“The Supreme Court should direct the lower courts to reconnect their reading of the FTC Act to what the FTC Act actually says.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s brief. 

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the U.S. Supreme Court to correct a widespread misreading of an FTC Act remedy provision.

Section 13(b) of the FTC Act empowers the FTC to sue, in federal court, to obtain an injunction against deceptive trade practices. At least seven courts of appeals have said, however, that the word “injunction” in section 13(b) unlocks the entire vault of equitable remedies.

WLF’s brief urges the Supreme Court to review two Ninth Circuit decisions that affirm restitution awards meted out under section 13(b). WLF argues that the lower courts’ rewriting of section 13(b) resembles the English common-law courts’ use of the “equity of the statute,” a doctrine that empowered a judge to enforce his subjective sense of justice rather than a law’s text. The “equity of the statute” arose in the Late Middle Ages. It gradually died out, however, as judges came to realize that it is inconsistent with democratic governance.

In the mid-twentieth century the Supreme Court briefly adopted a new version of the equity of the statute to “imply” new rights and remedies into laws. The courts of appeals relied on that mid-twentieth century jurisprudence to justify stretching section 13(b). But as WLF explains in its brief, the Supreme Court later reversed course. It came to recognize that it is solely for Congress to decide how, and by whom, its statutes are enforced.

The Supreme Court should instruct the lower courts to align their interpretation of section 13(b) with the modern and binding rules of statutory interpretation.

Celebrating its 42nd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law.