Earlier this month, the U.S. Supreme Court agreed to hear a pair of cases that provide it with the opportunity to severely restrict the Federal Trade Commission’s (“FTC’s”) authority to obtain equitable money relief in consumer protection enforcement actions, including privacy and cybersecurity matters. Under Section 13(b) of the FTC Act, in certain circumstances the FTC is empowered to bring actions in federal court to seek temporary restraining orders and injunctions for violations of the Act. In two consolidated cases, FTC v. Credit Bureau Center, LLC and AMG Capital Management, LLC v. FTC, the Supreme Court will now consider whether, as the FTC claims, this provision also authorizes the agency to seek equitable money relief for such violations, even though the provision makes no mention of money relief. The decision will have broad implications because the FTC has relied on Section 13(b) to seek monetary relief in consumer protection enforcement actions, including privacy and cybersecurity matters. A ruling against the FTC could substantially alter the FTC’s approach to privacy and cybersecurity enforcement.
The FTC’s privacy and cybersecurity enforcement actions typically rely on Section 5 of the FTC Act, which prohibits unfair or deceptive trade practices. The FTC takes the position that a failure to implement “reasonable” cybersecurity or privacy practices can constitute an “unfair” practice, and that making false or misleading statements about such practices can be a “deceptive” trade practice under the statute.
The FTC can enforce Section 5 in two ways. First, it can rely on its traditional administrative enforcement authority, which allows the FTC to initiate an administrative proceeding to issue an order to “cease and desist” violations of Section 5, but only provides for monetary relief in limited circumstances. Second, in certain situations the FTC can sue directly in federal court under Section 13(b) of the FTC Act. Although Section 13(b) authorizes only “injunctions,” the FTC often brings cases under this section in federal court seeking monetary relief under equitable doctrines such as restitution, disgorgement and rescission of contracts.
Until recently, courts universally accepted the FTC’s expansive view that its authority under Section 13(b) to obtain “injunctions” enables it to seek equitable monetary relief. But that has begun to change. In Credit Bureau, the Seventh Circuit rejected the FTC’s position that Section 13(b) authorizes monetary relief on the ground that an implied equitable monetary remedy would be incompatible with the FTC Act’s express remedial scheme. Most notably, the court observed that the FTC Act has two detailed remedial provisions expressly authorizing equitable money relief if the FTC follows certain procedures. The FTC’s broad reading of Section 13(b) would allow the agency to circumvent these conditions on obtaining equitable money relief, contrary to the intent of Congress. And in AMG Capital Management, although the Ninth Circuit considered itself bound to follow its prior precedent allowing the FTC to obtain money relief under Section 13(b), two of the three panel members joined a special concurrence arguing that this position is “no longer tenable.” And a decision from the Third Circuit last year, while not addressing whether the FTC is barred from pursuing money relief under Section 13(b), held that to pursue such relief the FTC must, at a minimum, allege facts plausibly suggesting that the company “is violating, or is about to violate,” the law.
If the Supreme Court restricts or eliminates the FTC’s pursuit of equitable money relief under Section 13(b), its decision would represent a significant setback for the FTC’s recent attempts to expand its remedial authority in privacy and cybersecurity cases, among others. In June 2018, medical laboratory LabMD obtained the first-ever court decision overturning an FTC cybersecurity enforcement action, convincing the Eleventh Circuit that an FTC cease-and-desist order imposing injunctive relief requiring LabMD to implement “reasonable” data security was impermissibly vague. (The team directing that effort – led by Doug Meal and Michelle Visser – joined Orrick in January 2019.) In the wake of LabMD, the FTC’s new Chairman, Joseph Simons, stated that he was “very nervous” that the agency lacked the remedial authority it needed to deter allegedly insufficient data security practices and that, among other things, the FTC was exploring whether it has additional untapped authority it could use in this space. The FTC has followed through on that promise in the ensuing years, pursuing a wide range of additional remedies, including equitable money relief. An adverse ruling by the Supreme Court could strike a severe blow to the FTC’s efforts on this front.
Such a ruling is entirely possible. Just last month in SEC v. Liu, the Supreme Court recognized limits on the disgorgement power of the Securities and Exchange Commission, determining that it is restricted to situations where the remedy does not exceed a wrongdoer’s net profits and is awarded for victims. However, unlike the FTC Act, the SEC Act specifically authorizes the SEC to seek “equitable relief.” Therefore, the consolidated AMG and Credit Bureau cases afford the Supreme Court an opportunity to recognize even greater restrictions on the FTC’s authority to obtain equitable money relief under Section 13(b) - or, as the Seventh Circuit did in Credit Bureau, to reject such authority altogether.
While in the short term such a ruling may reduce the monetary risks of FTC privacy and cybersecurity enforcement for companies collecting personal information, it could serve as a catalyst for a legislative proposal that would provide the FTC significant new authority to police privacy and security violations and assess civil penalties.
To discuss these cases in more detail, or for advice on the FTC’s privacy and cybersecurity enforcement program more generally, please feel free to contact any member of our privacy & cybersecurity team, which has immense experience in this area.