Not All the Spaghetti Sticks: Post-AMG Court Rejects FTC 13(b) Statute Switch

Not All the Spaghetti Sticks: Post-AMG Court Rejects FTC 13(b) Statute SwitchThe week started badly for the FTC when the U.S. District Court for the District of Columbia dismissed its antitrust complaint against Facebook (as well as a similar case brought by the attorneys general of 46 states). And things got a little worse yesterday for the FTC in FTC v. Cardiff – even if news of the decision was well below the fold -- given a federal court ruling that the FTC’s late-breaking theory of monetary damages under the Restore Online Shoppers’ Confidence Act (“ROSCA”) was ill-timed.

As readers of this blog know, we closely followed the aftermath of the Supreme Court’s AMG ruling, especially as it pertains to ongoing FTC actions. And we have seen the FTC make good on its promise to pursue a variety of theories in an attempt to recover monetary penalties intended to redress consumer injury.

In doing so, the FTC has taken varying positions as to whether and how it still seeks monetary remedies: in some cases, the FTC, acknowledging that 13(b) money remedies are no longer available post-AMG, has withdrawn its claim for monetary relief; in others, the FTC requests that the court delay decision on monetary relief in the light of the possibility of future congressional action providing 13(b) monetary powers; and in others still, the FTC has withdrawn its request for 13(b) monetary relief, but attempted to obtain money judgments through another statutory provision.

FTC v. Cardiff fits this third category. Pending in the Central District of California, the FTC attempted to pursue monetary relief post-AMG by way of a different statute: ROSCA. While the court agreed with the FTC that it could have pursued monetary relief under ROSCA, the court found the FTC had waived the right to request such relief in this case.

The court noted that, in the FTC’s Rule 26 disclosures, the Agency had only calculated damages under 13(b), not under ROSCA, and had only disclosed its ROSCA expert after discovery closed (and, conveniently, after AMG was decided). The court concluded that the FTC had forfeited its right to seek monetary relief under the alternate statutory provision, and granted Cardiff’s motion for summary judgment, confirming that the FTC was entitled to no monetary relief.

The court’s Cardiff decision is a significant blow to the FTC. Stephen Cochell, one of the party’s lawyers (who, by the way, has racked up an impressive 13(b) won-lost record), provided the following comment:

The Court's exclusion of evidence for violating Rule 26 sends a signal that the FTC is subject to the same rules as any other litigant in federal court litigation. Overcharging, under-disclosing or late-disclosing information in Rule 26 Disclosures will not be tolerated. The FTC will need to give more thought as to how they are going to establish damages and timely comply with Rule 26.

So while it is not Facebook, the Cardiff case is important for defendants that are already deeply enmeshed in litigation with the FTC. It strongly suggests that courts may not allow the FTC to change its legal theory for damages on such short notice, especially where such a modification could prejudice the defendant.

Coming Up: FTC Commissioners expected to testify before the Energy & Commerce Consumer Protection and Commerce Subcommittee on July 28th.

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Second Circuit Reverses the Commission and Orders Dismissal on 1-800-Contacts

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