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FEDERAL TRADE COMMISSION’S TRIAL BRIEF 

CASE NO. 3:17-CV-00039-JD 

FEDERAL TRADE COMMISSION 

Kevin H. Moriarty (D.C. Bar No. 975904) 

kmoriarty@ftc.gov 

Cathlin Tully (NY Bar) 

ctully@ftc.gov 

Jarad A. Brown (CA Bar No. 294516) 

jbrown4@ftc.gov 

Katherine E. McCarron (D.C. Bar No. 486335) 

kmccarron@ftc.gov 

Laura Riposo VanDruff (D.C. Bar No. 481785) 

lvandruff@ftc.gov 

Brian C. Berggren (CA Bar No. 279279) 

bberggren@ftc.gov 

600 Pennsylvania Avenue NW, Mail Drop CC-8232 

Washington, D.C. 20580 

Telephone: (202) 326-2949 

Facsimile: (202) 326-3062 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

 v. 

D-LINK SYSTEMS, INC., a California 

Corporation, 

Defendant. 

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

FEDERAL TRADE COMMISSION’S 

TRIAL BRIEF 

Final Pretrial Conference 

Date: January 3, 2019 

Time: 1:30 p.m. 

Place: Courtroom 11, 19th Floor 

450 Golden Gate Avenue 

San Francisco, CA 94102 

Judge: The Honorable James Donato 

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Pursuant to Paragraph 4 of this Court’s Standing Order for Civil Jury Trials and the Amended 

Case Management Scheduling Order (ECF No. No. 222), Plaintiff Federal Trade Commission 

(“FTC”) hereby submits this Trial Brief “specifying each cause of action and defense remaining to 

be tried along with a statement of the applicable legal standard.” 

I. INTRODUCTION 

The Federal Trade Commission alleges that D-Link Systems, Inc. (“D-Link”) violated 

Section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 45(a) by falsely 

representing that its routers and Internet-Protocol (“IP”) cameras are secure from unauthorized 

access. The FTC’s Complaint included six counts related to claims of deception and unfairness. 

(ECF No. 1). The Court dismissed three of those counts when it granted in part and denied in part 

D-Link’s motion to dismiss. (ECF No. 90). The remaining counts in the case (Counts II, III, and 

VI) concern allegations of deceptive practices by D-Link.1 The FTC sets forth below the 

misrepresentations in support of, and the legal standard applicable to, the three elements of the cause 

of action for deception. The FTC also addresses the current status of, and legal standards concerning, 

the seventeen affirmative defenses asserted by D-Link in its Answer. (ECF No. 92). 

II. CAUSE OF ACTION 

The FTC’s cause of action for deception is rooted in several misrepresentations by D-Link. 

Specifically, the FTC alleges that D-Link violated Section 5 of the FTC Act by: (a) deceiving 

consumers in its “Security Event Response Policy” posted on its website, which made express 

security representations and implied claims that D-Link took reasonable steps to secure its routers 

and IP cameras from unauthorized access, when in fact it did not (Count II); (b) deceiving consumers 

with brochures marketing its routers as being secure from unauthorized access when, in fact, they 

were (and are) not (Count III); and (c) deceiving consumers with representations in the graphical user 

interface of some of its IP cameras that the setting of a single password would “secure” the device 

 

1

 The FTC moved for summary judgment on liability (ECF No. 178), and D-Link filed a cross-motion 

for summary judgment on relief. (ECF No. 183). The Court denied both parties’ motions in their 

entirety. (ECF No. 223). 

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CASE NO. 3:17-CV-00039-JD 

from unauthorized access and control, when in fact there were and are alternative credentials that 

could and can be used to access the camera feed (Count VI). 

The applicable legal standard for deception is codified at 15 U.S.C. § 45(a): “unfair or 

deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” An act or 

practice is deceptive if: (1) the defendant disseminates a representation (2) that is likely to mislead 

consumers acting reasonably under the circumstances, and (3) the representation is material. See,

e.g., FTC v. Stefanchik, 559 F.3d 924, 928 (9th Cir. 2009); FTC v. Gill, 265 F.3d 944, 950 (9th Cir. 

