Gravity Defyer Medical Technology Corp. v. Federal Trade Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GRAVITY DEFYER MEDICAL
TECHNOLOGY CORP., et al.,

Plaintiffs,
Civil Action No. 22-1157 (RDM)
v.

FEDERAL TRADE COMMISSION, et al.,

Defendants.

MEMORANDUM OPINION

This is one of two cases pending before the Court regarding advertisements claiming,

among other things, that “a double-blind study conducted by Olive View UCLA Medical Center”

shows that “patients experienced significant reduction in overall pain with Gravity Defyer

Footwear.” Complaint at 9, Fed. Trade Comm’n v. Gravity Defyer Med. Tech. Corp., No. 22-cv-

1464 (D.D.C. May 25, 2022), ECF No. 1. According to the Federal Trade Commission (“FTC”

or “Commission”), those advertisements are false or deceptive and thus violate the Federal Trade

Commission Act, id. at 18–19; according to Gravity Defyer Medical Technology Corporation

(“Gravity Defyer”) and its founder, Alexander Elnekaveh, the FTC’s concerns are baseless, and

its advertisements constitute constitutionally protected commercial speech, see Complaint at 2,

Gravity Defyer Med. Tech. Corp. v. Fed. Trade Comm’n, No. 22-cv-1157 (D.D.C. July 22,

2022), ECF No. 12.

Before turning to the merits of that dispute, however, the Court must consider the

threshold question of whether the targets of an FTC investigation and subsequent enforcement

action may maintain their own suit against the FTC, where that action amounts to little more than
a defense to an FTC enforcement action. In this case, No. 22-1157, Plaintiffs ask this Court to

“[e]nter a declaratory judgment holding that [the FTC’s] insistence on banning [Plaintiffs’]

speech . . . constitutes a present and ongoing violation of Plaintiffs’ First Amendment rights to

freedom of speech” and “Fifth Amendment due process rights” and to “permanently enjoin[]

Defendants . . . from taking actions to ban [Plaintiffs’] speech.” Id. at 19 (Am. Compl.). In the

FTC’s view, those arguments are properly asserted, if at all, as defenses to the enforcement

action now pending before this Court in Case No. 22-1464. The FTC, accordingly, moves to

dismiss Plaintiffs’ amended complaint in this action. Dkt. 20.

For the reasons explained below, the Court will GRANT the FTC’s motion to dismiss

this action. Dkt. 20.

I. BACKGROUND

For purposes of evaluating the FTC’s motion, the following factual allegations, which are

taken from Plaintiffs’ complaint, are accepted as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011). The Court does not, however, accept the truth of any legal

conclusions that are unsupported by factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009).

Gravity Defyer is a California corporation that sells “high-quality, durable, comfort

footwear,” Dkt. 12 at 4 (Am. Compl. ¶ 1), including shoes with “VersoShock” technology soles,

which, according to Gravity Defyer, “alleviate pain ordinarily induced by the pressure and shock

of the weight-bearing effects of walking and running,” id. at 5–6 (Am. Compl. ¶ 9). Plaintiffs

allege that, in July 2019, the FTC “issued to Gravity Defyer a Civil Investigative Demand

seeking to investigate pain reduction claims made in advertising for [the company’s] footwear

with VersoShock soles.” Id. at 12 (Am. Compl. ¶ 30). Throughout its investigation, the FTC

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raised a series of concerns about the company’s reliance in its advertisements on a study of

VersoShock soles, which was commissioned by Gravity Defyer, id. at 2, and conducted by

researchers at UCLA. See id. at 7–8, 12–14 (Am. Compl. ¶¶ 14–17, 34); see also Dkt. 20-1 at

10. That study concluded that “[p]ain reduction [in participants’ knees, back, ankles, and feet]

was significantly greater in the intervention group”—who wore “unmarked Gravity Defyer shoes

with the VersoShock soles”—than in the “traditional sole group”—who wore “Champion

Anomaly shoes with all brand identifiers removed,” id. at 9 (Am. Compl. ¶¶ 20–21); see also id.

at 10–11 (Am. Compl. ¶¶ 22–25) (summarizing the study’s findings). The FTC, among other

things, expressed concern that the study was “insufficient [in] size” and in “duration;” that the

researchers “fail[ed] to ensure adequate double-blinding;” and that the study “relied solely on

participants’ self-reported pain levels instead of including range of motion or other functional

tests.” Id. at 13 (Am. Compl. ¶ 34).

