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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF 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 

COMPLAINT COUNSEL’S MOTION TO CERTIFY RULINGS FOR 

INTERLOCUTORY APPEAL 

The recent rulings granting Respondents’ amended answer and denying the proposed 

amended complaint present novel issues substantially affecting the case and about which there is 

no FTC precedent. Interlocutory review is required because the rulings at issue involve: (1) a 

“controlling question of law or policy”; (2) “as to which there is a substantial ground for 

difference of opinion”; and (3) “subsequent review will be an inadequate remedy.” Rule 3.23(b) 

(emphasis added). 

First, both rulings present “controlling questions” because they are material to the 

outcome of the case. The Rule 3.12(b) ruling resolved all material allegations in a particular 

manner that leads to an outcome that Respondents prefer. As the decision denying Complaint 

Counsel’s parallel motion to amend the Complaint correctly noted, allowing Complaint 

Counsel’s proposed amendment would make that outcome much less likely. Order (Mar. 12, 

2021) at 5. 

Second, there are “substantial grounds” for interlocutory review because the Commission 

might reasonably disagree with the conclusion that Rule 3.12(b) permits affirmative defenses. 

Regarding the amended complaint, the Commission could reasonably conclude that, although it 
 

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would make Respondents unlikely to employ Rule 3.12(b), the likelihood that Respondents 

obtain their preferred litigation outcome is irrelevant to whether to permit an amendment. 

Furthermore, the Commission could reasonably conclude that whether new allegations 

(theoretically) could complicate proceedings concerning liability is irrelevant to the question 

under Rule 3.15(a)—namely, whether those allegations facilitate proceedings regarding the 

scope of relief. 

Third, subsequent review is inadequate because it is likely unavailable. Specifically, as 

the ruling explained, the Rule 3.12(b) decision “remov[ed] proceedings to the Commission for 

determination of an appropriate final order.” Order (Mar. 12, 2021) at 5. Thus, this tribunal 

apparently will not issue an initial decision. The lack of an initial decision removes the predicate 

for appeal. See Rule 3.52. Even if a non-interlocutory appeal were possible, a potential remand 

will delay the matter’s resolution by months or more. Because the relief at stake includes notice 

to customers with diabetes or cardiovascular issues informing them that Respondents’ 

supplements do not work, subsequent review is inadequate because the associated delay risks 

physical harm. Ultimately, no one can predict how the Commission might resolve the questions 

at hand; however, everyone benefits from resolving that uncertainty promptly rather than after 

additional expense and delay. 

Background 

A. The Complaint 

The Complaint alleges Respondents marketed supplements as, among other things, 

“cures” for cardiovascular disease and diabetic neuropathy (nerve pain). Cmpl. at 10-12. For 

example, Respondents falsely claimed certain supplements “reduc[e] arterial plaque, blood 

pressure, and cholesterol,” id. at 3, and help consumers “say goodbye to [their] heart surgeon and 

avoid an angioplasty,” id. at 7. Respondents also sell another purportedly “100% effective” 

supplement that purportedly “[r]elieve[s] nerve pain” and “increase[s] mobility.” Id. at 9. 

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B. The Amended Answer 

This matter’s unique posture results from Respondents’ attempt to amend their answer 

pursuant to Rule 3.12(b). Respondents initially denied various allegations and asserted certain 

affirmative defenses. Answer (Dec. 4, 2020). Subsequently, they moved to amend their answer 

to admit “all material allegations.” No. 600668. However, Respondents’ amendment still 

asserted affirmative defenses attacking these proceedings (and factual findings therein) as both 

unconstitutional and unlawful under the Administrative Procedure Act. See id. 

Complaint Counsel opposed the motion on multiple grounds including that Rule 3.12(b) 

does not allow affirmative defenses. In particular, Rule 3.12(a) expressly permits such defenses, 

whereas Rule 3.12(b) does not. See id.; see also No. 600866 at 3-4. Construing Rule 3.12(b) as 

impliedly permitting such defenses renders the two provisions substantively identical. See id.; 

see also No. 600866 at 3-4. Therefore, the rule against surplusage precludes interpreting Rule 

3.12(b) to mean what it does not say. Cf. Freeman v. Quicken Loans, 566 U.S. 624, 635 (2012) 

(noting that the law “favors that interpretation which avoids surplusage”). Additionally, Rule 

3.12(b) requires unequivocal “judicial admissions.” See Hill v. FTC, 124 F.2d 104, 106 (5th Cir. 

1941) (characterizing admissions under 3.12(b)’s predecessor as “judicial admissions”); In re 

Teleglobe Commc’ns, 493 F.3d 345, 377 (3d Cir. 1977) (“[A]dmissions must be unequivocal.”). 

Because Respondents sought to preserve their right to challenge their admissions on 

constitutional and statutory grounds—which would render them potentially non-binding even in 

this proceeding—they, by definition, are not unequivocal. No. 600771 at 5-6; No. 600866 at 4-5. 

