No. 22-1738 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

––––––––––––––––––––––––––––––––––––––––––––– 

FEDERAL TRADE COMMISSION, 

 Plaintiff-Appellee, 

and 

MARC-PHILIP FERZAN, 

 Receiver-Appellee, 

v. 

YU LIN; QUAN LIN; JAMIE TENG; JULIANA TENGONCIANG; 

ALFONSO KOLB, JR.; JASMIN TENGONCIANG; ROEL PAHL; 

CLARISSA TENGONCIANG; ALLAN PRIJOLES; MARY JANE 

PRIJOLES; DARREN CHRISTIAN; CHAN MARTIN; JULIE SANTOS; 

DAVID HEIMAN; HEARTLAND PROPERTY GROUP, INC., 

 Movants-Appellants.

––––––––––––––––––––––––––––––––––––––––––––– 

On Appeal from the United States District Court 

for the District of Maryland 

No. 1:18-cv-3309 (Hon. Peter J. Messitte) 

––––––––––––––––––––––––––––––––––––––––––––– 

ANSWERING BRIEF 

FOR THE FEDERAL TRADE COMMISSION 

––––––––––––––––––––––––––––––––––––––––––––– 

 ANISHA S. DASGUPTA

General Counsel 

JOEL MARCUS

Deputy General Counsel 

IMAD D. ABYAD

Attorney 

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

(202) 326-3579 

iabyad@ftc.gov 
i 

TABLE OF CONTENTS 

Table of Authorities ................................................................................... iii

Introduction ................................................................................................ 1

Statement of Jurisdiction ........................................................................... 3

Statement of Issues Presented ................................................................... 3

Statement of the Case ................................................................................ 4

A. The Sanctuary Belize Litigation .......................................................... 4

1. The Sanctuary Belize Scheme ...................................................... 4

2. Newport Land Group’s Role in Sanctuary Belize ........................ 5

B. Appellants’ NLG Investments and Multiple Forgone 

Opportunities to Seek to Intervene in the Sanctuary 

Belize Litigation ................................................................................... 6

C. Appellants’ Untimely Motions and the Decision on 

Review ................................................................................................. 11

Standard of Review .................................................................................. 15

Summary of Argument ............................................................................. 15

Argument .................................................................................................. 18

I. The District Court Lacked Jurisdiction to Rule on 

Appellants’ Motions ........................................................................... 18

II. Even If The District Court Had Jurisdiction, It Acted 

Within Its Discretion in Denying Appellants’ Motion to 

Intervene ............................................................................................ 24

A. Appellants’ Motion Was Untimely ............................................. 24
ii 

B. Appellants Have No Cognizable Interest in the 

Subject of the Sanctuary Belize Litigation and Their 

Asserted Interest Has Been Adequately Represented 

by NLG ........................................................................................ 31

1. Appellants have no cognizable interest in the 

Subject of the Sanctuary Belize litigation .......................... 31

2. Appellants cannot show “inadequate 

representation” of their asserted interest .......................... 37

III. Even If The District Court Had Jurisdiction, It Properly 

Exercised Its Discretion in Denying Appellants’ Motion 

for Judgment Relief ............................................................................ 40

Conclusion ................................................................................................. 45

Statement Regarding Oral Argument

Certificate of Compliance
iii 

TABLE OF AUTHORITIES 

CASES AGE

Alt v. EPA, 

 758 F.3d 588 (4th Cir. 2014) ........................................ 24, 25, 26, 27, 29 

Aluminum Co. of America v. Utilities Comm’n of North Carolina, 

 713 F.2d 1024 (4th Cir. 1983) .............................................................. 38 

AMG Capital Mgmt., LLC v. FTC, 

 141 S. Ct. 1341 (2021) .......................................................................... 11 

Berger v. North Carolina State Conf. of the NAACP, 

 142 S. Ct. 2191 (2022) .......................................................................... 24 

Black v. Central Motor Lines, Inc., 

 500 F.2d 407 (4th Cir. 1974) ................................................................ 23 

Calif. ex rel Becerra v. EPA, 

 978 F.3d 708 (9th Cir. 2020) ................................................................ 45 

Cawthorn v. Amalfi, 

 35 F.4th 245 (4th Cir. 2022) ................................................................ 19 

City of New York v. Mickalis Pawn Shop, LLC, 

 645 F.3d 114 (2d Cir. 2011) ................................................................. 44 

Comfort v. Lynn School Committee, 

 560 F.3d 22 (1st Cir. 2009) .................................................................. 43 

Doe v. Public Citizen, 

 749 F.3d 246 (4th Cir. 2014) .............................................. 12, 18, 19, 22 

Dowell v. State Farm Fire & Cas. Auto Ins. Co., 

 993 F.2d 46 (4th Cir. 1993) ............................................................ 14, 42 

P
iv 

CASES (CONT’D) PAGE

Drywall Tapers & Pointers of Greater New York, Local 

 Union 1974 of I.U.P.A.T. v. Nastasi & Assocs. Inc., 

 488 F.3d 88 (2d Cir. 2007) ................................................................... 19 

Flame S.A. v. Freight Bulk Pte. Ltd., 

 762 F.3d 352 (4th Cir. 2014) ................................................................ 15 

FTC v. Ross, 

 743 F.3d 886 (4th Cir. 2014) ................................................................ 42 

Gould v. Alleco, Inc., 

 883 F.2d 281 (4th Cir. 1989) ............................ 17, 24, 25, 31, 32, 33, 40 

Greenhouse v. MCG Cap. Corp., 

 392 F.3d 650 (4th Cir. 2004) ................................................................ 38 

Griggs v. Provident Consumer Discount Co., 

 459 U.S. 56 (1982) ................................................................................ 18 

Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 

 740 F.2d 1499 (11th Cir. 1984) ............................................................ 45 

Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 

 14 F.4th 322 (4th Cir. 2021) ................................................................ 19 

Horne v. Flores, 

 557 U.S. 433 (2009) .............................................................................. 41 

Houston General Ins. Co. v. Moore, 

 193 F.3d 838 (4th Cir. 1999) .................................................... 23, 24, 40 

In re Fine Paper Antitrust Litig., 

 840 F.2d 188 (3d Cir. 1988) ................................................................. 43 

In re Sierra Club, 

945 F.2d 776 (4th Cir. 1991) .................................................... 15, 31, 37 
v 

CASES (CONT’D) PAGE

L.J. v. Wilbon, 

 633 F.3d 297 (4th Cir. 2011) ................................................................ 15 

Liu v. SEC, 

 140 S. Ct. 1936 (2020) .......................................................................... 27 

Moten v. Bricklayers, Masons & Plasterers, Int’l Union of Am., 

 543 F.2d 224 (D.C. Cir. 1976) .............................................................. 26 

Nicol v. Gulf Fleet Supply Vessels, Inc., 

 743 F.2d 298 (5th Cir. 1984) ................................................................ 19 

Public Serv. Comp. of New Hampshire v. Patch, 

 136 F.3d 197 (1st Cir. 1998) ................................................................ 33 

Quackenbush v. Allstate Ins. Co., 

 517 U.S. 706 (1996) .............................................................................. 22 

Richmond v. First Woman’s Bank, 

 104 F.3d 654 (4th Cir. 1997) ................................................................ 40 

Roe v. Town of Highland, 

 909 F.2d 1097 (7th Cir. 1990) .............................................................. 19 

Rufo v. Inmates of Suffolk County Jail, 

 502 U.S. 367 (1992) .............................................................................. 41 

Schwartz v. United States, 

 976 F.2d 213 (4th Cir. 1992) .......................................................... 42, 45 

SEC v. Bronson, 

 No. 22-1045, 2022 WL 5237474 (2nd Cir. Oct. 6, 2022) ..................... 44 

Stokors S.A. v. Morrison, 

 147 F.3d 759 (8th Cir. 1998) ................................................................ 45 
vi 

CASES (CONT’D) PAGE

Stuart v. Huff, 

 706 F.3d 345 (4th Cir. 2013) .......................................................... 15, 24 

Taylor v. KeyCorp, 

 680 F.3d 609 (6th Cir. 2012) ................................................................ 19 

Teague v. Bakker, 

 931 F.2d 259 (4th Cir. 1991) .......................................................... 34, 35 

United States v. Alisal Water Corp., 

 370 F.3d 915 (9th Cir. 2004) ................................................................ 33 

United States v. Welsh, 

 879 F.3d 530 (4th Cir. 2018) ................................................................ 15 

Werner v. Carbo, 

 731 F.2d 204 (4th Cir. 1984) ................................................................ 42 

World Fuel Servs. Trading, DMCC v. Hebei Prince Shipping Co., 

 783 F.3d 507 (4th Cir. 2015) ................................................................ 15 

STATUTES, RULES, & REGULATIONS

15 U.S.C. §§ 41 et seq. ................................................................................. 4 

28 U.S.C. § 1291.................................................................................... 3, 22 

Fed. R. Civ. P. 24(a)(2) ................................................................. 11, 24, 31 

