• by Wendy Davis  @wendyndavis, February 15, 2023

Mobile data broker Kochava, which is currently battling in court with the Federal Trade Commission, is calling the judge's attention to FTC Commissioner Christine Wilson's public accusations against agency head Lina Khan.

In a filing submitted Tuesday, Kochava asked U.S. District Court Judge B. Lynn Winmill in Coeur D'Alene, Idaho, to note a Wall Street Journal column by Wilson, in which she announced her impending resignation and accused Khan of abusing her power.

Wilson claimed in that op-ed that Khan has shown a “willful disregard of congressionally imposed limits on agency jurisdiction,” defied legal precedent, and abused power “to achieve desired outcomes.”

The filing comes in a battle dating to August, when the FTC claimed in a lawsuit that Kochava engaged in an unfair practice by allegedly selling location data that could reveal people's visits to sensitive locations.

On Tuesday, Kochava offered the column to support its earlier argument that the FTC's lawsuit should be dismissed on the grounds that the agency's allegations, even if proven true, wouldn't show that the company violated the FTC Act.

“The 'unfair' practice alleged is not, on its face, a public policy violation by Kochava, nor is the alleged conduct immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,” the company wrote in papers filed in November.

Kochava doesn't spell out in its new papers how Wilson's accusations would be relevant to whether the FTC can prove that Kochava engaged in an unfair business practice.

Wilson herself voted in favor of filing the complaint against Kochava.

Some legal experts expressed skepticism that Wilson's public criticism of Khan would affect the outcome of the lawsuit.

Justin Brookman, director of technology policy for Consumer Reports and former policy director in the FTC's Office of Technology Research and Investigation, says Wilson's op-ed “should have no bearing at all on the litigation.”

Kochava is “working the refs with irrelevant but salacious material,” Brookman says, adding that Wilson's views on Khan's policies aren't relevant to whether Kochava acted unfairly.

Advertising attorney Jeffrey Greenbaum, a partner at Frankfurt Kurnit Klein & Selz, likewise characterized Kochava's new filing as “theatrics.”

“The fact that Commissioner Wilson is resigning from the FTC and has serious policy disagreements with the current FTC's leadership doesn't seem to me to have any bearing at all on the lawsuit,” he says.

“The commission is certainly taking a different approach to enforcement, and is coming up with out-of-the-box ways to address what it perceives as serious harms, but the FTC's unfairness jurisdiction is well established,” he adds.

Winmill is expected to hold a hearing in the case on Tuesday.