For companies that use web-monitoring services to identify possible policy violations, is it a reasonable business practice to limit the search parameters to only go back a certain number of years?When it reversed 40 years of appellate precedent by ruling that Section 13(b) does not authorize the Federal Trade Commission to seek monetary relief, the Supreme Court relied not only on the language of Section 13(b), but also on the presence of other provisions in the FTC Act, which expressly allow the FTC to obtain monetary relief for consumers.
The (FTC) is saying ‘we’ve got other tools,’ but what they are hoping for is that Congress will act. —John Villafranco, Partner, Kelley Drye & Warren LLP
At a time when the FTC should be contrite for having been caught for abusing its power, they’re doubling down. —Kevin Thompson, Partner, Thompson Burton PLLCThe Federal Trade Commission’s (FTC) focus on its power to punish continued in recent weeks as it threatened the use of punitive action against its favorite targets. The Commmission’s latest announcement has important implications for industries under its scrutiny, including the direct selling channel.
If the FTC loses this case, the agency will no longer be able to rely on Section 13(b) to obtain an order requiring a wrongdoer to return all of the money it illegally obtained.FTC Commissioner Rohit Chopra, who will leave the FTC after the Senate confirms him as the newly appointed director of the Consumer Financial Protection Bureau, is known as one of the more prolific commissioners. He has spoken and written extensively in his three years on the FTC including, notably, in a November 2020 paper wherein he called the AMG Capital Management v. Federal Trade Commission case an “existential threat to the agency’s ability to hold wrongdoers accountable.” The previous month, in a letter to Congress, Commissioner Chopra, joined by the other four FTC commissioners, described Section 13(b) as the primary tool that the FTC uses to return money to consumer victims, and pleaded for Congress to amend the statute so that it would expressly provide for monetary relief.