221 at 45) Defendants contend this calculation ensures that the disgorgement is 

“based on the customer’s assertion that the product did not work as advertised.” (Id.) 

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The Court declines Defendants’ invitation. This calculation is not in accord with 

binding precedent. The Eleventh Circuit has held that the proper measure of 

disgorgement is unjust gain, not consumer loss, and the appropriate measure for unjust 

gains is net revenue. Washington Data, 704 F.3d at 1326. Therefore, the Court finds 

that the amount of damages in this action shall be calculated by the amount of gross sales 

revenue minus the amount of customer refunds returned to consumers. 

The FTC asserts the net revenue amount is $25,246,000—totaling the gross sales 

revenue generated from sales minus what the FTC contends is a “reasonable 

approximation” of customer refunds. (Dkt. 210 at 54) The Court notes that FTC has 

provided sufficient evidence as to the amount of gross sales revenues, which totaled 

$26.6 million during the relevant time period. (See e.g., Dkt. 210 at 54-24 at 1, 4). 

Specifically the FTC provided Defendants’ corporate tax returns for 2011-2015, as well 

as affidavit testimony verifying the reported revenue. (Id.; Dkt. 210, 54-9 at 153:1-154:6, 

154:19-24, 167:2-168:9, 170:18-171:3, 176:22-177:15). However, regarding the 

$1,354,000.00 customer refund amount ($26,000,000.00 gross sales - $25,246,000.00 

net revenue = $1,354,000.00), FTC merely states that the amount is a “reasonable 

approximation.” It does not cite to record evidence, such as internal business records or 

tax records or bank records. It offers no affidavit attesting to the specific amount of 

refunds or how that approximation was derived. This Court has scoured the record and 

cannot find any evidentiary support. 

“The FTC bears the burden to show the ‘reasonably approximate’ amount of the 

defendant's unjust gain.” Washington Data, 856 F. Supp. 2d 1247, 1281 (M.D. Fla. 

2012). In Washington, the FTC “establishe[d] a ‘reasonable approximation’ of net 

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revenue” through affidavit testimony which explained how consumer sales data, including 

refund data, was extracted from Defendants’ database and subsequently processed, 

filtered, and analyzed. In addition, documentation was provided demonstrating FTC’s 

calculations of the extracted consumer sales data which supported the unjust gains 

approximation amount. Similarly, in FTC v. Partners in Health Care Ass’n, 189 F. Supp. 

3d 1356, 1370 (S.D. Fla. 2016), the Court was provided with sufficient numerical evidence 

to conclude that the FTC’s approximation of unjust gains was reasonable.7 Here there 

is no evidentiary basis to support the approximation amount provided by FTC is 

reasonable. Thus, the Court cannot make a determination at this time as to the 

appropriate disgorgement amount until the parties have supplemented the record. 

The Court also finds that both Juravin and Whiting are individually liable for the 

Corporate Defendants’ deceptive and unfair acts. For the FTC to demonstrate that the 

individuals are liable for the deceptive acts of a corporate defendant, the FTC must first 

demonstrate that the business entities operated in an integrated manner, or as a common 

enterprise. Washington Data Resources, 856 F. Supp. 2d at 1271. The factors used in 

determining whether a common enterprise exists is whether the businesses “1) maintain 

officers and employees in common, (2) operate under common control, (3) share offices, 

(4) commingle funds, and (5) share advertising and marketing.” Id. at 1271 (citations 

omitted). Juravin and Whiting were the only owners and officers of the Corporate 

Defendants. (Dkt. 210-24 at 6; Dkt. 219 ¶¶ 1–5) Juravin owns MCO and JI and has 

7 Specifically, a Certified Fraud Examiner (CFE) went through Defendants’ files to estimate the 

amount of loss, and then, using specialized software, the CFE executed a Transactions by 

Enrollment Agent Report. From this report, the CFE was able to conclude that the corporate 

defendants and their affiliates made $9,738,588.86 in gross sales and recorded $992,494.68 in 

consumer refunds. 

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been an officer of RLI and RLNU, and Whiting owns and has been an officer of RLI, 

RLNU, and ZCL. (Dkt. 219) The entities also have comingled funds. For example, 

revenues generated by MCO in 2014 and 2015 were reported on RLI’s corporate tax 

returns. (Dkt. 210-8 at 29, 65:12–67:19; Dkt.210-24) In 2014 and 2015, JI’s income 

was generated from either RLI, RLNU, or MCO. (Dkt. 210-16 at 18–19, 473:17–478:15) 

Accordingly, the FTC has demonstrated that the Corporate Defendants operated as a 

common enterprise. 

