D-Link Systems’ Trial Brief Case No. 17-cv-00039-JD 

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CAUSE OF ACTION INSTITUTE 

JOHN J. VECCHIONE [admitted pro hac vice] [Lead Counsel] 

john.vecchione@causeofaction.org 

MICHAEL D. PEPSON [admitted pro hac vice] 

Admitted only in Maryland. 

Practice limited to matters and proceedings before United States Courts and agencies. 

michael.pepson@causeofaction.org 

JESSICA LEE THOMPSON [admitted pro hac vice] 

jessica.thompson@causeofaction.org 

ASHLEY SALVINO [admitted pro hac vice] 

ashley.salvino@causeofaction.org 

JOSHUA N. SCHOPF [admitted pro hac vice] 

josh.schopf@causeofaction.org 

NICHOLE C. WILSON [admitted pro hac vice] 

nichole.wilson@causeofaction.org 

KARA E. MCKENNA [admitted pro hac vice] 

kara.mckenna@causeofaction.org 

CYNTHIA CRAWFORD [admitted pro hac vice] 

 cynthia.crawford@causeofaction.org 

1875 Eye Street N.W., Suite 800 

Washington, DC 20006 

Telephone: (202) 422-4332/Facsimile: (202) 330-5842 

Christine Yang (SBN 102048) 

 chrisyang@sjclawpc.com 

LAW OFFICES OF S.J. CHRISTINE YANG

17220 Newhope Street, Suites 101 &102 

Fountain Valley, CA 92708 

Telephone: 714.641.4022 

Facsimile: 714.641.2082 

Christopher Kao (SBN 237716) 

 christopher.kao@pillsburylaw.com 

Brock S. Weber (SBN 261383) 

 brock.weber@pillsburylaw.com 

PILLSBURY WINTHROP SHAW PITTMAN LLP 

Four Embarcadero Center, 22nd Floor 

San Francisco, CA 94111-5998 

Tel.: 415.983.1000 / Facsimile: 415.983.1200 

Attorneys for Defendant D-Link Systems, Inc.

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

D-LINK SYSTEMS, INC., 

Defendants.

Case No. 3:17-cv-00039-JD 

D-LINK SYSTEMS’ TRIAL BRIEF 

Judge: Honorable James Donato 

Date: January 14, 2019 

Time: 9:00 a.m. 

Ctrm.: 11; 19th Floor 

Complaint Filed: January 5, 2017 

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D-Link Systems’ Trial Brief 1 Case No. 17-cv-00039-JD 

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 Defendant D-Link Systems, Inc. (“DLS”) respectfully submits the following trial brief 

specifying the remaining causes of action at issue, the applicable legal standard, and the relevant 

defenses. As narrowed by the Court, see Dkt. No. 90, Plaintiff Federal Trade Commission’s 

(“FTC”) Complaint asserts three remaining “deception” claims (Counts II, III, and VI) against DLS 

under Section 5 of the FTC Act, 15 U.S.C. § 45(a), for which Plaintiff solely seeks a forwardlooking permanent injunction under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b).

I. INTRODUCTION 

The FTC’s remaining “deception” claims do not have merit. The three sets of statements 

that the FTC relies on in Counts II, III and VI were not deceptive, particularly when viewed in the 

proper context. The FTC has no evidence—and will present none at trial—that even a single 

consumer was deceived by DLS’ statements, or suffered any injury as a result of any alleged 

deception. Nor does the FTC have any evidence—and will present none at trial—that any of the 

DLS routers and IP cameras at issue in this case were ever actually compromised in the real world. 

The trial will show that the FTC cannot meet its burden of proving by a preponderance of the 

evidence that DLS committed any actionable “deception” under Section 5 the FTC Act. 

Nor can the FTC meet its burden under Section 13(b) of the FTC Act to establish that this is 

a “proper case” in which this Court can enter a permanent injunction against DLS (the sole relief 

FTC seeks), based on the current marketing and security practices used for the products DLS sells. 

