Post-AMG Scorecard (Updated): Different Roads Forward for the FTC in Pending Cases

The pending Ninth Circuit appeal was held in abeyance pending AMG​’s outcome. Following the AMG decision, the parties filed supplemental briefs regarding how the appeal should proceed. Both the FTC and defendants conceded that the monetary judgment under 13(b) should be vacated. The FTC argued AMG has no other effect; defendants disagree. The appeal remains pending and oral arguments scheduled for June 9, 2021 were cancelled. The Ninth Cir. noted that the issue was adequately presented in the briefs and oral argument would not significantly aid the decisional process.

On June 11, 2021, the Ninth Circuit vacated the district court’s judgment granting monetary relief in light of AMG.

On April 28, in a brief, three-paragraph order, a per curiam panel vacated the district court’s preliminary injunction order that had been entered into ​“to preserve assets pending a final judgment that could include equitable monetary relief in this action under § 13(b) of the FTC.” Given AMG, the panel explained that the injunction was no longer necessary, and remanded the case to the district court.

Before the district court, the parties filed expedited briefing regarding the import of AMG on the FTC’s complaint, with the FTC arguing it can obtain monetary redress by way of ROSCA. Defendants argued that the FTC had always been seeking monetary relief under 13(b), and cannot change its position now.

On May 24, 2021, the District Court ordered the FTC to pay the Receiver’s fees, from the date of the AMG ruling going forward. The Court explained that it would be inequitable to force defendants to pay these fees now that the Supreme Court has established that 13(b) does not allow for monetary relief.

On May 26, 2021, the District Court noted that it had to rule on the effect of AMG on the 2018 preliminary injunction and what remedies remain. This issue is fully briefed, but no order has yet issued.

On May 6, 2021, the FTC filed a Motion to Amend Judgment. The FTC claims it now seeks monetary relief under ROSCA and Section 19 of the FTC Act, as opposed to Section 13(b). The defendant filed their response on May 28, 2021 calling the FTC’s motion a ​“desperate attempt to overturn AMG.”

On June 11, 2021, the FTC filed their reply, stating that ROSCA and Section 19 provide an independent statutory basis apart from 13(b) to obtain a monetary judgment.

On April 26, 2021, defendants asked the Court in a Motion for Reconsideration ​“to reconsider its denial of [the] motion to dismiss the FTC’s monetary claim [] for consumer redress, disgorgement and restitution as set forth in the FTC’s first amended complaint.”

On May 3, 2021, the FTC filed a Motion to Withdraw the pending Summary Judgment Motion, requesting the Court provide monetary relief through 13(b), due to AMG.

On May 10, 2021, defendants filed a Motion for Reconsideration of the denial for a Judgment of the Pleadings based on the new authority provided by AMG. At a status conference on June 14, 2021, the judge ordered the FTC to file a response to this motion. That response is pending.

On April 27, 2021, Facebook filed a notice of supplemental authority regarding AMG, arguing that, following the Supreme Court’s decision ​“the FTC lacks statutory authority to maintain its lawsuit in federal district court.”

On May 3, 2021, the FTC filed a Response. The FTC’s response argues that the action is still appropriate because, the FTC asserts, Section 13(b) still empowers the FTC to seek a permanent injunction.” Of course, the statutory text only speaks of preliminary injunctive relief.

FTC v. Golden Sunrise Nutraceutical, Inc., No. 20-cv-01060 (E.D. Cal.)

There is a motion to lift the asset freeze pending due to AMG. On May 21, 2021, defendants filed a motion entitled ​“The Effect of AMG Capital on This Case.” In the filing, defendants stated, ​“The FTC’s wanton approach and this court’s complaisance approach has resulted in an illegal prejudgment attachment and dissipation of assets under the guise of equity. But it is a farce. This court was duped. The FTC’s unclean hands entitles it to nothing. Its complaint should be dismissed.”

On May 28, 2021, the FTC filed a response to defendant’s memo calling it a ​“fanciful reading of AMG . . . untethered from its holding.”