2001) (citing FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994) (adopting the 

Commission’s deception standard articulated in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 164-65 

(1984)). 

A. Representations 

A representation is an express or implied claim about a product or service. For each of the 

three counts, the FTC alleges deception as to both the express and implied meanings of D-Link’s 

representations. Because express claims unequivocally state the representation, the representation 

itself establishes the meaning of the claim, and thus, a facial analysis is sufficient. Thompson Med. 

Co., 104 F.T.C. 648, 788-89 (1983). Similarly, the Court may conduct its own facial analysis to 

determine the net impression of implied claims. FTC v. US Sales Corp., 785 F. Supp. 737, 745 (N.D. 

Ill. 1992) (citing FTC v. Colgate Palmolive Co., 380 U.S. 374 (1965)). The Court may rely on 

consumer survey evidence or other extrinsic evidence to interpret the express or implied meaning of 

a representation, but, again, it need not do so if the representations are reasonably clear on their face. 

See Kraft, Inc. v. FTC, 970 F.2d 311, 318-19 (7th Cir. 1992); see also Commerce Planet, 878 F. 

Supp. 2d 1048, 1068 (C.D. Cal. 2012) (citing Kraft). 

When interpreting an implied representation, the Court should evaluate “the overall, common 

sense ‘net impression’ of the representation or act as a whole to determine whether it is misleading.” 

FTC v. AMG Servs., Inc., 29 F. Supp. 3d 1338, 1349 (D. Nev. 2014) (quoting Commerce Planet, 878 

F. Supp. 2d at 1063). A representation “capable of being interpreted in a misleading way should be 

construed against” the party making the representation. Simeon Mgmt. Corp. v. FTC, 579 F.2d 1137, 

1146 (9th Cir. 1978) (quoting Resort Car Rental Sys., Inc. v. FTC, 518 F.2d 962, 964 (9th Cir. 1975)). 

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CASE NO. 3:17-CV-00039-JD 

B. Likely to Mislead 

Representations are misleading when they are false. Pantron I, 33 F.3d at 1096. Both express 

and implied claims may violate the FTC Act. Gill, 71 F. Supp. 2d at 1043; FTC v. Figgie Int’l., Inc., 

994 F.2d 595, 604 (9th Cir.1993) (“[Defendant] can point to nothing in statute or case law which 

protects from liability those who merely imply their deceptive claims; there is no such loophole.”). 

Even literally true claims, which create a false impression, can be deceptive under the FTC Act. 

Kraft, Inc., 970 F.2d at 322. 

C. Materiality 

A misleading representation is material if it “involves information that is important to 

consumers and, hence, likely to affect their choice of, or conduct regarding, a product.” 

Cyberspace.com, 453 F.3d at 1201 (quoting Cliffdale Assocs., 103 F.T.C. at 165). Certain types of 

representations are presumptively material, including express claims, Pantron I, 33 F.3d at 1095-96, 

health and safety claims, FTC v. QT, Inc., 448 F. Supp. 2d 908, 960 (N.D. Ill. 2006), claims involving 

purpose, safety, or efficacy, Cliffdale Assocs., 103. F.T.C. at 182, and express or implied claims 

relating to a product’s central characteristics. FTC v. Mortg. Relief Advocates LLC, No. CV-14-

5434-MWF, 2015 WL 11257575, at *2 (C.D. Cal. July 1, 2015). 

III. REQUESTED RELIEF 

The Court may enter a permanent injunction pursuant to Section 13(b) of the FTC Act, which 

provides that “‘in proper cases the Commission may seek, and after proper proof, the court may issue, 

a permanent injunction.’” Commerce Planet, 815 F.3d at 598 (quoting 15 U.S.C. § 53(b)); see also

Pantron I, 33 F.3d at 1102. Section 13(b) gives this Court “broad authority to fashion appropriate 

remedies for violations of the Act. [T]he authority granted by section 13(b) is not limited to the 

power to issue an injunction; rather, it includes the ‘authority to grant any ancillary relief necessary 

to accomplish complete justice.’” Pantron I, 33 F.3d at 1102 (citing FTC v. H.N. Singer, Inc., 668 

F.2d 1107, 1113 (9th Cir.1982)). The Court “has considerable discretion in fashioning suitable relief 

and defining the terms of an injunction.” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 

974 (9th Cir. 1991). 