C. The Ruling Regarding the Amended Answer 

After Complaint Counsel opposed Respondents’ motion to amend, Respondents waived 

certain affirmative defenses1

 and their motion was granted. This tribunal found that Rule 

1

 Because the waiver “functionally serve[d] as a new motion to file a second amended 

answer,” Complaint Counsel “request[ed] permission to file a response . . . addressing remaining 

issues following the waiver and Respondents’ original motion for leave to file an amended 

answer.” No. 600785. This request was granted, No. 600816, and Complaint Counsel submitted 

a response arguing that the original motion should still be denied notwithstanding the waiver, 

No. 600886 at 1 (discussing the original motion’s “continuing flaws”). However, the tribunal 

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3.12(a)(1)(i) permits affirmative defenses expressly, and Rule 3.12(b) permits them impliedly 

because it does not prohibit them. See No. 600937 at 4. The decision also addressed whether the 

defenses rendered the admissions equivocal because they permit Respondents to contend that 

their admissions do not bind them (due to the allegedly unconstitutional or otherwise unlawful 

nature of these proceedings). The ruling concluded that Respondents may assert defenses that 

“may bar liability or the requested relief,” see id. at 4, even if barring relief because these 

proceedings are allegedly unconstitutional or unlawful means that admissions therein necessarily 

will not bind Respondents. Accordingly, this tribunal permitted the amendment, which it 

subsequently explained “has the effect of dispensing with a hearing and removing proceedings to 

the Commission for determination of an appropriate final order.” Order (Mar. 12, 2021) at 5. 

D. The Proposed Amended Complaint 

Complaint Counsel moved to add allegations to its Complaint related to the scope of 

relief, including allegations related to a Maine consent order prohibiting the conduct alleged 

here. No. 600771. Respondents opposed the motion on various grounds including that the 

amendment was outside the scope of the original complaint. No. 600805 at 9-10. Respondents 

further argued that permitting the amendment would “mak[e] it impossible for Respondents to 

‘elect’ not to contest the material facts” pursuant to 3.12(b). Id. at 9 (characterizing new 

allegations as “inflammatory”). 

The decision concluded the proposed amendments were within “the reasonable scope of 

the complaint.” Order at 4. Nevertheless, the ruling denied the proposed amendment for two 

reasons. First, it noted that Complaint Counsel may argue “that Respondents knowingly violated 

a court order . . . so as to justify broad fencing in relief.” Id. at 5. This “would complicate 

resolution of the case on the merits.” Id. Second, because the amendment contained allegations 

declined to consider this response because “Complaint Counsel did not seek leave to file the 

purported supplement” to its original opposition, and because it did “not present arguments in 

opposition to Respondents’ waiver filing.” Order at 2. 

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that Respondents view as “inflammatory,” it “could make it less likely that . . . Respondents will 

elect not to contest the material allegations under Rule 3.12(b)(2).” Id. 

E. Public Interest and Scope of Relief 

The scope of relief remains outstanding. Most urgently, Complaint Counsel seeks to 

require Respondents to notify their customers—including customers with diabetes and 

cardiovascular problems—that Respondents’ products do not work and that consumers should 

seek medical advice from qualified professionals. See Complaint at 14 § (e). Delaying notice 

puts consumers’ health, and potentially their lives, at risk. Accordingly, the public interest 

counsels strongly against proceeding without an interlocutory appeal because a later appeal 

followed by a potential remand could add months to these proceedings. 

Notably, although Respondents dispute the scope of relief, they have nevertheless often 

urged this tribunal to expedite these proceedings. It is inefficient and damaging to the public 

interest to continue without an interlocutory appeal when there is at least a reasonable chance 

that the Commission will ultimately remand the matter and much of what transpires beforehand 

will need to be redone. 

Legal Standard 

Rule 3.23(b) requires this tribunal to certify questions to the Commission when: (1) “a 

ruling involves a controlling question of law or policy”; (2) “as to which there is substantial 

ground for difference of opinion”; and (3) an immediate appeal “may materially advance the 

ultimate termination of the litigation or subsequent review will be an inadequate remedy.” 

(Emphasis added). Importantly, although Rule 3.23(b) is similar to 28 U.S.C. § 1292(b), which 

governs interlocutory appeals from District Court, the Commission rule is broader. Specifically, 

although 1292(b) does not authorize interlocutory appeals where “subsequent review will be an 

inadequate remedy,” the Commission’s rules do—a unique feature that makes sense because 

administrative litigation is an intentionally expedited process with an ultimate factfinder (the 

Commission) that reviews the record de novo. 

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Argument 

I. The 3.12(b) Ruling Should Be Certified. 

A. The 3.12(b) Ruling Materially Altered the Case. 

A “controlling question of law” is one that “could materially affect the outcome of the 

case.” In re Trump, 874 F.3d 948, 951-52 (6th Cir. 2017) (quotation omitted); see also Cement 

Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982) (same). Because the decision resolved 

liability, and could affect relief, it materially affects the case’s outcome. 

B. The Commission Could Reasonably Disagree With the Ruling. 

A “substantial ground for difference of opinion” exists “when novel legal issues are 

presented, on which fair-minded jurists might reach contradictory conclusions.” 2 FED. PROC. § 

3:218 (2021); see also Trump, 874 F.3d at 952. Importantly, “a substantial ground for difference 

of opinion exists where reasonable jurists might disagree on an issue’s resolution, not merely 

where they have already disagreed.” Bentley v. United of Omaha Life Ins., No. 15-cv-787, 2016 

WL 7443190, *2 (C.D. Cal. Sept. 14, 2016) (Court’s emphasis) (quotation omitted). There is no 

precedent concerning whether a respondent can assert affirmative defenses under Rule 3.12(b). 

