Consumer Redress Under Section 13(b) of the FTC Act: Correcting the Record

For nearly 30 years, the Federal Trade Commission (FTC) has sought, and federal courts awarded, monetary redress for consumers in actions brought under Section 13(b) of the Federal Trade Commission Act (FTC Act). This article clarifies what a court can and cannot award in Section 13(b) litigation. More specifically, this article identifies the types of equitable monetary relief that typically are awarded in such actions, and distinguishes between equitable restitution (which may be awarded) and legal restitution (which may not); discusses the concept of ​“tracing”; and explains why disgorgement of a defendant’s net profits generally will be the only proper form and measure of consumer redress in Section 13(b) litigation.