FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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PUBLIC 

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 DOCKET NO. 9397 

KRAMER DUHON, 

individually and as an officer of 

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC. 

OPPOSITION TO RESPONDENTS’ EXPEDITED 

MOTION TO ENTER NEW SCHEDULING ORDER OR, IN 

THE ALTERNATIVE, TRANSFER CASE TO THE COMMISSION

 Respondents’ requests to overhaul the Scheduling Order or, alternatively, to transfer this 

case to the Commission for final decision must be denied because they are plainly inconsistent 

with the Commission’s Rules of Practice. See No. 601099. Essentially, Respondents contend 

the filing of their Amended Answer means they are entitled to the elimination of any discovery 

and immediate termination of all proceedings before the Chief Administrative Law Judge. This 

is simply incorrect. Although Respondents’ Amended Answer narrows disputed factual and 

legal issues in this case, an initial decision needs to be prepared and the issue of appropriate 

relief remains outstanding. 1

 Further, Complaint Counsel is permitted to seek discovery relevant 

1 Rule 3.12(b)(2) states that the answer and complaint “will provide a record basis on which the 

Commission shall issue a final decision,” but does not state the pleadings provide the only basis for the 

final decision. This reading of the Rule is consistent with earlier interpretations of other parts of Rule 

3.12(b)(2). See No. 600937, at 4 (concluding affirmative defenses permissible because Rule does not 

state the answer “shall consist only of the required statement of admission, and this limitation will not be 

implied”) (internal quotes omitted). See also In re Zale Corp., 77 F.T.C. 1635, 1970 WL117293, *1 

(1970) (“The selection of an appropriate remedy, and the admissibility of evidence with regard thereto, 

are governed by the unlawful practices actually found to exist, and not by the allegations of the 

complaint.”) 
 

 

 

 

 

 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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to scope of relief, and the ALJ recently ordered the Respondents to produce responsive 

documents, a privilege log, and supplemental interrogatory answers. See Order Granting 

Complaint Counsel’s Motions to Compel (Apr. 6, 2021).2 Complaint Counsel also recently filed 

a motion with the Commission seeking a postponement of the evidentiary hearing date to provide 

sufficient time to conduct limited discovery. No. 601091. Under these circumstances, it is 

entirely inappropriate to eliminate all discovery and prehearing deadlines or set new deadlines 

for proposed findings of fact and conclusions of law in April and May as Respondents suggest. 

Respondents’ alternative request to immediately transfer the case to the Commission for final 

decision also must be denied because it is contrary to the Rules of Practice as well as relevant 

precedent. 

I. RELEVANT LAW 

Rule 3.12(b)(2) does not provide a basis for granting either of Respondents’ requests. A 

respondent’s general admission of all material allegations does not resolve the issue of 

appropriate relief. See 16 C.F.R. § 3.12(b)(2) (answer and complaint “will provide a record basis 

on which the Commission shall issue ... appropriate findings and conclusions and a final 

order[.]”). Further, the Rule permits limited discovery and an evidentiary hearing concerning 

facts relevant to the scope of relief because it states the pleadings “provide a record basis” rather 

than the only basis for decision and specifies the answer operates as “a waiver of hearings as to 

the facts alleged in the complaint” rather than all hearings. 16 C.F.R. § 3.12(b)(2) (emphasis 

added). 

Modification of scheduling order deadlines is permitted in limited circumstances in Part 3 

proceedings. Rule 3.21(c)(2) provides the ALJ with discretion to grant a motion to “extend any 

deadline or time specified in the scheduling order other than the date of the evidentiary hearing” 

if the movant makes a “showing of good cause.” 16 C.F.R. § 3.21(c)(2) (emphasis added). 

2 See also No. 600937, at 5 (“[T]here is nothing in Rule 3.12(b)(2) ... that prohibits Complaint Counsel 

from pursuing discovery regarding issues that remain relevant[.]”) 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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Importantly, however, there is no provision in the Rules permitting the ALJ to grant a motion to 

eliminate or expedite existing deadlines in a scheduling order. 

The Rules of Practice also establish that the ALJ must issue an initial decision prior to the 

Commission’s issuance of a final decision and order in litigated cases. See especially 16 C.F.R. 