Furthermore, a reasonable jurist might conclude that 3.12(b) does not imply the right to assert 

defenses, or that defenses preserving the right to challenge Commission fact-finding are 

impermissible given the Rule’s purpose. Accordingly, a “substantial ground for difference of 

opinion” exists. 

C. Subsequent Review Is Inadequate. 

1. Subsequent Review Is Likely Unavailable. 

Complaint Counsel may only appeal “initial decisions.” See Rule 3.52. However, the 

ruling explained that Respondents’ amended answer “has the effect . . . of removing proceedings 

to the Commission” to determine the Final Order. Order (Mar. 12, 2021) at 5. Therefore, 

because there will apparently be no initial decision, Complaint Counsel likely cannot appeal the 

3.12(b) decision unless an interlocutory appeal is certified. 

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2. Subsequent Review Is Inadequate Because It Will Require a Remand. 

Assuming future review were possible, it would be inadequate because the Commission’s 

only option would be to remand the case if it disagreed with the ruling. Put differently, if 

Respondents’ amended answer is inconsistent with 3.12(b), the Commission will have no record 

before it from which it can determine liability, and thus must remand. As discussed above, this 

delay poses consumer health risks (and prolonging the case would burden the parties as well). 

Thus, assuming a subsequent appeal were possible, it could undo the additional damage done 

during the interim. 

Notably, although Section 1292(b) does not permit appeals based on the inadequacy of 

appellate remedies, and no law speaks directly to this unique element of Rule 3.23(b), other 

agencies interpreting identical administrative provisions conclude that delay alone can render 

subsequent review inadequate. See State of California, 2009 WL 5247382, at *2 (D.O.E.) (Dec. 

17, 2009) (subsequent review inadequate partly because it “would have delayed the efficient 

enforcement” of a program); Certain Dynamic Random Access Memories, 1986 WL 379497 

(I.T.C.) (June 17, 1986) (finding subsequent review inadequate partly because interlocutory 

review “might be able to save time and additional expense”). 

II. The Ruling Concerning the Proposed Amended Complaint Should Be Certified. 

A. Whether To Permit the Amendment Presents a Controlling Question. 

The tribunal declined to permit Complaint counsel to amend its complaint partly because 

doing so made it unlikely that Respondents would admit allegations under Rule 3.12(b). Order 

at 5. In this respect, denying the amendment materially affected the case’s outcome by ensuring 

that litigation concerning liability would conclude. Accordingly, the denial presents a 

“controlling” legal question. See Trump, 874 F.3d at 951-52; Cement Antitrust, 673 F.2d at 

1026. 

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B. The Commission Could Reasonably Disagree With the Ruling. 

Although this tribunal concluded that the proposed amendment was not “appropriate,” the 

contrary view is reasonable. In particular, the decision found that the amendment makes it 

unlikely Respondents will achieve the 3.12(b) resolution they seek; however, the Commission 

could reasonably conclude the reduced probability Respondents will achieve their goals is 

irrelevant to the “appropriateness” inquiry. In fact, amendments often make the other party less 

likely to achieve its goals; if such an outcome rendered amendments improper, few if any 

amendments would be allowed. 

Additionally, the tribunal ruled that allegations concerning the Maine action are not 

“appropriate” because they would “complicate resolution of the case on the merits.” Order at 5. 

However, the Commission could reasonably conclude that Rule 3.15(a) requires only that 

“determination of a controversy on the merits will be facilitated [by the amendment],” meaning 

that the amendment need only help resolve a controversy (such as the scope of relief) according 

to the weight of the relevant evidence (i.e., “on the merits” of the controversy). (Emphasis 

added.) Put differently, the Commission could reasonably read 3.15(a) as requiring only that an 

amendment help “determine a controversy on its merits”—where the “controversy” to be 

adjudicated on its merits is the scope of relief—rather than limiting 3.15(a) to amendments that 

help “determine a controversy regarding liability.” Indeed, this latter construction would mean 

that no amendment concerning any issue besides liability would ever be allowed. Furthermore, 

assuming the amendment might “complicate” proceedings by including additional issues, the 

Commission may reasonably place greater weight on developing a record with all facts relevant 

to the scope of relief so that it can make the best decision for the public regarding the remedy. 

Importantly, no FTC authority defines “appropriate” amendments that help determine “a 

controversy.” Because the ruling raises novel issues about which the Commission could 

reasonably disagree, “substantial grounds” for an interlocutory appeal exist. 

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C. Subsequent Review Is Inadequate. 

As discussed above, a subsequent appeal is likely impossible. See Rule 3.52. 

Furthermore, assuming an appeal were possible, subsequent review is inadequate because it will 

require a remand and therefore cause delay. That delay risks consumers’ health and may unduly 

prolong this matter from Respondents’ perspective as well.2 

Conclusion 

For all the foregoing reasons, an interlocutory appeal should be permitted. 

Dated: March 29, 2021 Respectfully submitted, 

s/ Jonathan Cohen 

 Elizabeth J. Averill

 Jonathan Cohen 

 Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993 (Averill); -2551 (Cohen) 

 Eaverill@ftc.gov; Jcohen2@ftc.gov 

 (202) 326-3197 (facsimile) 

Complaint Counsel 

2

 Notably, the Rule 3.15(a) decision rests substantially on the prior Rule 3.12(b) ruling. 

