Last week, the U.S. Court of Appeals for the Seventh Circuit cannonballed directly into the roiling waters of debate over the Federal Trade Commission’s enforcement powers, when it determined in a closely-watched appeal that the agency does not have the right to restitution under the primary provision the Commission uses to attack fraud — Section 13(b) of the FTC Act. The decision is certain to lead to other challenges to the agency’s authority, and has set off a high level of speculation about what will happen next.

In Federal Trade Commission v. Credit Bureau Center, the Seventh Circuit held that the FTC could not obtain monetary relief in the form of restitution under Section 13(b). The decision represents a substantial limitation to the FTC’s enforcement power, as the agency previously has sought restitution when bringing deceptive practices claims in federal court.

This is no small deal. Between July 1, 2017 and June 30, 2018, according to the Federal Trade Commission’s 2018 Annual Report on Refunds to Consumers, the FTC’s Bureau of Consumer Protection obtained 114 court orders totaling $563 million and supported refund programs administered by FTC defendants or another federal agency to deliver more than $2.3 billion in refunds to consumers.

The Credit Bureau Center decision comes just six months after the Third Circuit held in FTC v. Shire Viropharma, Inc. that the FTC cannot bring a case under Section 13(b) unless the FTC can articulate specific facts that a defendant “is violating” or “is about to violate” the law. In other words, the Third Circuit’s decision in Shire limits Section 13(b) to cases where the FTC is pursuing injunctive relief for existing or impending conduct but not for activity unlikely to reoccur. Credit Bureau Center goes a good deal further, limiting the type of equitable relief the FTC seeks at the end of a proceeding.

The Shire decision – and other appeals pending before circuit courts focusing on the FTC’s Section 13(b) authority – compelled Commissioner Wilson to note in her May 2019 congressional testimony that “recent decisions have raised questions about our authority that conflict with the clear intent of Congress and long-established case law.” Commissioner Wilson advocated for an interpretation of Section 13(b) that empowers courts to employ a full range of equitable remedies in cases where the FTC has brought actions – including equitable monetary relief.

Whether Congress might be tempted to step in remains unclear, but what is certain is that the Seventh Circuit’s decision invokes a circuit split that will not be resolved unless the ruling is appealed to the Supreme Court.

“An Implied Restitution Remedy Doesn’t Sit Comfortably”

The facts of Credit Bureau Center are straightforward: Credit Bureau Center placed online advertisements for rental properties that did not exist or that they were not permitted to offer. When potential renters responded to the advertisements, company representatives pretended to be owners of the apartments at issue and sent correspondence offering tours if the renters would first obtain a credit report. The company’s own websites were used to obtain the credit reports. Although the websites purported to provide the credits reports free of charge, the consumer was unknowingly enrolled into a credit monitoring service with a monthly charge fee.

The FTC brought suit claiming that Credit Bureau Center acted unlawfully and deceived consumers. In 2017, an Illinois federal court granted summary judgment to the FTC and ordered restitution of $5.2 million to affected consumers. On appeal, Credit Bureau Center disputed the order, contending (among other things) that the lower court had no authority to impose restitution under Section 13(b), which, according to Credit Bureau Center, only permits the agency to seek injunctions against ongoing unlawful activity.

During oral argument before the Seventh Circuit, Credit Bureau Center asserted that a plain reading of Section 13(b) does not support the FTC’s “unbridled, standardless” authority to pursue measures beyond injunctive relief. Counsel for the FTC, on the other hand, argued that the panel should follow the Seventh Circuit’s considerable precedent, which supports the agency’s ability to secure all equitable relief under Section 13(b), including restitution.

In the decision, written by Judge Diane Sykes, the Seventh Circuit held that the FTC does not have authority to seek restitution under Section 13(b) – that section of the statute is limited to injunctive relief. The decision recognized that FTC has long viewed Section 13(b) as allowing for awards of restitution, and that various courts have endorsed that understanding. Indeed, the Seventh Circuit itself, in FTC v. Amy Travel Service, 875 F.2d 564 (7^th Cir. 1989), found that Section 13(b) authorizes restitutionary relief. [Bill MacLeod, who led the prosecution of Amy Travel while FTC Bureau Director, recalls that there was little doubt at the time that the remedial authority in Section 13(b) included all equitable relief a court could order.]

Still, despite three decades of precedent, the court vacated the restitution award and held that Section 13(b) does not permit such relief. The court relied on Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) in reasoning that courts must consider whether an implied equitable remedy is compatible with a statute’s express remedial scheme. Applying Meghrig, the majority concluded that Section 13(b)’s grant of authority to order injunctive relief does not also permit a restitution award, despite thirty years of relevant precedent (“[s]tare decisis cannot justify adherence to an approach that Supreme Court precedent forecloses.”)

The majority undertook a detailed analysis of the FTC’s various enforcement mechanisms, explaining that the FTC adjudicates cases before administrative law judges under its “cease and desist” power inherent in Section 45(b). The FTC also can preemptively resolve whether certain conduct violates the Act through rulemaking – a process that allows for legal and equitable remedies from violators.

The court found that Section 13(b) was different, as it allowed the FTC to forego administrative adjudication or rulemaking and directly pursue an injunction in federal court. But by doing so in this case, the agency sought a remedy – restitution – not mentioned anywhere in the statute. According to the court, the FTC’s argument that Section 13(b) implicitly authorized restitution held no weight.

