Case 2:22-cv-00377-BLW Document 12 Filed 12/02/22 Page 1 of 15
`
`CRAIG J. MARIAM (SBN: 11061)
`cmariam@grsm.com
`GORDON REES SCULLY MANSUKHANI, LLP
`999 W. Main Street, #100
`Boise, ID 83702
`Telephone: (208) 49-9095
`Facsimile: (208) 957-5704
`
`Attorneys for Defendant
`KOCHAVA, INC.
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
`NORTHERN (COEUR D’ALENE) DIVISION
`
`CASE NO. 2:22-cv-00377-BLW
`
`Honorable B. Lynn Winmill
`
`REPLY IN SUPPORT OF MOTION
`TO DISMISS PURSUANT TO FED.
`R. CIV. P. 12(b)(6) [Dkt. 7]
`
`FEDERAL TRADE COMMISSION,
`
`Plaintiff,
`
`vs.
`
`KOCHAVA INC., corporation
`
`Defendant.
`
`___________________________________________
`
`TO THIS HONORABLE COURT:
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`Kochava, Inc. (“Kochava”) hereby respectfully submits its Reply in support of its Motion
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`to Dismiss the Complaint of the Federal Trade Commission (“FTC”) pursuant to Federal Rule of
`
`Civil Procedure 12(b)(6).
`
`/ / /
`
`-i-
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`

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`Case 2:22-cv-00377-BLW Document 12 Filed 12/02/22 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`VII.
`
`SUMMARY OF REPLY .................................................................................................... 1
`
`THE FTC’S OPPOSITION CONFIRMS THE COMPLAINT FAILS TO
`SUFFICIENTLY PLEAD A VIOLATION OF THE FTCA .............................................. 1
`
`A.
`
`B.
`
`The FTC’s Opposition Misrepresents How Federal Law Views Geolocation Data
`and Substitutes Its Interests Over Federal Law....................................................... 1
`
`The FTC Cites Inapplicable and Irrelevant Authorities to Conjure Its FTCA Claim
`in Order to Fabricate a Purported Injury Where None Exists ................................. 3
`
`1.
`
`2.
`
`Patel Is Irrelevant to Geolocation Data And the FTCA .............................. 3
`
`The In Re Facebook, Inc. Cases Are Inapposite to Kochava ...................... 4
`
`C.
`
`The FTC Fails to Link Injury Causation to Kochava’s Business Activities ........... 5
`
`THE FTC FAILS TO SHOW KOCHAVA’S CONDUCT IS LEGALLY UNFAIR ........ 6
`
`THE FTC FAILS TO SHOW KOCHAVA HAD FAIR NOTICE ..................................... 6
`
`THE FTC FAILS TO SHOW AN ONGOING VIOLATION ............................................ 8
`
`THE FTC IGNORES ITS VAGUE REQUEST FOR INJUNCTIVE RELIEF ................. 9
`
`THE FTC MISCHARACTERIZES KOCHAVA’S CONSTITUTIONAL ARGUMENTS
`............................................................................................................................................. 9
`
`VIII. CONCLUSION ................................................................................................................. 10
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`

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`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`eBay Inc. v. MercExchange, LLC,
`547 U.S. 388 (2006) .................................................................................................................... 9
`
`Eichenberger v. ESPN, Inc.,
`876 F.3d 979 (9th Cir. 2017) .............................................................................................. 2, 3, 9
`
`FCC v. Fox Television Stations, Inc.,
`567 U.S. 239 (2012) .................................................................................................................... 6
`
`FTC v. American National Cellular,
`810 F.2d 1511 (9th Cir. 1987) .................................................................................................... 9
`
`FTC v. Neovi, Inc.,
`604 F.3d 1150 (9th Cir. 2010) .................................................................................................. 10
`
`FTC v. Sequoia One, LLC,
`2015 WL 9462082 (D. Nev. Dec. 21, 2015) ............................................................................... 8
`
`FTC v. Vizio, Inc.,
`Dkt. 1, 17-cv-00758 (D.N.J. Feb. 6, 2017) ................................................................................. 8
`
`FTC v. Wyndham Worldwide Corp.,
`799 F.3d 236 (3d Cir. 2015) ....................................................................................................... 6
`
`In re Facebook, Inc. Internet Tracking Litigation,
`956 F.3d 589 (9th Cir. 2020) ...................................................................................................... 4
`
`In re Facebook, Inc., Consumer Privacy User Profile Litigation,
`402 F. Supp. 3d 767 (N.D. Cal. 2019) ........................................................................................ 4