Thus, should the Commission resolve the novel Rule 3.12(b) question differently, it will become 

necessary to re-evaluate the Rule 3.15(a) decision as well. As such, it makes little sense not to 

permit interlocutory appeals of these interrelated issues simultaneously. 

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CERTIFICATE OF COMPLIANCE 

Pursuant to Paragraph 4 of the December 14, 2020 Scheduling Order, the undersigned 

counsel represents that he and co-counsel Elizabeth Averill met and conferred on March 23, 

2021 with Respondents’ counsel, Joel Reese, in a good faith effort to seek Respondents’ 

agreement to this motion. Respondents informed Complaint Counsel that they oppose this 

motion. 

 s/ Jonathan Cohen 

 Jonathan Cohen 

 Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

CERTIFICATE OF SERVICE 

I certify that I served a copy of Complaint Counsel’s Motion To Certify Rulings for 

Interlocutory Appeal, and all attached documents, on counsel for the Respondents on March 29, 

2021 via electronic mail. 

Joel Reese 

Joshua Russ 

Reese Marketos LLP 

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201 

Joel.reese@rm-firm.com 

Josh.russ@rm-firm.com 

I also served one electronic copy via the Administrative E-Filing System and one electronic 

courtesy copy to the Office of the Secretary via email to ElectronicFilings@ftc.gov. 

I served one electronic courtesy copy via email to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave, N.W., Room H-110 

Washington, DC 20580 

 s/ Jonathan Cohen 

 Jonathan Cohen 

 Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2551; jcohen2@ftc.gov 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF 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 

[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL’S MOTION TO 

CERTIFY RULINGS FOR INTERLOCUTORY APPEAL 

This matter having come before the Chief Administrative Law Judge on March 29, 2021, 

upon Complaint Counsel’s Motion To Certify Rulings for Interlocutory Appeal, it is hereby 

DETERMINED that, pursuant to Rule 3.23(b): 

1. The March 10, 2021 Order Granting Respondents’ Motion For Leave To Amend 

Answer involves a controlling question of law or policy as to which there is substantial ground 

for difference of opinion and for which subsequent review will be an inadequate remedy. 

2. The March 12, 2021 Order Denying Complaint Counsel’s Motion To Amend the 

Complaint (Mar. 12, 2021) involves a controlling question of law or policy as to which there is 

substantial ground for difference of opinion and for which subsequent review will be an 

inadequate remedy. 

ORDERED: ______________________ 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: 
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Attachments 

In re Health Research Laboratories, LLC, No. 9397 

(1) Order Granting Respondents’ Motion For Leave To Amend Answer (Mar. 10, 2021) 

(2) Order Denying Complaint Counsel’s Motion To Amend the Complaint (Mar. 12, 2021) 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Health Research Laboratories, LLC, ) 

a limited liability company, ) Docket No. 9397 

) 

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, ) 

) 

Respondents. ) 

__________________________________________) 

ORDER GRANTING RESPONDENTS’ MOTION 

FOR LEAVE TO AMEND ANSWER 

I. 

On February 12, 2021, Respondents Health Research Laboratories, LLC 

(“HRL”), Whole Body Supplements, LLC (“WBS”), and Kramer Duhon (collectively, 

“Respondents”) filed a Motion for Leave to Amend the Answer in accordance with Rule 

3.12(b)(2) (“Motion to Amend Answer”). On February 24, 2021, Federal Trade 

Commission (“FTC”) Complaint Counsel filed an Opposition to the Motion to Amend 

Answer (“Opposition”).1 

On February 25, 2021, Respondents filed a Waiver of Affirmative Defenses of 

Mootness and Lack of Public Interest. Also on February 25, 2021, Complaint Counsel 

filed a motion for leave to respond to Respondents’ waiver filing, which was granted on 

1 Complaint Counsel included within its Opposition to Respondent’s Motion to Amend Answer a request 

for leave to amend the Complaint, pursuant to Rule 3.15(a), which Complaint Counsel referred to as a 

“Cross-Motion” (“Motion to Amend the Complaint”). An order on Complaint Counsel’s Motion to Amend 

the Complaint will be issued on or before March 12, 2021. 
 

 

 

 

 

 

 

 

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March 1, 2021. As of this date, Complaint Counsel has not filed the allowed response.2 

II. 

The Complaint in this case was filed November 13, 2020 (“Complaint”). 

Respondents filed an answer to the Complaint on December 4, 2020 (“Answer”), denying 

a number of factual allegations and pleading nine legal defenses. 

Pursuant to Rule 3.15(a)(1) the Administrative Law Judge “may allow appropriate 

amendments” to an answer “[i]f and whenever determination of a controversy on the 

merits will be facilitated thereby” and may impose “such conditions as are necessary to 

avoid prejudicing the public interest and the rights of the parties.” 16 C.F.R. § 3.15(a)(1). 

Respondents seek to amend their Answer to elect not to contest the factual 

allegations of the Complaint, in accordance with Rule 3.12(b)(2), which states in 

pertinent part: 

If 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. Such an answer shall 

constitute a waiver of hearings as to the facts alleged in the complaint, and 

together with the complaint will provide a record basis on which the 

Commission shall issue a final decision containing appropriate findings 

and conclusions and a final order disposing of the proceeding. In such an 

answer, the respondent may, however, reserve the right to submit 

proposed findings of fact and conclusions of law under § 3.46. 