In sum, reasoning that Section 13(b) allows the FTC to obtain injunctions that halt illegal conduct, not other forms of equitable relief, the court determined that its remedy provision must be limited to negative injunctions. To read the statute in any other way, “would condition the Commission’s ability to secure restitution for past conduct on the existence of ongoing or imminent unlawful conduct” which would be an “illogical implication.”

Tying the FTC’s Hands

In a sharp dissent, Chief Judge Diane P. Wood, joined by two other judges, rebuked the majority both for denying the rehearing en banc and for overturning the long-standing Amy Travel precedent. First, Judge Wood wrote that no recent Supreme Court decision had demanded such a “sea change” and that the majority effectively “tied the hands of a government agency” without the “careful consideration that plenary en banc review would have provided.” The dissent criticized the majority’s effort to “trivialize the fact that eight [ ] sister circuits agree with Amy Travel’s holding.”

Judge Wood wrote that decisions from other circuits subsequent to Amy Travel were thoroughly explained and persuasive. The Seventh Circuit’s rejection of such precedent and refusal to rehear the case en banc constitutes error, Judge Wood reasoned. The majority was unfazed: “We recognize that this conclusion departs from the consensus view of our sister circuits. But when deciding whether we should overturn precedent, “[w]e are not merely to count noses. The parties are entitled to our independent judgment.” Quoting United States v. Hill, 48 F.3d 228, 232 (7th Cir.1995).

Regarding the proper interpretation of Section 13(b), Judge Wood’s dissent lambasted the majority’s reasoning. According to the dissent, the FTC Act provides for a “finely crafted system of enforcement powers and remedies” and the majority’s approach “upends what the agency and Congress have understood to be the status quo for thirty years.” The dissent disputed that the majority adopted a “textualist” view of the statute. “If the text is overwhelming at all,” the dissent reasoned, “I find it overwhelmingly to support the power of the FTC to use any of the tools that Congress gave it . . .”

A close examination of the FTC Act, Judge Wood wrote, reveals that Congress expressly decided to give the agency a “menu” of options: the FTC has the ability to move unilaterally when it uses its rulemaking or cease-and-desist powers, and to act as a party before the court if it seeks a preliminary or permanent injunction. Unambiguously, the dissent then states: “It is not up to us to take away that which Congress gave.”

Judge Wood’s dissent also distinguished the majority’s reading of Meghrig. Even Meghrigdid not purport categorically to exclude an order to make payments from injunctive relief – and that case involved private plaintiffs. The dissent called it “remarkable” that the majority could interpret the decision to impose such a limitation on the relief that a government plaintiff, such as the FTC, could seek. In sum, the dissent concludes that “nothing in Meghrig, and nothing in the cases following Meghrig, comes close to holding that a government agency acting pursuant to express authority to seek injunctive relief cannot ask for a mandatory injunction requiring turn-over of money.”

What’s Next?

Well, that remains to be seen, although it is a safe bet that this is not the final word when it comes to the reach of Section 13(b). Congress could step in and write restitution into the FTC Act, as Commissioner Wilson has suggested. There is likely to be a lot of noise around the Section 13(b) issue following the Seventh Circuit decision and many legislators on both sides of the aisle likely will agree with Chief Judge Wood that reading mandatory equitable powers out of Section 13(b) is not the right result, particularly when dealing with the FTC’s fraud program. And, of course, the majority in Credit Bureau Center would agree that a legislative approach would be the correct course (“[i]t is now well settled that Congress, not the judiciary, controls the scope of remedial relief when a statute provides a cause of action.”).

It also seems likely that the FTC will seek certiorari – how could it not? In fact, the FTC has done it before when a Seventh Circuit decision went against the agency, obtaining a unanimous reversal in FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986). You would imagine that the FTC would be anxious to line up with sympathetic circuits here and resolve this issue once and for all.

A larger concern relates to the “brazen scammers,” as characterized by Chief Judge Wood. Without the threat of having to return ill-gotten gains and redress consumer injury, will their breed proliferate, causing substantial consumer injury? Or, as the majority in Credit Bureau Center seems to contend, should this not be a concern, given that Congress has already thought this through and provided the FTC with all the tools it needs?

And is there a middle ground? In their excellent 2013 Antitrust Law Journal article, former FTC Chairman Tim Muris and Professor Howard Beales in many ways foresaw the current debate and suggested that the FTC and courts work to ensure that there are meaningful limits on the use of Section 13(b) to obtain consumer redress. 79 Antitrust Law Journal No. 1 (2013). Like the majority and minority here, they relied on the language of the statute, but focused their attention on the statute’s authorization limiting the FTC’s ability to seek a “permanent injunction” only in “proper cases.” Their suggestion: “the touchstone for determining a “proper case” is whether a reasonable person would have known that the conduct was dishonest and fraudulent.” In other words, restitution under Section 13(b) should not be pursued in cases in which it would not be available under Section 19.

How this all will shake out remains an open question. In the meantime, expect a torrent of motion practice in Section 13(b) cases. We should also expect the FTC to continue to file Section 13(b) cases seeking restitution in every circuit, except, that is, the Seventh.

If you have additional questions or need assistance, please contact:

John E. Villafranco
(202) 342-8423
jvillafranco@kelleydrye.com

The 7th Circuit Rejects Restitution as a Remedy under Section 13(b) of the FTC Act