`
`In re Grago,
`2019 WL 1932140 (FTC 2019) .................................................................................................. 7
`
`In re Nickelodeon Consumer Priv. Litig.,
`827 F.3d 262 (3d Cir. 2016) ....................................................................................................... 2
`
`In the Matter of Int’l Harvester Co.,
`104 F.T.C. 949 (F.T.C. 1984) ..................................................................................................... 6
`
`Patel v. Facebook, Inc.,
`932 F. 3d 1264 (9th Cir. 2019) ................................................................................................... 3
`
`-iii-
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`

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`Seila Law LLC v. Consumer Fin. Prot. Bureau,
`140 S. Ct. 2183 (2020) .............................................................................................................. 10
`
`Stasi v. Inmediata Health Grp. Corp.,
`501 F. Supp. 3d 898 (S.D. Cal. 2020) ......................................................................................... 5
`
`Winter v. Natural Res. Def. Council, Inc.,
`555 U.S. 20 (2008) ...................................................................................................................... 9
`
`Statutes
`
`15 U.S.C. § 45(n) ........................................................................................................................ 1, 6
`
`15 U.S.C. § 53(b) ............................................................................................................................ 8
`
`Rules
`
`Fed. R. Civ. P. 12(b)(6)................................................................................................................... 2
`
`Regulations
`
`Black’s Law Dictionary (11th ed. 2019)......................................................................................... 4
`
`Dep’t of Commerce,
`Commercial Data Privacy and Innovation in the Internet Economy: Dynamic Policy
`Framework,
`Dec. 2010 .................................................................................................................................... 8
`
`The White House, Consumer Data Privacy in a Networked World: A Framework for Protecting
`privacy and Promoting Innovation in the Global Digital Economy, Feb. 23, 2021 ................... 7
`
`

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`I.
`
`SUMMARY OF REPLY
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`The FTC raises a menagerie of overtly politicized but factually inept scenarios resulting in
`
`“harms” that rely on a series of bankrupt assumptions every step of the way. The FTC
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`misrepresents repeatedly the legal authorities it cites in order to conjure up an otherwise fictitious
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`harm. None of the cases the FTC cites are remotely relatable to the non-existent harm alleged in
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`the FTC’s Complaint. Every single case the FTC offers involve practices or injuries to consumers
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`already contemplated by more specific laws. The FTC also misconstrues the Federal Trade
`
`Commission Act (“FTCA”) requirements and definitions to its own detriment and further fails to
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`show an ongoing violation based on the face of the FTC’s Complaint. Knowingly or not, the FTC
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`concedes in its Opposition that its Complaint fails to state a claim against Kochava because it fails
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`to cite a single law or authority which proscribes Kochava’s legitimate business practices due to
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`an actual (non-speculative) harm.
`
`II.
`
`THE FTC’S OPPOSITION CONFIRMS THE COMPLAINT FAILS TO
`SUFFICIENTLY PLEAD A VIOLATION OF THE FTCA
`
`The only authorities the FTC cites in Opposition do not interpret (or even mention) the
`
`FTCA or discuss business practices even remotely similar to Kochava’s services. They are
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`unquestionably inapplicable. The FTC fails to allege Kochava (1) causes or is likely to cause
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`substantial injury to consumers; and (2) that Kochava’s practices are not outweighed by the
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`benefits provided. 15 U.S.C. § 45(n).