Next, the FTC must establish that Juravin and Whiting knew of the deceptive acts 

and either participated directly in or had authority or control over the acts. FTC v. Gem 

Merch. Corp., 87 F.3d 466, 470 (11th Cir. 1996) (citing FTC v. Amy Travel Service, Inc., 

875 F.2d 564, 573 (7th Cir. 1989)). The FTC may demonstrate that the individuals had 

“actual knowledge of material misrepresentations, reckless indifference to the truth or 

falsity of such misrepresentations, or an awareness of a high probability of fraud along 

with an intentional avoidance of the truth.” Amy Travel, 875 F.2d at 574 (citation 

omitted). The FTC is not required to prove intent to defraud. Id. The FTC may 

establish that an individual exercised control over the alleged deceptive practices with 

evidence that the individual controlled the daily operations. Id. at 573. Also, the “degree 

of participation in business affairs is probative of knowledge.” Id. (citation omitted). 

The FTC has established that Juravin knew of the material misrepresentations and 

either participated in the deceptive acts or had authority to control them. Juravin testified 

that anything that was on the site was his responsibility. (Dkt. 210-8 at 50, 137:5–23) 

Juravin controlled virtually every aspect of the Corporate Defendants’ business, including 

marketing, websites, claim substantiation, expenditures, personnel, and lawsuits. (Dkt. 

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210-16 at 7, 426:5-432:3). Juravin also stated that he was in charge of daily operations 

and was “responsible for all matters involving Roca Labs, including advertisements.” 

(Dkt. 210-24 at 8) From 2009 through 2015, Juravin controlled RLI, personally receiving 

approximately $7 million from the Corporate Defendants during this timeframe. (Dkt. 

210-16 at 11, 448:9-450:2) Juravin solely controlled RLI’s main checking accounts, 

personally authorized credit card expenditures for online ads, and received bank 

statements addressed to his home for RLI and ZCL. (Dkt. 210-16 at 14, 458:5-460:7; 

Dkt. 210-18 at 38, 221:7-222:25). Juravin also liberally transferred funds back and forth 

between all Corporate Defendants, transferred substantial sums to himself, and often paid 

his personal expenses from the corporate accounts. (Dkt. 210-18 at 43, 240:9-242:20; 

Dkt. 210-18 at 45, 249:1-252:15; Dkt. 210-18 at 49, 266:1-267:19) 

The FTC also has established that Whiting had knowledge of the deceptive acts. 

Whiting testified that he was aware of customers’ complaints and lawsuits filed by 

Defendants. (Dkt. 210-18 at 17, 74:4–9; 76:6–19) Thus, Whiting cannot disavow 

knowledge of Defendants’ practices. The FTC also has demonstrated that Whiting had 

authority to control the deceptive acts because he was an owner and officer of RLI, ZCL, 

and RLNU. Whiting testified that he performed bookkeeping and tax preparation 

services for some, if not all of the Corporate Defendants. (Dkt. 210-18 at 11, 63:19– 

72:16. Whiting’s portrait appeared on the Roca Labs Website indicating that he was 

president of the company. (Dkt. 210-18 at 52, 281:4–282:5) Whiting also was 

compensated for his services, receiving $42,000 in director’s fees one year. (Dkt. 210-

18 at 11, 49:3–20) Whiting’s role appears to be more limited than Juravin’s role, though 

Juravin made Whiting aware of matters that required RLI corporate approval. (Dkt. 210-

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8 at 21, 19:14-20:4) Whiting testified that he and Juravin discussed advertising, but only 

as to “how the advertising money was going to be spent.” (Dkt. 210-18 at 10, 46:4–11) 

Nevertheless, the FTC has established that Whiting is liable for injunctive relief due to 

Whiting’s knowledge of the deceptive practices and authority over the acts as a corporate 

owner and officer. 

IV. CONCLUSION 

Upon consideration of the foregoing, it is hereby ORDERED that: 

1. Defendants’ [Amended] Motion for Partial Summary Judgment as to Count 

Three of the Amended Complaint (Dkt. 212) is DENIED. 

2. Plaintiff’s Amended Motion for Summary Judgment (Dkt. 210) is GRANTED as 

to liability but TAKEN UNDER ADVISEMENT as to damages. 

3. For the reasons stated above, the Court is unable to evaluate Plaintiff’s 

“reasonable approximation” of the disgorgement amount. Thus, the Plaintiff is 

required to supplement the record as follows: 

a. Within twenty-one (21) days of the date of this Order, Plaintiff is 

directed to file a supplemental memorandum of no more than five pages 

that sets forth the specific refunds that are included in its approximation 

of the disgorgement amount. Plaintiff shall also attach relevant 

documents of record and deposition testimony, if any, that support this 

amount. No additional discovery is permitted. 

b. Upon Plaintiff’s submission of this documentation, the Defendants shall 

have fourteen (14) days to respond. 

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4. The Clerk is directed to ADMINISTRATIVELY CLOSE this case pending the 

supplementation and documentation of the disgorgement amount and briefing 

by the Parties. 

DONE and ORDERED in Tampa, Florida, this 14th day of September, 2018. 

Copies furnished to:

Counsel of Record 

Any Unrepresented Person 

42