JONATHAN TURLEY

United States District Judge Robert Gettleman in Chicago has held infomercial pitchman Kevin Trudeau in contempt after Trudeau encouraged fans to write and call his chambers. The result was clogging the court’s email and phone system. Trudeau is the author of “The Weight Loss Cure ‘They’ Don’t Want You to Know About.”

This is a criminal contempt sanction that would allow up to six months in jail. In 2008, Gettleman banned Trudeau from infomercials for three years and ordered him to pay more than $5 million in profits from his book.

There seems lot that “they” do not want you to know about, including another book on natural cures (and presumably criminal contempt).

Gettleman is presiding over a case brought by the Federal Trade Commission. Trudeau was found by Gettleman to be deceptive in his ads for the book “The Weight Loss Cure ‘They’ Don’t Want You to Know About.” A Seventh Circuit court of appeals ruled that Gettleman’s earlier ruling was too broad and remanded the decision. In FTC v. Trudeau, the court painted a dark picture of Trudeau despite its decision to remand the case:

If you have a problem, chances are Kevin Trudeau has an answer. For over a decade, Trudeau has promoted countless “cures” for a host of human woes that he claims the government and corporations have kept hidden from the American public. Cancer, AIDS, severe pain, hair loss, slow reading, poor memory, debt, obesity–you name it, Trudeau has a “cure” for it. To get his messages out, Trudeau has become a marketing machine. And the infomercial is his medium of choice. He has appeared in dozens of them, usually in the form of a staged, scripted interview where Trudeau raves about the astounding benefits of the miracle product he’s pitching. But Trudeau’s tactics have long drawn the ire of the Federal Trade Commission (“FTC”). By promoting his cures, Trudeau claims he is merely exposing corporate and government conspiracies to keep Americans fat and unhealthy. But the FTC accuses Trudeau of being nothing more than a huckster who preys on unwitting consumers–a 21st-century snake-oil salesman. For years Trudeau has dueled with the FTC in and out of court.

The court described an earlier consent decree with Trudeau that banned Trudeau from appearing in infomercials for any products, except for books, provided that he did not “misrepresent the content of the book.” The FTC then sued and claimed such misrepresentation by Trudeau in describing the weight loss program as “easy,” “simple,” and able to be completed at home. In fact, the court found “the program requires a diet of only 500 calories per day, injections of a prescription hormone not approved for weight loss, and dozens of dietary and lifestyle restrictions.”

The court found that the district court was correct in finding Trudeau in contempt. The decision drips with uncharacteristic sarcasm directed at Trudeau and his defenses. However, it was the amount of the sanction that concerned the court:

Though the district court was right in finding Trudeau in contempt, the monetary sanction imposed to remedy that contempt is a different story. We review the sanction amount for clear error, but we review the calculation method used to reach that amount de novo. FTC v. Kuykendall, 371 F.3d 745, 763 (10th Cir. 2004) (en banc). Ultimately, the final $ 37.6 million figure the district court settled on might be correct. But the court’s order, as it stands now, does not give us enough information to affirm that conclusion. The order tells us little about such things as how the court arrived at the figure it did, whether the award will be used to reimburse consumers, and what happens if there’s money left over after all reimbursements are paid. So we must remand to allow the court to provide greater detail on these questions. Beyond more detail in the order, Trudeau seeks greater procedural protections, such as a jury trial and a proof-beyond-a-reasonable-doubt standard, on remand. We decline to find such safeguards required in this case.

Here is the appellate decision, 084249p-2

This could be a fascinating contempt case since no rule that I know of prohibits letters and calls to the court. Indeed, such contacts are common as people send personal testimonials in favor of a defendant. If there was a malicious intent that would change the equation significantly.

This is not a great time for self-help gurus, here.

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