FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/30/2021 | OSCAR NO. 601089 | Page 1 of 9 | PUBLIC

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

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 

RESPONSE TO COMPLAINT COUNSEL’S MOTION 

TO CERTIFY RULINGS FOR INTERLOCUTORY APPEAL 

Complaint Counsel’s Motion to Certify Rulings for Interlocutory Appeal should be 

denied because Complaint Counsel’s motion fails to meet the standards necessary to 

certify this matter for an interlocutory appeal and because the requested appeal will 

accomplish nothing but further delay. 

I. SUMMARY 

There is only one remaining affirmative defense, which is that the FTC’s 

administrative process and structure violates the United States Constitution.1 Considering 

1 Respondents filed their Amended Answer on March 30, 2021. The proposed Answer included 

two other defenses that were dropped from the filed Amended Answer, including the defense that 

the requested relief exceeds the statutory authority. Even without these defenses, Respondents 

have the right to propose conclusions of law and challenge on legal grounds whatever relief the 

FTC seeks in the final order. Further, the FTC, not the Respondents, have the burden of proving 

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the Commission’s prior decisions, Respondents do not anticipate the ALJ or the 

Commission will rule that the FTC’s administrative process or the structure of the FTC 

violates the United States Constitution, but Respondents would like to preserve this issue 

for anticipated later proceedings.2 However, this one issue—a purely legal issue—does 

not justify an interlocutory appeal to Commission. More importantly, allowing 

interlocutory appeals for discretionary procedural rulings, like whether to permit an 

amendment to a complaint that “just adds details” or to permit a respondent to amend its 

answer to admit all material facts, would set a bad precedent. If these types of procedural 

rulings were subject to interlocutory appeals, nothing could be decided by the ALJ 

without an interlocutory appeal to the Commission. 

II. ARGUMENT 

“Interlocutory appeals in general are disfavored, as intrusions on the orderly and 

expeditious conduct of our adjudicative process.” In re Daniel Chapter One, Docket No. 

9329, 2009 WL 1353465, at *1 (May 5, 2009) (Chappell, J.); see, e.g., Gillette Co., 98 

F.T.C. 875 (1981). “Accordingly, the movant must satisfy a very stringent three-prong 

test by demonstrating that: (1) the ruling involves a controlling question of law or policy; 

the appropriate relief sought by the FTC so the two other “affirmative defenses” were deemed not 

true affirmative defenses and were dropped. 

2 This issue was recently addressed in Axon Enterprise, Inc. v. Federal Trade Commission, 986 

F.3d 1173, 1177 (9th Cir. 2021), but the Ninth Circuit dismissed the appeal for lack of subject 

matter jurisdiction. In Axon Enterprise, the respondents made the mistake of not preserving or 

raising the constitutional challenges first through the administrative process—a mistake that 

Respondents do not want to repeat. Id. In a prior Seventh Circuit case, another respondent failed 

to properly preserve and assert the issue. Hospital Corp. of Am. v. F.T.C., 807 F.2d 1381, 1393 

(7th Cir. 1986). 

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(2) there is substantial ground for difference of opinion as to that controlling issue; and 

(3) immediate appeal from the ruling may materially advance the ultimate termination of 

the litigation or subsequent review will be an inadequate remedy.” Id. (citing 16 C.F.R. § 

3.23(b)). 

A. Ruling on Amendment of the Answer should not be certified. 

1. There is no “controlling question of law.” 

The “controlling question” standard “forecloses interlocutory appeals in 

situations in which the law is well settled and the dispute arises in the application of the 

facts attached to that law.” Int'l Assoc. of Conf. Interp., No. 9270, 1995 F.T.C. LEXIS 

452, at *4 (Feb. 15, 1995) (citation omitted). Instead, a question is deemed controlling 

“only if it may contribute to the determination, at an early stage, of a wide spectrum of 

cases” and not merely “a question of law which is determinative of a case at hand.” 

Rambus Inc., No. 9302, 2003 F.T.C. LEXIS 49, at *9, (Mar. 26, 2003) citing Automotive 

Breakthrough Sciences, Inc., 1996 F.T.C. LEXIS 478 at *1 (Nov. 5, 1996). 

Complaint Counsel’s suggested issue for appeal—whether Rule 3.12(b)(2) requires 

a waiver of all legal defenses—is not controlling question of law. It is a question of 

procedure. It is well-settled that “[p]rocedural disputes and discovery disputes do not 

amount to controlling questions of law.” In re N. Carolina Bd. of Dental Examiners, 

Docket No. 9343, 2011 WL 822921, at *3 (Mar. 1, 2011) (Chappell, J.). Further, this 

procedural question is answered by the rule itself. Rule 3.12(b)(2) states that “[i]f the 

respondent elects not to content the allegations of fact set forth in the complaint, the 

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answer shall consist of a statement that the respondent admits all of the material 

allegations to be true.” Nothing in the Rule states that Respondents must waive all legal 

defenses and agree to whatever legal remedy Complaint Counsel seeks, regardless of the 

law. Such a rule would make no sense and would add requirements to the rule. If 

Complaint Counsel’s argument was correct, then Rule 3.12(b)(2) would not specifically 

reference “allegations of fact.” There is no ambiguity or confusion regarding the rule. 