§§ 3.51(a) (ALJ “shall file an initial decision” within 70 days after post-hearing briefing is 

complete); 3.52 (providing for appeal of initial decisions to Commission); 3.53 (providing for 

Commission’s sua sponte review of initial decisions). Moreover, in previous cases in which 

respondents have elected to file answers containing general admissions under Rule 3.12(b)(2), 

each has included an initial decision by an ALJ or hearing examiner followed by the 

Commission’s final decision and order. See In re Sir Carpet, Inc., 85 F.T.C. 190, 1975 WL 

172194 (Feb. 6, 1975); In re Auslander Decorator Furniture, Inc., 83 F.T.C. 1542, 1974 WL 

175916 (Apr. 23, 1974); In re New Home Sewing Center, 76 F.T.C. 191, 1969 WL 101146 (Aug. 

5, 1969); In re Market Fur Dressing Corp., 76 F.T.C. 101, 1969 WL 101378 (July 24, 1969). 

II. ARGUMENT 

A. Respondents’ requested changes to the Scheduling Order must be denied. 

Respondents’ proposed changes to the Scheduling Order must be denied because they are 

not permitted under Rule 3.21(c)(2) and are inappropriate in this case. As discussed above, Rule 

3.21(c)(2) permits extensions of deadlines set forth in scheduling orders in appropriate 

circumstances rather than elimination or advancement of existing deadlines as Respondents 

propose. Moreover, Respondents’ contention that all fact and expert discovery should be 

terminated in this matter is plainly inconsistent with the recent Order compelling them to provide 

requested discovery. See Order Granting Complaint Counsel’s Motions to Compel (Apr. 6, 

2021). 

Respondents’ request to set deadlines for proposed findings of fact and conclusions of law in 

April and May is similarly inconsistent with the Rules of Practice, which provide that such 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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submissions should be filed after the closing of the evidentiary hearing record. See 16 C.F.R § 

3.46; see also § 3.12(b)(2) (providing respondents may “reserve the right to submit proposed 

findings of fact and conclusions of law under § 3.46.”) Proposed findings of fact and 

conclusions of law should be submitted by the parties after appropriate discovery related to the 

appropriate scope of relief and evidentiary hearing in accordance with Rule 3.46.3 

B. Respondents’ request to transfer to the Commission is improper. 

Alternatively, Respondents half-heartedly request terminating further proceedings before 

the ALJ and an immediate transfer of the case to the Commission for final decision. To support 

this request, Respondents appear to rely on the provision in Rule 3.12(b)(2) stating the pleadings 

“will provide a record basis on which the Commission shall issue a final decision[.]” However, 

this provision concerning the Commission’s final decision-making authority does not mean that 

all proceedings before the ALJ are eliminated. Indeed, as discussed above, the limited number of 

administrative decisions involving Rule 3.12(b)(2) have all included an initial decision followed 

by the Commission’s issuance of a final decision and order.4 

III. CONCLUSION 

For the reasons set forth above, Respondents’ Motion should be denied. 

Respectfully submitted, 

s/ Elizabeth J. Averill 

Elizabeth J. Averill 

Jonathan Cohen 

Federal Trade Commission 

3 The staggered schedule proposed by Respondents in their proposed Amended Scheduling Order should 

also be rejected because it does not give both parties an equal chance to reply and is inconsistent with the 

structure for filing proposed findings of fact and conclusions of law and replies to such filings set forth in 

16 C.F.R. § 3.46(a). 

4 See In re Sir Carpet, Inc., 85 F.T.C. 190, 1975 WL 172194 (Feb. 6, 1975); In re Auslander Decorator 

Furniture, Inc., 83 F.T.C. 1542, 1974 WL 175916 (Apr. 23, 1974); In re New Home Sewing Center, 76 

F.T.C. 191, 1969 WL 101146 (Aug. 5, 1969); In re Market Fur Dressing Corp., 76 F.T.C. 101, 1969 WL 

101378 (July 24, 1969). 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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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 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/9/2021 | OSCAR NO. 601176 | PUBLIC

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CERTIFICATE OF SERVICE 

I certify that I served a copy of Complaint Counsel’s Opposition to Respondents’ 

Expedited Motion to Enter New Scheduling Order or, in the Alternative, Transfer Case to the 

Commission on April 9, 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 

Judges: 

The Honorable D. Michael Chappell 

Chief Administrative Law Judge 

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

Washington, DC 20580 

s/ Elizabeth J. Averill 

Elizabeth J. Averill 

Federal Trade Commission 

600 Pennsylvania Ave, NW, CC-9528 

Washington, DC 20580 

(202) 326-2993; eaverill@ftc.gov 

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