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ARTICLE · 04 NOVEMBER 2019

Seventh Circuit Curtails FTC's Authority To Seek Restitution

Jones Day
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FTC Act Section 5 authorizes the FTC, following a hearing, to order a person or corporation to cease and desist from using any unfair method of competition.

United StatesConsumer Protection
Geoffrey Oliver
Geoffrey Oliver
Paula Render
Paula Render
Pamela Taylor
Pamela Taylor
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In Short

The Situation: Overruling its precedent, the United States Court of Appeals for the Seventh Circuit held that the Federal Trade Commission ("FTC") may not seek restitution under FTC Act Section 13(b) because the statute, which permits the FTC to obtain injunctions, does not explicitly contemplate restitution.

The Impact: This decision will limit the FTC's ability to collect monetary remedies for past conduct that violated antitrust or consumer protection laws. The FTC has obtained monetary remedies in amounts as high as $1.2 billion.

Looking Ahead: The FTC has the option either to file a petition for certiorari with the Supreme Court to try to overturn this decision, or to restrict actions seeking monetary remedies under Section 13(b) to other circuits in the hope that those courts would not follow the Seventh Circuit. Even if the FTC chooses not to seek Supreme Court review in this case, another party might do so in a future case.

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