Even though DLS bears no burden, the trial will show that DLS’ routers and IP cameras have 

consistently performed as represented, and that the security practices used for these products have 

always been industry-leading. 

II. Legal Standard for Plaintiff’s Remaining “Deception” Claims (Counts II, III, and VI) 

A. FTC’s Burden of Proof as to “Deception” Liability for Counts II, III, and VI 

“As the plaintiff, the FTC bears the burden of proof and must prove each element of its case 

by a preponderance of the evidence.” FTC v. DIRECTV, Inc., No. 15-cv-01129, 2018 WL 3911196, 

at *2 (N.D. Cal. Aug. 16, 2018) (citing U.S. v. F/V Repulse, 688 F.2d 1283, 1284 (9th Cir. 1982)). To 

prevail on its “deception” claims, the FTC must prove three elements: DLS (1) made a 

“representation”; that (2) is “likely to mislead consumers acting reasonably under the circumstances”; 

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and (3) is “material.” FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994). The FTC has the 

burden to “show probable, not possible, deception” of “‘consumers acting reasonably in the 

circumstances,’ not just any consumers. ” Southwest Sunsites, Inc. v. F.T.C., 785 F.2d 1431, 1436 (9th 

Cir. 1986) (emphasis added). Although proof of actual deception is unnecessary, “such proof is 

highly probative to show that a practice is likely to mislead consumers acting reasonably under the 

circumstances.” FTC v. Cyberspace.com, LLC, 453 F.3d 1196, 1201 (9th Cir. 2006). 

As part of its analysis, this Court must examine the “net impression” of the allegedly 

deceptive statements made by DLS, and what express or implied claims were made. In other words, 

the Court must “evaluate the entire advertisement, transaction, or course of dealing in determining 

how reasonable consumers are likely to respond.” FTC Deception Statement, appended to In re 

Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984), 1984 WL 565319, at *48; accord FTC v. Sterling 

Drug, Inc., 317 F.2d 669, 674 (2d Cir. 1963) (“It is ... necessary . . . to consider the advertisement 

in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed 

rather than each tile separately.”). Thus, the challenged statements should be evaluated in their full 

and proper context. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143-44 (9th Cir. 

1997); see also FTC Deception Statement, 1984 WL 565319, at *46 (“[T]he totality of the practice” 

should be considered “in determining how reasonable consumers are likely to respond.”). 

“Express claims directly represent the fact at issue while implied claims do so in an oblique 

or indirect way.” Kraft, Inc. v. FTC, 970 F.2d 311, 318 n.4 (7th Cir. 1992). To determine what, if

any, implied claims were made, this Court should consider the contents of the challenged 

statements, the circumstances surrounding them, and interaction of all the different elements in 

them. In re Thompson Med. Co., 104 F.T.C. 648 (1984), 1984 WL 565377, at *102. For implied

claims that are not reasonably inferred from the face of an advertisement, the FTC has stated that it 

“will not find the ad[vertisement] to make the implied claim unless extrinsic evidence allows ... 

[the FTC] to conclude that such a reading of the ad is reasonable.” Id. at *102 & n.8 (discussing 

surveys); see also United States v. Bayer Corp., 2015 WL 5822595, at *11, *13 (D. N.J. Sept. 24, 

2015) (role of extrinsic evidence); FTC v. Nat’l Urological Grp., Inc., 645 F. Supp. 2d 1167, 1193 

(N.D. Ga. 2008). Statements of opinion and other subjective claims cannot form the basis for 

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deception liability. See, e.g., Carlay Co. v. FTC, 153 F.2d 493, 496 (7th Cir. 1946) (“[S]uch words 

as ‘easy,’ ‘perfect,’ ‘amazing,’ ‘prime,’ ‘wonderful,’ ‘excellent,’ are regarded in law as mere 

puffing or dealer’s talk upon which no charge of misrepresentation can be based.”); see generally 

Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008). 

