In their latest filing against Vemma, the FTC have taken issue with the raising of “affirmative defenses”.

In their Answers to the FTC’s Complaint, Defendants raise several “affirmative defenses” that are insufficiently pled, legally unavailable in defense of this action, or redundant.

For those unfamiliar with the term, an “affirmative defense” is

a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law.

He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability. (
FindLaw
)

I’d have thought Vemma and Boreyko admitting to running a pyramid scheme would be a 
good thing
for the FTC, so what are these objections all about?

Turns out the FTC aren’t objecting to the defenses themselves, but are rather claiming them to be invalid.

Affirmative defenses must meet minimum pleading standards to provide the opposing party with fair notice of the defense and the grounds on which it rests.

An affirmative defense is invalid if “the plaintiff would succeed despite any set of facts which could be proved in support of the defense.”

I think that goes back to the mention of redundancy, with the FTC arguing that some of the defenses raised are irrelevant (ie. they don’t defend the allegations brought against Vemma).

I’m not a lawyer, so the particulars of affirmative defenses, particularly a deficiency with Vemma’s own, didn’t occur to me.

But in going over Vemma and BK Boreyko’s response to the FTC filing, I did call out their
throwing of consumers under the bus
.

Any losses sustained by the FTC and/or the consumers it purports to represent were caused by the acts or omissions of third parties over whom the Corporate Defendants had no control or right to control.

Consumers represented by the FTC knowingly and voluntarily, and possibly unreasonably, exposed themselves to any claimed losses with knowledge or appreciation of the risk involved.

Not surprisingly, this is one of the defenses the FTC object to.

Whereas my own objections originated from an ethical standpoint, the FTC frame theirs within a legal context:

By way of example, all Defendants assert that “any losses sustained by the FTC and/or the consumers it purports to represent were caused by the acts or omissions of third parties over whom the [Defendants] had no control or right to control,” without providing any facts whatsoever or identifying the other parties that are supposedly responsible.

Third-parties within this specific defense are of course Alex Morton and his #YPR gang. Unfortunately for Vemma, they’re trapping themselves by trying to blame Morton and #YPR for their mess without calling them out directly.

That would run counter to the “united front” image they’re trying to engineer of social media. That and who knows what might happen if Morton was put under enough pressure such that he felt compelle

🤖 Quick Answer

What are affirmative defenses in the Vemma FTC case?
Affirmative defenses are legal justifications raised by defendants that acknowledge committing the accused conduct but argue valid reasons excuse them from liability. In the Vemma case, defendants admit certain allegations but claim they have legitimate grounds for exoneration from criminal liability.

Why did the FTC object to Vemma's affirmative defenses?
The FTC challenged Vemma's affirmative defenses as insufficiently pleaded, legally unavailable, or redundant. The agency questioned why defendants would admit wrongdoing while simultaneously seeking excusal, potentially complicating the case proceedings.

What is the legal significance of affirmative defenses?
Affirmative defenses shift the burden by acknowledging wrongful conduct but asserting mitigating circumstances. They constitute a distinct legal strategy from simple denial, requiring defendants

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