Khan must have meant that the agency would simply ignore any Supreme Court decisions it dislikes. It turns out not to be so hard when you ignore the Supreme Court. So, when the FTC bragged in a recent news release about obtaining $21 million “for consumers” in a case involving alleged unfair practices, we wondered just how the agency managed to get such a large award without disgorgement. In a memo sent to FTC staff when she assumed her role, Chair Lina Khan stressed the need to use the agency’s “full set of tools and authorities … post-AMG.”
Since then, the agency has scrambled to find a replacement for its most significant enforcement tool. FTC, when it unanimously held that the statute never allowed the “Commission to seek, and a court to award, equitable monetary relief such as restitution or disgorgement.” Disgorgement was just an illegal power grab. The Supreme Court seemingly put that practice to an end in April, in AMG Capital Management, LLC v.
Yet “disgorgement” awards - the return payment of supposedly illegal gains - became so pervasive that in 2019, for example, courts ordered that $723.2 million be paid to the government in such awards. After all, neighboring sections of the law allow the commission to seek limited monetary penalties, while injunctions normally only prevent future action and do not entail an award of any damages. The Federal Trade Commission (FTC) must be held accountable for its open defiance of the Supreme Court’s directives.įor decades, the FTC relied on a statute authorizing “permanent injunctions” to obtain monetary fines.
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