IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

 

:

FEDERAL TRADE COMMISSION, :

Plaintiff, :

:

v. : Civil Action No. 03-C-3904

:

KEVIN TRUDEAU, :

Defendant. :

 

PLAINTIFF’S OPPOSITION TO JENNER AND BLOCK’S 

MOTION TO WITHDRAW AS COUNSEL

Plaintiff Federal Trade Commission (“FTC”) opposes Jenner & Block LLP’s (“Jenner &

Block”) motion to withdraw immediately as counsel of record for Defendant Kevin Trudeau

(“Trudeau”) on several grounds. First, by stating that “it no longer believes that it is possible to

represent Mr. Trudeau consistent with this Court’s rules,” Jenner & Block’s motion raises the

troubling possibility of misrepresentations to the Court or the FTC in their absence. Current

counsel’s integrity provides the best method of ensuring that violations of the Court’s rules do

not occur while the FTC seeks compliance with the Court’s three-year ban on Trudeau’s

infomercials and pursues discovery regarding Trudeau’s assets and ability to pay the Court’s

August 7, 2008 Judgment (“Judgment”). 

Second, Jenner & Block’s skeletal motion provides little information regarding a newly

discovered conflict between Trudeau and an existing firm client. Jenner & Block’s history of

representing Trudeau goes back at least ten years and this contempt action alone has lasted

almost a year. Therefore the recent discovery of an “existing” firm client necessitating

withdrawal is puzzling.

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 The lawyer must reasonably believe the representation will not adversely affect the

relationship with the other client; and each client must consent after disclosure. LR 83.51.7 (a),

Conflict of Interest: General Rule. 

2

The Court’s Conflict of Interest Rules require withdrawal only when “the representation

of that client will be directly adverse to another client” [emphasis added]. Local Rule (“LR”)

83.51.7, Conflict of Interest: General Rule. Jenner & Block’s motion gives no information

demonstrating that the conflict meets this standard. Moreover, even if the representation of one

client is “directly adverse” to another client, the representation may still continue under certain

circumstances.1 Hence, Jenner & Block has failed to demonstrate that its withdrawal is justified

based upon a conflict of interest. 

Accordingly, Jenner & Block has failed to establish a sufficient basis for withdrawal,

particularly where its withdrawal would have a significantly negative impact on an efficient

conclusion to these contempt proceedings. Indeed, the Court has already recognized the

problems that might result if Jenner & Block were permitted to withdraw before these

proceedings have concluded. On July 25, 2008, when Jenner & Block raised its first motion to

withdraw, the Court refused to allow withdrawal at that time because “we may have some

follow-up” and informed Jenner & Block that it expected the firm to continue representing

Trudeau “through these contempt issues.” July 25, 2008 Trial Transcript, p. 101. Because there

are several follow-up issues to be resolved, including outstanding motions from both parties,

Jenner & Block’s withdrawal remains problematic. 

These follow-up issues include the FTC’s motion to clarify and amend certain aspects of

the Court’s Judgment. Defendant will likely seek an opportunity to respond to the FTC’s

motion. Once the Court resolves that motion, which includes amendment of the amount of

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 The Judgment enjoined Trudeau “or any person or entity acting in concert with him, from

participating in the production or publication of any infomercial for any product, including

books, in which Mr. Trudeau, or any related entity has an interest, for a period of three years”

from the date of the Order. Judgment (#158).

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royalties that Trudeau is required to disgorge, the FTC will seek financial discovery from

Trudeau and a turnover of assets in order to satisfy the Judgment. In addition, Defendant has

moved to stay this Court’s Judgment, pending appeal. The FTC opposes a stay and will seek an

appropriate schedule to brief this issue during the September 2, 2008 presentment of Defendant’s

motion.

Finally, it appears likely that the parties may disagree about the scope of the Court’s

three-year infomercial ban on Trudeau.2

 Based upon recent correspondence from Trudeau’s

counsel, the FTC has concerns that Defendant’s infomercials for Debt Cures and Natural Cures,

among others, continue to be broadcast, in violation of the Court’s injunction against

“publication of any infomercial for any product.” Judgment (#158). Defendant’s

correspondence also raises the possibility that Trudeau may intend to broadcast other

infomercials, which he created prior to entry of the Judgment. All these issues relate to the

contempt proceedings and enforcement of the Court’s Judgment. Once these discrete issues are

resolved, the FTC would not oppose Jenner & Block’s withdrawal from this matter. 

Permitting withdrawal now, prior to the resolution of the contempt issues, would

unnecessarily delay and complicate these proceedings. Any search for new counsel might prove

time-consuming (especially if Trudeau lacks the ability to pay for representation). Even if 

Trudeau could obtain new counsel, that counsel would have to acquaint themselves with the 

facts and legal issues surrounding this matter. If Trudeau elects to proceed pro se as counsel’s

motion indicates, that would cause delays as a non-lawyer grapples with legal issues. 

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 For these reasons, the FTC opposes Jenner & Block’s motion to withdraw. 

 

Dated: August 29, 2008 Respectfully submitted,

WILLIAM BLUMENTHAL

General Counsel

DAVID A. O’TOOLE

Federal Trade Commission

55 West Monroe St., Suite 1825

Chicago, Illinois 60603

phone: (312) 960-5601

fax: (312) 960-5600

dotoole@ftc.gov

s/ Laureen Kapin 

LAUREEN KAPIN 

ELIZABETH TUCCI

SANDHYA PRABHU

Federal Trade Commission

601 New Jersey Ave, NW Suite 2215

Washington DC, 20001

phone: (202) 326-3237, -2402, -2040

fax: (202) 326-2559

lkapin@ftc.gov; etucci@ftc.gov;

sprabhu@ftc.gov

Attorneys For Plaintiff

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CERTIFICATE OF SERVICE

I, Sandhya Prabhu, an attorney, hereby certify that on August 29, 2008, I caused to be

served true copies of the Plaintiff’s Opposition to Jenner & Block’s Motion to Withdraw as

Counsel, by electronic means and by filing such document through the Court’s Electronic Case

Filing System, which will send notification of such filing to:

David Bradford, and Daniel Hurtado, Esq.

Jenner & Block

330 N. Wabash Ave.

Chicago, IL 60611-7603

dbradford@jenner.com

dhurtado@jenner.com

s/ Sandhya Prabhu 

Sandhya Prabhu

Attorney for Plaintiff

Federal Trade Commission

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