FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/13/2021 | OSCAR NO. 601190 | 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, 

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’ EXPEDITED MOTION TO PARTIALLY 

RECONSIDER MAY 6, 2021 ORDER GRANTING COMPLAINT 

COUNSEL’S MOTIONS TO COMPEL AND STATEMENT OF IMPASSE 

Respondents respectfully request that the Court reconsider its Order Granting 

Complaint Counsel’s Motions to Compel. Respondents offer an alternative that 

efficiently provides the requested “fencing in” relief without the unnecessary cost and 

expense of additional discovery. Because of the current pending requirements of the April 

6, 2021 Order, Respondents respectfully request that the ALJ consider this motion on an 

expedited basis. 

I. BRIEF RESPONSE 

Within two months of losing its motion for contempt in FTC and State of Maine v. 

Health Research Laboratories, LLC, et al., 2:17-cv-00467-JDL (“Maine Action”), the 

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FTC filed this action and has undertaken a course of action to destroy Respondents’ 

business. Under the FTC Act, this action is limited to a cease-and-desist order to prevent 

Respondents from “disseminat[ing] or caus[ing] to be disseminated advertising and 

promotional materials”1 for four supplements that the Commission contends were “not 

substantiated at the time the representations were made.”2 Complaint Counsel has used 

this proceeding not as a means to obtain a cease-and-desist order—which is the only 

remedy available—but as a means to exact revenge and to harass Respondents. 

In an effort to drive Respondents from business, the FTC served 14 subpoenas on 

every vendor and business partner connected to Respondents for the last decade, 

including a subpoena to the law firm that represented Respondents against the FTC. The 

FTC also served interrogatories and requests for production that would take hundreds of 

hours to answer. 

Respondents’ business is a small operation that originally had three employees and 

now has none. It is easier for vendors and business partners to elect not to do business 

with Respondents than face harassment from the government. It is against this backdrop 

that Respondents decided that they could not continue to fight the FTC. Rather than 

continue a fight that has been ongoing for more than six years, Respondents elected to 

admit all material facts in the Part III Administrative Complaint–an action expressly 

permitted by 16 C.F.R. § 3.12. 

1 See Complaint, ¶¶ 7, 9, 11, and 13. 

2 See Complaint, ¶¶ 15, 17, 19, and 21. 

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On March 23, 2021, the FTC filed its Second Motions to Compel Answers to 

Interrogatories and Responses to Requests for Production. The only stated justification 

for this discovery after all facts in the Complaint had been admitted was that the 

discovery was relevant to potential “fencing in” relief.3 

On April 6, 2021, the ALJ granted Complaint Counsel’s Motions to Compel and 

ordered Respondents to supplement their answers to Interrogatories Nos. 1 and 3 to 

provide more complete answers, to identify all categories of documents Respondents are 

withholding on grounds other than privilege or the work-product doctrine, and to 

produce a privilege log. The ALJ noted that the discovery may be relevant to “fencing-in” 

relief and that “a common form of ‘fencing-in’ relief is a ‘multiproduct’ prohibition that 

bars the respondent from using its deceptive trade practice to sell not only the product 

that was the subject of the enforcement action, but all products sold by the respondent.”4 

Respondents have provided supplemental answers to Interrogatories Nos. 1 and 3 

and are in the process of providing a privilege log, but, for the reasons set forth below, 

Respondents advise the ALJ that the Respondents do not intend to produce documents. 

As set forth in more detail below, Respondents propose an alternative under which 

Respondents stipulate to the “fencing in” relief, as described by the ALJ. 

3 See Motion to Compel Respondent to Supplement Interrogatory Responses, p. 2 and Motion to 

Compel Respondents to Produce Documents, p. 3. 

4 Order, p. 3, fn 2 (quoting In re ECM BioFilms, Inc., 2015 FTC LEXIS 22, at *629-30 (Jan. 28, 

2015)). 

