As the administrative hearing in FTC v. LabMD gets closer to resuming, there have been two developments to note. The first is that LabMD has moved to disqualify Commissioner Edith Ramirez, alleging that she has been “irrevocably tainted and compromised” by her involvement in the FTC’s response to the House Oversight Committee’s investigation of Tiversa.
I do not trust my ability to accurately summarize their arguments with sufficient detail, so I am uploading their motion here (pdf, 9 pp). I think their strongest/most impressive argument involves the appearance of bias. To the extent that any commissioner gets involved in defending FTC against LabMD’s accusations to the House Oversight Committee, it would seemingly create a situation in which it appears that the FTC commissioner is already convinced that they have done nothing wrong – even though LabMD has yet to present its witnesses.
Keep in mind that Commissioner Brill already recused herself from this case. If Commissioner Ramirez is disqualified or recuses herself too, they’d be down to three Commissioners. And given that Commissioner Wright has already expressed concerns about the whole process being stacked in the FTC’s favor, I wonder what might happen.
In another development, LabMD also moved to dismiss the entire case, but I’m guessing that’s just a Hail Mary/leave no stone unturned type of thing that no one really expects to work. The motion is a detailed recap of everything LabMD has been arguing from the beginning of this interminably long case, and the argument is based on lack of due process. If you haven’t kept up with the case, the motion, which is too big to upload to this site, will likely be available on the FTC’s site soon in their files for this case. You can check here for it. You can also search PHIprivacy for my previous coverage of the case. There’s a lot.
I wonder how tempted Judge Chappell might be by now to just dismiss, just to end this never-ending case.