As promised, here’s the long version of my perspective on @mattstoller’s thought provoking commentary on Speedway. 1/
First - our enforcement does not happen in a vacuum, nor do we have a universe of perfect choices. There was no dispute that Speedway screwed up its compliance with the original order, and that was unacceptable. 2/
I certainly don’t think, and the majority opinion does not suggest, that Speedway’s behavior was “fine.” The question was how bad was it and what do we do about it. 3/
Here, the vote was NOT between either accepting the $80K Speedway failed to redistribute or accepting more for its failure to comply. 4/
Of course I would want more money from them if we could get it. And I have no doubt FTC staff always wants to recoup as much money for consumers as they can. 5/
But if a company won’t agree to pay more in a settlement, the way to get it is to sue them for contempt. Doing so would be very costly in terms of staff time and agency resources. 6/
And a contempt suit would by no means be guaranteed to succeed, given that Speedway paid 92% of its restitution order originally and the FTC failed to catch the failure to fully distribute the remaining $80K fifteen years ago. 7/
The resources to bring that suit would come out of other cases where we could get much bigger return for consumers. 8/
Let me be clear: in some cases, suing is the right thing to do even if it’s expensive and even if we’re not guaranteed to win. We should bring the hard cases, and the marginal cases, where doing so would help consumers. 9/
The question was whether this is such a case - and for the reasons laid out in the majority opinion (which I will find a link to), I don’t think it was. 10/
So the vote was whether or not to accept this $80K and free up staff to pursue more/bigger/better cases. There was no alternative to get more money without spending substantially more than we could recoup. 11/
Second - in terms of resource management, it matters to me that this case was basically negotiated and developed before four of the five commissioners took office. We didn’t have the opportunity to identify negotiation priorities from the outset. 12/
Going back to the drawing board in a previously negotiated settlement is more resource intensive (and wasteful) than pushing a particular line in negotiations from the outset. 13/
Third - this case is a great example of why I care about our resource limitations. I would like to live in a world where we don’t have to make these difficult decisions, and we can always just sue to get the outcome we want if we can’t negotiate for it. But we don’t. 14/
Fourth - this is also about our authority. @matthewstoller says we should fine people who break the law. I would love to do that! We can’t under the current law. We can disgorge those gains we can show to be illegally gotten, but we can’t issue fines in most cases. 15/
And while we could get in settlement any remedy to which a defendant would agree, the key point is the defendant has to agree. 16/
Putting companies under order that requires them to stop doing bad things, limited as it may sound, is what the law gives us the authority to do. 17/
In sum - I would very much like for Congress to give us a bigger stick, in terms of both remedial authority and staffing resources. But until they do, we will make the tough choices with the resources and options we actually have, not the ones we wish we had. End.
Here’s that promised link: ftc.gov/system/files/d… 10.1/
