Whether a district court can award monetary relief under § 13(b) of the FTC Act, consistent with separation-of-powers principles

QUESTIONS PRESENTED Two months ago the Seventh Circuit split with eight circuits over a crucial issue that has transformed Federal Trade Commission (“FTC”) enforcement actions. The court held the plain text of the FTC Act’s injunction statute, § 13(b), excludes implied remedies for monetary relief. FTC v. Credit Bureau Ctr., LLC, 937 F.3d 764, 767 (7th Cir. 2019). The Credit Bureau decision openly acknowledged the circuit split it caused. All other circuits to address the issue read § 13(b)’s specifically delineated remedies of forward-looking injunctions as implicit authorization to award equitable monetary relief. Though supposedly grounded in the courts’ inherent equity powers, these monetary awards have proved to be exceedingly punitive, almost unlimited in amount, often imposed jointly and severally, and untethered to procedures, notions of proximate causation, and limitations Congress required elsewhere in the FTC Act. In this case, the Ninth Circuit affirmed a joint and several disgorgement award of almost $24 million, though the individual Petitioners received only a minute fraction of that amount. In a companion FTC action argued and decided by the Ninth Circuit with this case, FTC v. AMG Capital Mgt., et al., 1617197 (9th Cir.), the joint and several award was nearly $1.3 billion. App., infra, 8a. The questions presented are: 1) Whether a district court can award monetary relief under § 13(b) of the FTC Act, consistent with principles; and 2) Whether a monetary disgorgement award under § 13(b) of the FTC Act is a penalty and therefore outside a district court’s inherent equity powers.