 55(c) .................................................................................. 11 

 60(b) .................................................................................. 40 

 60(b)(5) ..................................................... 11, 41, 43, 44, 45 

16 C.F.R. pt. 310 ......................................................................................... 4 
vii 

MISCELLANEOUS AGE

James Wm. Moore et al., 

MOORE’S FEDERAL PRACTICE

 (3d ed. 2010) ......................................................................................... 22 

C. Wright, A. Miller, & M. Kane, 

 FEDERAL PRACTICE AND PROCEDURE

(3d ed. Supp. 2022) ............................................................. 31, 37, 38, 42 

P
INTRODUCTION 

This case involves a belated attempt by a group of corporate 

investors to intervene in litigation against their company. In 2018, the 

Federal Trade Commission (FTC) brought an enforcement action—the 

Sanctuary Belize case—against a group of companies and individuals 

who operated a real estate scam selling properties in Belize. The district 

court ultimately directed redress to victims exceeding $120 million and 

appointed a receiver who assumed control of the corporate defendants’ 

assets. One of those defendants, Newport Land Group, LLC (NLG), 

which the court found had operated in a common enterprise with the 

other defendants, was held jointly and severally liable for the judgment. 

Appellants are NLG investors who sought to intervene in the Sanctuary 

Belize litigation. They made their investments knowing that both NLG 

managers and the principals of Sanctuary Belize had been implicated in 

prior fraudulent conduct. After the judgment had been entered and the 

case was on appeal, appellants attempted to intervene in order to try to 

recover their investments. They waited until the case was essentially 

over even though they knew that their investments were at stake the 
2 

entire time and had passed up multiple opportunities to seek to 

intervene earlier. 

In the order on review, the district court denied appellants’ 

request to intervene as of right. The court held that it lacked 

jurisdiction to consider the motion because the case was already in this 

Court. Alternatively, the district court found that appellants had slept 

on their rights, deliberately choosing to pursue litigation against NLG 

in state court rather than timely trying to enter the FTC’s litigation. 

Appellants passed up multiple chances to seek intervention over a 

three-year period, waiting instead until the twelfth hour. The court 

denied a separate motion for relief from final judgment on the ground 

that nonparties such as appellants are not entitled to such relief. 

The facts of this case are uncontested. This Court’s precedent 

clearly establishes that the district court lacked jurisdiction to grant 

intervention once appeal of the relevant order had been filed. Assuming 

the court had jurisdiction, the uncontested facts show that the district 

court acted well within its discretion in all respects. The motion to 

intervene was grossly out of time and failed to meet the other conditions 

for intervention. Appellants make no showing to the contrary. 
3 

STATEMENT OF JURISDICTION 

The district court lacked jurisdiction to rule on appellants’ motions 

to intervene by right and for relief from judgment. 

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

STATEMENT OF ISSUES PRESENTED 

1. Whether the district court lacked jurisdiction to rule on 

appellants’ motions once the judgment from which appellants sought 

relief had been appealed to this Court. 

2. Whether the district court, assuming it had jurisdiction, 

properly exercised its discretion when it denied appellants’ motion to 

intervene after judgment had been entered and appealed and after 

appellants chose to pass up multiple prior opportunities to seek to 

intervene and where the only interest at stake was an investment in a 

corporate defendant. 

3. Whether the district court, assuming it had jurisdiction, 

properly exercised its discretion when it denied appellants’ motion for 

relief from judgment. 
4 

STATEMENT OF THE CASE 

A. The Sanctuary Belize Litigation 

1. The Sanctuary Belize Scheme 

In late 2018, the FTC charged Andris Pukke, Peter Baker, John 

Usher, Michael Santos, and others, and numerous corporate entities 

through which they operated, with violations of the Federal Trade 

Commission Act, 15 U.S.C. §§ 41 et seq., and the Telemarketing Sales 

Rule (TSR), 16 C.F.R. pt. 310. DE_114 (amended complaint) [JA281]. 

The complaint alleged, and the district court ultimately found after a 

trial on the merits, that the defendants sold lots in a supposed luxury 

resort known as “Sanctuary Belize” using false promises that the resort 

would have world-class amenities and would be a safe investment with 

easy resale potential. DE_1352 (Memorandum Opinion) (Op.), at 1-2 

[JA2003-2004]. Consumers who fell for the pitch were collectively 

swindled out of more than $120 million. Op. 4 [JA2006]. At the outset of 

the case, the court froze defendants’ assets and appointed a receiver to 

manage the corporate defendants. DE_539; DE_615 [JA566].

The district court held a bench trial on the merits in early 2020. In 

August 2020, it issued a 179-page decision that held defendants in 

violation of the FTC Act and the TSR. DE_1020 at 33-132 [JA870-969]. 
5 

It entered permanent injunctions tailored to the circumstances of each 

defendant and a compensatory monetary judgment of $120.2 million. 

DE_1020 at 146-161 [JA983-998]; DE_1194. 

2. Newport Land Group’s Role in Sanctuary Belize 

Defendants carried out the Sanctuary Belize scheme using many 

companies and affiliates that, the district court found, operated as a 

common enterprise, all of whom were held jointly and severally liable 

for the consumer loss. DE_1020 at 79-86 [JA916-923]. One of those 

companies was NLG, which was named as a defendant in the amended 

complaint. Id. at 139-140 [JA976-977]. The court found “compelling 

factors” for including NLG in the Sanctuary Belize common enterprise, 

including interlocking relationships between NLG and the principals of 

the scam, such as Pukke and Santos; commingling of funds “for no 

ostensible legitimate business reason”; common addresses and de facto 

headquarters; and NLG’s involvement in the Sanctuary Belize scheme. 

Id. at 140-41 [JA977-978]. Indeed, the very NLG prospectus that 

appellants relied on to support their intervention motion showed that 

NLG was used to market the Sanctuary Belize lots to consumers. 

DE_1317-1 at 8, 11 [JA1667, 1670]. 
6 

NLG, along with all the other corporate defendants and one 

individual, chose to not answer the complaint or appear in court to 

defend itself. DE_1020 at 139 [JA976]; see DE_1278 at 2 [JA1625] 

(noting willful default). 

The clerk entered a default, DE_799 [JA705], but the court 

withheld entry of default judgment until deciding the merits against the 

litigating defendants. See DE_974. The court then further withheld 

judgment against NLG, pending consideration of claims by investors in 

NLG, including appellant David Heiman and other appellants, that 

their investments should be returned to them.1 DE_1020 at 139 

[JA976]. After considering those claims, the court declined to remove 

any of NLG’s assets from the receivership estate and entered final 

judgment against the company. DE_1109 at 4 [JA1492]. 

