No. 3:17-cv-00039-JSC D-LINK SYSTEMS’S RESP. TO ADMIN. MOT. 

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PILLSBURY WINTHROP SHAW PITTMAN LLP

LAURA C. HURTADO (CSB #267044)

laura.hurtado@pillsburylaw.com

Four Embarcadero Center, 22nd Floor

San Francisco, California 94111

Telephone: (415) 983-1000

Facsimile: (415) 983-1200

CAUSE OF ACTION INSTITUTE 

PATRICK J. MASSARI [pro hac vice pending] [Lead Counsel]

patrick.massari@causeofaction.org

MICHAEL PEPSON [pro hac vice pending]

michael.pepson@causeofaction.org

KARA E. MCKENNA [pro hac vice to be filed]

kara.mckenna@causeofaction.org

1875 Eye Street N.W., Suite 800

Washington, D.C. 20006

Telephone: (202) 422-4332

Facsimile: (202) 330-5842

Attorneys for Defendant D-Link Systems, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

vs.

D-LINK CORPORATION

and

D-LINK SYSTEMS, INC.,

Defendants.

No. 3:17-cv-00039-JSC

DEFENDANT D-LINK SYSTEMS, INC.’S

RESPONSE TO FEDERAL TRADE 

COMMISSION’S ADMINISTRATIVE 

MOTION TO FILE UNDER SEAL 

PORTIONS OF PLAINTIFF’S 

COMPLAINT

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Defendant D-Link Systems, Inc. (“D-Link Systems”) hereby responds to the Federal 

Trade Commission’s (“FTC” or “Commission”) Administrative Motion to File Under Seal 

Portions of Plaintiff’s Complaint (“Administrative Motion”) (Dkt. No. 3).1

Materials designated as “confidential” pursuant to Section 21 of the Federal Trade 

Commission Act (“FTC Act”), 15 U.S.C. § 57b-2, as well as court filings reflecting the contents 

of such materials, should remain sealed (or otherwise confidential) in litigation. See FTC v. Gen. 

LLC, No. 3:16-cv-0136-LRH-VPC, 2016 U.S. Dist. LEXIS 170785, at *2 (D. Nev. Dec. 9, 2016)

(“[M]aterials produced in response to compulsory actions and filings before the FTC are 

confidential as a matter of law. Therefore, the court finds that the parties have satisfied their 

burdens to show compelling reasons for filing the various pleadings under seal.” (citing 15 

U.S.C. § 57b-2(b); 16 C.F.R. § 4.10(g)). Such material “may be disclosed in ... court 

proceedings subject to ... court protective or in camera orders.” 16 C.F.R. § 4.10(g)(3) 

(emphasis added). But it should not be publicly filed in a Complaint. 

Because, as the FTC has explained elsewhere,2such materials are subject to 

confidentiality restrictions imposed by law and regulation, the Commentary to Civil L.R. 79-5 

suggests its procedures do not apply here. See Commentary, Civil L.R. 79-5 (“In some cases ... 

law or regulation requires a document to be filed under seal (e.g., a False Claims Act complaint). 

Those cases are exempt from the procedures described in this rule.”); see also Civil L.R. 79-5(e) 

(solely referencing materials designated confidential “pursuant to a protective order”—not law 

 

1 Because the Administrative Motion was filed contemporaneous with the Complaint, and 

before D-Link Systems’s counsel entered an appearance, this Response should be deemed 

timely, notwithstanding Civil L.R. 7-11(b). See, e.g., TIBCO Software, Inc. v. KAAZING Corp., 

No. 16-cv-06949-BLF, 2016 U.S. Dist. LEXIS 175307, at *1 (N.D. Cal. Dec. 19, 2016)

(provisionally granting administrative motion to file portions of complaint and exhibits under 

seal, filed with complaint, “WITHOUT PREJUDICE to Defendants filing an opposition once 

they have appeared in the case” (emphasis added)). 

2

See FTC Motion to Seal Reply, at 2 ¶ 2, FTC v. General LLC et al., Case No. 3:16-cv00136-LRH-VPC, Dkt. No. 19 (D. Nev. April 16, 2016) (“Under the Federal Trade Commission 

Act, 15 U.S.C. § 41 et seq., and the FTC’s Rules of Practice, see 16 C.F.R. Part 4, such materials 

produced in response to compulsory process are confidential and are subject to limits on 

disclosure. Specifically, such material ‘may be disclosed in ... court proceedings subject to ...

court protective or in camera orders.’” (some citations omitted)).

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and regulation).3 Regardless, as explained in the accompanying Declaration of William Brown 

in Support of Defendant D-Link Systems, Inc.’s Response (“Brown Decl.”), D-Link Systems 

properly designated materials submitted to the FTC as confidential under 15 U.S.C. § 57b-2(b). 