“In an effort to avoid litigation,” id. at 15 (Am. Compl. ¶ 39), Gravity Defyer and its

founder, Alexander Elnekaveh, offered in a February 15, 2022 letter to apply “qualifying

language . . . to Gravity Defyer’s current advertising,” Dkt. 12-1 at 2 (Ex. A). The FTC replied

two days later, on February 17, 2022, indicating that the proposed language was “unacceptable”

and proposing alternate advertising claims that Gravity Defyer could make about its VersoShock

soles. Id. at 2–3 (Ex. A). In that same letter, the FTC indicated that it “would like to reach a

settlement,” which would “include a monetary component and . . . [an] agreement to a stipulated

order.” Id. at 3 (Ex. A). “If your clients are willing to cease making advertising claims based on

the study,” the FTC’s counsel wrote, “please let us know and we would be happy to discuss the

remaining aspects of the settlement with you.” Id. But those settlement negotiations broke

down, and, on April 22, 2022, the FTC notified Plaintiffs that “the Commission ha[d] voted

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(unanimously) and the case ha[d] been referred to the Department of Justice pursuant to 15

U.S.C. § 56(a)(1).” Dkt. 12-3 at 2 (Ex. C); see also Dkt. 12 at 16 (Am. Compl. ¶ 45).

Four days later, on April 26, 2022, Plaintiffs filed suit in this Court, seeking declaratory

and injunctive relief. Dkt. 1 (Compl.). Among other things, Plaintiffs asked this Court to

declare that the “FTC’s action” (i.e., the February 17th letter indicating an intention to “prohibit

[Plaintiffs] . . . from making any ‘advertising claims that cite or otherwise rely on’ the UCLA

Study”) was “unconstitutional under the First and Fifth Amendments.” Id. at 3 (Compl.)

(quoting Dkt. 1-1 at 3 (Ex. A)). On May 25, 2022, however, the FTC filed an enforcement

action against Gravity Defyer and Elnekaveh in this Court. See Complaint, Fed. Trade Comm’n

v. Gravity Defyer, No. 22-cv-1464 (D.D.C. May 25, 2022), ECF No. 1. In that action, No. 22-

1464, the FTC alleges that Gravity Defyer’s advertising practices violate provisions of the FTC

Act prohibiting “unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C.

§ 45(a), including the “disseminat[ion] [of] any false advertisement,” id. § 52(a). Complaint at

18–20, Fed. Trade Comm’n, No. 22-cv-1464, ECF No. 1. The FTC also alleges that Gravity

Defyer and Elnekaveh are acting in violation of a 2001 FTC Order that prohibited Elnekaveh—

“directly or through any corporation”—from “misrepresent[ing]” either (1) “the existence,

contents, validity, results, conclusions, or interpretations of any test, study or research” or (2)

“that the experience represented by any user testimonial or endorsement of [a] product represents

the typical or ordinary experience of members of the public.” Id. at 5–6 (Compl. ¶¶ 14–15); see

id. at 17–18 (Compl. ¶¶ 29–36).

After the FTC filed the enforcement action, it moved to dismiss Plaintiffs’ original

complaint in this action as moot. Dkt. 9. Shortly thereafter, Plaintiffs filed an amended

complaint in this action, seeking both declaratory relief and an injunction barring the FTC “from

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taking actions to ban [Plaintiffs’] speech based on the UCLA study.” Dkt. 12 (Am. Compl.).