B. Appellants’ NLG Investments and Multiple Forgone 

Opportunities to Seek to Intervene in the Sanctuary 

Belize Litigation 

Appellants were a mixture of corporate insiders and individuals 

with special access to the operators of the Sanctuary Belize scam, such 

1 The court entered default judgment against the other defaulting 

defendants. DE_1020 at 5 n.2 [JA842]; DE_1112 [JA1494]. 
7 

as Pukke and Santos. They went into business with Pukke and his 

partners after admittedly conducting “due diligence” on him and his 

operations,2 so they were—or should have been—well aware of Pukke’s 

history of consumer scams and criminal skirting of the law. Appellant 

Heiman, for example, testified at trial that he knew of Pukke’s criminal 

history and of the allegations of misconduct in marketing the Sanctuary 

Belize lots. Tr. (02/07/2020), at 113:1-117:25, 146:4-147:14. Other 

appellants admitted in sworn declarations that they personally met 

with Pukke or one of his Sanctuary Belize partners before deciding to 

invest in NLG.3

2 See DE_1317-2 ¶3 [JA1675-1677]; DE_1317-3 ¶3 [JA1680-1682]; 

DE_1317-5 ¶3 [JA1688-1690]; DE_1317-6 ¶3 [JA1693-1695]; DE_1317-7 

¶3 [JA1698-1700]; DE_1317-8 ¶3 [JA1703-1705]; DE_1317-9 ¶3 

[JA1708-1710]; DE_1317-10 ¶3 [JA1713-1715]; DE_1317-12 ¶3 

[JA1722-1724]; DE_1317-15 ¶3 [JA1732-1734]; DE_1317-20 ¶3 

[JA1740-1742]; DE_1317-22 ¶3 [JA1749-1750]; DE_1317-24 ¶3 

[JA1762-1764]. 

3 See DE_1317-12 ¶3 (Yu Lin) [JA1722-1724]; DE_1317-15 ¶3 (Quan 

Lin) [JA1732-1734]; DE_1317-2 ¶3 (Jamie Teng) [JA1675-1677]; 

DE_1317-3 ¶3 (Julianna Tengciang) [JA1680-1682]; DE_1317-5 ¶3 

(Jasmin Tengciang) [JA1688-1690]; DE_1317-7 ¶3 (Clarissa Tengciang) 

[JA1698-1700]; DE_1317-9 ¶3 (Mary Jane Prijoles) [JA1708-1710]; 

DE_1317-10 ¶3 (Allan Prijoles) [JA1713-1715]; DE_1317-8 ¶3 (Roel 

Pahl) [JA1703-1705]; DE_1317-6 ¶3 (Alfonso Kolb Jr.) [JA1693-1695]. 
8 

Appellants had multiple opportunities to move to intervene in the 

proceedings below, yet each time they chose to not do so. 

Shortly after the FTC filed its suit, the court-appointed receiver 

notified the parties that it had determined that NLG was properly 

considered a “Receivership Entity.” DE_453-2 ¶10 [JA500]. Instead of 

seeking to intervene, the investors—now appellants—opted instead to 

sue NLG in California state court to recover their investments. See

DE_1323-1 Att. 6 at 2-3 (appellants’ California complaint, referencing 

the FTC enforcement action) [JA1914-1915]. That suit was dismissed 

for mootness after the NLG assets were formally placed in the 

receivership as described below. See DE_1323-1 Att. 8 (Minute Order of 

Orange County Superior Court) [JA1930]. Even then, appellants did not 

seek to intervene in the Sanctuary Belize litigation. 

In May 2019, appellants had another opportunity to press their 

claims for return of their investments in NLG, and they again declined. 

Specifically, the receiver sought court approval to use the NLG funds to 

pay for general receivership expenses. See DE_453 (receiver’s motion) 

[JA478]. The receiver served the motion on appellants through their 

counsel in the California lawsuit. DE_453-5 at 2 [JA532]. But even 
9 

though one of the appellants, Darren Christian, filed a declaration in 

opposition to the receiver’s motion, DE_1323-1 Att. 2 [JA1825-1835]; see

DE_485 (receiver’s response) [JA544], neither he nor any other 

appellant sought to intervene in the case to protect their purported 

interests. The court granted the receiver’s motion over Mr. Christian’s 

objections, holding that “all funds turned over to the Receiver from bank 

accounts held in the name of NLG, in the sum of $3,757,345.09, may be 

used by the Receiver for all receivership purposes.” DE_507 at 2 

[JA556]. Appellants learned of this ruling, at the latest, in June 2019, 

when Bank of America filed a notice of the ruling in their California 

action. DE_1323-1 Att. 7 [JA1925-1929]. Still, appellants sought no 

intervention or relief in the district court. 

Yet another opportunity arose at the district court’s own initiative. 

Appellant Heiman testified at trial as a Sanctuary Belize lot owner. The 

court concluded that NLG was liable for the violations of law charged in 

the complaint, DE_1020 at 139 [JA976], but it delayed entering final 

judgment against NLG until it heard from the investors, to give them 

their “day in court.” Id. at 141 [JA978]. Although some of the appellants 

sent informal objections to the inclusion of the NLG assets in the 
10 

receivership, see DE_1032 Att. 1-11 [JA1017-1041], appellants still did 

not seek to intervene. Their decision to sit things out, they suggested to 

the court, was made “[o]n advice of counsel” as part of the legal strategy 

in the state court case. DE_1109 (court decision on appellants’ informal 

objections), at 4 [JA1492]. 

After considering appellants’ informal objections, the district court 

ruled that all NLG assets would remain in the receivership because 

they “were all extensively commingled with NLG assets primed with 

[the common enterprise] assets; none were shown to be held in trust for 

the investors.” DE_1109 at 4 [JA1492]. Even though the court took 

steps to ensure that the NLG investors received notice of its ruling, see

DE_1115 (court memorandum notifying nonparties of its ruling) 

[JA1533], appellants still did not seek to intervene. 

In February 2021, appellants had—and forwent—yet another 

chance to be heard. The FTC proposed a redress plan, DE_1117 Att. 1 

[JA1553-1601], which set forth the parameters for distributing money 

to the Sanctuary Belize victims, including by using the receivership 

assets. Several consumers objected to the plan, arguing for changes that 

would be beneficial to their specific interests. See, e.g., DE_1142 – 
11 

DE_1148. But even though the proposed plan would effectively 

extinguish appellants’ investments in NLG, appellants remained silent. 

C. Appellants’ Untimely Motions and the Decision on 

Review 

Fifteen months after the court’s final decision on the merits, ten 

months after its ruling rejecting appellants’ nonparty claims against the 

receivership, and long after the case was already on appeal to this 

Court, appellants moved to intervene as of right under Fed. R. Civ. P. 

24(a)(2), DE_1316 [JA1631], and for relief from judgment under Fed. R. 

Civ. P. 55(c) and 60(b)(5), DE_1317 [JA1644]. As with the informal 

requests for relief, appellants sought to recover their NLG investments 

by setting aside both the court’s merits decisions against NLG, 

DE_1020 [JA838] & DE_1109 [JA1489], and the court’s 30-months old 

ruling permitting the receiver to use the NLG assets, DE_507 [JA555]. 

Appellants’ purported basis for their requests was the Supreme 

Court’s decision seven months earlier in AMG Capital Mgmt., LLC v. 

FTC, 141 S. Ct. 1341 (2021), which held that Section 13(b) of the FTC 

Act does not permit the award of equitable monetary relief. Section 

13(b) was one of the statutory grounds for the FTC’s Sanctuary Belize
12 

claims, and appellants contended that it provided a reason to return 

their investment money. 

In the order on review, the district court denied both motions. 

Op. 1 [JA2003]. The court held first that it lacked jurisdiction over the 

motions because the decisions they sought to challenge were on appeal. 

Op. 6-7 [JA2008-2009]. See DE_1218 (notice of appeal by defaulting 

defendants); DE_1280 (amending DE_1218 to include denial of NLG’s 

motion for post-judgment relief) [JA1627]. The district court explained 

that “appeal ‘divests a district court of jurisdiction to entertain an 

intervention motion’.” Op. 6-7 [JA2008-2009] (quoting Doe v. Public 

Citizen, 749 F.3d 246, 258 (4th Cir. 2014)). 

The court held further that appellants failed to satisfy the Rule 24 

conditions for intervention anyway. Op. 7-17 [JA2009-2019]. For one 

thing, the motion was untimely. The case “has progressed about as far 

as any case could,” with trial concluding two years prior, final judgment 

rendered and already on review, and the funds that appellants sought 

to recoup already spent by the receiver. Op. 10 [JA2012]. Moreover, 

appellants “filed their Motion over six months after AMG came out, 
13 

another nail in the coffin for their timeliness argument.” Op. 12 

[JA2014]. 