In addition, the sophistication of the primary or intended audience must be considered when 

determining whether a purported representation is likely to mislead consumers acting reasonably 

under the circumstances. “When representations or sales practices are targeted to a specific 

audience, the Commission determines the effect of the practice on a reasonable member of that 

group[,] ... judged in light of the knowledge and sophistication of that group.” FTC Deception 

Statement, 1984 WL 565319, at *46-*47. For example, “a practice or representation directed to a 

well-educated group, such as a prescription drug advertisement to doctors, would be judged in light 

of the knowledge and sophistication of that group.” Id. at *47. 

Finally, with respect to the third element, “injury and materiality are different names for the 

same concept.” FTC Deception Statement, 1984 WL 565319, at *50; Cliffdale, 1984 WL 565319, at 

*43 n.11 (accused practices must “be likely to cause injury to be considered deceptive.”). Only 

representations “likely to cause injury to a reasonable relying consumer” are material. Southwest 

Sunsites, 785 F.2d at 1436. “Express” claims may be subject to a light presumption of materiality. 

See Pantron I, 33 F.3d at 1095-96. The Commission has also indicated that, “[d]epending on the 

facts,” objective health and safety claims, claims regarding the central characteristic of the product 

can be presumed material. See FTC Deception Statement, 1984 WL 565319, at *49. Even when 

this light presumption does properly apply, it may be rebutted by the defendant with evidence 

tending to disprove the predicate fact from which it arises or evidence contradicting the initial 

presumption of materiality. See In re POM Wonderful LLC, FTC No. 9344, 2013 FTC LEXIS 6, at 

*121-22 (F.T.C. Jan. 10, 2013). “This is not a high hurdle.” Id. at *122. 

B. FTC’s Burden of Proof as to Permanent Injunctive Relief Under Section 13(b) 

In this case, the FTC is solely seeking a forward-looking permanent injunction under 

Section 13(b) of the FTC Act. To obtain this relief, in addition to establishing “deception” liability, 

the FTC must also prove that DLS is currently violating the Act or is likely to do so in the future. 

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“The text of § 13(b) limits injunctive relief to ‘proper cases[.]’” FTC v. AMG Capital Mgmt., 

LLC, No. 16-17197, 2018 WL 6273036, at *8 (9th Cir. Dec. 3, 2018). The FTC cannot seek an 

injunction unless DLS “is violating, or is about to violate” the FTC Act. 15 U.S.C. § 53(b); see also

AMG Capital, 2018 WL 6273036, at *9 (O’Scannlain, J., specially concurring). “Past wrongs are 

not enough for the grant of an injunction; an injunction will issue only if the wrongs are ongoing or 

likely to recur.” FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985); see also Enrico’s, 

Inc. v. Rice, 730 F.2d 1250, 1253 (9th Cir. 1984). This is true regardless of whether any alleged 

“injury flowing from that violation” may be “continuing today.” Evans Prods., 775 F.2d at 1088. 

De minimis potential ongoing violations are also insufficient to support an injunction. See, e.g., 

FTC v. Amazon.com, No. C14-1038-JCC, 2016 WL 10654030, at *5-6 (W.D. Wash. 2016). 

Permanent injunctive relief under Section 13(b) of the FTC Act requires “proper proof.” 15 

U.S.C. § 53(b). It is therefore the FTC’s burden to show with credible evidence that injunctive 

relief under Section 13(b) is appropriate by establishing, with evidence, that DLS is currently 

violating or is likely to violate Section 5. Evans Prods. Co., 775 F.2d at 1087; CFPB v. Gordon, 

819 F.3d 1179, 1197 n.9 (9th Cir. 2016); see, e.g., Amazon.com, Inc., 2016 WL 10654030, at *4-6 

(“inquiry ... hinges upon whether the FTC has established, with evidence, a cognizable danger of a 

recurring violation”); see also U.S. v. Laerdal Mfg. Corp., 73 F.3d 852, 854 (9th Cir. 1995). 

