UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

FEDERAL TRADE COMMISSION, CASE NO. 4:14-cv-00815-BCW Plaintiff — Counterclaim Defendant, V.

BF LABS INC., et al.

Defendant — Counterclaim Plaintiff.

FTC’S MOTION TO DISMISS COUNTERCLAIMS

Plaintiff — Counterclaim Defendant, the Federal Trade Commission (“FTC”), pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, moves the Court to dismiss, with prejudice, both counterclaims filed by Defendant-Counterclaim Plaintiff BF Labs Inc.

In support of its motion, the FTC respectfully refers the Court to its Suggestions in Support of its Motion to Dismiss Counterclaims. As explained in the Suggestions, there are three independent bases for dismissing the counterclaims. First, the FTC cannot be sued in tort in its own name under the Federal Tort Claims Act. Second, both counterclaims fall squarely within the Federal Tort Claims Act’s exceptions to the waiver of sovereign immunity. Third, BF Labs has not satisfied the Federal Tort Claims Act’s jurisdictional prerequisite of exhaustion of administrative remedies. For each of these reasons, this Court lacks subject matter jurisdiction to hear BF Labs’ counterclaims, which thus must be dismissed under Fed. R. Civ. P. 12(b)(1). Similarly, the counterclaims fail to state a claim upon which relief may be granted and thus must

be dismissed under Fed. R. Civ. P. 12(b)(6).

1

Case 4:14-cv-00815-BCW Document 272 Filed 03/10/15 Page 1 of 3

Dated: March 10, 2015

Dated: March 10, 2015

Respectfully submitted,

JONATHAN E. NUECHTERLEIN General Counsel

/s/ Gregory A. Ashe Helen Wong, DC Bar #997800

Leah Frazier, DC Bar #492540 Gregory A. Ashe, VA Bar #39131 Jason M. Adler, IL Bar #6295738 Federal Trade Commission

600 Pennsylvania Ave., N.W. Mail Stop CC-10232 Washington, D.C. 20580 202-326-3779 (Wong) 202-326-2187 (Frazier) 202-326-3719 (Ashe) 202-326-3231 (Adler)

Facsimile: 202-326-3768

hwong @ftc.gov

Ifrazier @ftc.gov

gashe @ftc.gov

jadler @ ftc.gov

TAMMY DICKINSON United States Attorney

/s/ Charles M. Thomas

Charles M. Thomas, MO Bar #28522 Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106

Telephone: (816) 426-3130 Facsimile: (816) 426-3165

E-mail: charles.thomas @usdoj.gov

Attorneys for Plaintiff — Counterclaim Defendant FEDERAL TRADE COMMISSION

Z

Case 4:14-cv-00815-BCW Document 272 Filed 03/10/15 Page 2 of 3

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on March 10, 2015, a true and correct copy of the foregoing was filed electronically with the United States District Court for the Western District of Missouri using the CM/ECF system, which sent notification to all parties of interest participating in the CM/ECF system.

/s/ Gregory A. Ashe Attorney for Plaintiff - Counterclaim Defendant Federal Trade Commission

3

Case 4:14-cv-00815-BCW Document 272 Filed 03/10/15 Page 3 of 3