The court also found that intervention would cause substantial 

prejudice. Op. 12-13 [JA2014-2015]. First, it would prejudice the FTC 

because new intervenor pleadings may be filed and discovery may be 

reopened—two years after trial. Op. 13 [JA2015]. Second, the Sanctuary 

Belize victims would be prejudiced because intervention would delay 

their redress and even eat away at their potential share of the 

receivership funds. Id. 

The court rejected appellants’ proffered reasons for their delay as 

“wholly inadequate excuses.” Op. 13 [JA2015]. Appellants “had every 

opportunity to intervene sooner and understood that NLG, in which 

they had invested, was impacted by this case.” Id. Nor can the AMG

decision excuse their lack of action “for years prior.” Op. 14 [JA2016]. 

The court found the AMG excuse particularly unavailing given that 

appellants “admit[ted] that they did not seek to intervene in this case 

because they believed it was more strategic to pursue the California 

litigation.” Op. 14 [JA2016]. 
14 

The district court also rejected appellants’ purported interest in 

the Sanctuary Belize litigation. Op. 15-17 [JA2017-2019]. It noted that 

appellants’ “beef is really with NLG, not [with] the FTC in its case 

against [the Sanctuary Belize common enterprise].” Op. 17 [JA2019]. 

While appellants, as “potential creditors of NLG,” may have claims 

against NLG, the court ruled, that “does not give them the right to cut 

in line ahead of the victims of [the Sanctuary Belize common 

enterprise].” Id. 

The court also denied appellants’ Rule 60(b)(5) motion for relief 

from the final judgment. It held that appellants, having “not satisfied 

the grounds for intervention,” were nonparties to this case, and thus 

could not challenge the court’s judgments. Op. 17 [JA2019]. At any rate, 

the court was “unpersuaded” by appellants’ arguments for relief. Op. 17 

n.11 [JA2019]. AMG’s “change in the law subsequent to the issuance of 

a final judgment, especially, as here, where the earlier judgment is 

neither res judicata nor provides collateral estoppel, does not provide a 

sufficient basis for vacating the judgment under Rule 60(b)(5).” Op. 12 

[JA2014] (quoting Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993 

F.2d 46, 48 (4th Cir. 1993)). 
15 

This appeal followed. 

STANDARD OF REVIEW 

This Court “review[s] legal conclusions regarding jurisdiction 

de novo and factual findings for clear error.” World Fuel Servs. Trading, 

DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 512 (4th Cir. 2015); 

accord Flame S.A. v. Freight Bulk Pte. Ltd., 762 F.3d 352, 356 (4th Cir. 

2014). 

A district court’s ruling on a motion for intervention is reviewed 

for abuse of discretion. Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013); 

accord In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991). Likewise, a 

ruling on a motion for relief under Fed. R. Civ. P. 60(b)(5) is reviewed 

for abuse of discretion. United States v. Welsh, 879 F.3d 530, 533 (4th 

Cir. 2018); accord L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir. 2011). 

SUMMARY OF ARGUMENT 

The district court properly denied appellants’ motions for 

intervention and for judgment relief on multiple grounds. The facts 

underlying the court’s decision are undisputed, and appellants’ 

arguments on appeal are meritless. 

1. The district court properly held that it lacked jurisdiction to 

consider appellants’ motions because the judgment from which they 
16 

sought relief was already on review in this Court. Appellants are wrong 

that they sought to challenge rulings that were not appealed. The 

notices of appeal from the court’s final decision included “all prior 

related and subsumed orders,” which include those rulings relied on by 

appellants. Even if that were not the case, the rule of appellate 

procedure is that an appeal of a final decision necessarily includes all 

related subsidiary rulings. The district court’s want of jurisdiction 

suffices by itself to dispose of this entire case. 

2.a. Even assuming arguendo that the court had jurisdiction to 

rule on the motions, the court rightly exercised its wide discretion to 

deny on the merits appellants’ motion for intervention. The motion was 

grossly untimely—coming two years after trial ended and months after 

appeal of the final decision. Appellants have no excuse for the delay and 

concededly forwent earlier opportunities to intervene in order to bolster 

their position in other litigation. Only after their gamble failed to pay 

off did they attempt to become parties to this proceeding, but having 

slept on their rights it is now too late. 
17 

Besides, intervention at this late hour would have prejudiced both 

the FTC, by leading to yet more litigation, and the victims of 

defendants’ scam, by delaying and potentially reducing their redress. 

b. The district court correctly held that appellants did not show a 

cognizable interest in the subject of this litigation. Their only interest is 

that they invested in NLG. Their claims of fraud and breach of contract 

against NLG are not related to the substance of the Sanctuary Belize

litigation, but make them at most potential creditors of NLG. In directly 

analogous circumstances, this Court made clear in Gould v. Alleco, Inc., 

883 F.2d 281 (4th Cir. 1989), that such an interest is insufficient to 

support intervention under Rule 24(a). 

Appellants also failed to show that no existing party in the 

litigation can adequately represent their interests. NLG sought the 

same objective as appellants—release of NLG’s assets from the 

receivership—and advanced the same AMG argument for doing so. 

3. Under Rule 60(b)(5), only parties to a case may seek relief from 

judgment. Appellants, having failed to intervene, are not parties and 

therefore do not qualify for Rule 60(b) relief. The district court thus 

correctly denied their Rule 60(b) motion. 
18 

Appellants’ relief arguments fail on the merits anyway. AMG does 

not affect the judgment against NLG. By defaulting, NLG has admitted 

liability and its appeal is limited to whether the district court properly 

entered the default judgment accordingly. That AMG has reversed 

circuit precedent supporting that monetary judgment does not make 

upholding that judgment—a present remedy for a past wrong, without 

prospective effects—inequitable. 

ARGUMENT 

I. THE DISTRICT COURT LACKED JURISDICTION TO RULE ON 

APPELLANTS’ MOTIONS

As a threshold matter that is dispositive of this appeal, the district 

court correctly held that it lacked jurisdiction to consider either of the 

appellants’ motions. The decisions that appellants sought to challenge 

upon intervention were already on review before this Court, thus 

depriving the lower court of power over them. 

“The filing of a notice of appeal is an event of jurisdictional 

significance—it confers jurisdiction on the court of appeals and divests 

the district court of its control over those aspects of the case involved in 

the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 

(1982); accord Doe v. Public Citizen, 749 F.3d 246, 258 (4th Cir. 2014). 
19 

The divestiture of jurisdiction extends to a district court’s consideration 

of a motion for intervention as of right. As this Court repeatedly has 

held, “an effective notice of appeal deprives a district court of authority 

to entertain a motion to intervene after the court of appeals has 

assumed jurisdiction over the underlying matter.” Doe v. Public Citizen, 

749 F.3d at 258; accord Cawthorn v. Amalfi, 35 F.4th 245, 254 (4th Cir. 

2022); Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 

14 F.4th 322, 326 (4th Cir. 2021). All other courts of appeals that have 

considered the issue agree.4

It is undisputed that appellants’ motion to intervene (and their 

derivative motion for post-judgment relief) were filed while the final 

judgments were on appeal before this Court. Both motions were filed on 

November 12, 2021. See DE_1316 [JA1631]; DE_1317 [JA1644]. The 

notice of appeal that pertains to NLG’s final judgment, DE_1280 

[JA1627],5 was filed on August 27, 2021—10 weeks earlier. The district 

4 See, e.g., Taylor v. KeyCorp, 680 F.3d 609, 617 (6th Cir. 2012); 

Drywall Tapers & Pointers of Greater New York, Local Union 1974 of 

I.U.P.A.T. v. Nastasi & Assocs. Inc., 488 F.3d 88, 94–95 (2d Cir. 2007); 

Roe v. Town of Highland, 909 F.2d 1097, 1100 (7th Cir. 1990); Nicol v. 

Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 (5th Cir. 1984). 

5 NLG was not named in the original notices of appeal from the court’s 

final judgment as to the defaulting defendants (DE_1112) [JA1494], of 
20 

court therefore lacked jurisdiction to consider appellants’ motions. The 

Court should affirm on that ground alone. 