Where challenged conduct has ceased, courts consider a variety of factors to determine 

whether prospective injunctive relief is warranted, including the degree of the defendant’s scienter, 

the sincerity of the defendant’s assurances against future violations, and the genuineness and 

success of efforts to comply. See FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009); 

see also Sears, Roebuck & Co. v. FTC, 676 F.2d 385, 392 (9th Cir. 1982) (considering “the 

deliberateness and seriousness of the present violation, and the violator’s past record with respect to 

unfair advertising practices.”). 

The FTC must also prove that injunctive relief will remedy the harm alleged and is “in the 

interest of the public.” 15 U.S.C. § 53(b)(1)-(2). In addition, although Section 13(b) relieves the 

FTC of having to prove irreparable injury to obtain a preliminary injunction, see, e.g., FTC v. 

Affordable Media, 179 F.3d 1228, 1233 (9th Cir. 1999), Section 13(b) should nonetheless be 

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construed to require FTC to prove irreparable injury to obtain a permanent injunction. See eBay 

Inc. v. MercExchange, LLC, 547 U.S. 388, 391-92 (2006). 

III. Plaintiff’s Remaining Causes of Action 

A. Count II (PX 1): Old Webpage From Security Advisories Support Website 

 At issue in Count II is a Security Event Response Policy (Exhibit PX 1) that was previously 

available on the “Security Advisories” section of DLS’ technical support website, and which 

provided a link to a form for independent, third-party researchers to report to DLS any security 

concerns they might have with any DLS product. This webpage was never used by DLS for 

marketing purposes, and DLS removed the page from its website three years ago. 

1. The Webpage Was Not Deceptive. 

As an initial matter, the FTC incorrectly asserts that PX 1 must be analyzed in isolation, and 

that the Court should ignore all of the other prominently linked information a visitor to DLS’ 

technical support website would encounter (including the “Vulnerabilities List” and “Report a 

Vulnerability” tabs on PX 1). This is counter to the law, and the FTC’s own Policy Statement, 

which requires examination of “the entire advertisement, transaction, or course of dealing.” 1984 

WL 565319, at *46. The Court should not analyze PX 1 in isolation and should instead consider its 

context and purpose, as well as all of the other information a website visitor would necessarily see 

before encountering PX 1, including the entire Security Advisories series of webpages, 

“Vulnerabilities List,” “Report Vulnerabilities” form, and disclaimers set forth in PX 1. 

The Court should also consider the technical sophistication, knowledge, and experience of 

the intended audience—here, computer “security researchers” and other technicians—as part of the 

“net impression” analysis. See In re Telebrands, 140 F.T.C. 278, 2005 WL 6241018, at *7-8 

(F.T.C. 2005) (“If an ad is targeted at a particular audience, the Commission analyzes ads from the 

perspective of that audience.” (citing Deception Statement, 103 F.T.C. at 178-79)). 

Viewed in full context, DLS’ old webpage was not deceptive in the least. Indeed, the 

statements in PX 1 were (and remain) true—any reported or otherwise discovered potential security 

vulnerabilities are taken seriously and, if validated by DLS, are fixed or otherwise resolved. 

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Any subjective language found within PX 1, like “highest priority” and “serious,” constitute 

nonactionable statements of opinion in any event. See, e.g., Glen Holly Entm’t, Inc. v. Tektronix 

Inc., 352 F.3d 367, 379 (9th Cir. 2003) (“high priority” is “mere ‘puffery’”); In re Yahoo! Inc. 

Customer Data Sec. Breach Litig., No. 16-02752, 2017 WL 3727318, at *26 (N.D. Cal. 2017); 

Lopez v. CTPartners Exec. Search, Inc., 173 F. Supp. 3d 12, 28 (S.D.N.Y. 2016) (“very seriously”). 

To the extent PX 1 impliedly claimed that DLS adhered to “reasonable” practices as the 

FTC asserts (it did not), to meet its burden of proving “unreasonableness,” the FTC must show 

(a) what the applicable standard of care for consumer IP cameras and routers required (and when); 

and (b) deviations therefrom at specific points in time. See Silverpop Sys., Inc. v. Leading Mkt. 