Three days later, Gravity Defyer and Elnekaveh moved to dismiss the FTC’s enforcement action

for failure to state a claim, arguing that the FTC had failed to allege violations of the Federal

Trade Commission Act or the 2001 Order and that the 2001 Order did not, in any event, extend

to Gravity Defyer or to the footwear products it sells. Motion to Dismiss at 18–35, Fed. Trade

Comm’n, No. 22-cv-1464 (D.D.C. July 25, 2022), ECF No. 13-1. On August 2, 2022, this Court

consolidated the two actions and ordered that all future pleadings be filed in the lead case, No.

22-cv-1157. See Min. Order (Aug. 2, 2022). Now before the Court is the FTC’s motion to

dismiss Plaintiffs’ amended complaint in Case No. 22-1157, Dkt. 20.

II. ANALYSIS

A. Injunctive Relief

The Court starts with Plaintiffs’ claim for injunctive relief. As an initial matter, the Court

notes that any claim for injunctive relief relating to the FTC’s now completed investigation is

moot. Plaintiffs do not allege that any cognizable harm suffered as a result of an FTC

investigation is likely to recur, and the Court accordingly lacks jurisdiction to issue injunctive

relief relating to the completed investigation. See City of L.A. v. Lyons, 461 U.S. 95, 105–06

(1983). This, then, leaves Plaintiffs’ request that the Court enjoin the FTC from taking any

prospective “actions to ban [their] speech based on the UCLA study,” Dkt. 12 at 19 (Am.

Compl.), including, presumably, and most notably, continuing to pursue the enforcement action.

“Entitlement to a permanent injunction rests upon [Plaintiffs] showing” four things:

(1) that they have suffered or will imminently suffer an irreparable injury; (2) “that remedies

available at law, such as monetary damages, are inadequate to compensate for that injury;”

(3) “that, considering the balance of hardships between the plaintiff and defendant, a remedy in

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equity is warranted;” and (4) “that the public interest would not be disserved by a permanent

injunction.” Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 694 (D.C. Cir.

2015) (“Morgan Drexen II”) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391

(2006)). “Failing to satisfy any factor is grounds for denying relief.” Id. And “[i]f a less drastic

remedy . . . [is] sufficient to redress [the] injury, no recourse to the additional and extraordinary

relief of an injunction [is] warranted.” Id. (omissions and alterations in original) (quoting

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010)).

The D.C. Circuit’s decision in Morgan Drexen, Inc. v. Consumer Fin. Protection Bureau,

785 F.3d 684 (D.C. Cir. 2015), is particularly instructive here. In that case, Morgan Drexen,

Inc.—a paralegal services company—brought suit for declaratory and injunctive relief against

the Consumer Financial Protection Bureau (“CFPB”) shortly after the CFPB “advised Morgan

Drexen’s counsel via letter that it was considering bringing an enforcement action against the

company.” Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 979 F. Supp. 2d 104, 108

(D.D.C. 2013) (“Morgan Drexen I”). Morgan Drexen alleged that “the provisions of the Dodd-

Frank Act creating and empowering the CFPB” were unconstitutional and asked the Court to

enjoin the CFPB from prosecuting a later-filed enforcement action brought in the Central District

of California. Id. at 109 (internal quotation marks omitted). This Court concluded that

“injunctive relief [was] unwarranted,” id. at 116, and the D.C. Circuit affirmed—at least in part

because “Morgan Drexen could, and did, assert its constitutional challenge to Title X of the

Dodd-Frank Act as a defense in a motion filed in the California district court to dismiss the

Bureau’s enforcement action,” Morgan Drexen II, 785 F.3d at 694.

As the D.C. Circuit explained, before the CFPB filed its enforcement action, Morgan

Drexen lacked an “adequate remedy at law.” Id. (internal quotation marks omitted). At that

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time, “Morgan Drexen’s potential penalties . . . were accumulating daily,” id., and the company

faced the “Hobson’s choice” between “‘continually violat[ing] the . . . law and expos[ing]

themselves to potentially huge liability’ pending agency action ‘or violat[ing] the law once as a

test case and suffer[ing] the injury of obeying the law during the pendency of the proceedings

and any further review,’” id. at 694–95 (omission and alterations in original) (quoting Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)). But, significantly, “Morgan Drexen . . .

was relieved of th[at] Hobson’s choice once the Bureau filed the enforcement action.” Id. at 695.