`
`A.
`
`The FTC’s Opposition Misrepresents How Federal Law Views Geolocation
`Data and Substitutes Its Interests Over Federal Law
`
`The FTC alludes to personally identifiable information by stating that “tracking a phone to
`
`a single-family residence at night reveals the location of the phone owner’s home.” Opp. at 7;
`
`Compl. ¶ 22. The geolocation of a consumer’s home is a far cry from the FTCA’s criteria for
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`substantiating a harm. Nor is the trackability of a cell phone in and of itself objectionable to an
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`ordinary person, as such trackability is a core foundation of every-day convenience, providing the
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`ability for an individual to obtain directions on a map or through GPS navigation, or even simply
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`to locate a lost phone.
`
`The Ninth Circuit adopted an “ordinary person” standard in connection with a federal
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`consumer data privacy law, the Video Privacy Protection Act (“VPPA”). The Ninth Circuit
`
`discussed what constitutes “personally identifiable information” and determined that information
`
`such as an IP address did not qualify because the term includes only information that “readily
`
`permits an ordinary person to identify a particular individual as having watching certain videos.
`
`Eichenberger v. ESPN, Inc., 876 F.3d 979, 985 (9th Cir. 2017) (citing In re Nickelodeon Consumer
`
`Priv. Litig., 827 F.3d 262, 290 (3d Cir. 2016)). The Ninth Circuit stated the “ordinary person” test
`
`better informs video service providers of their obligations under the VPPA, which focuses more
`
`on what information a video service provider discloses, not to what the recipient of that information
`
`decides to do with it. Id. “Personally identifiable information” must have the same meaning
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`without regard to its recipient’s capabilities. Id.
`
`In Eichenberger, the Ninth Circuit held that Plaintiff failed to state a claim under Rule
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`12(b)(6). Id. at 986. Plaintiff, there, alleged the defendant provided his personally identifying
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`information to third parties for purposes of targeting advertising and analytics. Id. at 981. The
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`information that was purported disclosed unlawfully was Plaintiff’s unique device ID and his
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`viewing history. Id. at 985. The Ninth Circuit reasoned that the unique device ID only created a
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`sizeable pool of possible viewers – those who owned that type of device – and did not sufficiently
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`identify Plaintiff individually. Id. at 985-86. Eichenberger is analogous here for analyzing the test
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`of actual harm resulting from disclosure of potentially “personally identifiable information.”
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`Applying the same analysis from Eichenberger to the FTC’s Complaint reveals that the
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`FTC is mistaken as to the federal definition of “personally identifiable information.” Kochava
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`provides anonymized geolocation data associated with a mobile advertising ID (“MAID”). Compl.
`
`at ¶ 10. A MAID consists of 32 hyphen-separated characters associated with a certain device.
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`Under the Ninth Circuit’s “ordinary person” test, it would be nearly impossible to identify the
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`consumer absent additional information or resources. The most the MAID can provide is a pool of
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`Apple/iOS or Google/Android or Microsoft devices without identifying any single individual. The
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`coupling of the geolocation data with the MAID does not readily permit an ordinary person to
`
`identify a particular individual. Eichenberger applied to the FTC’s Complaint shows that Kochava
`
`cannot be responsible as alleged.
`
`B.
`
`The FTC Cites Inapplicable and Irrelevant Authorities to Conjure Its FTCA
`Claim in Order to Fabricate a Purported Injury Where None Exists
`
`None of the allegations raised by the FTC are more than mere conclusory statements. The
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`crux of each illusionary harm (i.e. tracking consumers) requires an unknown third-party to
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`manipulate Kochava’s data utilizing other resources not provided by Kochava.
`
`1.