Techs., Inc., 641 F. App’x 849, 852 (11th Cir. 2016) (unpublished); cf. S&H Riggers & Erectors, 

Inc. v. Occ. Safety & Health Review Comm., 659 F.2d 1273, 1282–85 (5th Cir. 1981). The FTC 

cannot do so. As DLS’ fact and expert witnesses will testify at trial, DLS, and its parent company 

D-Link Corporation (“DKC”), on their own and working with third-party security experts and 

vendors, have always voluntarily employed industry-leading security practices. 

2. The Webpage Was Not Material 

The FTC must also establish that the allegedly “deceptive” claims drawn from the “net 

impression” of PX 1 would be important to “reasonable” consumers’ decisions whether to purchase 

DLS’ routers and IP cameras. It cannot, particularly because PX 1’s primary audience was 

technically sophisticated security researchers performing tests on DLS products in search of 

theoretical, undiscovered security vulnerabilities, not ordinary consumers. See Telebrands, 2005 

WL 6241018, at *7-8. Regardless, there is no evidence that any ordinary consumer would review a 

technical support website before deciding to purchase a DLS router or IP camera. 

B. Count III (PX 2-PX 5): Datasheets for Obsolete Routers DLS No Longer Sells. 

The DLS “datasheets” at issue in Count III were created six or more years ago to provide 

information about the features of four obsolete router models (DIR-412, DIR-615, DIR-645, DIR815), all of which DLS stopped selling before the Complaint was filed. The datasheets were long 

ago archived on DLS’ technical support website as historical documentation for discontinued 

products, and have not been used for marketing purposes for years. 

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1. The Datasheets Were Not Deceptive. 

The datasheets (PX2-PX5) at issue were not (and are not) deceptive. They truthfully 

describe the various functions and features of the DLS products at issue, including security-related 

features such as firewalls and WPA2. Any subjective language contained in the datasheets, such as 

“Easy to Secure” and “Advanced Network Security,” cannot form the basis for “deception” liability. 

These are non-actionable statements of opinion about these models of DLS products, as compared 

to prior versions of the products. See Carlay Co., 153 F.2d at 496. Product superiority claims like 

these that are vague or highly subjective are not actionable. See Southland Sod Farms, 108 F.3d at 

1145. As to any implied claims the FTC asserts are made in the datasheets, the Court should not 

artificially analyze the datasheets in isolation and ignore the other information any reasonable 

customer would necessarily see during the purchasing process. 

In any event, the trial will show that the accused routers described in PX 2-PX 5 performed 

as represented. Further, all the theoretical security vulnerabilities identified by or to DLS were 

fixed or otherwise resolved long ago, consistent with industry practice. 

2. The Datasheets Were Not Material. 

The FTC has no evidence—and will not present any at trial—that a single purchaser of the 

DLS routers described in the relevant datasheets noticed, cared about, or relied on the accused 

language in the datasheets in making their purchase decision. Instead, the FTC incorrectly claims 

that the presumption of materiality applies to these datasheets. It does not. Regardless, any such 

light presumption can be rebutted by extrinsic evidence, including survey evidence. See In re POM 

Wonderful LLC, 2013 FTC LEXIS 6, at *121–22. At trial DLS will present expert empirical survey 

evidence showing that the challenged statements are not important to consumers. 