Appellants’ arguments to the contrary (Br. 21-24) are unavailing. 

Appellants do not dispute that they filed their motions after the 

defaulting defendants, including NLG, noticed appeals of the default 

judgments, and they do not challenge the binding principle that district 

courts lack jurisdiction over orders on appeal. Their sole argument is 

that they sought intervention to challenge rulings that were not on 

appeal, leaving the district court with jurisdiction over their motion. 

They refer specifically to “the district court’s order permitting the 

receiver to take over the NLG Account,” Br. 22 (citing DE_507 [JA555]); 

and both “Part C of the district court’s Memorandum Opinion #2”—

which “reiterates the court’s denial of their requests for the return of 

their investments”—and the court’s “informal order directed at them 

which NLG was one. See DE_1218 & DE_1219 (filed on May 14, 2021). 

NLG was named, however, in an “Amended Notice of Appeal,” DE_1280 

[JA1627], that added to the list of appealed decisions in DE_1218 & 

DE_1219 the district court’s denial of the motion of several defendants, 

including NLG, for relief from their default judgment (DE_1278 

[JA1624] & DE_1279 [JA1626]). 
21 

that incorporates Memorandum Opinion #2,” Br. 23 n.3 (citing DE_1109 

[JA1489] & 1115 [JA1533]). 

The claim fails at the starting gate because appellants’ motions 

list the court’s final decision on the merits, DE_1020 [JA838], as the 

principal decision that they purportedly sought to challenge. See

DE_1316 (motion for intervention), at 1-2 ¶2 [JA1631-1632]; DE_1317 

(motion for relief from judgment), at 1 [JA1644]. That decision was 

unquestionably on appeal at the time of their motions. See DE_1197, 

1200, 1208, 1210 (notices of appeal of DE_1020). 

Even if appellants sought to challenge only the subsidiary rulings 

on which they now rely, those rulings were on appeal too. For one thing, 

the “Amended Notice of Appeal,” DE_1280 [JA1627], which included 

NLG, incorporated by reference the original notice of appeal of the 

default judgment, DE_1218. That original notice listed as the subjects 

of appeal both the default judgment itself and “all prior related and 

subsumed orders,” id., which necessarily included the subsidiary 

rulings that appellants now cite, i.e. the court’s decision to permit the 

receiver to use NLG’s assets, DE_507 [JA555], and the court’s later 

decision to deny relief from that original decision, DE_1109 [JA1489]. 
22 

The last cited subsidiary ruling, DE_1115 [JA1533], was merely an 

informal transmittal of the court’s Memorandum Opinion #2 (DE_1109) 

[JA1489], and contained no substantive rulings. 

However the notice of appeal is interpreted, appellants still would 

be precluded from intervention while the final judgment is on review. 

The “general rule” of appellate procedure is that “a party is entitled to a 

single appeal, to be deferred until final judgment has been entered, in 

which claims of district court error at any stage of the litigation may be 

ventilated.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) 

(emphasis added). This approach guards against piecemeal appeals and 

serves as a corollary of the “final decisions” requirement of 

28 U.S.C. § 1291. The pending appeal therefore incorporates all prior 

court rulings relevant to the final judgment, including the rulings 

appellants sought to challenge in district court. 

The rule prohibiting district courts from exercising jurisdiction 

over orders on appeal “fosters judicial economy and guards against the 

confusion and inefficiency that would result if two courts 

simultaneously were considering the same issues.” Doe v. Public 

Citizen, 749 F.3d at 258 (citing 20 James Wm. Moore et al., MOORE’S 
23 

FEDERAL PRACTICE § 3902.1 (3d ed. 2010)). Had the court allowed 

appellants to intervene and entertained their motion for relief, the 

district court might have undone its NLG receivership orders or the 

default judgment at the same time that this Court affirmed those very 

orders. Avoiding such outcomes is precisely why intervention is not 

allowed in the situation here. 

Finally, appellants seem to cast doubt on the validity of NLG’s 

appeal. Br. 23. If they are right, that only would doom their argument. 

“Intervention is ancillary and subordinate to a main cause and 

whenever an action is terminated, for whatever reason, there no longer 

remains an action in which there can be intervention.” Black v. Central 

Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974). In other words, if 

NLG has not in fact appealed, or has abandoned its appeal, then its 

case ended long before appellants filed their motions, and there would 

be “no pending litigation in which [appellants] could intervene.” 

Houston General Ins. Co. v. Moore, 193 F.3d 838, 840 (4th Cir. 1999); see 

Black, 500 F.2d at 408 (intervention motion filed after time for appeal of 

judgment ran out is untimely). 
24 

II. EVEN IF THE DISTRICT COURT HAD JURISDICTION, IT 

ACTED WITHIN ITS DISCRETION IN DENYING APPELLANTS’

MOTION TO INTERVENE

A motion for intervention as of right must be “timely,” and it must 

claim “an interest [in] the subject of the action” that would be 

“impair[ed] or imped[ed]” without intervention, and that the “existing 

parties” cannot “adequately represent.” Fed. R. Civ. P. 24(a)(2). See

Berger v. North Carolina State Conf. of the NAACP, 142 S. Ct. 2191, 

2200-01 (2022); Stuart v. Huff, 706 F.3d at 349. The district court 

properly held in the alternative that appellants’ motion failed to meet 

these conditions. 

A. Appellants’ Motion Was Untimely 

A motion’s “timeliness is a ‘cardinal consideration’ of whether to 

permit intervention.” Houston Gen. Ins. Co. v. Moore, 193 F.3d at 839. 

“The determination of timeliness,” moreover, is committed to the “wide” 

discretion of the district court. Alt v. EPA, 758 F.3d 588, 591 (4th Cir. 

2014) (citing Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989)). To 

properly reach that determination, “a trial court in this Circuit is 

obliged to assess three factors: first, how far the underlying suit has 

progressed; second, the prejudice any resulting delay might cause the 
25 

other parties; and third, why the movant was tardy in filing its motion.” 

Id. (citing Gould, 883 F.2d at 286). 

The district court found that all of those factors weighed heavily 

against intervention, and appellants offer nothing to show that the 

court abused its wide discretion. See Op. 8-15 [JA2010-2017]. The 

attempt to intervene came two years after trial concluded and months 

after final judgment was appealed. By that point, the receiver had spent 

any funds potentially traceable to NLG on receivership expenses.6

During that entire time, appellants knew that their interests were at 

stake, yet they deliberately sat on the sidelines. Moreover, to allow 

appellants to intervene so late in the proceeding would have prejudiced 

both the FTC and the victims of the Sanctuary Belize scam. The FTC 

would have faced yet more litigation, and the victims’ potential redress 

6 In August 2021, the receiver reported to the court that there was 

approximately $3.8 million left in the receivership. DE_1271-1 at 19. In 

2019, the FTC had transferred $4.12 million (the proceeds of a 

settlement with another defendant) to the receiver. DE_559 § V 

[JA561]. That money was to be used to manage the receivership estate, 

but only after the receiver “exhausts” all other assets. DE_559 § V.B 

[JA561]. Because the receiver had less than $4 million remaining in 

August 2021, all the funds in the receivership necessarily came from 

the settlement money, meaning that any money theoretically traceable 

to NLG had been spent. 
26 

would have been delayed and possibly reduced as the receiver spent 

even more money on managing the receivership estate. Op. 12-13 

[JA2014-2015]. 

Appellants’ proffered excuses for their delay were “wholly 

inadequate.” Op. 13 [JA2015]. As detailed above, appellants could have 

sought to intervene at many earlier points in the case without causing 

prejudice. Every time, however, they opted to forgo intervention to 

pursue their strategically preferred avenue of relief. Only after every 

other stratagem had failed did they file their intervention motion. The 

district court’s unwillingness to reward appellants’ tactics, and its lack 

of sympathy for their “deliberate forbearance” in intervening is both 

“understandabl[e]” and well within a court’s discretion to consider. Alt, 

758 F.3d at 591; see Moten v. Bricklayers, Masons & Plasterers, Int’l 

Union of Am., 543 F.2d 224, 228 (D.C. Cir. 1976) (motion to intervene 

untimely where decision to forgo earlier intervention was tactical 

choice). 