16 C.F.R. § 3.12(b)(2). 

Respondents’ proposed amended answer, under a section titled, “Answer Pursuant 

to [Rule] 3.12(b)(2),” states: 

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. 

Motion to Amend Answer Ex. 1. 

2 On March 4, 2021, Complaint Counsel filed what it titled a “Supplemental Opposition” to its Opposition 

to the Motion to Amend Answer. The Commission’s Rules do not provide for such a filing and Complaint 

Counsel did not seek leave to file the purported supplement. A cursory review of the filing shows that the 

supplement is little more than a regurgitation of the arguments made in Complaint Counsel’s original 

Opposition. Moreover, Complaint Counsel’s Supplemental Opposition does not present arguments in 

opposition to Respondents’ Waiver filing, which response was permitted under the Order of March 1, 2021. 

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Respondents’ proposed amended answer also includes a section titled “Legal 

Defenses,” which asserted five of the nine legal defenses Respondents pled in their 

original Answer. Respondents subsequently filed a document titled, “Waiver of 

Affirmative Defenses of Mootness and Lack of Public Interest,” pursuant to which 

Respondents waived those two defenses (the “Waived Defenses”), thereby leaving only 

three asserted “legal defenses”: that the requested relief exceeds statutory authorization; 

that the FTC’s administrative litigation process is unconstitutional; and that the 

Commission’s de novo review of fact-findings by the Administrative Law Judge (“ALJ”) 

on administrative appeals is unconstitutional and a violation of the Administrative 

Procedures Act. Respondents’ original answer had asserted nine defenses. 

Respondents argue that the amendments should be allowed because they do not 

add any allegations or defenses from their original answer. Rather, Respondents state, the 

proposed amended answer seeks to “admit the few material allegations that Respondents 

did not admit” in the original answer. Respondents further argue that Complaint Counsel 

is not prejudiced, and is in fact benefitted, by the proposed amended answer because 

Complaint Counsel will “not have to prove any disputed factual allegations.” Motion to 

Amend Answer at 4. 

Complaint Counsel contends that Respondents’ proposed amended answer is 

improper under Rule 3.12(b)(2) because, according to Complaint Counsel, the amended 

answer does not unequivocally admit “all” material facts; and denies or challenges the 

facts through positing legal defenses. Complaint Counsel argues in the alternative that 

certain conditions should attach to allowing the amended answer, including requiring 

Respondents to provide a paragraph-by-paragraph statement admitting (or denying) each 

allegation of the Complaint and ordering discovery as to issues that remain in dispute. 

III. 

As further explained below, leave to file Respondents’ proposed amended answer, 

without the now-waived defenses of mootness and lack of public interest, will be 

allowed. There can be little doubt that Respondents’ admissions, made pursuant to Rule 

3.12(b)(2), will significantly narrow the issues in the case and thereby facilitate a 

determination of the merits. 16 C.F.R. § 3.15(a)(1). Moreover, Respondents’ proposed 

amended answer contains an appropriate election and statement of admission under Rule 

3.12(b)(2). As noted above, Rule 3.12(b)(2) allows a respondent to elect “not to contest 

the allegations of fact” in a complaint by submitting an answer “consist[ing] of a 

statement that the respondent admits all of the material allegations to be true.” 

Respondents’ proposed amended answer includes the express and unequivocal 

statements: “Respondents elect not to contest the allegations of fact set forth in the 

complaint. Respondents admit all of the material allegations to be true.” Motion to 

Amend Answer Ex. 1. Complaint Counsel complains about Respondents’ use of the 

phrase “material allegations” as inserting unknown limitations and equivocation into 

Respondents’ admissions because Respondents do “not specify which allegations they 

consider material.” However, the language used by Respondents is that which is provided 

in Rule 3.12(b)(2). Indeed, Respondents’ language tracked the language of the Rule 

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precisely. Under these circumstances, which allegations Respondents “consider” material 

appears to be irrelevant. 

Complaint Counsel also contends that Respondents’ proposed amended answer is 

improper under Rule 3.12(b)(2) because it includes affirmative defenses. Complaint 

Counsel first argues that Rule 3.12(b)(2) bars the assertion of legal defenses by providing 

that an answer under the Rule “shall consist of” the statement admitting all material 

allegations to be true. However, the Rule does not state that such an answer “shall consist 

only” of the required statement of admission, and this limitation will not be implied. In 

addition, the Rule expressly allows the answering party to submit both proposed findings 

of fact and proposed conclusions of law, which is inconsistent with a conclusion that a 

Rule 3.12(b)(2) answer prohibits presentation of legal arguments that may bar liability or 

the requested relief, notwithstanding the admission of all material allegations. 

