Labor & Employment Law Daily Wrap Up, PROCEDURE—D. Nev.: As end of trial in wage fixing, conspiracy case nears, defendant precluded from intent-to-repay defense, (Apr 10, 2025)

By Peter Reap, J.D., LL.M.

Jury instructions have also been submitted by both the government and defendant Eduardo Lopez.

As trial in the Justice Department’s wage fixing and conspiracy case against Eduardo Ruben Lopez continues, the federal district court in Las Vegas has issued an order precluding Lopez from presenting an intent-to-repay defense. According to the court, Lopez argues that at the time he entered into the negotiations, and then ultimately sold his company, Community Health to Solace Nevada, he could not have intended to deceive or cheat them because he committed to repaying them in full if the indemnification provision was ever implicated. But the Ninth Circuit, in United States v. Miller, 953 F.3d 1095, (9th Cir. 2020), makes clear this sort of defense is improper, as an intent to repay is irrelevant. In addition to the court’s ruling on the intent-to-repay defense, both sides submitted proposed jury instructions on Sherman Act conspiracy to the court (U.S. v. Lopez, No. 2:23-cr-00055-CDS-DJA (D. Nev. Apr. 4, 2025)).

Ruling on intent-to-repay defense. Lopez and his co-conspirators were first indicted with wire fraud and a price fixing conspiracy in violation of Section 1 of the Sherman Act in March 2023 with participating in a series of meetings and communications to fix wages of nurses. In September 2023, a superseding indictment was returned charging Lopez with five additional counts of wire fraud in violation of 18 U.S.C. 1343. The superseding indictment repeats the antitrust charge, then it further alleged that after Lopez discovered an FBI investigation into the wage fixing conspiracy, he sold his health care staffing company for $12.5 million, falsely representing to the buyer that federal law enforcement was not investigating him or the company.

As the court explained, Lopez is charged with multiple wire fraud counts related to the sale of his home healthcare business, Community Health, to a company known generally as Solace Nevada at the end of 2021. To complete the sale, the parties entered into a Purchase Agreement, part of which included an indemnification provision. Now, Lopez seeks to introduce additional evidence regarding the indemnification provision, to include evidence related to what occurred after Solace learned that Community Health was under federal investigation.

In its order, the court cited Miller to explain the charge of wire fraud and the required mens rea:

“[W]ire fraud requires the intent to deceive and cheat—in other words, to deprive the victim of money or property by means of deception.” United States v. Miller, 953 F.3d 1095, 1103 (9th Cir. 2020) (emphasis in original). A defendant’s intent to repay the victim the money taken by means of deception, however, “is not a defense to wire fraud.” Id. at 1103. Based on the arguments and evidence before the court, it is now clear that Lopez is seeks to present an intent to repay defense disguised as the indemnification provision in the Purchase Agreement. Lopez has repeatedly argued that the indemnification provision is evidence that Lopez did not intend to deceive or cheat because “all the risk” was on him. Stated otherwise, Lopez argues that at the time he entered into the negotiations, and then ultimately sold his company to Solace, he could not have intended to deceive or cheat them because he committed to repaying them in full if the indemnification provision was ever implicated.

Even if Lopez was trying to argue that the indemnification provision shows he did not intend to permanently deprive Solace of money or property, because again, if the indemnification provision was triggered, he would be required to repay them, this is just another version of an intent to repay defense, according to the court. Thus, Lopez was precluded from introducing evidence or argument that the indemnification provision is evidence that Lopez did not intend to deceive or cheat Solace, the court ruled.

Lopez was also precluded from introducing (1) any additional evidence that the indemnification provision somehow “guaranteed” repayment if ever triggered or enforced, (2) any evidence related to Solace’s (or any interested party’s) belief about how the indemnification provision worked or what it would call for, (3) that the indemnification provision was in fact triggered and pursued by Solace (or any interested party), and (4) any evidence related to the results from any effort to enforce the indemnification provision. He also would not be permitted to argue in closing statements that the indemnification provision meant he could not have had the requisite intent to deceive and cheat Solace.

Proposed Sherman Act conspiracy jury instructions. Both the government and defendant Lopez submitted supplemental conspiracy jury instructions after the trial on April 8, 2025. The court held a jury instruction charge conference that day after trial and instructed the parties to meet and confer regarding several instructions related to the definition of a Sherman Act conspiracy. After meeting and failing to reach agreed-upon proposed instructions, the parties submitted their proposals to the court.

Lopez also submitted, separately, objections to the court’s proposed jury instructions and proposed defense instructions.

In its submission, the government also proposed adding an instruction on withdrawal from a conspiracy, based on the Ninth Circuit Model Instruction. Lopez’s counsel indicated that they do not object to the withdrawal instruction, according to the government.

The Case is No. 2:23-cr-00055-CDS-DJA.

Judge: Silva, C.

Attorneys: Albert Bilog Sambat, U.S. Department of Justice, for U.S. Mark Louis Krotoski (Pillsbury Winthrop Shaw Pittman LLP) for Eduardo Ruben Lopez.

Cases: Procedure WageHour WhiteCollarCrime NevadaNews