“At that point, it no longer ‘faced the . . . troubling question of whether it was willing to risk

serious penalties in order to obtain . . . a hearing at all.’” Id. (omissions in original) (quoting CSI

Aviation Servs., Inc. v. U.S. Dep’t of Transp., 637 F.3d 408, 413–14 (D.C. Cir. 2011)).

So too here. Now that the FTC has filed its enforcement action against Gravity Defyer

and Elnekaveh, Plaintiffs can assert their constitutional challenges as defenses to the FTC’s

enforcement action. See Motion to Dismiss at 23, 30–31, Fed. Trade Comm’n, 22-cv-1464

(D.D.C. July 25, 2022), ECF. No. 13-1. To be sure, Gravity Defyer and Elnekaveh only briefly

raise their First Amendment argument in their motion to dismiss the enforcement action. See id.

at 23, 30–31. But that is a strategic choice that Plaintiffs made and, more importantly, it is one

that is easily remedied: If Gravity Defyer and Elnekaveh want to refile their motion to dismiss in

the enforcement action, incorporating all of the First and Fifth Amendment arguments that they

have made in this case, the Court will allow them to do so.

Notwithstanding the ongoing enforcement action and their ability to raise their First and

Fifth Amendment arguments in that proceeding, Plaintiffs maintain that they remain “on the

horns of a dilemma”—namely, whether to “continue with the advertising” and face “increasing

penalties” or to “entirely cease the challenged advertising during the pendency of the FTC’s

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enforcement.” Dkt. 23 at 25 (internal quotation marks omitted). Construed most favorably,

Plaintiffs seem to argue that they will suffer “irreparable harm” while the FTC’s enforcement

action proceeds through its ordinary judicial course. The Court is unpersuaded for several

reasons. First, there is no reason to believe that their defensive lawsuit will proceed—or will

need to proceed—more expeditiously than the FTC’s enforcement action. Plaintiffs have not

sought a temporary restraining order or preliminary injunction in this case, nor have they

explained why—if essential—they could not ask the Court to grant expedited treatment to the

enforcement action.

Second, Plaintiffs have failed to show that they are suffering any ongoing First

Amendment injury. Although Plaintiffs contend that the “suppression of advertising claims[]

‘for even minimal periods of time[] unquestionably constitutes irreparable injury,” Dkt. 23 at 25

(quoting Whitaker v. Thompson, 248 F. Supp. 2d 1, 15 (D.D.C. 2002)), they do not allege that

their speech has, in fact, been “suppress[ed].” To the contrary, Plaintiffs confirm that Gravity

Defer has “chosen [to] continue with the advertising it believes to be substantiated by the UCLA

Study.” Id.

Third, although Plaintiffs argue in their opposition brief that “Gravity Defyer has recently

been contacted by its primary lending bank;” that the bank “informed Gravity Defyer of its

concerns regarding this lawsuit;” and that “the bank said that it will keep monitoring the situation

and . . . might consider withdrawing Gravity Defyer’s line of credit, a move which would force

Gravity Defyer out of business,” id. at 26–27, no such allegation appears in their amended

complaint. Even if it were possible to supplement Plaintiffs’ complaint through an opposition

brief with these additional facts—which it is not, see Singh v. District of Columbia, 55 F. Supp.

3d 55, 70 (D.D.C. 2014)—the bank’s assertion that it will “monitor[] the situation” and “might

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consider withdrawing Gravity Defyer’s line of credit” in the future, Dkt. 23 at 27, does not

support a claim of imminent irreparable injury, Monsanto Co., 561 U.S. at 162–63; see also Wis.

Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (explaining that

irreparable injury must be “both certain and great” and that “[r]ecoverable monetary loss may

constitute irreparable harm only where the loss threatens the very existence of the movant’s

business”).