On June 1, 2021, proposed intervenors, who had previously been denied intervention, filed a motion to intervene saying they have been harmed by the FTCs unlawful reading of 13(b) as held by AMG and should thus be allowed to intervene. The FTC responded on June 4, 2021 calling the motion untimely and calls AMG ​“irrelevant” to the court’s prior ruling. On June 14, 2021, the proposed intervenors filed a reply reiterating that their motion is timely and that they are affected by the holding in AMG.

On June 11, 2021, Defendants filed a Reply in Response to the Motion for Preliminary Injunction, noting that ​“Section 13 has always been the FTC’s focus in this case, even though this court recognized the FTC sought relief not found in the text of the FTCA.”

Following AMG the parties stipulated, and on May 14, 2021 the Magistrate Judge ordered, ​“that the demand for equitable

monetary relief in the FTC’s First Amended Complaint should be stricken.”

On June 10, 2021, the parties filed a case management statement in which they agreed that settlement discussions would now be more ​“fruitful” based on AMG​’s holding.

On April 30, 2021, the FTC filed a Notice of Supplemental Authority informing the Court that, per AMG, 13(b) does not allow for monetary relief.

On May 10, 2021, the FTC and defendants filed dueling statements contesting the breadth of AMG​’s repercussions.

On May 17, 2021, the defendants filed a Motion for Judgment on the Pleadings, arguing that the FTC cannot prevail now that it cannot obtain 13(b) monetary relief. That Motion is pending.

On June 7, 2021, the FTC filed their response to the May 17th Motion, arguing that AMG only applies to a very narrow issue, and that Neora is trying to use the ruling to dismiss the entire case, when 13(b) still allows the FTC to bring cases in federal court to obtain injunctive relief. The FTC accused Neora of ​“doing violence to the language of the Supreme Court’s decision.” The FTC did agree to dismiss the claims for monetary restitution and disgorgement, directly acknowledging that AMG ​“currently prevents the FTC from recovering equitable monetary relief under Section 13(b) in this case.”

On June 14, 2021, defendants filed a Motion for a Protective Order and a Motion to Quash a Subpoena, arguing that per the holding in AMG, the FTC cannot look at past conduct and prescribe retrospective relief, they can only provide relief for future actions.

On May 5, 2021, the defendants filed a partial Summary Judgment Motion in light of AMG. The defendants asked the court to rule that the FTC ​“is not entitled to equitable monetary relief under Section 13(b) of the FTC Act.” The motion remains pending.

On June 2, 2021, the FTC filed a non-opposition response to Nudge’s May 5th Motion for partial summary judgment, noting that it does not oppose Nudge’s Motion ​“to the extent it requests ​‘an order stating that the FTC is not entitled to any equitable monetary relief under Section 13(b)’ of the FTC Act.” The motion remains pending.

The case was remanded from the Supreme Court to the Ninth Circuit in light of AMG. The case is currently pending before the Ninth Circuit.

On June 4, 2021, the FTC sent a letter to the 9th Circuit explaining that it sought money under Section 19 as well as Section 13(b), so AMG does not affect them and that Publishers Business Services already waived their 13(b) challenge. On June 9, 2021, defendants responded saying they did not waive this claim and argued that the FTC actually waived any §19 claim because they stopped arguing that.

On June 10, 2021, the 9th Circuit affirmed the District Court’s order that granted the permanent injunction, and vacated the District Court’s order that awarded equitable monetary relief under Section 13(b).

On April 27, 2021, defendants filed a letter requesting ​“a pre-motion conference concerning Defendants’ anticipated motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) dismissing with prejudice plaintiff the [FTC’s] request for monetary relief.”

On May 10, 2021, the FTC filed a response, claiming that judgment on the pleadings would be premature, because ​“Congress is considering changes to the Federal Trade Commission Act in response to AMG Capital.”

On May 11, 2021, defendants filed a reply, explaining that the FTC’s ​“speculative hope that the House and Senate may agree upon and pass legislation, at some unspecified future time” is an insufficient basis to delay ruling.

The parties stipulated to allow the FTC to amend its complaint shortly following AMG, presumably so the FTC could include an alternative basis for monetary relief. The district court granted the FTC’s request on May 18.

