In the wake of the Supreme Court's opinion in Liu v.
SEC, lower courts are starting to address the breadth of its
applicability. On August 31, 2020, the District of Arizona welcomed
the Supreme Court's directives in Liu when denying
Electronic Payment Solutions of America Inc.'s (EPS) bid for
summary judgment against the FTC. To the extent other courts read
Liu as similarly applicable, this could have broad
implications for the FTC's authority to obtain monetary
relief.
In FTC v. Electronic Payment Solutions, No.
17-cv-2535-PHX-SMM (D. Ariz. Aug. 31, 2020), the FTC filed suit
against EPS for playing a role in facilitating Money Now
Funding's alleged telemarketing scheme, and sought to recover
approximately $4.67 million from EPS—the total amount EPS
collected from credit card transactions for Money Now Funding minus
refunds and chargebacks. EPS moved for summary judgment on the
grounds that, in light of Liu, the FTC's monetary
claim should be limited to net profits.