`
`Patel Is Irrelevant to Geolocation Data And the FTCA
`
`The FTC cites Patel v. Facebook, Inc. as a foundational basis to conjure a privacy right
`
`(where none otherwise exists). Opp., 3. However, Patel did not discuss geolocation data; rather it
`
`discussed a very different privacy right issue – the development of a face template using facial
`
`recognition technology without a user’s consent applying Illinois’ Biometric Information
`
`Protection Act (“BIPA”). See Patel v. Facebook, Inc., 932 F. 3d 1264, 1273 (9th Cir. 2019). As a
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`further overreach, the FTC misrepresents the Patel court as stating “an intrusion into privacy right
`
`by itself makes a defendant subject to liability” when, in fact, the court was squarely focused on
`
`biometric face templates, analyzed under BIPA. Opp. 4. Patel at 1274.
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`2.
`
`The In Re Facebook, Inc. Cases Are Inapposite to Kochava
`
`The FTC further cites to In re Facebook, Inc., Consumer Privacy User Profile Litigation
`
`as another foundational authority. Opp. at 4. This case is not germane because it dealt with the
`
`Cambridge Analytica scandal whereby third-parties were allowed access to users’ information,
`
`without their knowledge, and information regarding user’s friends intended to share with only a
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`limited audience, such as photographs, videos, stated religious preferences, posts, and private one-
`
`on-one messages within Facebook. 402 F. Supp. 3d 767, 779-80 (N.D. Cal. 2019). This was a
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`disclosure of intentionally made private information. Id. 786-87.
`
`The FTC also cites In re Facebook, Inc. Internet Tracking Litigation for the proposition
`
`that an injury occurred here just as when Facebook compiled profiles that included “a user’s
`
`employment history and political and religious affiliations.” 956 F.3d 589, 599 (9th Cir. 2020).
`
`However, there, Facebook was collecting data of its user after they intentionally logged off the
`
`social media platform and compiled their personally identifiable browsing history with user
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`profiles that also revealed an individual’s likes, dislikes, and interests in violation of California
`
`state laws. Id. at 598-99.
`
`Kochava does none of this, nor is there a legitimate allegation anywhere that it does so.
`
`Unlike the Facebook cases, the FTC, here, entirely relies on an assumptive inference about
`
`geolocation data without actually knowing who the person is- or even if the data represents a
`
`human being. For example, the FTC flat out assumes (speculatively) the device is not for a vehicle
`
`or an employer’s device.
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`The FTC also openly admits the geolocation data may1 be used to track consumers by some
`
`other actor using additional tools and resources not provided by Kochava. See Compl. ¶ 8, 20. The
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`1 May is an expression of the existence of a possibility. See Black’s Law Dictionary (11th ed. 2019).
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`FTC never claims this is indeed happening or that an actual harm is occurring. The FTC admits in
`
`its Complaint that Kochava does not track individuals; thus, the Opposition is nothing more than
`
`a contradicted conclusory statement without any meaningful support.
`
`C.
`
`The FTC Fails to Link Injury Causation to Kochava’s Business Activities
`
`The FTC grossly exaggerates the conclusion of what the location data may or may not
`
`reveal about consumers. The FTC wants the Court to believe that “Kochava’s data reveals . . . what
`
`medical condition the consumer suffers from” based on where a consumer seeks “medical help”
`
`as though medical results are being broadcast in real time. Opp. at 5. This is a baseless assumption
`
`that obviates the possibility that the consumer is perhaps visiting another business in the same
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`building, visiting a doctor’s office as a sales representative or vendor, a delivery person, or a
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`multitude of reasons. The FTC provides no facts to support its illogical leap that a geolocation at
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`a treatment center automatically equals an immediate harmful disclosure of a medical condition.
`
`The FTC’s reliance on Stasi v. Inmediata Health Group Corporation is disjointed and
`
`unpersuasive. There, the defendant suffered a data breach resulting in a disclosure of personal and
`
`medical information posted on the internet. Stasi v. Inmediata Health Grp. Corp., 501 F. Supp. 3d
`
`898, 905-06 (S.D. Cal. 2020). This, of course, has nothing to do with the instant matter.