C. Count VI (PX 10-PX 11): Images from Obsolete Setup Displays 

At issue in Count VI are isolated images from obsolete Microsoft Windows Set-Up Wizards 

that end-users would have briefly seen as part of the set-up process for certain DLS IP cameras after 

the product was purchased. The same images also appeared in old DLS user manuals for these IP 

cameras that were archived into DLS’ technical support website long ago. PX 10 was displayed 

during the setup of DLS Business Class IP cameras sold through specialty outlets for use by 

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commercial enterprises for store surveillance, and which were intended to be installed by trained 

professional installers. PX 11 was displayed during the setup of certain consumer IP camera 

models, all of which are no longer sold. Indeed, the old Microsoft Windows Setup Wizard for these 

cameras is not compatible with and cannot be used for any DLS consumer IP cameras manufactured 

after 2015. And to the extent a consumer somehow obtains today an obsolete DLS consumer IP 

camera (made before 2015) and follows the set up instructions that come with the camera, he would 

be prompted to use the “mydlink” mobile application instead of the old Microsoft Windows Setup 

Wizard, and would not see the display images of PX 11. 

1. The Post Purchase Setup Displays Were Not Deceptive. 

Neither PX 10 nor PX 11 can be considered deceptive at all. They simply provide an input 

field for a consumer to set a password for the device during setup. This is particularly true, given 

that the “net impression” of PX 10 and PX 11 must necessarily include the full setup process 

displayed to users, including the disclaimers contained in the End User License Agreements 

(“EULAs”) a consumer would necessarily see and agree to before viewing the challenged images, 

as well as the User Manuals in their entirety. In addition, the Court should also consider the other 

information a consumer would necessarily see during the purchasing and setup process before 

encountering the challenged image. And with respect to PX 10—which was exclusively used for 

commercial business products—the sophistication of the typical intended end-users (professionally 

trained installers and businesses) must also be taken into account. 

In any event, the trial will show that the accused IP cameras performed as represented. To 

the extent there were any potential security issues with the cameras—which there were not—DLS 

fixed the purported issue in June 2013. The FTC’s claim, based on the purported “testing” of one 

camera by an FTC attorney, that potential security issues still exist today is completely 

disingenuous. This “testing” was based on the FTC attorney’s acquisition through a third party of 

an obsolete, discontinued camera, and a process during which the FTC attorney knowingly and 

intentionally, as no reasonable consumer would do, refused to update the camera’s software when 

prompted, which would have immediately corrected the problem that the FTC claims to exist with 

the camera. 

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2. The Post-Purchase Setup Displays Were Not Material. 

The FTC cannot prove that the challenged setup display images—which by definition would 

only be seen post-purchase (either during the initial setup process or in the user manual on DLS’ 

technical support website)—were material to “reasonable” consumers’ decisions to purchase the 

cameras. The popup “disclaimers” survey of PX 11 conducted by the FTC’s expert, Dr. Kent Van 

Liere, does not establish materiality, as the FTC contends. The survey utilized a heavily modified, 

hypothetical setup wizard that did not accurately mirror what actual consumers would have seen, 

and should not be entitled to any weight at all. Cf. DIRECTV, Inc., 2018 WL 3911196, at *10-11 

(rejecting similarly flawed study). Nor does the presumption of materiality apply to these images, 

particularly in their full context. Cybersecurity is not the central characteristic of IP cameras, any 

more than it is for other IoT devices like smart “appliances.” 

D. The FTC Is Not Entitled To a Permanent Injunction Even If DLS Had 

Committed Violations of the FTC Act In The Past. 

Even if the FTC could establish past “deception,” the FTC still cannot show that a 

permanent injunction is appropriate in this case under Section 13(b) of the FTC Act. There is 

simply no evidence that DLS is currently violating or is about to violate Section 5. DLS voluntarily 

ceased each of the practices long before the Complaint was filed. For Count I, DLS removed the 

challenged webpage from its technical support website in 2015. For Count II, DLS stopped selling 

all of the router models described in the relevant datasheets before 2017. For Count VI, no DLS 

mydlink-enabled IP cameras manufactured after 2015 use the obsolete Microsoft Windows Setup 

Wizard at issue—the new setup process does not include the challenged image. 