Finally, absent a showing that Gravity Defyer faces an imminent risk to the very

existence of the business, “the cost and delay associated with modern-day litigation simply does

not establish irreparable harm.” I.A.M. Nat’l Pension Fund Benefit Plan A v. Cooper Indus.,

Inc., 789 F.2d 21, 25 (D.C. Cir. 1986); see also id. (“As the Supreme Court has succinctly put it,

irreparable harm must be ‘greater than the harm suffered by any litigant forced to wait until the

termination of the [proceeding] before challenging interlocutory orders it considers erroneous.’”

(quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 n.13 (1981)). And, even

more to the point, maintaining two lawsuits, rather than one, will only add to the overall cost of

the litigation.

Injunctive relief is an equitable remedy, and nothing in Plaintiffs’ amended complaint or

opposition brief offers any basis to conclude that this action could afford them any meaningful

relief that is not already available in the enforcement action. Thus, like the plaintiffs in Morgan

Drexen, Plaintiffs have an “adequate remedy at law,” which lies in that separate action, 785 F.3d

at 694. The Court will, accordingly, grant the FTC’s motion to dismiss Plaintiffs’ claims for

injunctive relief.

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B. Declaratory Relief

The Court turns, next, to the FTC’s contention that the Court should decline to exercise

jurisdiction over Plaintiffs’ declaratory judgment claims. The Declaratory Judgment Act

provides: “In a case of actual controversy within its jurisdiction . . . any court of the United

States . . . may declare the rights and other legal relations of any interested party seeking such

declaration, whether or not further relief is or could be sought,” and “[a]ny such declaration shall

have the force and effect of a final judgment or decree and shall be reviewable as such.” 28

U.S.C. § 2201(a). The exercise of jurisdiction under the Declaratory Judgment Act is

permissive; the Act “has long been understood ‘to confer on federal courts unique and substantial

discretion in deciding whether to declare the rights of litigants.’” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 136 (2007) (quoting Wilton v. Seven Falls, 515 U.S. 277, 286

(1995)). “In deciding whether to exercise its permissive jurisdiction over declaratory actions, a

court may consider ‘equitable, prudential, and policy arguments.’” Swish Mktg, Inc. v. Fed.

Trade Comm’n, 669 F. Supp. 2d 72, 76 (D.D.C. 2009) (quoting MedImmune, Inc., 549 U.S. at

136).

The D.C. Circuit has enumerated a number of relevant considerations to guide courts in

deciding whether to exercise jurisdiction under the Declaratory Judgment Act, including:

whether [a declaratory judgment] would finally settle the controversy between
the parties; whether other remedies are available or other proceedings pending;
the convenience of the parties; the equity of the conduct of the declaratory
judgment plaintiff; prevention of “procedural fencing;” the state of the record;
the degree of adverseness between the parties; and the public importance of the
question to be decided.

Hanes Corp. v. Millard, 531 F.2d 585, 591 n.4 (D.C. Cir. 1976). The Court need not consider

every factor on this list, nor is the list exclusive. Morgan Drexen II, 785 F.3d at 697.

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The list does, however, focus the inquiry on what matters most: “the usefulness of a declaratory

judgment, the role of such relief in ending the dispute between the parties, and the incentives for

parties’ behavior.” Id.

In this case, the Hanes factors weigh decidedly against exercising jurisdiction over

Plaintiffs’ defensive declaratory judgment action. Most significantly, a declaratory judgment

would add nothing to the efficient resolution of the dispute between the parties. Although a

decision in Plaintiffs’ favor in this action would, in Plaintiffs’ words, “expedit[e] [the]

adjudication of the” enforcement action, Dkt. 23 at 24, permitting Plaintiffs to assert the same

arguments as defenses in the enforcement action would serve the very same purpose. Plaintiffs

do not contest that they can raise their constitutional challenges as defenses in that action—

although they have, to date, done so only in passing. See Motion to Dismiss at 23, 30–31, Fed.