`
`It is axiomatic that a data breach resulting in the disclosure of confidential personal and
`
`medical information would result in a privacy issue. However, the FTC provides zero facts or
`
`reasoning to elucidate how geolocation data is substantively analogous to health records. The FTC
`
`never claims Kochava experienced a data breach or exposed actual health records. Yet, the FTC
`
`claims “Kochava invades consumers’ privacy and causes substantial injury to them by disclosing
`
`such sensitive information” while providing zero authoritative support. Opp. at 5-6.
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`/ / /
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`III.
`
`THE FTC FAILS TO SHOW KOCHAVA’S CONDUCT IS LEGALLY UNFAIR
`
`The FTC’s argument that the 1994 amendment to the FTCA codified a “three part test”
`
`misapprehends plain language and statutory construction. Section 5(n) states that “[t]he [FTC]
`
`shall have no authority . . . to declare unlawful an act or practice on the grounds that such act or
`
`practice is unfair unless the act or practice” satisfies the stated requirements. 15 U.S.C. § 45(n).
`
`This phrase is not a comprehensive definition as the FTC wants this Court to believe. To the
`
`contrary, the phrase is a negative limitation on the FTC’s authority, specifically that the FTC “shall
`
`have no authority” to deem a practice unfair “unless” it satisfies the statutory criteria. Id. (emphasis
`
`added); see also FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 259 (3d Cir. 2015). Indeed,
`
`the same 1980 statement cited by the FTC implies unfairness must be shown because an
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`“[u]njustified consumer injury … by itself can be sufficient to warrant a finding of unfairness . . .
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`but that does not mean every consumer injury is legally ‘unfair’”. See id., at 244; see also In the
`
`Matter of Int’l Harvester Co., 104 F.T.C. 949, 1073 (F.T.C. 1984) (“The [FTC] is not concerned
`
`with trivial or merely speculative harms. … Emotional impact and other more subjective types of
`
`harm [] will not ordinarily make a practice unfair.”).
`
`IV.
`
`THE FTC FAILS TO SHOW KOCHAVA HAD FAIR NOTICE
`
`Due process requires the law to be clear enough that parties can “know what is required of
`
`them so they may act accordingly.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).
`
`Here, however, no statute or regulation gave Kochava fair notice that its business practice was so
`
`deficient that it qualifies as “unfair” conduct under Section 5.
`
`To the contrary, on February 23, 2012, the White House released its Consumer Data
`
`Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in
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`the Global Digital Economy.2 The Privacy Blueprint directed the National Telecommunications
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`and Information Administration (not the FTC) to convene a multistakeholder process to develop
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`legally enforceable codes of conduct that specify how the Consumer Privacy Bill of Rights applies
`
`in specific business contexts. See Privacy Blueprint. The Privacy Blueprint specifically addressed
`
`data brokers and third-parties such as Kochava:
`
`[A] company that uses personal data only to calculate statistics about
`how consumers use its services may not implicate significant
`consumer privacy interests and may not need to provide consumers
`with ways to prevent data collection for this purpose. … data brokers
`and other companies that collect personal data without direct
`consumer interactions or a reasonably detectable presence in
`consumer-facing activities should seek innovative ways to provide
`consumers with effective individual control.
`
`See Privacy Blueprint, at 12-13.
`
`The FTC does not accuse Kochava of failing to provide individual control, or of violating
`
`the Consumer Privacy Bill of Rights concept. The FTC does not controvert Kochava’s position
`
`that the data it collects is with consent from device users and third-party suppliers. See Def. Br. at
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`3, n.1. Instead, the FTC claims that the very activity endorsed by the Executive Branch (seeking
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`innovative ways to provide consumers with effective privacy controls) is now suddenly “unfair”
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`and in need of an injunction. This defies the concept of “fair notice” and the FTC’s reliance on a
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`Third Circuit case dictating that the FTC’s past actions serve as additional information for
`
`companies. See Opp. at 14, n.8.