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If this Court finds that the defendant violated the FTC Act, it has the authority to exercise its 

full panoply of equitable powers, including issuing permanent injunctive relief. See FTC v. Network 

Servs. Depot, Inc., 617 F.3d 1127, 1138, 1141 (9th Cir. 2010). In addition, “[t]he existence of past 

violations may give rise to an inference that there will be future violations; and the fact that the 

defendant is currently complying with the [law] does not preclude an injunction.” SEC v. Murphy, 

626 F.2d 633, 655 (9th Cir. 1980). The Court examines the totality of the circumstances surrounding 

the defendant and its violations in determining the likelihood of future misconduct. Id. Nonexhaustive factors include the degree of scienter involved, whether the unlawful act was isolated or 

recurrent, and the defendant’s recognition of his own culpability and the sincerity of his assurances, 

if any, against future violations. Id. See also FTC v. Magui Publishers, Inc., No. 89-cv-3818, 1991 

WL 90895, at *15 (C.D. Cal. Mar. 28, 1991) (adding for consideration the degree of harm consumers 

suffered from defendants’ unlawful conduct), aff’d, 9 F.3d 1551 (9th Cir. 1993). 

IV. DEFENDANT’S DEFENSES 

D-Link raised 17 affirmative defenses in its Answer. (ECF No. 92). D-Link recently 

informed the FTC that it has abandoned Affirmative Defense Nos. 12, 16, and 17, and does not intend 

to advance Affirmative Defense Nos. 2 or 11, except as they may relate to the type of injunctive relief 

the FTC is seeking. Email from D-Link to FTC (Dec. 11, 2018). Plaintiff’s position is that 

Affirmative Defense Nos. 6, 9, and 11 lack sufficient supporting factual allegations to provide 

Plaintiff with notice. Affirmative Defense Nos. 1, 3, 4, 5, 6, and 7 are denials, not affirmative 

defenses. Finally, Affirmative Defense Nos. 1, 3, and 13 are now moot in view of this Court’s rulings 

and the record developed to date. 

First Affirmative Defense (Plaintiff lacks statutory authority to assert the claims alleged in 

the Complaint). The Federal Trade Commission Act prohibits “unfair or deceptive acts or practices 

in or affecting commerce.” 15 U.S.C. § 45(a)(1). The Complaint asserts three deception counts. As 

such, this purported defense is merely a denial of the Complaint’s assertion of subject matter 

jurisdiction, and not an affirmative defense. Moreover, the Court’s ruling on the Motion to Dismiss 

moots this defense. 

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Second Affirmative Defense (failure to provide constitutionally adequate fair notice of what 

acts or practices Section 5 prohibits or requires). D-Link stated that it has abandoned this defense, 

except to the extent that it is relevant to the type of injunctive relief the FTC is seeking. Please see 

responses to the Fourth and Fifth Affirmative Defenses, below. 

Third Affirmative Defense (failure to state a claim on which relief can be granted). “Failure 

to state a claim is not a proper affirmative defense but, rather, asserts a defect in [Plaintiff’s] prima 

facie case.” Barnes v. AT&T Pension Ben. Plan, 718 F. Supp. 2d 1167, 1174 (N.D. Cal. 2010). See 

also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which 

demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.”). Further, 

the Court’s ruling on the Motion to Dismiss (ECF No. 90) moots this defense. 

Fourth Affirmative Defense (not a “proper case” for relief within the meaning of Section 

13(b) of the FTC Act insofar as any violation of Section 5 that may have occurred was not clear and 

in any event is not likely to recur), and Fifth Affirmative Defense (The FTC is not entitled to 

injunctive relief on conduct that occurred solely in the past). 

Section 13(b) provides in relevant part: “(b) Whenever the Commission has reason to 

believe—(1) that any person, partnership, or corporation is violating, or is about to violate, any 

provision of law enforced by the Federal Trade Commission, and (2) that the enjoining thereof 

pending the issuance of a complaint by the Commission and until such complaint is dismissed by the 

Commission or set aside by the court on review, or until the order of the Commission made thereon 

has become final, would be in the interest of the public—the Commission by any of its attorneys 

designated by it for such purpose may bring suit in a district court of the United States to enjoin any 

such act or practice. . . . . Provided further, That in proper cases the Commission may seek, and after 

proper proof, the court may issue, a permanent injunction.” 15 U.S.C. § 53(b). 

