Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: Weight loss book author challenges 10-year prison sentence, (Jul 11, 2016)

By Greg Hammond, J.D.

Kevin Trudeau, the author of the book "The Weight Loss Cure ‘They’ Don’t Want You to Know About," is asking the U.S. Supreme Court to review a decision entered by the U.S. Court of Appeals in Chicago that affirmed a 10-year prison sentence and criminal contempt order. Trudeau was found to have violated an FTC consent order that prohibited him from misrepresenting the content of his books in TV infomercials (Trudeau v. U.S., Dkt. 16-37).

The FTC sued Trudeau for violating consumer protection laws, and Trudeau subsequently agreed to a consent decree in which he promised not to misrepresent the content of his books in TV infomercials. However, the federal district court in Chicago imposed a civil contempt sanction against Trudeau, finding that, in ads for his book "The Weight Loss Cure ‘They’ Don’t Want You to Know About," Trudeau misrepresented the weight-loss protocol as "simple," "inexpensive," that it could be completed at home, and that it did not require any food restrictions or exercise. The book, however, described an arduous regimen mandating prescription hormone injections and severe dietary and lifestyle constraints. Trudeau was later convicted and sentenced to ten years in prison for violating the consent order.

The appellate court affirmed the contempt conviction and sentence, finding that there was no violation of the Speedy Trial Act because the first show-cause order capped the potential penalty at six months, which meant that the Speedy Trial Act did not apply. When the second show-cause order removed the cap, the Act’s 70-day clock was triggered, according to the court, but Trudeau’s trial began within the mandatory timeframe counting from that date. Trudeau’s arguments concerning challenges to the jury instruction on "willfulness," the sufficiency of the evidence, two evidentiary rulings, and the reasonableness of his sentence were also deemed meritless.

Trudeau now brings his challenge to the Supreme Court, arguing that there is a circuit split over the classification of criminal contempt, and that the appellate court’s order conflicts with Supreme Court precedent. In addition, Trudeau claims that the circuit courts are divided over the meaning of the willfulness requirement for criminal contempt and the Supreme Court should determine whether the willfulness element requires knowledge.

Specifically, the questions presented in Trudeau’s petition are: (1) whether a violation of 18 U.S.C. §401 should be classified as a Class A felony under 18 U.S.C. § 3559 (as the First and Fourth Circuits hold), similarly to the closest analogous offense (as the Sixth, Seventh, and Ninth Circuits hold), or sui generis based on the penalty actually imposed by the court (as the Third, Fifth, and Eleventh Circuits hold); and (2) whether the willfulness mens rea of a criminal contempt requires the government to prove that the defendant’s wrongful conduct was knowing (as the First and Eleventh Circuits hold), reckless (as the Fifth, Seventh, and D.C. Circuits hold), or negligent (as the Eighth and Ninth Circuits hold).

Attorneys: Steffen Johnson (Winston & Strawn LLP) for Kevin M. Trudeau.

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