Trade Comm’n, No. 22-cv-1464, ECF. No. 13-1. That concession is important because

“[w]here,” as here, “a pending coercive action, filed by the natural plaintiff, would encompass all

the issues in the declaratory judgment action, the policy reasons underlying the creation of the

extraordinary remedy of declaratory judgment are not present, and the use of that remedy is

unjustified.” Swish Mktg., 669 F. Supp. 2d at 80 (quoting AmSouth Bank v. Dale, 386 F.3d 763,

787 (6th Cir. 2004)); see also Malibu Media, LLC v. Parsons, No. 12-cv-1331, 2013 WL

12324463, at *9 (D.D.C. May 31, 2013) (explaining that the Declaratory Judgment Act is

designed to “give[] a means by which rights and obligations may be adjudicated in cases

involving an actual controversy that has not reached the stage at which either party may seek a

coercive remedy and in cases in which a party who could sue for coercive relief has not yet done

so” (emphases added) (quoting 10B Charles Alan Wright et al., Federal Practice and Procedure

§ 2751 (3d ed. 2013))).

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 Nor is this simply a matter of deciding which of the two cases should proceed, since the

enforcement action provides a forum for Plaintiffs to raise all of the arguments that they seek to

raise in this case, and it provides a forum for the FTC to raise a host of arguments that are not

encompassed by this case. In POM Wonderful LLC v. Fed. Trade Comm’n, 894 F. Supp. 2d 40

(D.D.C. 2012), the Court declined to exercise Declaratory Judgment Act jurisdiction because,

even “if the court resolved the issues [the plaintiff] raised in its declaratory judgment action, the

parties would still have to litigate whether [the plaintiff’s] health claims about its products were

false, misleading, and unsubstantiated in violation of the FTC Act.” Id. at 44. The same is true

here. Adjudicating Plaintiffs’ Declaratory Judgment Act claims would leave unresolved a host

of additional questions posed by the FTC’s enforcement action, such as whether the 2001

Commission Order provides an independent basis for restricting the types of claims that

Elnekaveh—acting either directly or through a corporation—can make in advertisements about

tests, studies, or research. See Complaint at 5–6 (Compl. ¶¶ 14–15), Fed. Trade Comm’n, No.

22-cv-1464.

Plaintiffs argue that much of the precedent discussed above is inapposite because, unlike

in those cases, this case and the enforcement action have been “consolidated before this Court.”

Dkt. 23 at 24. But “consolidation” of cases does not “merg[e] the constituent cases into one,”

Hall v. Hall, 138 S. Ct. 1118, 1125 (2018) (explaining that consolidation “enabl[es] more

efficient case management while preserving the distinct identities of the cases”), and maintaining

the two suits—one filed by Plaintiffs and the other by the FTC—would require the Court to

consider the distinct subset of questions raised by each complaint (and each motion to dismiss),

rather than addressing the issues together as part of the FTC’s enforcement action, see Morgan

Drexen II, 785 F.3d at 697 (“[T]he real question for the court is . . . which [action] will most

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fully serve the needs and convenience of the parties and provide a comprehensive solution of the

general conflict.” (quoting 10B Wright et al., supra, § 2758)). Even more importantly, Plaintiffs

fail to identify any interest that they have in maintaining the two suits that would not be served

equally by raising their arguments as defenses in the enforcement action. As the D.C. Circuit has

observed, “[w]here it is uncertain that declaratory relief will benefit the party alleging injury, the

court will normally refrain from exercising its equitable powers.” Penthouse Int’l, Ltd. v. Meese,

939 F.2d 1011, 1020 (D.C. Cir. 1991).

Turning to “the incentives for [the] parties’ behavior,” Morgan Drexen II, 785 F.3d at

697, the Court concludes that “the equity of the conduct of the declaratory judgment plaintiff”

and the “prevention of ‘procedural fencing’” also weigh against exercising Declaratory Judgment

Act jurisdiction. Hanes Corp., 531 F.2d at 591 n.4. In addressing this factor, Plaintiffs confuse

the merits of their claims (or defenses) with the judicial interest in preventing “procedural

fencing,” arguing that Gravity Defyer acted “equitably” in relying on the UCLA Study in its

advertising. Dkt. 23 at 22. But, as explained above, Plaintiffs can raise their arguments about

the propriety of the UCLA Study in the enforcement action. For present purposes, the question

is only whether permitting Plaintiffs to maintain a separate defensive action, brought in

anticipation of the FTC’s enforcement action, would create incentives for similar “procedural

fencing” in the future, and the answer to that question is “yes.”