Appellants’ attempts to excuse their tardiness are meritless. First, 

they assert that they “sought to intervene precisely to seek relief on 

grounds that the district court invited in its final judgment.” Br. 27. The 
27 

claim fails at the outset because nothing that the district court said 

when it entered final judgment could excuse “lack of action for years 

prior.” Op. 14 [JA2016]. More fundamentally, the court did not invite 

intervention. The court stated that it would, if necessary, recalculate 

the monetary remedy in the event of a remand by this Court in light of 

AMG and Liu v. SEC, 140 S. Ct. 1936 (2020). DE_1020 at 28 n.20 

[JA865]. The court said nothing about intervention. To the degree 

appellants wished to raise AMG, they offer no explanation for their 

having waited seven months after that decision to seek intervention— 

“another nail in the coffin for their timeliness argument,” Op. 12 

[JA2014]—especially since the district court already had signaled its 

“belie[f]” that AMG will not change the calculus of redress. DE_1020 at 

28 n.20 [JA865]. As the district court observed, appellants’ claim of 

reliance on AMG does not square with their admission to the court that 

“they did not seek to intervene in this case because they believed it was 

more strategic to pursue the California litigation.” DE_1352, at 14 

[JA2016]. Appellants simply “gambled and lost.” Alt, 758 F.3d at 591. 

Second, appellants are simply wrong that their intervention would 

cause no prejudice because “the worst that could happen is that 
28 

innocent investors recoup funds that should never have been seized 

from them.” Br. 29. Appellants ignore the potential for substantial 

additional litigation, which would prejudice both the FTC by draining 

its resources and the victims of the Sanctuary Belize scam by delaying 

and possibly reducing consumer redress. The claim that such harms 

will not occur because appellants’ “entitlement to the return of their 

funds is a question of law,” and no additional litigation would be 

needed, Br. 30, is untrue. Appellants invoked two theories for recovery 

of their invested NLG funds: constructive trust and breach of contract. 

See DE_1317-27 at 5-10 [JA1774-1779]. Both involve numerous factual 

determinations such as whether appellants’ funds are traceable to the 

receivership estate, whether NLG obtained those funds by “fraud, 

accident, mistake, undue influence or other wrongful act,” DE_1317-27 

at 5 [JA1774] (appellants’ motion for relief memorandum, citing 

California law requirements for constructive trust claim), whether a 

contract existed between appellants and NLG, whether a breach took 

place, and what the proper remedy would be. Indeed, in their motion for 

relief from judgment, appellants themselves “request[ed] a hearing to 

settle any factual disputes.” DE_1317 at 15 [JA1658]. 
29 

Third, the feebleness of appellants’ motion is only highlighted by 

their argument that they “did pipe up at least three times prior to their 

intervention motion,” but “were denied relief.” Br. 29. The argument 

demonstrates that appellants were well aware for years that this case 

would affect NLG, but they deliberately chose not to move to intervene, 

instead pursuing their interests elsewhere.7 That their repeated 

attempts to get money from NLG have been fruitless is no reason to 

allow them to intervene so late in the game to again seek the same 

relief. Having “gambled and lost in the execution of [their] litigation 

strategy,” appellants’ “deliberate forbearance understandably 

engenders little sympathy.” Alt, 758 F.3d at 591. 

Fourth, there is no substance to appellants’ claim that they failed 

to intervene earlier because they lacked counsel. Br. 30. Even if lacking 

counsel could somehow excuse their delay, appellants represented to 

the district court the exact opposite: that their prior non-intervention 

7 Appellants are wrong in claiming that their intervention motion was 

timely because their California lawsuit was filed before NLG was a 

defendant in Sanctuary Belize. Br. 29 n.6. Appellants sued in state 

court three years before trying to intervene. Moreover, at the time of 

filing their state action, the receiver had already claimed that NLG 

belonged in the receivership. DE_453-2 ¶10 [JA500]. 
30 

was “[o]n advice of counsel.” DE_1109 (court decision on informal 

objections to NLG decision), at 4 [JA1492]; see DE_1032 Att. 1-11 

(informal objections) [JA1017-1041]. 

Finally, although appellants attempt to blame the district court 

for their dereliction, they have made no such showing. They claim that 

it was “unfair” for the court to deny their intervention motion when the 

court had solicited appellant Heiman’s motion for relief, see DE_1020 at 

141 [JA978], “with no mention that Heiman might first need to file a 

motion to intervene.” Br. 31 n.7. It was not up to the district court to act 

as appellants’ lawyer, and nothing the court did could excuse the 

untimeliness of their intervention motion. Moreover, the district court 

did not deny relief to Heiman and the other nonparty objectors simply 

because they had not formally intervened; the court considered, and 

rejected, their arguments on the merits—even though the objectors 

presented those arguments informally and not, as the court requested, 

by motion for relief. DE_1109 at 4 [JA1492]. Nor could the court’s 

actions toward Heiman explain the failure by the other appellants to 

seek intervention. 
31 

B. Appellants Have No Cognizable Interest in the 

Subject of the Sanctuary Belize Litigation and 

Their Asserted Interest Has Been Adequately 

Represented by NLG 

Appellants’ untimely motion also failed to demonstrate that they 

met the “interest” requirements of Rule 24(a)(2)—i.e. that they have an 

interest in the subject of the Sanctuary Belize litigation that would be 

impaired or impeded without their intervention and that no other party 

already in the litigation can adequately represent. See In re Sierra 

Club, 945 F.2d at 779 (“A party seeking intervention of right must show 

‘interest, impairment of interest, and inadequate representation’.”) 

(quoting Gould, 883 F.2d at 284). See generally 7C C. Wright, A. Miller, 

& M. Kane, FEDERAL PRACTICE AND PROCEDURE §§ 1908-1909 (3d ed. 

Supp. 2022) (“Wright & Miller”). They have neither a cognizable 

interest, nor have they shown that NLG cannot protect their asserted 

interest. 

1. Appellants have no cognizable interest in 

the Subject of the Sanctuary Belize

litigation 

Appellants claim an interest in $1.95 million that they invested in 

NLG, Br. 32, the assets of which became part of the receivership estate, 

DE_507 [JA555]. That money, according to appellants, was meant for a 
32 

land development in Costa Rica (the Rancho Del Mar project)—not for 

Sanctuary Belize. Br. 4-5; see DE_1323-1 Att. 6 (appellants’ state action 

complaint), at 2-3 [JA1914-1915]. Appellants’ claimed interest in this 

litigation is that they fear that depletion of NLG’s funds in this case will 

leave nothing for their claims against NLG. See id. at 6-10 [JA1918-

1922] (appellants’ state claims for breach of contract and constructive 

trust against NLG). 

Under binding precedent, such an interest is insufficient under 

Rule 24(a)(2). In Gould v. Alleco, Inc., 883 F.2d 281 (4th Cir. 1989), this 

Court rejected a claim directly analogous to appellants’ claim here. In 

Gould, corporate bondholders sought to intervene in a securities fraud 

class action against the corporation, claiming that a proposed class 

settlement would leave nothing for them to recover in their own lawsuit 

against the corporation. Id. at 283. Just like appellants’ claim of a 

superior interest in NLG’s assets as the supposed beneficiaries of a 

constructive trust, see Br. 33, the Gould bondholders asserted that they 

“have a superior interest in [the corporation’s assets] to that of the 

[class members].” Id. at 285. Also like appellants here, the Gould

bondholders claimed that “they have potential judgment claims against 
33 

[the corporation], full payment of which would be impaired if the [] 

settlement is permitted to proceed.” Id. The Court rejected those 

asserted interests as insufficient to “satisfy Rule 24’s requirement that 

the claim be ‘relating to the property or transaction which is the subject 

of the action’.” Id. “In a sense,” reasoned the Court, “every company’s 

stockholders, bondholders, directors and employees have a stake in the 

outcome of any litigation involving the company, but this alone is 

insufficient to imbue them with the degree of ‘interest’ required for Rule 

24(a) intervention.” Id. “To hold otherwise would create an open 

invitation for virtually any creditor of a defendant to intervene in a 

lawsuit where damages might be awarded.” United States v. Alisal 

Water Corp., 370 F.3d 915, 920 (9th Cir. 2004) (citing Public Serv. 

