Kochava Uses Wilson's Resignation to Support Dismissal of FTC Complaint
Kochava filed a request for judicial notice Tuesday in U.S. District Court for Northern Idaho in Coeur D’Alene (docket 2:22-cv-00377) using comments from FTC Commissioner Christine Wilson on her plans to resign her post to support its motion to dismiss the FTC’s privacy complaint. The filing followed the FTC’s notice of supplemental authority Feb. 6 in support of its opposition to Kochava’s motion to dismiss (see Ref:2302070037]). Wilson voted with the FTC's Democratic majority in August to authorize the Kochava complaint.
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Kochava’s supplemental request noted a court may take judicial notice “of the existence of newspaper articles,” citing the authority of the 1991 D.C. Circuit decision in Washington Post v. Robinson, in referencing the Tuesday opinion piece by Wilson in The Wall Street Journal explaining her decision to resign from the agency.
Wilson’s commentary referenced staffers’ “discomfort with [Chair Lina] Khan’s means, which involve dishonesty and subterfuge to pursue her agenda.” Kochava quoted Wilson’s “concern” with Khan’s leadership of the commission pertaining to “her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.” Though Khan and Democratic Commissioners Rebecca Slaughter and Alvaro Bedoya “often disagreed” with Wilson, “we respect her devotion to her beliefs and are grateful for her public service,” they said in a joint statement responding to Wilson’s resignation op-ed.
On the FTC's November antitrust enforcement policy statement, Wilson said the agency “could ignore decades of court rulings and condemn essentially any business conduct that three unelected commissioners find distasteful.” Kochava also cited Wilson’s comment that “abuse of regulatory authority now substitutes for unfulfilled legislative desires.”
The FTC sued the Idaho data marketing company in August for allegedly buying and selling geolocation data from “hundreds of millions of mobile devices” that can be used to track individuals from sensitive locations such as reproductive health clinics, temporary shelters and places of worship.
The commission voted 4-1 to file the complaint against Kochava, with then-Commissioner Noah Phillips (R) dissenting, and Wilson voting with the majority. President Joe Biden issued an executive order in July directing Khan to explore steps to “protect consumers’ privacy when seeking information about and provision of reproductive health care services,” citing the overturning of Roe v. Wade. The FTC seeks a permanent injunction, enjoining Kochava from acquiring consumers’ precise geolocation data and selling it in a format that allows entities to track their movements to and from sensitive locations.
In a December reply brief, Kochava said the FTC raises "a menagerie of overtly politicized but factually inept scenarios” that rely on “bankrupt assumptions.” The complaint “fails to state a claim against Kochava because it fails to cite a single law or authority, which proscribes Kochava’s legitimate business practices due to an actual (non-speculative) harm,” the company said.