As explained above, the FTC notified Plaintiffs on April 22, 2022 that it was “referr[ing]

[the matter] to the Department of Justice,” Dkt. 12 at 16 (Am. Compl. ¶ 45), and Plaintiffs were

aware of an impending enforcement action when they filed suit in this Court four days later, see

Dkt. 1 (Compl.). Cf. Morgan Drexen I, 979 F. Supp. 2d at 118 (finding that this factor weighed

in favor of dismissal where “[the plaintiff] was aware of the likelihood of a Bureau enforcement

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action” at the time it filed suit). Although courts typically take a “dim view of declaratory

plaintiffs who file their suits mere days or weeks before the coercive suits filed by a ‘natural

plaintiff’ and who seem to have done so for the purpose of acquiring a favorable forum,” Swish

Mktg., 669 F. Supp. 2d at 78 (quoting AmSouth Bank, 386 F.3d at 788), a similar principle

applies even absent an allegation of forum shopping. “The anticipation of defenses is not

ordinarily a proper use of the declaratory judgment procedure;” such an approach not only

“deprives the plaintiff of his traditional choice of forum,” but also “provokes a disorderly race to

the courthouse” and invites the filing of suits that are premature or not yet fully ripe for

adjudication. Morgan Drexen II, 785 F.3d at 697 (quoting Hanes Corp., 531 F.2d at 592–93);

see also BASF Corp. v. Symington, 50 F.3d 555, 599 (8th Cir. 1995) (“It is our view that where a

declaratory plaintiff raises chiefly an affirmative defense, and it appears that granting relief could

effectively deny an allegedly injured party its otherwise legitimate choice of the forum and time

for suit, no declaratory judgment should issue.”).

Finally, none of the remaining Hanes factors counsel in favor of exercising jurisdiction

over Plaintiffs’ suit. The “state of the record” is identical in both cases; neither has progressed

past the motion-to-dismiss stage. Hanes Corp., 531 F.2d at 591 n.4. And because “the parties

are equally adverse in both” cases, that factor “do[es] not provide significant weight on either

side of the balance.” Morgan Drexen I, 979 F. Supp. 2d at 119 n.6. Finally, although the First

and Fifth Amendment claims (or defenses) that Plaintiffs seek to raise are—as they assert, Dkt.

23 at 22—“question[s]” of “public importance,” Hanes Corp., 531 F.2d at 591 n.4, they can raise

the same arguments in the enforcement action. Even more importantly, the Court must also

consider “the public interest [in] avoiding a potentially unnecessary decision on constitutional

issues because [Plaintiffs] might prevail in the . . . enforcement action on the basis of one of its

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non-constitutional defenses.” Morgan Drexen II, 785 F.3d at 697; see also Morgan Drexen I,

979 F. Supp. 2d at 119 n.6 (referencing, in the context of this inquiry, the principle that a Court

will “normally . . . not decide a constitutional question if there is some other ground upon which

to dispose of the case” (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984))).

Guided by the Hanes factors, the Court will, accordingly, decline to exercise jurisdiction

over Plaintiffs’ declaratory judgment claim and will grant the FTC’s motion to dismiss Plaintiffs’

claims for declaratory relief.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 20, is hereby

GRANTED. As explained above, the Court will provide an opportunity for Plaintiffs in this

action to refile their motion to dismiss in the enforcement action, more robustly addressing their

First and Fifth Amendment arguments. Plaintiffs shall file a status report in the enforcement

action on or before March 24, 2023, notifying the Court and the FTC whether they intend to do

so and, if they do, proposing a date for refiling that motion. The Court will also close this

docket, will reopen the docket in the enforcement action, and will direct the parties to file any

future pleadings in that docket.

A separate order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: March 20, 2023

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