Comp. of New Hampshire v. Patch, 136 F.3d 197, 205 (1st Cir. 1998)). 

Gould’s holding and reasoning apply foursquare here. Appellants’ 

claims to their investments in NLG, whether based on a breach of 

contract or constructive trust, have yet to be adjudicated, which renders 

them, at most, “potential creditors of NLG” who are ineligible to 

intervene under Gould. Op. 17 [JA2019]. Their interest in a potential 

judgment against NLG, like the Gould bondholders’ interest, cannot 
34 

alone satisfy Rule 24’s “interest” requirement. The district court thus 

correctly rejected their purported interest in the Sanctuary Belize

litigation. Op. 15-17 [JA2017-2019]. 

Appellants misplace their reliance on Teague v. Bakker, 931 F.2d 

259 (4th Cir. 1991), which they mischaracterize (Br. 32-34) as 

establishing that “all that Rule 24 requires is that a proposed 

intervenor ‘stand to gain or lose’ something on account of the 

intervention.” Br. 32 (quoting Teague, 931 F.2d at 261). For one thing, 

that proposition cannot be squared with the rule set forth in Gould, 

which is not surprising because Teague held no such thing. There, class 

action plaintiffs sought to intervene on behalf of the class in a 

declaratory action filed by an insurer against three specific class 

members to determine the coverage of the insurer’s policy. 931 F.2d at 

261. The declaratory suit defendants had limited means to defend the 

case, and thousands of others who would be affected were not named. 

The Court allowed the other class members to intervene after 

recognizing that the insurer was attempting to cut off the rights of class 

action plaintiffs with claims on the very policy at issue in the suit. It 

held that persons who “stand to gain or lose by the direct legal operation 
35 

of the district court’s judgment on [the insurer’s] complaint,” should be 

permitted to intervene. Id. (emphasis added). 

Appellants are nothing like the class members in Teague. Their 

claims against NLG will not be adjudicated by “the direct legal 

operation” of the Sanctuary Belize matter the way the Teague

intervenors’ claims were. In Teague, the declaratory insurance dispute 

centered on whether the insurer would make payments to benefit the 

proposed intervenors. There is no such direct nexus here because this 

case concerns the deceptive sale of lots in Sanctuary Belize by 

defendants, including NLG. The case does not concern whether NLG 

defrauded or breached an agreement regarding the Costa Rica 

development with the appellants/investors. 

Likewise significant, the insurer in Teague did not sue the class 

members as a tactic to increase the odds of a favorable ruling, see 931 

F.2d at 261 n.3; similarly, appellants here repeatedly declined to move 

to intervene as a strategic decision and filed their motion only after all 

their other plans had failed. In both cases, courts declined to reward 

untoward tactics. 
36 

Appellants also argue that they are not mere “potential creditors” 

because their claims against NLG were based on a constructive trust 

theory. Br. 33-34. But that is beside the point. Whatever the theory of 

recovery, appellants’ claims have yet to be adjudicated. All they can 

claim now is that one day they may secure a judgment against NLG—

the very definition of “potential creditor.” Indeed, as explained above, so 

far as their constructive trust claim is concerned, appellants are 

unlikely to succeed in tracing their investment monies to any existing 

receivership funds. 

Finally, appellants are mistaken that “the relationship between 

the Costa Rica project and the Belize litigation was a primary reason 

that [their] funds were subjected to the receivership.” Br. 32. The court 

placed NLG’s assets in the receivership because it found that NLG was 

part of the Sanctuary Belize common enterprise. That some of those 

assets may have related to appellants’ purported investments in Costa 

Rica had nothing to do with why the court placed NLG under the 

receiver’s control. Even if appellants had claims against those assets, 

such claims would render them, at most, “potential creditors” of NLG 

without a cognizable “interest” in the Sanctuary Belize litigation. 
37 

2. Appellants cannot show “inadequate 

representation” of their asserted interest 

Even if appellants’ asserted interest were cognizable, their 

intervention still would be inappropriate because they could not show 

that no party in this case can adequately represent that interest. See In 

re Sierra Club, 945 F.2d at 779 (proposed intervenor of right “must 

show ... inadequate representation.”); 7C Wright & Miller § 1909 (“The 

adequacy of the representation of the absentee by the existing parties 

has been an important factor in intervention of right under Rule 24(a) 

since the rule was first adopted in 1938.”). 

NLG itself is a party in this litigation, and it has filed a notice of 

appeal from the final judgment against it. DE_1280 [JA1627]. Its 

interest in extricating its assets from under the receiver’s control is 

coterminous with appellants’ asserted interest in releasing those same 

assets from the receivership to use them to recover their investments. 

Moreover, appellants’ sole basis for relief from the NLG default 

judgment—that AMG mandates reversal of NLG’s monetary judgment 

and associated receivership rulings, see DE_1317 at 13-15 [JA1656-

1658]—is a principal argument in the consolidated appeals from the 

final judgments, see Brief of Appellants, No. 20-2215 (L) et al. (Dec. 16, 
38 

2021), at 18-21; Reply Brief of Appellants, No. 2215 (L) et al. (Dec. 22, 

2021), at 18-25, 32-35. Appellants thus share not only the same 

objective as NLG but also advocate the same means of achieving that 

objective. Where “the interest of the absentee is identical with that of 

one of the existing parties ... representation will be presumed adequate 

unless special circumstances are shown.” 7C Wright & Miller § 1909; 

see, e.g., Aluminum Co. of America v. Utilities Comm’n of North 

Carolina, 713 F.2d 1024, 1025 n.1 (4th Cir. 1983) (where the interests of 

movants and existing plaintiffs coincided and plaintiffs adequately 

represented those interests, no abuse of discretion in denying motion to 

intervene). 

Despite carrying the burden of explaining why NLG cannot 

adequately represent their asserted interest in this case, appellants did 

not address the issue in their brief.8 Nor could they meet that burden. 

Before the district court, they argued that this litigation concerned 

8 The district court did not address the “inadequate representation” 

prong of appellants’ motion to intervene, but their failure to meet that 

requirement is an independent basis for this Court’s upholding the 

denial of that motion. See Greenhouse v. MCG Cap. Corp., 392 F.3d 650, 

660 (4th Cir. 2004) (court of appeals may affirm district court decision 

on any ground supported by the record, even if not relied upon by 

district court). 
39 

Sanctuary Belize whereas they “seek to recover funds they invested for 

the purpose of developing real estate in Costa Rica.” DE_1316-1 at 8 

[JA1641]. They did not explain how that statement shows “inadequate 

representation,” when the parties in the consolidated appeals are 

seeking to overturn the money judgment against NLG and the other 

defaulting defendants and unwind the receivership.9 Whatever the NLG 

funds were originally intended for has no bearing on those efforts. 

Appellants also argued before the district court that “NLG was a 

defaulted defendant and thus could not possibly have represented” their 

interests. DE_1316-1, at 8 [JA1641]. But NLG is a party to these 

proceedings and had sought Rule 60(b)(5) relief based on AMG months 

before appellants’ motion to intervene. See DE_1267 [JA1622-1623] 

(defaulting defendants’, including NLG, motion for judgment relief, 

dated July 22, 2021); DE_1278 [JA1624-1625] (court’s denial of relief). 

Appellants did not—and cannot—explain why NLG’s efforts to protect 

its interest in overturning the default judgment against it and releasing 

9 If anything, appellants’ statement—that they “seek to recover funds 

they invested for the purpose of developing real estate in Costa Rica”—

is a clear concession that they do not have a Rule 24(a) “interest” in this 

case and thus may not intervene. 
40 

all its assets from the receivership would be inadequate to also protect 

their asserted interest in releasing those funds so they can be available 

for their claims against NLG. 

