IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION FEDERAL TRADE COMMISSION, ) Plaintiff, Vv. Case No.: 14-CV-0815-W-BCW BF LABS INC.., et al., Defendants. DEFENDANTS BF LABS INC., SONNY VLEISIDES, AND DARLA DRAKE’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL EVIDENCE Defendants BF Labs Inc., Sonny Vleisides, and Darla Drake (collectively “Defendants’’) move for leave to file supplemental evidence that was received for the first time by Defendants’ counsel both yesterday morning and this morning, from a consumer who had been attempting to correspond with the Federal Trade Commission. More specifically, at 7:29 a.m. on November 19, 2014, Defendants’ counsel was copied on an email from the consumer to the FTC’s counsel and to the Temporary Receiver, in which the consumer was pleading for someone to respond to his query for information. The email on which Defendants’ counsel was copied also includes an email chain showing the consumer’s repeated attempts to contact the FTC’s counsel and the Temporary Receiver. Then, at 5:46 a.m. on November 20, 2014, the consumer reached out to Defendants’ counsel once again, forwarding a response that the consumer received from the FTC, wherein the FTC copied counsel for the Temporary Receiver, but did not include counsel for the Defendants. After being copied on the email yesterday, Defendants’ counsel replied to “AI,” including to the FTC counsel and the Temporary Receiver, and stated that Defendants’ counsel intended to seek leave to submit the email chain to the Court. The consumer then responded, Case 4:14-cv-00815-BCW Document 167 Filed 11/20/14 Page 1 of 4 stating that he was “happy for the email chain to be submitted as evidence,” and that he was not “approached by anyone or any company legally involved in the court case” and that he expanded his email efforts to include Defendants’ counsel’s email addresses of his “own free will . . . in order to try to gain a response.” In Defendants’ view, the two complete email chains, proposed to be filed as supplemental evidence to Defendants’ Additional Factual Evidence (Doc. No. 155), will assist the Court in determining whether the “extraordinary and drastic remedy” of a preliminary injunction is in the “public’s interest.” See FTC v. Freeman Hosp., 911 F.Supp. 1213, 1227 (W.D. Mo. 1995); see also FTC v. Mktg. Response Group, 1996 WL 420865, at *2 (M.D. Fla. 1996) (stating preliminary injunction standard). These two email chains are highly relevant as to how consumers view the FTC’s approach as well as the FTC’s position that it does not stand in the shoes of consumers when bringing enforcement actions. Defendants therefore respectfully request leave to file a true and correct copy of each of the two complete email chains as supplemental evidence for the Court’s consideration in advance of the preliminary injunction hearing scheduled for November 24, 2014, and for such other and further relief as the Court deems just and equitable. Case 4:14-cv-00815-BCW Document 167 Filed 11/20/14 Page 2 of 4 Respectfully submitted, /s/ James M. Humphrey James M. Humphrey MO # 50200 Michael S. Foster MO # 61205 Miriam E. Bailey MO # 60366 Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, Missouri 64112-1895 Telephone: (816) 753-1000 Facsimile: (816) 753-1536 jhumphrey @ polsinelli.com mfoster @polsinelli.com mbailey @ polsinelli.com Braden M. Perry MO # 53865 Kennyhertz Perry, LLC 420 Nichols Road, Suite 207 Kansas City, MO 64112 Direct: 816-527-9445 Fax: 855-844-2914 braden @kennyhertzperry.com Attorneys for Defendants BF Labs Inc., Sonny Vleisides, and Darla Drake Case 4:14-cv-00815-BCW Document 167 Filed 11/20/14 Page 3 of 4 I hereby certify that on November 20, 2014, a true and correct copy of the foregoing CERTIFICATE OF SERVICE pleading was served by the Court’s ECF system on the following: 49231502.3 Helen Wong Teresa N. Kosmidis Leah Frazier Gregory Ashe Federal Trade Commission 600 Pennsylvania Ave., N.W. Mail Stop CC-10232 Washington DC 20580 202-326-3779 (Wong) 202-326-3216 (Kosmidis) 202-326-2187 (Frazier) hwong @ftc.gov tkosmidis @ftc.gov Ifrazier @ftc.gov gashe @ftc.gov Charles M. Thomas Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106 816-426-3130 charles.thomas @usdoj.gov Attorneys for Plaintiff Bryant T. Lamer Kersten L. Holzhueter Andrea M. Chase Katie Jo Wheeler Lucinda H. Luetkemeyer Spencer Fane Britt & Browne LLP 1000 Walnut Street, Suite 1400 Kansas City MO 64106 816-474-8100 blamer @spencerfane.com kholzheuter @ spencerfane.com achase @spencerfane.com kwheeler @ spencerfane.com lluetkemeyer @ spencerfane.com Attorneys for Temporary Receiver Eric L. Johnson James D. Griffin MO # 33370 Lisa M. Bolliger MO # 65496 Scharnhorst Ast Kennard Griffin, PC 1100 Walnut, Suite 1950 Kansas City, Missouri 64106 Tel: (816) 268-9400 Fax: (816) 268-9409 jgriffin @sakg.com Ibolliger@sakg.com Attorneys for Defendant Nasser Ghoseiri /s/ James M. Humphrey Attorney for Defendants BF Labs Inc., Sonny Vleisides, and Darla Drake Case 4:14-cv-00815-BCW Document 167 Filed 11/20/14 Page 4 of 4