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II. ARGUMENT AND AUTHORITIES 

A. Reasons for Reconsideration. 

Respondents respectfully request that the ALJ reconsider its April 6, 2021 Order 

based on the fact that Respondents have now unequivocally agreed that the ALJ’s Initial 

Decision should include whatever permissible fencing in relief is allowed by law. This 

stipulation allows the ALJ to determine the case as expeditiously as possible without the 

need for the discovery that is the subject of the April 6, 2021 Order. See In the Matter of 

Louisiana Real Estate Appraisers Board, Dkt. No. 9374, 2018 WL 2122823, at *3 (April 

26, 2018); See also Rule 3.1 (“[T]he Commission's policy is to conduct [adjudicative] 

proceedings expeditiously.”); Rule 3.41(b) (“Hearings shall proceed with all reasonable 

expedition ....”); Rules of Practice Amendments, 61 Fed. Reg. 50,640 (FTC Sept. 26, 

1996) (“[A]djudicative proceedings shall be conducted expeditiously and ... litigants shall 

make every effort to avoid delay at each stage of a proceeding.”). After Respondents have 

admitted all material facts in the Complaint and agreed to the “fencing in” relief, it would 

be manifestly unjust to force Respondents to continue to spend time and money providing 

additional discovery. 

B. Cease-and-Desist Order. 

The appropriate relief in this case is dictated by statute. The Commission filed its 

Administrative Complaint alleging that Respondents have “disseminated or [have] caused 

to be disseminated advertising and promotional materials”5 for four supplements that the 

5 See Complaint, ¶¶ 7, 9, 11 and 13. 

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Commission contends were “not substantiated at the time the representations were 

made.”6 The only relief permitted by Section 5 of the FTC Act is an order requiring 

Respondents to cease and desist from the allegedly deceptive act or practice—which is the 

dissemination of advertising and promotional materials regarding the four supplements. 

As Respondents have stated over and over, Respondents have no problem—and have 

never had any problem—with providing this relief because Respondents ceased all such 

complained-of conduct long before the Complaint was filed. 

C. Amended Answer under 16 C.F.R. § 3.12(b)(2). 

As noted by the Court in its March 12, 2021 Order, Respondents’ Answer under 

Rule 3.12(b)(2) “has the effect of dispensing with a hearing and removing proceedings to 

the Commission for determination of an appropriate final order.”7 Rule 3.12(b)(2) 

provides that “[s]uch 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.”8 If the hearing is waived—as 

stated by Rule 3.12(b)(2)—when does Complaint Counsel plan on adding the anticipated 

new discovery to the record? How would the anticipated new discovery be added to the 

record? As stated by Rule 3.12(b)(2), the record in this case is the Complaint and the 

6 See Complaint, ¶¶ 15, 17, 19, and 21. 

7 March 12, 2021 Order (citing 16 C.F.R § 3.12(b)(2)). 

8 16 C.F.R. § 3.12(b)(2) (emphasis added). 

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Amended Answer. Rule 3.12(b)(2) does not state that the record is the Answer and the 

Complaint and any other information and documents that the FTC wants to add. 

D. Fencing-In Relief Alternative. 

Responding to the two requests for production have required Respondents to 

spend tens of thousands of dollars and it is anticipated that future discovery fights with 

the FTC will lead to additional costs.9 Complaint Counsel has already tried to argue that 

“newly discovered facts” justified an amendment to the Complaint. It does not matter 

what facts, if any, are disclosed in discovery. Respondents predict that Complaint 

Counsel will use the discovery as an excuse to further expand this case and to cause 

Respondents to spend additional time and money. For Complaint Counsel, obtaining 

document provides another excuse to further delay and expand this case. Spending 

hundreds of hours in the future on the discovery defeats the purpose of admitting all 

material facts in the Complaint. For that reason, Respondents offer an alternative that (a) 

provides the fencing-in relief that is the subject of the ALJ’s April 6, 2021 Order; and (b) 

satisfies the Commission’s policy to conduct these proceedings expeditiously.10 

In the April 6, 2021 Order, the ALJ noted that the discovery may be relevant to 

“fencing-in” relief and that “a common form of ‘fencing-in’ relief is a ‘multiproduct’ 

prohibition that bars the respondent from using its deceptive trade practice to sell not 

only the product that was the subject of the enforcement action, but all products sold by 

9 See Ex. A (Declaration of Joel W. Reese). 

10 See 16 C.F.R. § 3.1. 

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the respondent.”11 This action is to prohibit Respondents from “disseminat[ing] or 

caus[ing] to be disseminated advertising and promotional materials”12 for four 

supplements that the Commission contends were “not substantiated at the time the 

representations were made.”13 Respondents have no objection to a blanket prohibition on 

disseminating or causing to be disseminated any advertising or promotional materials for 

any supplements that makes any representations regarding health or disease.14 In other 

words, rather than trying to force Respondents to spend hundreds of hours responding to 

discovery and fighting about those issues in the coming months, let’s cut to the chase and 

give the FTC whatever permissible “fencing in” relief has been requested in the 

Complaint.15 

E. Respondents intend to try to comply. 

Respondents have done everything possible to make this proceeding move as 

expeditiously as possible. Complaint Counsel has fought Respondents at every step. 