Next, Complaint Counsel argues Respondents’ legal defenses necessarily 

implicate a denial of alleged facts, which would be contrary to the purpose of an answer 

under Rule 3.12(b)(2). Complaint Counsel’s examples include Respondents’ defenses of 

mootness and lack of public interest, but Respondents have waived those defenses and 

Respondents will not be permitted to include them in the amended answer allowed under 

this Order. Complaint Counsel fails to demonstrate how Respondents’ remaining legal 

defenses in the proposed amended answer challenge or deny the material allegations of 

the Complaint. Indeed, the nature of an affirmative defense is that it defeats the plaintiff’s 

claim even assuming the allegations are true. Thus, Respondents can, for example, 

challenge the scope of remedy, while still admitting the underlying factual allegations 

supporting liability. See, e.g., In re Auslander Decorator Furniture Inc., 83 F.T.C. 1542, 

1974 FTC LEXIS 213, *47-48 (Apr. 23, 1974) (accepting Rule 3.12(b)(2) answer that 

“admitted all the material allegations” of the complaint and resolving remaining issue of 

scope of remedy). Ultimately, the risk that Respondents’ admissions of fact will 

undermine their legal defenses is Respondents’ to bear, and is not a reason to disallow 

either the admissions or the legal defenses. 

In addition, Complaint Counsel argues that even if the proposed amended answer 

is allowed, certain conditions are necessary to prevent prejudice to Complaint Counsel. 

The notion that Complaint Counsel is prejudiced by Respondents’ admission of all 

material allegations of the Complaint and the reduction of Respondents’ asserted legal 

defenses defies credulity. The effect of a Rule 3.12(b)(2) answer is to “waive [all] 

hearings” and, as Respondents state in their Motion, Complaint Counsel will “not have to 

prove any disputed factual allegations.” Motion to Amend Answer at 4. That 

Respondents have reserved the right to file proposed findings and conclusions, as 

outlined in Rule 3.46 and expressly allowed by Rule 3.12(b)(2), also does not create a 

risk of prejudice as Respondents will be bound by the admissions of fact in their amended 

answer. 

Moreover, Complaint Counsel’s proposed condition that Respondents provide a 

paragraph-by-paragraph response to each allegation of the Complaint is not contemplated 

by Rule 3.12(b)(2) and could create ambiguity, when the proposed amended answer 

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already expressly admits “all material allegations” of the Complaint. Complaint 

Counsel’s request that the ALJ order discovery to continue “concerning all remaining 

issues,” as a condition of Respondents’ amending their Answer, is unnecessary. Although 

Complaint Counsel’s most recent motions to compel discovery from Respondents were 

denied without prejudice until the resolution of the motions to amend the Answer and the 

Complaint, there is nothing in Rule 3.12(b)(2) or the Scheduling Order issued in this case 

that prohibits Complaint Counsel from pursuing discovery regarding issues that remain 

relevant after these motions are resolved. 

Complaint Counsel also requests it be permitted to amend the Complaint as a 

condition for permitting Respondents to amend their Answer. Complaint Counsel fails to 

explain how amending the Answer is prejudicial to Complaint Counsel’s case or to 

persuade that such amendment operates to avoid such alleged prejudice. Accordingly, 

Complaint Counsel’s request to amend the Complaint as a condition for allowing 

Respondents to amend the Answer is rejected. 

IV. 

For all the foregoing reasons, Respondents’ Motion for Leave to Amend the 

Answer is GRANTED, and it is hereby ORDERED that Respondents may file an 

Amended Answer to the Complaint, in the form proposed by Respondents, except that 

Respondents may not include the Waived Defenses. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: March 10, 2021 

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__________________________________________ 

PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Health Research Laboratories, LLC, ) 

a limited liability company, ) Docket No. 9397 

) 

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, ) 

) 

Respondents. ) 

__________________________________________) 

ORDER DENYING COMPLAINT COUNSEL’S 

MOTION TO AMEND THE COMPLAINT 

I. 

On February 24, 2021, Federal Trade Commission (“FTC”) Complaint Counsel filed a 

Cross-Motion for Leave to Amend the Complaint (“Motion to Amend”).1 Respondents Health 

Research Laboratories, LLC (“HRL”), Whole Body Supplements, LLC (“WBS”), and Kramer 

Duhon (collectively, “Respondents”) filed a Response to the Cross-Motion to Amend the 

Complaint on February 26, 2021.2 

As set forth below, the Motion to Amend the Complaint is DENIED. 

1 The Motion to Amend the Complaint was filed as a “Cross-Motion” as part of Complaint Counsel’s Opposition to 

Respondents’ Motion for Leave to Amend the Answer, which Respondents had previously filed on February 12, 

2021. By Order issued March 10, 2021, Respondents’ Motion for Leave to Amend the Answer was granted (“March 

10 Order”). 

2 Also on February 26, 2021, Respondents filed a motion to exceed the word limits applicable to their response to 

the Motion to Amend, which Complaint Counsel opposed on March 2, 2021. Respondents’ motion to exceed the 

word limits for their response is GRANTED. 
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II. 

The Complaint in this matter, issued November 13, 2020, alleges that Respondents 

“disseminated or caused to be disseminated advertising and promotional materials” for four 

supplements that the FTC contends were “not substantiated at the time the representations were 

made,” and that such unsubstantiated representations constitute deceptive advertising in violation 

of sections 5 and 12 of the FTC Act. Complaint ¶¶ 7, 9, 11, 13, 15, 17, 19 and 21. 

The notice of contemplated relief in the Complaint states that Complaint Counsel will 

seek an order that will, among other things: prohibit any representations that any of 

Respondents’ products “cure, treat, mitigate, prevent, or reduce the risk of any disease”; prohibit 

any representations “about the health benefits, safety, efficacy, or the performance” of 

Respondents’ products “unless those representations are supported by competent and reliable 

scientific evidence”; and, prohibit any “misrepresentations regarding tests, studies, or other 

research.” Complaint at 14-15. 

