Kochava Says Its Affirmative Defenses Give FTC 'Fair Notice' in Privacy Case

Kochava’s affirmative defenses give the FTC “fair notice” of the defenses it will raise, thus satisfying the only pleading standard the 9th U.S. Circuit Court of Appeals “has ever applied to affirmative defenses” and the only standard contemplated by the Federal Rules of Civil Procedure, said the defendant’s opposition to the FTC’s motion to strike (docket 2:22-cv-00377) affirmative defenses Tuesday in U.S. District Court for Idaho in Coeur d’Alene (see 2403070026). The FTC sued Kochava in August 2022 for allegedly selling vast amounts of personal information about millions of people. The agency alleges that the data can reveal a person’s sensitive information, including religious affiliations, sexual orientation and medical conditions, and by selling that data, Kochava invades consumers’ privacy and exposes them to significant risks of secondary harms. The FTC fails to show that Kochava’s defenses could not apply under any set of circumstances, which is the standard to grant the FTC’s motion, said the opposition. The FTC’s “pejorative characterization of Kochava’s ‘laundry list’ of affirmative defenses misses the point that a defendant is required to assert every applicable defense in its responsive pleading, to avoid waiver of same,” it said, citing Morrison v. Mahoney. The court should not strike factually based defenses when Kochava hasn’t had the opportunity to conduct “meaningful discovery,” since discovery may reveal that the defenses “are in fact well-supported,” and the adequacy or inadequacy of the defenses is unclear as a matter of law, the filing said. Kochava asked the court to deny the FTC’s motion to strike in its entirety; if any part of the motion is granted, the defendant requests leave to amend. Kochava also requests a jury trial.