Respondents want to finish this action and move on to whatever fight is next with the 

11 Order, p. 3, fn 2. 

12 See Complaint, ¶¶ 7, 9, 11, and 13. 

13 See Complaint, ¶¶ 15, 17, 19, and 21. 

14 To confirm this agreement, which was not before the ALJ when the April 6, 2021 Order was 

issued, Respondents have filed a stipulation regarding “fencing in” relief. 

15 Respondents believe that the FTC’s “fencing in” argument is an excuse to force Respondents to 

spend more money on discovery and that the requested discovery has nothing to do with 

obtaining “fencing in” relief. If the FTC truly just wants the discovery for “fencing in” relief, then 

the ALJ should provide whatever permissible “fencing in” relief has been requested by the FTC. 

Of course, the remedy must be “reasonably related” to the unlawful acts which form the basis of 

the order. See In the Matter of Mutual Construction Co., Inc., 87 F.T.C. 621, 1976 WL 180691 

(March 30, 1976). 

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FTC. Respondents are working diligently on producing a privilege log and producing 

non-privileged documents.16 

III. CONCLUSION 

It is unclear what, if anything, the Respondents can do to appease the FTC. Angry 

that it lost the Maine Action, the FTC has tried to make this action as difficult as possible 

for Respondents. The FTC subpoenaed all of Respondents’ vendors, issued discovery 

requests that require the production of thousands of documents, and repeatedly tried to 

prevent any end to this case, even after Respondents admitted all material facts in the 

Complaint. The FTC took these actions knowing at all times that the acts or practices 

that are the subject of this proceeding ceased more than a year prior to the filing of the 

Complaint and that the entire administrative action for a cease-and-desist order was a 

farce. The manner in which the FTC has acted in this case is not what Congress intended 

when it granted a federal agency the right to issue administrative cease-and-desist orders. 

16 This case presents novel legal issues that have not been resolved by the United States Supreme 

Court, including the extent to which a federal agency can rule upon, and order the production of, 

privileged documents. The lack of complete clarity in this area is demonstrated by several cases, 

including In the Matter of Gemtronics, Inc., Dkt. No. 9330 (Order Denying Respondents’ Motion 

for Sanctions, dated April 27, 2010) (recognizing that neither the ALJ nor the Commission has the 

authority to award sanctions); N.L.R.B. v. Detroit Newspapers, 185 F.3d 602 (6th Cir. 1999) 

(recognizing that “the district court, not the ALJ, must determine whether any privileges 

protecte[d] the documents from production”); and N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 

492, 500 (4th Cir. 2011)(recognizing the division of power between a federal administrative 

agency and the judicial power of Article III courts). Respondents believe this issue should be 

resolved by the United States Supreme Court so that businesses, like Respondents, have a clear 

understanding of the permissible authority of the FTC in administrative “cease-and-desist cases” 

like this one. 

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For the reasons set forth herein, Respondents respectfully request that the ALJ 

vacate its April 6, 2021 Order and enter an Order that provides that the ALJ’s Initial 

Decision shall include all permissible “fencing in” relief that has been requested by 

Complaint Counsel in its Complaint. 

Dated: April 13, 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 

CERTIFICATE OF CONFERENCE 

I hereby certify that on April 11, 2021, I sent an email to Complaint Counsel for 

the FTC, Elizabeth Averill and Jonathan Cohen, regarding this Motion and requested to 

confer. On April 12, 2021, we have a telephone conference where Complaint Counsel 

advised me that Complaint Counsel opposes the motion. 

/s/ Joel W. Reese 

Joel W. Reese 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/13/2021 | OSCAR NO. 601190 | PUBLIC

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CERTIFICATE OF SERVICE 

I hereby certify that on April 13, 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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