Respondents filed their Answer to the Complaint on December 4, 2020, which denied 

they made unsubstantiated representations or that their conduct violated the FTC Act. Answer 

¶¶ 13, 15, 17, 19 and 21. Respondents also raised nine affirmative defenses, including, among 

others: that Complaint Counsel’s requested relief exceeds the Commission’s authority; that the 

case is moot; that the filing of the action is not in the public interest; that the FTC’s 

administrative process is unconstitutional; and the Commission’s de novo review on appeal of 

the fact findings of the Administrative Law Judge (“ALJ”) violates the Administrative 

Procedures Act. Answer at 3-4. 

On February 12, 2021, pursuant to Rule 3.15(a)(1), Respondents filed a Motion for Leave 

to Amend their Answer seeking to file an answer pursuant to Rule 3.12(b)(2), which provides: 

If 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. Such an answer shall constitute a waiver of hearings as to the facts 

alleged in the complaint, and together with the complaint will provide a record basis on 

which the Commission shall issue a final decision containing appropriate findings and 

conclusions and a final order disposing of the proceeding. In such an answer, the 

respondent may, however, reserve the right to submit proposed findings of fact and 

conclusions of law under § 3.46. 

16 C.F.R. § 3.12(b)(2). In accordance with the foregoing Rule, Respondents’ proposed amended 

answer stated: 

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. 

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Respondents’ proposed amended answer reduced their legal defenses from nine to the 

five defenses summarized above that had been included in the original Answer to the Complaint. 

Respondents subsequently waived two of the five defenses. See Waiver of Affirmative Defenses 

of Mootness and Lack of Public Interest, filed February 25, 2021. Over Complaint Counsel’s 

opposition, Respondents’ Motion for Leave to Amend their Answer was granted on March 10, 

2021, allowing Respondents to file an Amended Answer to the pending Complaint, in the form 

proposed by Respondents, except that Respondents were not permitted to include the two waived 

defenses in the Amended Answer. The remaining three legal defenses in Respondents’ proposed 

Amended Answer are: that the requested relief exceeds statutory authorization; that the FTC’s 

administrative litigation process is unconstitutional; and that the Commission’s de novo review 

of fact-findings by the ALJ on administrative appeals is unconstitutional and a violation of the 

Administrative Procedures Act. 

In its Motion to Amend the Complaint, Complaint Counsel asserts that even under 

Respondents’ proposed Amended Answer, the parties will litigate the scope of relief.

3 Complaint 

Counsel argues that the amendments seek to add new factual allegations to support the broad 

relief that Complaint Counsel seeks. 

Complaint Counsel’s proposed amendments highlight certain events that took place in 

other litigation between the FTC and Respondents, in the United States District Court for the 

District of Maine (the “Maine Litigation”), which culminated in a consent judgment and 

permanent injunction barring certain product claims by Respondents. See Proposed amended 

complaint ¶ 4 (“The FTC and Respondents HRL and Kramer Duhon signed a Stipulated Final 

Judgment and Order (‘Order’) entered by U.S. District Judge Jon D. Levy on January 16, 2018 in 

FTC and State of Maine v. Health Research Laboratories, et al., 2:17-cv-00467 (Dkt. 15)”). The 

FTC filed a motion for contempt in that case, contending that Respondents had made 

unsubstantiated claims regarding certain supplements in violation of the consent judgment. The 

contempt motion was ultimately denied. The issuance of the Complaint in this case followed. 

In summary, the proposed amendments to the Complaint primarily allege that 

Respondents made the unsubstantiated representations alleged in this case after the entry of the 

consent judgment and the filing of the FTC’s contempt motion in the Maine Litigation. See, e.g., 

¶ 8 (amendments in italics) (“HRL began selling Black Garlic Botanicals in November 2016 and 

continued to sell it following entry of the Order and after the filing of a contempt motion against 

Respondents in FTC and State of Maine v. Health Research Laboratories, LLC, et al., 2:17-cv00467-JDL. HRL continued to sell the product to consumers through at least January 

2021 . . .”); ¶ 10 (amendments in italics) (“HRL has disseminated or has caused to be 

disseminated advertising and promotional materials for Black Garlic Botanicals in multi-page 

mailers sent to consumer residences and on company websites. Following entry of the Order, 

HRL disseminated or has caused to be disseminated more than 800,000 mailers to consumer 

residences in the United States and Canada. HRL continued to disseminate these mailers as late 

3 Complaint Counsel’s argument that the parties will litigate the Respondents’ defenses of mootness and lack of 

public interest is now moot, as Respondents have waived those defenses and agreed not to assert these particular 

affirmative defenses in any future answer. 

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as August 2019 despite Respondents’ awareness that the FTC was investigating whether 

advertising for Black Garlic Botanicals violated the Order.”). 

Complaint Counsel argues that: (1) the proposed amendments add only details, not new 

theories, counts or defendants, and therefore fall reasonably within the scope of the original 

complaint; (2) the proposed amendments will facilitate a determination on the merits because 

they provide greater notice; and (3) because Respondents have not served any discovery, the 

proposed amendments are not unduly prejudicial. Respondents argue that: (1) the proposed 

amendments impermissibly add a new theory; (2) Complaint Counsel does not explain how the 

proposed amendments will facilitate a determination on the merits; and (3) changing the material 

facts, theories, and allegations in a case that is set for trial on a tight schedule is prejudicial. 