Accordingly, the Federal Trade Commission Act authorizes the FTC to seek, and this Court 

to grant, a permanent injunction and other ancillary relief to promote justice. See Pantron I, 33 F.3d 

at 1102. As explained in Part II, supra, the FTC alleges that D-Link is deceiving and has deceived 

consumers that it has taken reasonable steps to secure its products from unauthorized access (Count 

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II), or that its products were secure from unauthorized access (Counts III and VI). Moreover, D-Link 

IP cameras with known vulnerabilities continue to remain available for sale. 

The Commission need not show that Defendant is likely to engage in the same conduct found 

to be in violation of the law and require injunctive relief, but rather only that similar violations are 

likely to occur. See FTC v. Accusearch, Inc., No. 06-cv-105-D, 2007 WL 4356786, *9 (D. Wyo. 

Sept. 28, 2007) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633-634 (“The mere 

discontinuation of an unlawful practice prior to law enforcement action does not deprive a court of 

the power to grant injunctive relief”)), aff’d, 570 F.3d 1187 (10th Cir. 2009). “[C]essation on the 

part of defendants can hardly be considered voluntary” where the “cessation of conduct occurred 

only after defendants learned that the FTC had commenced an investigation.” FTC v. Triangle Media 

Corp., No. 18cv1388-LAB, 2018 WL 6305675, *1 (S.D. Cal. Dec. 3, 2018) (citing FTC v. Sage 

Seminars, Inc., No. C 95-2854, 1995 WL 798938, at *6 (N.D. Cal. Nov. 2, 1995)). 

Finally, D-Link’s purported defense that the FTC is not entitled to injunctive relief is a 

restatement of its denial in the answer to the complaint, and is not actually an affirmative defense. 

See Barnes, 718 F. Supp. 2d at 1173-1174. 

Sixth Affirmative Defense (contemplated relief would not be in the public interest because 

it would, among other things, harm consumers). Prohibiting deceptive representations in the 

marketing and sale of IP cameras and routers serves the public interest. Moreover, Defendant’s 

assertion raises a question of fact, not an affirmative defense. See Zivkovic, 302 F.3d at 1088 (“A 

defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative 

defense.”). Finally, D-Link’s putative defense is legally insufficient because of its failure to explain 

how relief, which would be fashioned by this Court, could harm consumers and thus it fails to provide 

“fair notice” of the basis of the defense. See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 

1979) (“The key to determining the sufficiency of pleading an affirmative defense is whether it gives 

plaintiff fair notice of the defense.”); FTC v. N. Am. Mktg., No. CV-12-0914, 2012 WL 5034967, at 

*2 (D. Ariz. Oct. 18, 2012) (“Fair notice generally requires that the defendant state the nature and 

grounds for the affirmative defense.”). 

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Seventh Affirmative Defense (Plaintiff cannot prove that any of the alleged statements at 

issue in Counts II, III, and VI were or are material; that any of those alleged statements were or are 

likely to mislead consumers acting reasonably under the circumstances; or that D-Link made the 

representations alleged in paragraphs 31, 34, and 43 of the Complaint). This is not an affirmative 

defense. It is a denial of liability and a question of fact. See Barnes, 718 F. Supp. 2d at 1173; 

Zivkovic, 302 F.3d at 1088. 

Eighth Affirmative Defense (D-Link cannot be held liable for any Section 5 violation and/or 

other unlawful conduct committed by the “popular search engine that can locate devices running 

particular software versions or operating in particular locations” referenced in paragraph 17 of the 

Complaint and/or hackers using this “popular search engine” or by other means) and Ninth 

Affirmative Defense (DLS cannot be held liable for any Section 5 violation, if any, committed by 

nonparties, including third-party vendor/manufacturers). 

