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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina Khan, Chair 

Noah Joshua Phillips 

Rebecca Kelly Slaughter 

Christine S. Wilson 

In the Matter of 

HEALTH RESEARCH LABORATORIES, LLC, 

a limited liability company, 

WHOLE BODY SUPPLEMENTS, LLC, 

a limited liability company, and 

KRAMER DUHON, 

individually and as an officer of HEALTH 

RESEARCH LABORATORIES, LLC and 

WHOLE BODY SUPPLEMENTS, LLC 

DOCKET NO. 9397 

RESPONDENTS’ RESPONSE TO COMPLAINT COUNSEL’S SECOND MOTION TO 

AMEND COMPLAINT AND NOTICE AND REQUEST FOR REMAND 

INSTRUCTIONS 

Respondents oppose Complaint Counsel’s Second Motion to Amend Complaint and 

Notice and Request for Remand Instructions. 

I. The requested “Amendment” is a wholesale revision of the case. 

As evidenced by the redline version of the Complaint filed by Complaint Counsel, 

Complaint Counsel is proposing a wholesale revision of the Complaint and a re-start of this 

case with new pleadings, theories, motions, discovery, and depositions. Most of the factual 

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allegations have been significantly revised. Almost all of the requests for relief have been 

completely revised. 

All of the new facts that Respondents seek to include, particularly the facts regarding 

the Maine Action, could have been asserted in the prior Complaint. Complaint Counsel 

elected not to include those facts. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 599 

(5th Cir. 1981) (stating that absent special circumstances, a party's awareness of facts and 

failure to include them in pleading might give rise to the inference that the party was 

engaging in tactical maneuvers). Respondents specifically object to the inclusion of new 

allegations in paragraphs 5 through 18 regarding the Maine Action. If the alleged conduct 

is covered by the Consent Judgment in the Maine Action, then the FTC settled those claims 

and the United States District Court for the District of Maine has the sole jurisdiction to 

interpret and enforce its Judgment. If the alleged conduct is not covered by the Consent 

Judgment, then inclusion of facts related to the Consent Judgment is irrelevant. In 

summary, the Article III Court that signed the Consent Judgment has decided that 

Respondents were not in contempt. The FTC, who is simply one of the parties to that 

Consent Judgment, should not be permitted to re-litigate that action through an 

administrative action where the FTC is the prosecutor, judge, and jury. 

Finally, all the requested relief, with the exception of Provisions I and II, are not 

authorized by Section 5 or 12 of the FTC Act.1 

1 As Respondents have repeatedly argued, Respondents contend that the only permissible relief under Section 

5 of the FTC Act is a cease-and-desist order that prohibits specific acts or practices. See 15 U.S.C. §45(a). 

Considering the limited relief provided by the statute and Respondents’ permanent discontinuation of all sales 

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II. Remand instructions are improper. 

Respondents strongly disagree with any suggestion that Respondents or their counsel 

has acted improperly in proceedings before the ALJ and believe it is improper for the 

Commission to influence and nudge the ALJ to make adverse findings against Respondents 

or their counsel. See Mahoney v. Donovan, 721 F.3d 633, 635 (D.C. Cir. 2013); 5 C.F.R. 

§ 930.201(3) (“An agency employing [ALJs] ... has ... [t]he responsibility to ensure the 

independence of the [ALJ].”). Further, any argument that Respondents’ counsel should be 

suspended or barred due to Respondents’ interpretation of its Answer under Rule 3.12(b) 

is without merit. 

Rule 3.12(b) provides “[i]f the respondent elects not to contest the allegations of fact 

set forth in the complaint, the answer shall consist of a statement that the respondent admits 

all of the material allegations to be true.” 16 C.F.R. § 3.12(b) (emphasis added). On March 

30, 2021, Respondents filed an answer that tracked the exact language of Section 3.12(b) 

and included the required “statement”: 

Pursuant to 16 CFR § 3.12(b)(2), Respondents elect not to contest the 

allegations of fact set forth in the complaint. Respondents admit all of the 

material allegations to be true. Pursuant to 16 CFR § 3.12(b)(2), Respondents 

reserve the right to submit proposed findings of fact and conclusions of law. 

Pursuant to 16 C.F.R. § 3.12(b) as previously interpreted by the FTC (74 Fed. Reg. 1804, 

1808 (Jan. 13, 2009), the Complaint and the Answer should have provided a record on 

of supplements, Respondents believe that this administrative proceeding is an unnecessary waste of time and 

resources. 

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which the Commissions “shall issue” a decision.2 However, on July 30, 2021, the 

Commission ruled that the Complaint and Answer do not provide the record for an initial 

decision and that Complaint Counsel may present facts “beyond the Complaint” and 

authorized Complaint Counsel to file a motion for summary disposition under 16 C.F.R. § 

3.24. In other words, after Respondents had admitted the facts under a Rule that expressly 

provided that the Complaint and Answer would provide a record under which the 

Commission “shall issue” a decision, the Commission changed the Rules to expand the case 

beyond the Answer and the Complaint.3 In response to the Commission’s July 30, 2021 

Order, Complaint Counsel filed numerous affidavits and 27-page brief to expand the case 

beyond the Complaint and the Answer. Respondents filed a 32-page opposition pursuant 

to 16 C.F.R. § 3.24(a)(2). 