III. EVEN IF THE DISTRICT COURT HAD JURISDICTION, IT 

PROPERLY EXERCISED ITS DISCRETION IN DENYING 

APPELLANTS’ MOTION FOR JUDGMENT RELIEF 

The district court correctly denied appellants’ motion for relief 

pursuant to Fed. R. Civ. P. 60(b) on the ground that because appellants 

had no right to intervene, they were nonparties without any right to 

seek relief under that rule. Op. 17 [JA2019]. The rule expressly provides 

that “the court may relieve a party or its legal representative from a 

final judgment, order, or proceeding” for one of the reasons enumerated 

in the rule. Fed. R. Civ. P. 60(b) (emphasis added). The district court’s 

denial of intervention rendered appellants nonparties without standing 

to seek Rule 60(b) relief. See Houston General Ins. Co., 193 F.3d at 839 

(denial of intervention moots derivative motion to vacate underlying 

judgment); Richmond v. First Woman’s Bank, 104 F.3d 654, 655 (4th 

Cir. 1997) (denial of intervention renders proposed intervenors without 

standing to seek reconsideration of underlying ruling); Gould, 883 F.2d 

at 284 (denial of intervention “completely dispositive” of proposed 
41 

intervenors’ request for relief). That is sufficient to affirm the district 

court’s denial of appellants’ motion for relief. 

Appellants assert, however, that the district court “alternatively 

denied relief on the merits.” Br. 35. To be sure, the court noted in a 

passing footnote that “[t]he Court is unpersuaded” by the arguments on 

the merits. Op. 17 n.11 [JA2019]. But that does not give appellants 

standing to obtain relief accorded only to parties. 

In any event, appellants could not succeed on the merits of their 

arguments. Rule 60(b)(5) “provides a means by which a party can ask a 

court to modify or vacate a judgment or order if ‘a significant change 

either in factual conditions or in law’ renders continued enforcement 

‘detrimental to the public interest’.” Horne v. Flores, 557 U.S. 433, 447 

(2009) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 

384 (1992)). “The party seeking relief bears the burden of establishing 

that changed circumstances warrant relief.” Id. 

First, appellants erroneously contend (Br. 35-36) that they were 

entitled to relief under the second clause of Rule 60(b)(5), which applies 

when a judgment “is based on an earlier judgment that has been 

reversed or vacated.” Fed. R. Civ. P. 60(b)(5). Their claim is that the 
42 

court’s decision to deny their request to “unfreeze NLG’s assets and 

return their investments in full” was based “on the now-reversed 

judgment of the Fourth Circuit in FTC v. Ross, 743 F.3d 886 (4th Cir. 

2014).” Br. 36. In fact, the second clause of Rule 60(b)(5) “is limited to 

cases in which the present judgment is based on the prior judgment in 

the sense of claim or issue preclusion.” 11 Wright & Miller § 2863. It 

“does not apply merely because a case relied on as precedent by the 

court in rendering the present judgment has since been reversed.” Id. 

This Court repeatedly has held that “[a] decisional change in the law 

subsequent to the issuance of a final judgment ... does not provide a 

sufficient basis for vacating the judgment under Rule 60(b)(5).” Dowell 

v. State Farm Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993); 

accord Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992) 

(that the underlying convictions had been reversed did not require 

setting aside the judgment entered pursuant to a settlement agreement 

resolving forfeiture claims); Werner v. Carbo, 731 F.2d 204, 209 (4th 

Cir. 1984) (second clause of Rule 60(b)(5) only applies where liability 
43 

“was wholly derivative of, coexistent with, and limited by the judgment” 

that had been vacated).10

Appellants also assert (Br. 37) that they were entitled to relief 

under the third clause of Rule 60(b)(5)—for relief from judgment 

because “applying it prospectively is no longer equitable.” Fed. R. Civ. 

P. 60(b)(5). They claim that it was inequitable for the district court to 

deny them relief “because it pledged that, if the Supreme Court 

overturned Ross, it would ‘determine the amount Defendants are liable 

for on remand’.” Br. 37 (quoting DE_1020 at 28 n.20 [JA865]). As 

discussed above in connection with appellants’ timeliness argument, the 

district court merely noted that if this Court concluded that AMG

requires a recalculation of the monetary equitable redress in this case, 

the district court would do that, “on remand.” DE_1020 at 28 n.20 

[JA865]. This Court has yet to rule on the consolidated appeals from the 

10 The other courts of appeals confronting the same question agree. 

See, e.g., Comfort v. Lynn School Committee, 560 F.3d 22, 27 (1st Cir. 

2009) (“emergence of controlling precedent in some other case that 

shows the incorrectness of the prior judgment is not sufficient” for Rule 

60(b)(5) relief); In re Fine Paper Antitrust Litig., 840 F.2d 188 (3d Cir. 

1988) (final money judgment may not be reopened after time for appeal 

has expired because of favorable legal ruling in another party’s appeal). 
44 

final judgment in this case, including the impact, if any, of AMG. At this 

point, invocation of the equity clause is, at best, premature. 

Finally, appellants mistakenly argue—also under the “equitable” 

clause of Rule 60(b)(5)—that AMG constitutes a significant change in 

the law that renders it inequitable to deny them relief. Br. 38. As a 

threshold matter, appellants’ request for relief on that basis—filed 

seven months after AMG—is untimely. See SEC v. Bronson, No. 22-

1045, 2022 WL 5237474, *2 (2nd Cir. Oct. 6, 2022) (rejecting as 

untimely Rule 60(b)(5) motion for relief, based in part on AMG, filed at 

the same time as appellants’ motion). Moreover, as the FTC argued in 

the consolidated appeals from the final judgments, see Brief of the 

Federal Trade Commission, No. 20-2215 (L) et al. (Dec. 10, 2021), at 26-

28, AMG does not affect NLG’s default judgment, and thus cannot be 

the basis for relief for appellants. 

NLG defaulted below, see DE_1112 at 1-2 [JA1494-1495], so the 

pending appeal is strictly limited to “whether [the district court] abused 

its discretion in granting a default judgment in the first instance.” City 

of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 
45 

2011); accord Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 

F.2d 1499, 1507 (11th Cir. 1984). 

Appellants are also mistaken in arguing that, in light of AMG, 

upholding the NLG judgment would be inequitable. Only judgments 

with a “prospective effect” qualify for relief under the “equitable” clause 

of Rule 60(b)(5); a monetary judgment like the one against NLG—“a 

present remedy for a past wrong”—does not qualify. Calif. ex rel Becerra 

v. EPA, 978 F.3d 708, 717 (9th Cir. 2020). That clause is inapplicable 

when “the order” that appellants seek to challenge is without “anything 

left to do under [it]” and thus “has no prospective application.” 

Schwartz, 976 F.2d at 218. Indeed, “[m]ost courts have agreed that a 

money judgment does not have prospective application, and that relief 

from a final money judgment is therefore not available under the 

equitable leg of Rule 60(b)(5).” Stokors S.A. v. Morrison, 147 F.3d 759, 

762 (8th Cir. 1998). 

CONCLUSION 

For the foregoing reasons, the district court’s decision should be 

affirmed. 
46 

Respectfully submitted,11

ANISHA S. DASGUPTA

General Counsel 

JOEL MARCUS

Deputy General Counsel

October 21, 2022 /s/ Imad Abyad 

IMAD D. ABYAD

Attorney 

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

(202) 326-3579 

iabyad@ftc.gov 

11 The court-appointed receiver, Marc-Philip Ferzan of Ankura 

Consulting Group, LLC, has reviewed this brief, and joins in the 

arguments advanced herein. 
STATEMENT REGARDING ORAL ARGUMENT

Oral argument would aid the Court in resolving the issues raised 

in this appeal. 

CERTIFICATE OF COMPLIANCE 

I certify that the foregoing brief complies with the volume 

limitations of Fed. R. App. P. 32(a)(7)(B) because it contains 8,919 

words, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii). I certify further that it complies with the typeface and 

type style requirements of Fed. R. App. P. 32(a)(5)-(6) because it was 

prepared using Microsoft Word 2010 in 14 point Century Schoolbook. 

October 21, 2022 /s/ Imad Abyad 

 IMAD D. ABYAD

 Attorney 

 FEDERAL TRADE COMMISSION

 600 PENNSYLVANIA AVENUE, N.W. 

 WASHINGTON, D.C. 20580