The security practices used for DLS’ products continue to improve and evolve as technology 

changes, and remain state of the art, as DLS will show at trial. DLS and its parent DKC, on their 

own and in consultation with a third-party security expert, Onward Security, have for years 

voluntarily implemented at great expense security practices that meet or exceed the types of 

practices the FTC appears to request as injunctive relief. Examples of such practices include 

continually adopting new security procedures and using increasingly advanced security testing tools 

to counter emerging security threats; seeking out and hiring the top independent experts to conduct 

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training, perform pre- and post-release testing, and undertake audits; and by undertaking great 

efforts to investigate and resolve reported potential vulnerabilities. 

IV. DLS’ ADDITIONAL DEFENSES 

Even if there was a proper basis for the Court to enter some type of permanent injunction in 

this case, the injunction requested by the FTC is not sufficiently specific to be enforceable under 

Rule 65(d) of the Federal Rules of Civil Procedure, and is inconsistent with the FTC Act and due 

process. See LabMD, Inc. v. FTC, 891 F.3d 1286, 1299-1302 (11th Cir. 2018). 

“Rule 65(d) requires ‘[e]very order granting an injunction’ to ‘state its terms specifically’ 

and to ‘describe in reasonable detail—and not by referring to the complaint or other document—the 

act or acts restrained or required.’” Columbia Pictures Indus. v. Gary Fung, 710 F.3d 1020, 1047-

48 (9th Cir. 2013) (quoting Fed. R. Civ. P. 65(d)(1)(B)-(C)). Specificity is particularly “important 

in the fashioning and enforcement of an injunction consequent to an action brought in district court 

under Section 13(b).” LabMD, 891 F.3d at 1300; see id. at 1299-1303 & n.40. The injunction FTC 

seeks here cannot meet Rule 65(d) and Section 13(b)’s specificity requirements, and would require 

this Court to become the constant arbiter of the appropriateness of ever-changing security practices 

and policies for the next 20 years. 

The relief FTC seeks is also barred by Section 13(b) because it is a mandatory injunction 

that would affirmatively require DLS (and other third parties) to take a number of actions. 

Although the Ninth Circuit has not decided this question yet, see FTC v. Neovi, Inc., 604 F.3d 1150, 

1160 & n.10 (9th Cir. 2010), the FTC Act forecloses this type of relief. This is confirmed by 

Section 13(b)’s purpose: “permit[ing] the Commission to bring an immediate halt to unfair or 

deceptive acts or practices[.]” FTC v. H. N. Singer, Inc., 668 F.2d 1107, 1111 (9th Cir. 1982) 

(citing S.Rep. 93-151, 30-31) (emphasis added); see also Evans Products, 775 F.2d at 1087. 

 Finally, the relief sought by the FTC should be denied because the FTC lacks statutory 

authority under Section 5 and Section 13(b) to pursue it; a permanent injunction is not in the public 

interest as required under Section 13(b); and the FTC cannot prove irreparable harm. 

Case 3:17-cv-00039-JD Document 245 Filed 12/20/18 Page 11 of 12
D-Link Systems’ Trial Brief 11 Case No. 17-cv-00039-JD 

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CERTIFICATE OF SERVICE 

The undersigned certifies that on December 20, 2018, the foregoing document was 

electronically filed with the Clerk of the Court for the UNITED STATES DISTRICT COURT, 

NORTHERN DISTRICT OF CALIFORNIA, using Court’s Electronic Case Filing (ECF) system. 

The ECF system routinely sends a “Notice of Electronic Filing” to all counsel of record who have 

consented to accept this notice as service of this document by electronic means. Any party not 

receiving the Court’s electronic notification will be sent a copy of the foregoing document. 

Dated: December 20, 2018 /s/ John Vecchione

 John Vecchione 

Dated: December 20, 2018 Respectfully submitted, 

CAUSE OF ACTION INSTITUTE 

By: /s/ John Vecchione 

 JOHN VECCHIONE [admitted pro hac vice] 

 

Attorneys for Defendant 

D-Link Systems, Inc.

 (Additional counsel listed on caption page)

Case 3:17-cv-00039-JD Document 245 Filed 12/20/18 Page 12 of 12