1 PUBLIC UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES In the Matter of ) ) TELEBRANDS CORP., ) a corporation, ) ) TV SAVINGS, LLC, ) A limited liability company, and ) Docket No. 9313 ) AJIT KHUBANI, ) Individually and as president of ) Telebrands Corp. and sole member ) of TV Savings, LLC. ) ______________________________________ ) RESPONDENTS' MEMORANDUM IN SUPPORT OF THEIR MOTION IN LIMINE TO EXCLUDE THE TESTIMONY AND REPORT OF MICHAEL B. MAZIS, PhD.
Respondents Telebrands Corporation, TV Savings, LLC and Ajit Khubani hereby request that the Court enter an order prohibiting Complaint Counsel from introducing the testimony of Michael B. Mazis, PhD, and the consumer survey on which he relied, at the hearing in this case, if any. 1 INTRODUCTION AND SUMMARY In this deceptive advertising case, Dr. Mazis is being offered to present the overall opinion that the Ab Force advertising makes the following claims that Ab Force users will experience weight loss, fat loss and inch loss that the Ab Force is an effective alternative to volitional exercise and that use of the Ab Force will give consumers “six-pack abs Dr. Mazis bases this opinion on a so-called facial analysis and on a separate consumer survey. However, both the facial analysis and the consumer survey are utterly unreliable, fall well short of the standards for admissible evidence set forth in Commission decisions and rules and in relevant federal case law, and thus should be excluded. Dr. Mazis’ facial analysis is nothing more than Dr. Mazis’ bald conclusion that the advertising makes the challenged claims, and is unreliable for several reasons. First, Dr. Mazis arrived at this interpretation of the advertising through his 1 Respondents have previously filed a Motion for Summary Decision which is currently pending before this Court. As discussed in that motion, and as discussed in the Opposition to Complaint Counsel’s Cross-Motion for Summary Decision, if Complaint Counsel is to prove its case, they must do so through reference to extrinsic evidence. Complaint Counsel has recognized that it has this burden. However, the extrinsic evidence Complaint Counsel intends to rely on – the opinions of Dr. Mazis and the consumer on which he rests many of those opinions – is inherently unreliable and is inadmissible as evidence. Consequently, if this motion is granted, Respondents Motion for Summary Decision should also be granted.
3 unarticulated expertise in advertising, but Dr. Mazis himself admits that his expertise in interpreting advertising claims is no greater than that of an ordinary consumer – in other words, not expert at all. Second, Dr. Mazis offered his interpretation only after consulting with Complaint Counsel and reviewing the Complaint in this matter, drawing the objectivity of such interpretation into grave doubt. Third, Dr. Mazis has done absolutely no testing to support his opinion that the Ab Force advertising exploited consumers perceptions about ab belts, thereby causing consumers to perceive advertisements for the Ab Force as making the challenged claims. This is, at bottom, the very worst kind of ipse dixit evidence rejected by the Commission and by federal courts, and consequently should be excluded from the hearing. The consumer survey on which Dr. Mazis bases much of his testimony should also be excluded, as should the opinions drawn from that survey. Dr. Mazis’ own testimony reveals that the survey is rife with numerous fundamental methodological flaws The survey fails to control for – or even inquire into – the basic fact alleged in the Complaint that prior exposure to three particular infomercials for EMS ab belts (Ab Energizer, AbTronic and Fast Abs) was utilized by the Respondents to incorporate into their advertising claims never expressly made for Ab Force; • The survey control advertisement utilized ineffective controls because it did not cleanse all of the elements cited by Dr. Mazis as leading to perceptions of the challenged claims; • The control group had, in Dr. Mazis’ words, a relatively high proportion of respondents (over 40%)” who reported weight loss and six-pack ab claims, claims that should have been controlled by the exclusion of the cleansed elements
4 – but rather than recognize that this was the result of bias, Dr. Mazis explains it away as resulting from preconceptions – which begs the question By defining the population, in part, by screening for people who had purchased a product for weight loss Dr. Mazis fails to properly represent people who exercise and most especially, people looking fora stomach or muscle massage, not all of whom are necessarily interested in weight loss, and biases the study toward a finding that weight loss was an included claim There were inherent flaws in several survey questions that injected a bias into the survey results because they had the effect of leading participants and • The decision by Dr. Mazis to drop 81 respondents for no apparent reason resulted in the results being exaggerated. Because the consumer survey is hopelessly flawed, and the trustworthiness of the survey compromised by Complaint Counsel's heavy involvement in designing the survey, the results obtained are wholly unreliable and the opinions based on those results are equally unreliable and should be excluded. Dr. Jacob Jacoby, a leading expert in the field of advertising surveys and scientific standards, has identified these flaws and explained their fatal impact on the survey in an accompanying declaration. But this Court need not rely on Dr. Jacoby’s conclusions in order to determine that the survey is inadmissible. Rather, the Court’s function as gatekeeper, guided by the standards set forth in the law, requires this conclusion.