See Brown Decl. ¶¶ 4-7. The Administrative Motion does not dispute this, asserting that 

allegations in Paragraphs 10, 11, and 25 of the FTC’s Complaint for Permanent Injunction and 

Other Equitable Relief (“Compl.” or “Complaint”) (Dkt. No. 1) are based on information D-Link 

Systems designated confidential pursuant to 15 U.S.C. § 57b-2(b).4 See Administrative Motion 

at 2:4-7; Declaration of Cathlin Tully in Support of Federal Trade Commission’s Administrative 

Motion to File Under Seal Portions of Plaintiff’s Complaint Declaration (Dkt. No. 3-1) ¶ 2. 

Therefore, the redacted portions of Paragraphs 10, 11, and 25 should remain sealed and 

otherwise confidential and the FTC’s Administrative Motion should be granted in its entirety.

Alternatively, as further discussed below, Paragraphs 10, 11, and 25 of the Complaint 

should remain sealed until the FTC files an Administrative Motion that complies with this 

Court’s Local Rules. See, e.g., Kamakahi v. Am. Soc’y for Reprod. Med., No. 11-cv-01781-JCS, 

2014 U.S. Dist. LEXIS 160357, at *6 (N.D. Cal. Nov. 13, 2014) (“If Plaintiffs comply with the 

Local Rule, the Designating Party or Parties will have four days from the date of Plaintiffs’ 

compliance to file their declarations pursuant to Local Rule 79-5(e)(1).”). 

This Court’s Local Rules require all administrative motions to be accompanied by either 

a stipulation or a declaration explaining why a stipulation could not be obtained. Civil L.R. 7-

11(a); see Spieler v. Mt. Diablo Unified Sch. Dist., No. C 98-0951 CW, 2007 U.S. Dist. LEXIS 

47534, at *8 (N.D. Cal. June 20, 2007). The FTC’s Administrative Motion is accompanied by 

neither. The FTC did not contact D-Link Systems prior to filing this Motion. Brown Decl. ¶ 8. 

 

3

The fact that Civil L.R. 79-5(e) specifically and only refers to a “protective order,” 

conspicuously omitting mention of laws and regulations, indicates that that Local Rule does not 

apply here. “In the words of the old maxim of statutory construction, inclusio unius est exclusio 

alterius.” Andrade v. United States Sentencing Com., 989 F.2d 308, 309 (9th Cir. 1993).

4 D-Link Systems disputes the FTC’s characterization of Paragraphs 10, 11, and 25 as 

alleging “facts ... that the FTC obtained during the course of its non-public investigation[.]” 

Administrative Motion at 2:4-5. These Paragraphs contain compound allegations rife with

mischaracterizations and inaccuracy, which, if necessary, will be addressed at an appropriate 

stage of this litigation.

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Nor did FTC counsel otherwise contact D-Link Systems’s legal counsel who represented D-Link 

Systems during the non-public compulsory investigation by FTC to discuss the possibility of a 

stipulation regarding the instant Motion before filing it. Thus, the FTC Motion was not 

accompanied by a stipulation under Civil L.R. 7-12. Therefore, under this Court’s Local Rules, 

the FTC Motion “must be accompanied ... by a declaration that explains why a stipulation could 

not be obtained.” Civil L.R. 7-11(a). The FTC Motion is accompanied by a Declaration, Dkt. 

No. 3-1, but it does not explain why a stipulation could not be obtained, as required by Civil L.R. 

7-11(a). Therefore, the Administrative Motion violates Civil L.R. 7-11(a) as well as Civil L.R. 

79-5(d)(1), which requires “conformance with Civil L.R. 7-11.”5 

These are not mere technicalities. Instead of contacting D-Link Systems’s counsel—who 

FTC counsel knows full well represents D-Link Systems—prior to filing the Administrative 

Motion in a good-faith effort to obtain a stipulation to conserve this Court’s valuable time, on 

January 5, 2017, the FTC apparently mailed its Motion from Washington, D.C., halfway around 

the world to Taiwan and to D-Link Systems’s registered agent in Fountain Valley, California.6 

See Certificate of Service (Dkt. No. 3-5) at 2. (D-Link Systems did not receive the mailed copy 

until January 10, 2017. See Brown Decl. ¶ 9.) The FTC did this almost a week before its 

Complaint was served on D-Link Systems on January 10, 2017. See Certificate of Service, Ex. 

A (Dkt. No. 9-1). The FTC also emailed a copy to D-Link Systems’s former counsel, but did not 

email a copy to D-Link Systems’s counsel who represented D-Link Systems during the FTC’s 

non-public investigation (Law Offices of S.J. Christine Yang), see Certificate of Service (Dkt. 

 

5 Cf. Tri-Valley CAREs v. United States DOE, 671 F.3d 1113, 1131 (9th Cir. 2012) 

(“Denial of a motion as the result of a failure to comply with local rules is well within a district 

court's discretion. Northern District of California Civil Local Rule 7-11(a) requires that any 

motion for administrative relief include a stipulation or declaration explaining why a stipulation 

could not be obtained. Nowhere in its motion, nor in its additional briefs, did Tri-Valley CAREs 

include the requisite stipulation or declaration.” (citation omitted)).