D-Link has asked the Court to exclude all evidence regarding a search engine that its own 

senior executives used to assess device vulnerabilities, and it pins liability on third-parties without 

the slightest indication of who the third-parties might be. These positions are untenable. N. Am. 

Mktg., 2012 WL 5034967, at *3 (striking affirmative defense that damage caused by non-parties). 

The defense also declines to explain how the innominate “nonparties” may have been involved other 

than D-Link asserting broadly that it “cannot be held liable for any Section 5 violation, if any, 

committed by nonparties.” D-Link’s failure to explain how the involvement of others relieves them 

of liability fails to provide “fair notice” of the basis of the defense. See Wyshak, 607 F.2d at 827. 

Tenth Affirmative Defense (The alleged statements and claims that allegedly form the basis 

of Plaintiff’s claims are truthful Commercial Speech protected by the First Amendment; were not 

false, misleading, or inaccurate; constituted statements of opinion; and/or constituted nonactionable 

puffery). For commercial speech to receive First Amendment protection, “it at least must concern 

lawful activity and not be misleading.” Retail Digital Network, LLC v. Prieto, 861 F.3d 839, 844 

(9th Cir. 2017) (quoting Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York, 447 

U.S. 557, 566 (1980)). “[A]n affirmative defense, under the meaning of Federal Rule of Civil 

Procedure 8(c), is a defense that does not negate the elements of the plaintiff's claim, but instead 

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precludes liability even if all of the elements of the plaintiff’s claim are proven.” Barnes, 718 F. 

Supp. 2d at 1173. It is a defense on which the defendant has the burden of proof. Id. at 1174 (citing 

Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir. 1988). Here, whether 

Defendant’s representations were misleading are core questions of fact. 

Eleventh Affirmative Defense (Plaintiff’s claims are barred by laches, estoppel, waiver, 

and/or other equitable defenses). D-Link has abandoned this defense, except as it may relate to the 

type of injunctive relief the FTC is seeking. Please see responses to the Fourth and Fifth Affirmative 

Defenses, above. Moreover, D-Link fails to present any factual assertions to support this purported 

defense. An affirmative defense is pleaded sufficiently only where it provides the plaintiff with fair 

notice of the defense asserted. Wyshak, 607 F.2d at 827. 

Waiver,2 laches,3 and estoppel4 are generally unavailable as defenses against a government 

agency in a civil suit to enforce a public right or protect a public interest. See Summerlin, 310 U.S. 

at 416 (“It is well settled that the United States is not bound by state statutes of limitation or subject 

to the defense of laches in enforcing its rights.”); United States Immigration and Naturalization Svc. 

v. HIBI, 414 U.S. 5, 8 (1973) (“As a general rule laches or neglect of duty on the part of officers of 

 

2

 Waiver is not available where a government agency is attempting to enforce an act of Congress. 

Capital Funds, Inc. v. SEC, 348 F.2d 582, 588 (8th Cir. 1965) (finding the Securities and Exchange 

Commission nor its agents can waive violations of federal law, nor may the doctrine of estoppel be 

invoked against the agency); SEC v. Morgan, Lewis & Bockius, 209 F.2d 44, 49 (3d Cir. 1953) 

(same); FTC v. Bronson Partners, LLC, No. 3:04CV1866 (SRU), No. 3:04CV1866, 2006 WL 

197357, at *6 (D. Conn. Jan. 25, 2006) (“The FTC may not waive the requirement of an act of 

Congress”); United States v. Reader’s Digest Ass’n., Inc., 464 F. Supp. 1037, 1043 (D. Del. 1978) 

(holding the equitable defenses of laches, waiver and estoppel had no application because they are 

based on actions taken in the public interest by members of the FTC’s staff), aff’d, 662 F.2d 955 (3d 

Cir. 1981). 

3 “The government is not subject to the defense of laches when enforcing its rights.” United States 

v. Menatos, 925 F.2d 333, 335 (9th Cir. 1991) (citing United States v. Summerlin, 310 U.S. 414, 416 

(1940)); see also Chevron, U.S.A., Inc. v. United States, 705 F.2d 1487, 1491 (9th Cir. 1983) (“The 

government is not bound by . . . laches in enforcing its rights.”); United States v. McLeod, 721 F.2d 

282, 285 (9th Cir. 1983); United States v. Glob. Mortg. Funding, 07-1275, 2008 WL 5264986, at *3 

(C.D. Cal. May 15, 2008). 