In its opposition to summary disposition, Respondents expressly stated that 

“[b]ecause Complaint Counsel seeks findings of fact beyond the facts alleged in the 

Complaint,” Respondents assert several objections. Included among those objections was 

the objection that, the statement submitted by the Respondents under Rule 3.12(b) in their 

Amended Answer admitted only the “facts” included in the Complaint’s allegations of fact, 

not the statements/arguments included in “legal counts” in the Complaint. This objection 

2 There is only one “record” in any appellate review. See generally Fed. R. App. Proc. 10 and 11. The 

Commission’s opinion that there could be multiple “records” on a review from the ALJ is not consistent with 

the Federal Rules of Appellate Procedure. 

3 The Commission may disagree with this interpretation of the Rule, but Respondents’ interpretation is not 

without strong legal support. In fact, ALJ Chappell ruled that “the intent of the Rule indicates an intent to 

limit the record to the pleadings.” See Order Granting In Part and Denying in Part Respondents’ Motion to 

Enter New Scheduling Order or, in the alternative, to Transfer Case to the Commission, dated April 20, 2021. 

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was three sentences in a 32-page opposition – an opposition that the Commission expressly 

authorized Respondents to file.4 

The Commission obviously disagrees with Respondents’ interpretation Rule 3.12(b) 

and believes that a statement under Rule 3.12(b) admits any and all statements that can be 

considered “material facts” regardless of where those “facts” are set forth in the FTC’s 

Complaint.5 Considering this interpretation, the Commission could have overruled 

Respondents’ objections and interpreted Respondents’ Amended Answer under Rule 

3.12(b) operated to admit statements/arguments in the “Legal Counts” section of the 

Complaint. Instead, the Commission found that the objection and Respondents’ argument 

in the opposition operated to withdraw or nullify the Rule 3.12(b) statement in the 

Amended Answer. 

The Commission now accuses Respondents of misrepresenting their positions and 

intentions and of intentionally delaying the case. Nothing could be further from the truth. 

In every example cited by the Commission where Respondents argued that there were no 

material factual issues in dispute, Respondents clearly argued that that the case should be 

decided based on the record in the Answer and Complaint. Respondents steadfastly 

attempted to have the ALJ and the Commission decide the case based on the facts in the 

live Complaint and Answer, but the Commission refused and decided to entertain a 

4 See Opposition, p. 13-14. To be clear, Respondents never requested the summary disposition procedure. 

On the contrary, Respondents requested that the Commission decide the case on the Complaint and the 

Answer. 

5 Obviously, this issue could have been avoided if the Complaint had been drafted with a clear section of 

material facts that included facts regarding substantiation and a separate section of legal counts. 

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summary disposition motion to allow Complaint Counsel to inject additional facts, relief, 

and arguments into this case. Respondents never filed an Amended Answer under Rule 

3.12(b) or attempted to withdraw their statement under Rule 3.12(b). Instead, in opposing 

Complaint Counsel’s motion for summary disposition, which would have injected 

additional facts, issues, and requested relief into this case, Respondents exercised their right 

under Rule 3.24 to assert an objection and argument based on their interpretation of Rule 

3.12(b) and the live Complaint. 

CONCLUSION 

Respondents oppose the requested Amended Complaint. However, if the 

Commission intends to allow the amendment, the Commission should not include the 

requested allegations regarding the Maine Action. For the previously stated reasons, 

Respondents also oppose the requested remand instructions. 

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Dated: December 10, 2021 Respectfully submitted, 

REESE MARKETOS LLP 

By: /s/ Joel W. Reese 

Joel W. Reese 

Texas Bar No. 00788258 

joel.reese@rm-firm.com 

Joshua M. Russ 

Texas Bar No. 24074990 

josh.russ@rm-firm.com 

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201-3201 

Telephone: (214) 382-9810 

Facsimile: (214) 501-0731 

ATTORNEYS FOR RESPONDENTS 

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CERTIFICATE OF SERVICE 

I hereby certify that on December 10, 2021, I filed the foregoing document 

electronically using the FTC’s E-Filing system, which will send notification to: 

April J. Tabor The Honorable D. Michael Chappell 

Acting Secretary Administrative Law Judge 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-113 600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 Washington, DC 20580 

ElectronicFilings@ftc.gov email: oalj@ftc.com 

COMPLAINT COUNSEL 

Elizabeth Averill 

eaverill@ftc.gov 

Jonathan Cohen 

jcohen2@ftc.gov 

/s/ Joel W. Reese 

Joel W. Reese 

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