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`The additional case the FTC cites as support for “fair notice” in fact have little, if anything,
`
`to do with the instant matter. Compare id. with In re Grago, 2019 WL 1932140 (FTC 2019) (case
`
`only involving a data breach as a result of known substandard cybersecurity standards); and FTC
`
`2 See The White House, Consumer Data Privacy in a Networked World: A Framework for Protecting
`privacy and Promoting Innovation in the Global Digital Economy, Feb. 23, 2021,
`https://obamawhitehouse.archives.gov/sites/default/files/privacy-final.pdf (the ‘‘Privacy Blueprint’’).
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`v. Sequoia One, LLC, 2015 WL 9462082 (D. Nev. Dec. 21, 2015) (a written decision exclusively
`
`discussing the procedure for a Motion to Stay a civil proceeding due to a concurrent criminal case);
`
`and FTC v. Vizio, Inc., Dkt. 1, 17-cv-00758 (D.N.J. Feb. 6, 2017) (case involving deceptive
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`representations and concealed monitoring business practices). None of these cases involve data
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`brokers, geolocation data collection, association with MAIDs, and are indisputably irrelevant to
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`Kochava’s business practices.
`
`Further defying the FTC’s belief that Kochava has fair notice, the Department of
`
`Commerce Internet Policy Task Force3 directly endorses the business practices of data brokers:
`
`The social importance and economic value of recent digital
`communications innovations … such as geolocation data collected
`from cell phones and content stored in cloud computing systems,
`cannot be overstated. These
`technologies allow companies
`tremendous flexibility in how they manage and store data, relate to
`customers, and assemble their workforces. They are also providing
`new avenues for everything from forming friendships to organizing
`for political action.
`
`See Dep’t of Commerce Policy Framework at 65.
`
`V.
`
`THE FTC FAILS TO SHOW AN ONGOING VIOLATION
`
`The FTC provides this Court with zero additional allegations and relies on a rule of
`
`grammar rather than a rule of law to support its contention that a violation is ongoing. This is
`
`woefully inadequate. The FTC is only able to obtain injunctive relief if Kochava “is violating, or
`
`is about to violate, any provision of law enforced by the Federal Trade Commission.” See 15
`
`U.S.C. § 53(b); Compl. ¶ 33. A grammatical caveat falls far short. The FTC only cites that the data
`
`was made available on the AWS marketplace and provides zero facts or inferences of other
`
`3 See Dep’t of Commerce, Commercial Data Privacy and Innovation in the Internet Economy: Dynamic
`Policy Framework, Dec. 2010, available at http://www.ntia.doc.gov/report/2010/commercial-data-privacy-
`and-innovationinterneteconomy-dynamic-policy-framework (“Dep’t of Commerce Policy Framework”).
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`platforms where it may or may not be available. Compl. ¶ 9, 12-13, 15. Yet, the FTC concedes in
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`the same breath that the data is no longer publicly available. Compl. ¶ 9, 13.
`
`The FTC’s claim that it needs to undertake discovery in order to assess Kochava’s Privacy
`
`Block feature is a red herring and a bona fide fishing expedition. The Privacy Block and the
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`geolocation data are not related to a specific act or practice that is considered injurious because
`
`geolocation is federally defined as not an intrusion into consumers’ privacy or sensitive
`
`information capable of injuring consumers. See Eichenberger v. ESPN, Inc., 876 F.3d 979, 985
`
`(9th Cir. 2017) (only information that “readily permits an ordinary person to identify a particular
`
`individual” constitutes “personally identifiable information”).
`
`VI.