4

 Principles of equitable estoppel are generally not available as defenses in a suit brought by the 

government to enforce a public right or a public interest. See INS v. Habibi, 414 U.S. 5, 8 (1973). 

Courts have long held that the government may not be estopped when it acts in its sovereign capacity 

for the benefit of the public unless some egregious injustice would result. Sanz v. U.S. Sec. Ins. Co., 328 F.3d 1314, 1319-20 (11th Cir. 2003) (equitable estoppel available only if affirmative and 

egregious conduct by the government exists). 

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the Government is no defense to a suit by it to enforce a public right or protect a public interest.”) 

(citation omitted); United States v. Weintraub, 613 F.2d 612, 618 (6th Cir. 1979). Defendant must 

establish that the government committed affirmative misconduct going beyond mere negligence, and 

moreover, estoppel will only apply where the government’s wrongful act will cause a serious 

injustice, and the public’s interest will not suffer undue damage by imposition of the liability. 

Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir. 1989). Defendant simply refers to these legal 

doctrines without setting forth the elements of each and without alleging any facts to support these 

defenses. Thus, they fail to provide “fair notice” of the bases of the defense and fail as a matter of 

law. Wyshak, 607 F.2d at 827. 

Thirteenth Affirmative Defense (Neither Plaintiff nor any consumer has suffered any actual 

or likely injury, harm, or economic loss). 

This purported defense roughly tracks the elements of an unfairness claim under the FTC Act. 

See 15 U.S.C. § 45(n) (an act or practice is “unfair” under the FTC Act if it “causes or is likely to 

cause substantial injury to consumers which is not reasonably avoidable by consumers themselves 

and not outweighed by countervailing benefits to consumers or to competition”). The Court 

dismissed the unfairness count of the FTC’s complaint. Therefore, this affirmative defense is moot. 

The FTC need not offer testimony from a consumer who was deceived in order to establish 

deception. Resort Car Rental Sys., 518 F.2d at 964. Neither injury nor economic loss is a required 

element for the remaining deception counts in this case. Cf. CFPB v. Glob. Fin. Support, Inc., No. 

15-CV-02440, 2016 WL 727075, at *4 (S.D. Cal. Feb. 24, 2016) (in a deception case, striking an 

affirmative defense that simply parroted the elements of unfairness under the Consumer Financial 

Protection Act). 

Fourteenth Affirmative Defense (DLS acted at all times with reasonable care and 

competence and/or in accordance with industry standards in the matters alleged in the Complaint) 

and Fifteenth Affirmative Defense (The Due Process Clause of the Fifth Amendment to the U.S. 

Constitution requires use of an objective industry standard of care to determine liability under Section 

5, and Plaintiff cannot prove that DLS’s alleged actions deviated from this constitutionally required 

objective industry standard at specific points in time). 

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FEDERAL TRADE COMMISSION’S TRIAL BRIEF 

CASE NO. 3:17-CV-00039-JD 

The liability standard for the cause of action here is Section 5(a) of the FTC Act, 15 U.S.C. § 

45(a), not some undefined “industry standard.” A representation is “deceptive” under the FTC Act 

if it is likely to mislead consumers and it is material. See Pantron I, 33 F.3d at 1095. 

Dated: December 20, 2018 FEDERAL TRADE COMMISSION 

By: /s/ Kevin H. Moriarty 

Kevin H. Moriarty 

FEDERAL TRADE COMMISSION 

600 Pennsylvania Avenue NW, CC-8232 

Washington, D.C. 20580 

Telephone: (202) 326-2333 

Facsimile: (202) 326-3062 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION

Case 3:17-cv-00039-JD Document 233 Filed 12/20/18 Page 11 of 12
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FEDERAL TRADE COMMISSION’S TRIAL BRIEF 

CASE NO. 3:17-CV-00039-JD 

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/ Kevin H. Moriarty __________________ 

Kevin H. Moriarty 

Case 3:17-cv-00039-JD Document 233 Filed 12/20/18 Page 12 of 12