On May 19, the FTC filed an Amended Complaint, striking all requests for 13(b) monetary relief, and instead requesting monetary relief pursuant to the FTC’s Trade Regulation Rule Concerning the Sale of Mail, Internet, or Telephone Order Merchandise (“MITOR”).

FTC v. Ragingbull​.com, LLC, No. 20-cv-3538 (D. Md.)

The FTC filed a motion to stay the case in order to obtain approval to file an Amended Complaint, in order to file new claims to stand in for the current 13(b) claims. That motion was granted on April 30.

On May 18, in a related filing, the FTC conceded that it chose to voluntary dismiss a number of defendants because the ​“FTC no longer has the ability to recover those assets as equitable monetary relief under Section 13(b) of the FTC Act, due to the Supreme Court’s decision in AMG.”

On June 11, 2021, the FTC filed a motion for leave to file an amended complaint. This amended complaint could ​“remove the FTC’s request for equitable monetary relief under Section 13(b) of the FTC Act, in light of the Supreme Court’s recent decision in AMG Capital…”

On May 10, 2021, the defendants wrote to the Court requesting the Court set a settlement conference in light of AMG. Defendants averred that as part of a settlement, they ​“will agree to the issuance of a permanent injunction preventing any future violations of the FTC Act as well as paying the amount of all costs accrued in favor of the Plaintiff to date.”

On May 11, 2021, the FTC filed a responsive letter, stating its intention to file an Amended Complaint replacing the prior requested 13(b) monetary relief with a new ​“claim and seek civil penalties for Defendants’ violations of Section 521 of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6821.”

On May 14, 2021, the FTC filed a Motion for Leave to file the aforementioned Amended Complaint.

On June 10, 2021, the FTC filed an Amended Complaint where it seeks to bring monetary penalties and a permanent injunction under Sections 5(a), 5(m)(1)(A), 13(b), 16(a), and 19 of the FTC Act, 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), 56(a), and 57b, and Section 522(a) of the Gramm-Leach-Bliley Act, 15 U.S.C. §6822(a).

On April 22, 2021, one of the individual defendants filed an Emergency Motion to Dissolve the Preliminary Injunction, due to the Supreme Court’s ruling in AMG. The defendant followed up with two notices of supplemental authority, on April 28 and 30, referencing other lower court cases dissolving preliminary injunctions following AMG.

The FTC filed a response to the Motion on April 30, 2021, arguing that the Motion was not ripe and that the FTC still had Section 19 authority.

A hearing on the Motion took place on May 14, 2021. The Motion remains pending.

On June 10, 2021, defendants filed a response to an order of supplemental briefing regarding AMG and their April 22 Motion to Dissolve. They argued that the situation in AMG is analogous to their situation. The FTC also filed its response, in which it argued that the Agency retains the power to issue preliminary injunctive relief under Section 19 of the Act.

On May 14, 2021, the defendants filed a Motion to Dismiss the FTC’s claims for equitable monetary relief, due to AMG. The Motion remains pending.

On May 24, 2021, the FTC filed a response to the Motion to Dismiss, in which the FTC states: ​“In AMG, the U.S. Supreme Court addressed the narrow question of whether Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorized retrospective monetary relief. The Court held that Section 13(b) did not authorize such relief. Slip op. at 1, 14. At this time, in light of the AMG decision, the FTC does not seek such relief.”

On May 26, 2021 the court granted SPM’s Motion to Dismiss on all parts relating to AMG.

On June 2, 2021, the FTC filed its First Amended Complaint for permanent injunction and other equitable relief., but kept their claim under Section 13(b).

FTC v. Superior Products International II, Inc., No. 20-cv-2366 (D. Kans.)

On May 6, 2021, defendants filed a motion to dismiss FTC’s request for equitable monetary relief in light of AMG.

On May 10, 2021, the FTC withdrew its request for equitable monetary relief, and informed the Court of its intent to seek leave to file an Amended Complaint seeking monetary relief on other grounds.

On June 9, 2021, the Court found the defendants’ motion to dismiss moot due to the FTC’s withdrawal of claims regarding monetary relief under 13(b).