U.S. Supreme Court Limits The FTC's Power Under § 13(b)

Canadian lawyers are often caught rubbernecking as blockbuster legal battles are duked out in the Supreme Court. Sometimes we watch on with admiration. Other times, we scratch our head. But this time, we stared in awe, as the wreckage of the FTC was hauled away by a resounding 9-0 defeat.

Just recently, the Supreme Court of the United States (SCOTUS) unanimously decided AMG Capital Management, LLC v. Federal Trade Commission, 593 U.S. _ (2021), 2021 U.S. LEXIS 2108. In this case, the FTC was using a power given to it by § 13(b) of the Federal Trade Commission Act (the "Act"), which allowed it to recover money from individuals who violated the Act. The FTC would then return the recovered money to those harmed by the violators. 15 U. S. C. §53(b). Notably, this use of § 13(b) was not novel; the FTC has been doing this for decades.