Thread by @ProfWrightGMU

I, for one, think the Supreme Court ruled 9-0 against the FTC because "permanent injunctions" does not mean retrospective monetary belief, not because SCOTUS loves fraud. (1/x)

https://twitter.com/FTC/status/1385262746212704260

Truth of the matter is the signs that this was coming have been around a long time and have been largely ignored inside the agency. Guardrails were put up around the fraud program to restrict the use of this authority to a narrow subset of cases. (2/x)

One after another, those guardrails have been blown through: attempts to seek disgorgement in cases that were not pure fraud, attempts to get all revenue from D in cases where the underlying product had real value (3/x)

To be clear, I think Congress should and will "fix" 13(b). But the fix should include guardrails and restrictions to ensure that it is not used to deter proconsumer behavior. And it absolutely should not be "fixed" to apply retroactively. (4/x)

Kobayashi and Cooper have a nice paper discussing these issues and a fix to 13(b) that would focus the equitable monetary relief on consumer harm, as it should be.
papers.ssrn.com/sol3/papers.cf…

(5/x)

A fun side point: SCOTUS 9-0 decision that the FTC successfully used an authority it didn't ACTUALLY have to get billions of dollars on behalf of consumers is in some serious tension with the narrative from FTC critics that this is a weak and feckless agency! (6/x)

The FTC will some have authority to get equitable monetary relief. It should be focused on consumer harm in the appropriate set of cases (pure fraud). It will take a bit of time to get it right. But this should and will happen. (7/x)

But it is not a surprise in any way that FTC efforts to expand the authority to inappropriate cases or to take all revenue rather than the harm caused by the deception have resulted in some pushback from the courts. (8/x)

I will close with my very unpopular view that FTC v AMG is not after all a story about how SCOTUS loves fraud, but rather one about agency overreach over time that provides some lessons for Congress and the FTC. (9/9)