6

The FTC Complaint alleges that D-Link Systems’s principal place of business is located 

in the Central (not Northern) District of California. See Compl. ¶ 7. Curiously, the FTC 

Complaint does not include an “Intradistrict Assignment” paragraph identifying any basis for 

assignment of this case to this Division of the Court pursuant to Civil L.R. 3-2(c). See Civil L.R. 

3-5(b).

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No. 3-5) at 2, and traveled to Washington, D.C., as recently as November, 2016 to meet with the 

FTC’s counsel in this case. 

As a practical consequence, the FTC’s position as to whether it may subsequently oppose 

D-Link Systems’s efforts to prevent the FTC from making public allegations about D-Link 

Systems the FTC claims were derived from materials D-Link Systems designated as confidential 

under 15 U.S.C. § 57b-2—and, if so, how and when it will do so—is unclear. See FTC Motion 

at 2:20-24 (“The FTC takes no position as to whether this information should remain under seal 

until such time as DLS provides its justifications for the information to be maintained under 

seal.”).7 

In addition, because FTC counsel did not contact D-Link Systems’s counsel before filing 

this Motion—and because Paragraphs 10, 11, and 25 do not cite to any materials D-Link 

Systems designated confidential during the FTC’s investigation of D-Link Systems, which the 

FTC claims to be the basis for those allegations—D-Link Systems is unable to determine 

definitively at this time the extent to which the allegations contained in those paragraphs are, in 

fact, derived from materials D-Link Systems designated as confidential during the FTC 

investigation. This is no small task, as the FTC commenced its investigation of D-Link Systems

in June 2013; D-Link Systems produced over 20,000 pages of documents to the FTC; and DLink Systems produced a corporate witness to provide testimony over the course of an extended, 

three-day investigational hearing in July 2014. Thus, it will require substantial time and effort 

for D-Link Systems’s counsel to even attempt to identify which statements, if any, from 

Paragraphs 10, 11, and 25 of the Complaint correspond, in whole or in part, to which materials 

D-Link Systems produced to the Commission but designated as confidential. This logistical 

 

7

In other cases, the FTC has affirmatively advocated for sealing materials designated 

confidential under 15 U.S.C. § 57-b2. See, e.g., FTC v. Gen. LLC, No. 3:16-cv-0136-LRH-VPC, 

2016 U.S. Dist. LEXIS 170785, at *2 (D. Nev. Dec. 9, 2016) (granting parties’ motions to seal).

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burden is exacerbated by the fact that D-Link Systems has recently engaged new counsel, who 

are representing D-Link Systems pro bono.8 

For the reasons stated above, the FTC’s Administrative Motion should be granted in its 

entirety. Alternatively, this Court should require the FTC to comply with the Local Rules by (1) 

reasonably identifying the materials D-Link Systems designated confidential that the FTC asserts 

form the basis for redacted allegations in Paragraphs 10, 11, and 25; (2) conferring with D-Link 

Systems’s counsel before refiling any Administrative Motion to File Under Seal to determine 

whether a stipulation under Civil L.R. 7-12 is feasible; and (3) either (a) refiling a compliant 

Administrative Motion (including either a stipulation under Civil L.R. 7-12 or a declaration 

explaining why a stipulation could not be obtained) or (b) filing an amended complaint after 

removing the redacted allegations from Paragraphs 10, 11, and 25. Cf. Kamakahi, 2014 U.S. 

Dist. LEXIS 160357, at *4-6. 

Dated: January 17, 2017 Respectfully submitted,

PILLSBURY WINTHROP SHAW PITTMAN LLP

By: /s/ Laura C. Hurtado 

Laura C. Hurtado (CSB #267044)

laura.hurtado@pillsburylaw.com

Four Embarcadero Center, 22nd Floor

San Francisco, California 94111

Telephone: (415) 983-1000

Facsimile: (415) 983-1200

CAUSE OF ACTION INSTITUTE 

PATRICK J. MASSARI [pro hac vice pending] 

patrick.massari@causeofaction.org

MICHAEL PEPSON [pro hac vice pending]

michael.pepson@causeofaction.org

KARA E. MCKENNA [pro hac vice to be filed]

kara.mckenna@causeofaction.org

1875 Eye Street N.W., Suite 800

Washington, D.C. 20006

Telephone: (202) 422-4332

Facsimile: (202) 330-5842

Attorneys for Defendant D-Link Systems, Inc.

 

8

See generally Jimmy Koo, “Back in the Fight: Advocacy Group Joins Another FTC Data 

Security Power Challenge,” BLOOMBERGBNA (Jan. 11, 2017), at https://www.bna.com/backfight-advocacy-b73014449684/. 

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