Rule 3.12(b)(2) provides a method for a respondent to admit allegations of fact and then 

the ALJ, the Commission, and the federal courts can determine the appropriate questions 

of law. 

2. Complaint Counsel has not met their burden to show that there is a 

substantial ground for a difference of opinion. 

“A party seeking certification must make a showing of a likelihood of success on 

the merits.” Int'l Ass'n of Conf. Interp., No. 9270, 1995 F.T.C. LEXIS 452, at *4-5 (Feb. 

15, 1995) (emphasis added); see BASF Wyandotte Corp., No. 9125, 1979 F.T.C. LEXIS 

77, at *3 (Nov. 20, 1979). Complaint Counsel have utterly failed to adduce facts or legal 

argument to make this showing. Complaint Counsel argues that the Commission might 

or could disagree with the Court’s opinion so, therefore, there must be “a substantial 

ground for difference of opinion.” Complaint Counsel’s Motion, p. 6. Complaint 

Counsel has not made a proper showing that there is “substantial ground for difference of 

opinion” with the Court’s interpretation of Rule 3.12(b)(2). 

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3. Subsequent review affords Complaint Counsel an adequate remedy. 

It is Complaint Counsel, not the Respondents, who have repeatedly delayed the 

resolution of this case. Complaint Counsel created every possible roadblock to 

resolution. Instead of proceeding to final hearing before the Commission, Complaint 

Counsel sought to prevent Respondents from admitting to all material facts and, then, 

sought to amend the Complaint to add unnecessary facts that do not change any of the 

requested relief. If Complaint Counsel truly cared about the possible delay that the case 

will cause to “consumer health risks,” Complaint Counsel would seek a cease-and-desist 

order instead of seeking to further extend and delay this case.3 

Respondents only have one remaining affirmative defense.4 If the Commission 

disagrees the ALJ’s decision to permit this affirmative defense, the Commission can strike 

it. Further, if the Commissions decides that the FTC administrative process and the FTC 

structure are constitutional, this issue is resolved without two appeals to the Commission. 

3 In a March 22, 2021 email, Complaint Counsel told Respondents’ Counsel that Complaint 

Counsel intended to seek an extension of the evidentiary hearing by an additional ten weeks 

because of delays in completing discovery and motion practice. It is remarkable that the FTC 

would now attempt to use the self-inflicted delays as grounds for an appeal. 

4 Respondents may also assert legal challenges and objections to whatever relief Complaint 

Counsel seeks in the final order. 

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B. Ruling on Amendment of the Complaint should not be certified. 

1. There is no controlling question of law. 

Respondents’ Counsel does not understand Complaint Counsel’s argument 

regarding why the Court’s decision denying the amendment of the Complaint is a 

controlling question of law. In requesting the Amended Complaint, Complaint Counsel 

told the ALJ that the “amendment falls ‘within the scope of the original complaint’” and 

that it “adds details, not new theories or practices.” Complaint Counsel’s Opposition to 

Motion to Amend Answer and Cross Motion to Amend Complaint, p. 6 (filed February 

23, 2021). It is unclear how the denial of leave to file an amended complaint that is 

within the scope of the original complaint and just adds details, not new theories or 

practices, is a ruling on a controlling question of law. The ruling concerns a procedural 

issue, not a controlling question of law. See In re N. Carolina Bd. of Dental Examiners, 

Docket No. 9343, 2011 WL 822921, at *3 (Mar. 1, 2011) (Chappell, J.). 

2. Complaint Counsel has not met their burden to show that there is a 

substantial ground for a difference of opinion. 

If Complaint Counsel’s logic were correct, anytime the Commission might or could 

disagree with the ALJ, then there would be a right to an interlocutory appeal. This is not 

the standard and would set an ambiguous and dangerous precedent. Anytime Complaint 

Counsel or a respondent disagreed with an ALJ ruling, they could seek an interlocutory 

appeal because the Commission might disagree with the ruling. 

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The Court’s denial of the request to amend the complaint was correct and 

harmless. There is no material harm to the FTC in denying an amendment that “adds 

details” but no new claims and requests no additional relief other than what was included 

in the original complaint. If an interlocutory appeal of this ruling is permissible, then 

every single ruling by the ALJ is subject to an interlocutory appeal. 

3. Subsequent review is available. 

With little explanation, Complaint Counsel concludes that “a subsequent appeal is 

likely impossible” and that a subsequent review is inadequate because it will require a 

remand. Complaint Counsel’s three conclusory sentences do not meet the burden to show 

that subsequent review will be inadequate. See In the Matter of 1-800 Contacts, Inc., 

Docket No. 9372, 2017 WL 104384 (Jan. 4, 2017) (Chappell, J.) (“To successfully 

demonstrate that subsequent review will be an inadequate remedy, the movant cannot 

rely on conclusory assertions but must provide supporting facts or legal authority. Bare 

assertions in this regard are ‘insufficient to override the policy disfavoring interlocutory 

appeals.’”). 

CONCLUSION 

For the reasons set forth herein, the Court should deny Complaint Counsel’s 

Motion to Certify Ruling for Interlocutory Appeal. 

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Dated: March 30, 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 March 30, 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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