`
`THE FTC IGNORES ITS VAGUE REQUEST FOR INJUNCTIVE RELIEF
`
`A plaintiff must address (not simply state as threadbare recitals) equitable factors for
`
`granting injunctive relief: (1) irreparable injury, (2) no adequate remedy at law, (3) a likelihood of
`
`success on the merits, (4) the balance of hardship, and (5) the effect on the public interest. eBay
`
`Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The FTC has failed to allege each of these
`
`mandatory factors. Moreover, the FTC cannot allege that an irreparable injury is imminent because
`
`the very basis of the FTC’s theory of harm is the mere possibility of an injury, which may or may
`
`not be irreparable, which is not sufficient; irreparable injury must be likely. Winter v. Natural Res.
`
`Def. Council, Inc., 555 U.S. 20, 22 (2008).
`
`VII.
`
`FTC MISCHARACTERIZES KOCHAVA’S CONSTITUTIONAL
`THE
`ARGUMENTS
`
`The FTC relies on American National Cellular as its basis that its action for injunctive
`
`relief is proper. See Opp. at 19. There, the Ninth Circuit held, “we conclude that the FTC’s current
`
`power to seek injunctive relief pursuant to section 13(b) does not so materially differ from the
`
`power to seek cease and desist orders as to render Humphrey’s Executor inapposite. 810 F.2d 1511,
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`1514 (9th Cir. 1987). However, this was prior to the holding in Seila Law, which described
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`Humphrey’s Executor and the 1935 FTC quite differently: “rightly or wrongly, the [Humphrey’s
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`Executor] Court viewed the FTC (as it existed in 1935) as exercising ‘no part of the executive
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`power,’” but rather at most “‘quasi-legislative or quasi-judicial powers.’” Seila Law LLC v.
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`Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2198 (2020); see id. at 2200 (“unlike the New Deal-
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`era FTC . . . the CFPB Director is hardly a mere legislative or judicial aid.”).
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`The FTC is “conducting civil litigation in the courts of the United States for vindicating
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`public rights” which is an executive power that may not be granted to officers the President cannot
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`appoint, such litigation authority may not be granted to officers the President cannot remove, in
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`order to ensure “control[] [of] those who execute the laws.” Seila Law, at 2197.
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`VIII.
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`CONCLUSION
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`The FTC hyper-sensationalizes the factually irrelevant cases imploring the Court to feel
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`rather than to think in order to further a political agenda instead of protecting consumers.4 The
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`FTC cites a variety of irrelevant cases that do not show Kochava’s business practices are unfair to
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`the degree that they “cause or [are] likely to cause substantial injury to consumers.” See FTC v.
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`Neovi, Inc., 604 F.3d 1150, 1153 (9th Cir. 2010). Every single case the FTC offers involve
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`practices or injuries to consumers already contemplated by more specific laws. The FTC cannot
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`simultaneously argue no specific law is required, then exclusively rely unsuccessfully on cases
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`interpreting entirely unrelated specific laws, and still survive this challenge.
`
`/ / /
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`4 See Caleb Symons, FTC Slams Kochava Over ‘Staggering’ Data-Sharing Practices, Law360 (Nov. 21,
`2022, 6:57 PM), https://law360.com/articles/1551064/print?section=consumerprotection.
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`KOCHAVA INC.’S REPLY IN SUPPORT OF MOTION TO DISMISS [Dkt. 7]
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`

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`Case 2:22-cv-00377-BLW Document 12 Filed 12/02/22 Page 15 of 15
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`Dated: December 2, 2022
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`
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`Respectfully submitted,
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`
`
`By: /s/ Craig J. Mariam
`Craig J. Mariam
`GORDON REES SCULLY MANSUKHANI, LLP
`999 W. Main Street, Suite 100
`Boise, ID 83702
`(208) 489-9095
`cmariam@grsm.com
`
`Attorneys for Defendant Kochava Inc.
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`-11-
`KOCHAVA INC.’S REPLY IN SUPPORT OF MOTION TO DISMISS [Dkt. 7]
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`