III. 

The operative FTC Rule, 3.15(a)(1), sets forth: 

If and whenever determination of a controversy on the merits will be facilitated thereby, 

the Administrative Law Judge may, upon such conditions as are necessary to avoid 

prejudicing the public interest and the rights of the parties, allow appropriate amendments 

to pleadings or notice of hearing: Provided, however, That a motion for amendment of a 

complaint or notice may be allowed by the Administrative Law Judge only if the 

amendment is reasonably within the scope of the original complaint or notice. Motions 

for other amendments of complaints or notices shall be certified to the Commission. 

16 C.F.R. § 3.15(a)(1). 

“[A] motion for amendment of a complaint or notice may be allowed by the 

Administrative Law Judge only if the amendment is reasonably within the scope of the original 

complaint or notice.” 16 C.F.R. § 3.15(a)(1). Thus, the ALJ has authority to order amendments 

which clarify the allegations of a complaint or which merely add examples of practices already 

challenged.” In re Champion Home Builders Co., 1982 FTC LEXIS 52, at *2-3 (Mar. 9, 1982). 

“Where a proposed amendment alters the ‘underlying theory’ of the original complaint, however, 

the Commission must make the determination whether to amend the complaint because only the 

Commission is authorized to determine whether there is reason to believe that the law has been 

violated and whether a proceeding on those amended charges would be in the public interest.” Id. 

Complaint Counsel asserts that the proposed amendments fall “‘within the scope of the 

original complaint,’ because [they add] details, not new theories or practices.” Motion to Amend 

at 7-8. Having reviewed the redlined amended complaint attached to the Motion to Amend, the 

allegations comprising the proposed amendments do not appear to add any new legal theories or 

allege new or different violations of the FTC Act. Although Complaint Counsel states that it has 

informed Respondents that Complaint Counsel “will seek to ban Respondents from the 

supplement industry,” Motion to Amend at 7-8 n.3, Complaint Counsel’s proposed amendments 

do not include any proposed changes to the Notice of Contemplated Relief. Based on the 

foregoing, Complaint Counsel’s proposed amendments are not outside the reasonable scope of 

the Complaint, and are therefore within the authority of the ALJ to allow. 16 C.F.R. § 3.15(a)(1). 

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To resolve the merits of the Motion to Amend, it must now be determined if the proposed 

amendments constitute “appropriate amendments” which will facilitate a “determination of a 

controversy on the merits.” 16 C.F.R. § 3.15(a)(1). 

Complaint Counsel has failed to show that the proposed amendments should be allowed. 

With respect to whether the proposed amendments will “facilitate a determination on the merits,” 

Complaint Counsel’s only argument is that the amendments will provide “greater notice 

regarding what Complaint Counsel will prove.” Motion to Amend at 7-8. The proposed 

amendments appear designed to support an argument that Respondents knowingly violated a 

court order when making the alleged misrepresentations challenged in this case, so as to justify 

broad fencing in relief. See Kraft, Inc. v. FTC, 970 F.2d 311, 326 (7th Cir. 1992) (“In 

determining whether a broad fencing-in order bears a ‘reasonable relationship’ to a violation of 

the [FTC] Act, the Commission considers (1) the deliberateness and seriousness of the violation, 

(2) the degree of transferability of the violation to other products, and (3) any history of prior 

violations.”). To the extent that Complaint Counsel’s amendments are intended for that reason, 

allowing the proposed amendments risks interjecting into this case the merits of whether 

Respondents’ conduct violated the Maine consent judgment, which would complicate resolution 

of the case on the merits. 

In addition, Respondents have elected not to contest the allegations of fact set forth in the 

pending Complaint and to admit all of the material allegations of the Complaint to be true, 

pursuant to Rule 3.12(b)(2). See March 10 Order. Such an answer has the effect of dispensing 

with a hearing and removing proceedings to the Commission for determination of an appropriate 

final order. 16 C.F.R § 3.12(b)(2) (“Such an answer shall constitute a waiver of hearings as to the 

facts alleged in the complaint, and together with the complaint will provide a record basis on 

which the Commission shall issue a final decision containing appropriate findings and 

conclusions and a final order disposing of the proceeding.”). Complaint Counsel’s seeking the 

proposed amendments, in reaction to Respondents’ election under Rule 3.12(b)(2), appears to be 

more of a strategic effort to counter Respondents’ efforts to bring this case to a resolution, than 

an effort to facilitate a determination of this case on the merits. Furthermore, by interjecting 

additional factual allegations, which Respondents state they view as “inflammatory,” Complaint 

Counsel’s proposed amendments could make it less likely that, in answering the amended 

Complaint, Respondents will elect not to contest the material allegations under Rule 3.12(b)(2). 

Under these circumstances, allowing the proposed amended complaint would not serve the 

purpose of Rule 3.15(a)(1) and would also unnecessarily frustrate the right to obtain expedited 

proceedings under Rule 3.12(b)(2).

4 

4 Complaint Counsel contends that the proposed amendments derive from recent discovery; however, the substance 

of the Maine consent judgment and the FTC’s motion for contempt have been known since 2019. 

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IV. 

For all the foregoing reasons, the Motion to Amend the Complaint is DENIED. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: March 12, 2021 

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