Post-AMG Scorecard: The FTC Pivots to Other Statutory Bases for Monetary Relief

There has been no 13(b)-related post-AMG action on this docket. However, on September 1, 2020, the FTC filed its Complaint under Section 13(b) and 19 of the FTC Act and ROSCA. The FTC seeks injunctive relief pursuant to the FTC Act, and still seeks monetary relief pursuant to ROSCA.

After a stipulated order for permanent injunction, on September 8, 2020, the court entered a stipulated order for permanent injunction and monetary judgment in the amount of $10M.

On April 30, 2021, defendants filed a notice of supplemental authority notifying the court of the AMG decision, and arguing that significant portions of the FTC’s complaint should be stricken. On May 17, 2021, defendants filed their answers to the (pre-AMG) complaint, making the same requests.

On June 24, 2021, American Future filed a motion for judgment on the pleadings, to which the FTC filed a response in opposition on July 7, 2021. American Future raised the issue that the Supreme Court’s ruling in AMG bars the FTC from monetary damages in this case, and that the FTC improperly invoked Section 13(b) of the FTC Act to evade the administrative procedures established by Section 19 of the FTC Act. In its opposition, the FTC noted that “the FTC has already ceased its pursuit of monetary relief in this matter.” Further, the FTC only sought a permanent injunction under Section 13(b).

On July 26, 2021, the Court issued an Order denying Defendants’ motion for judgment on the pleadings, noting that AMG does not “Preclude FTC’s Section 13(b) Claims for Permanent Injunctive Relief.” Discovery in this case is ongoing.

There has been no 13(b)-related post-AMG action on this docket. However, on August 4, 2020, the FTC filed its Complaint under Section 13(b) and 19 of the FTC Act and MITOR. The FTC seeks injunctive relief pursuant to the FTC Act, and still seeks monetary relief pursuant to MITOR.

On October 1, 2021, the FTC filed a motion for summary judgment against all defendants, asserting that it is entitled to summary judgment on all counts. That motion is still pending.

On June 8, 2021, the 9th Circuit vacated its December 3, 2018 order and reversed the district court’s order awarding equitable monetary relief to the FTC. The 9th Circuit then remanded the case to the district court for further proceedings consistent with the Supreme Court’s opinion.

On July 13, 2021, a status conference was held in the District Court. The Court indicated it would issue an order terminating the asset freeze. On September 3, 2021, the Court entered a Second Amended Order granting the Defendants’ Motion for Summary Judgment to the extent that it opposes an award of equitable monetary relief to the FTC, and denied the FTC’s Motion for Summary Judgment to the extent that it requests equitable monetary relief.

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 after the fact.

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. On June 29, 2021, the District Court issued an Order, granting summary judgment, barring the FTC from recalculating and modifying how it would seek damages, if initially, it had sought monetary relief under Section 13(b). While the court agreed with the FTC that it could have pursued monetary relief under an alternative statute, it found that the FTC had waived the right to request such relief in this case, largely because in the FTC’s Rule 26 disclosures, the FTC had only calculated damages under 13(b). The Court noted that the FTC only pivoted to attempt to obtain statutory fees under ROSCA at the eleventh hour, following AMG.

On August 26, 2021, the Court concluded that as Section 13(b) of the FTC Act does not permit monetary restitution, “there will be no monetary judgment” in favor of the FTC. Because no monetary relief can be had, the Cardiff Order requires the FTC to provide the Court with a date certain by which the receivership should be terminated.

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 its response on May 28, 2021 calling the FTC’s motion a “desperate attempt to overturn AMG.”

On June 11, 2021, the FTC filed its reply, stating that ROSCA and Section 19 provide an independent statutory basis apart from 13(b) to obtain a monetary judgment. On September 13, 2021, the Court issued a memorandum opinion and order granting the FTC’s motion to alter or amend its judgment, reimposing the prior judgment of a permanent injunction and over $5M in monetary relief under Section 19 of the Act, 15 U.S.C. Section 8404, and Section 5 of ROSCA.

On October 22, 2021, Defendants filed a notice of appeal of the district court’s ruling to the Seventh Circuit.

Following AMG the parties stipulated, and on May 18, 2021 the Court issued an order, “dissolving the asset freeze entered in the Court’s October 6, 2020 Ex Parte Temporary Restraining Order.”

On June 24, 2021, the FTC moved for summary judgment and a permanent injunction against Marc Grisham, but did not seek damages for violations of 13(b). That same day, the FTC also moved for default judgment and a permanent injunction against the “defaulting defendants.” The defendants opposed the motions.

On September 1, 2021, the Court granted the motion for default judgment. On October 6, 2021, the FTC filed a Stipulated Settlement Agreement and Proposed Order for a Permanent Injunction.

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 Court ordered the FTC to file a response to this motion. On July 2, 2021, in its response, the FTC noted that “[a]lthough the FTC concedes that AMG precludes its recovery of equitable monetary relief in this action, the language of AMG itself, as well as subsequent authority, make clear that the FTC is still entitled to injunctive relief …”

On August 11, 2021, the Court issued an Order on summary judgment. In it, the Court noted that the FTC seeks both equitable monetary relief and a permanent injunction. “The parties agree that the FTC can no longer obtain equitable monetary relief under AMG Capital.” The Court dismissed the FTC’s claim for equitable monetary relief without prejudice.

FTC v. Elegant Solutions, Inc., No. 20-55766 (9th Cir.); No. 19-cv-01333 (C.D. Cal.)

On August 5, 2021, the FTC filed a supplemental notice in anticipation of summary judgment filings, noting that, post-AMG, the FTC would only seek injunctive conduct relief under Section 13(b) and does not seeking equitable monetary relief.

On October 5, 2021, the FTC filed its motion for summary judgment, seeking a permanent injunction under Section 5(a) of the FTC Act and not seeking monetary restitution.

On October 26, 2021, defendants filed their opposition to the FTC’s motion for summary judgment, arguing that the defendants have not violated the FTC Act, but consenting to minimal future marketing changes. The outstanding issues are solely about injunctive relief that the FTC seeks.

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, arguing that the action is still appropriate because Section 13(b) still empowers the FTC to seek a permanent injunction.” Of course, the statutory text only speaks of preliminary injunctive relief.

On June 28, 2021 the court granted Facebook’s motion to dismiss and dismissed the complaint without prejudice. Section 13(b) was not a basis of the motion to dismiss, but the court did note that “an injunction under Section 13(b) is a theoretically available remedy in a Section 2 challenge to long-ago mergers…”

The FTC publicly filed an Amended Complaint on September 8, 2021. The Commission only sought a permanent injunction and other equitable relief under Sections 13(b) and 15 U.S.C. section 53(b). The FTC noted that Section 13(b) of the FTC Act “empowers this Court . . . in the exercise of its equitable jurisdiction, to order equitable relief to remedy the injury caused by Facebook’s violations.”

On October 4, 2021, Facebook filed a motion to dismiss the Amended Complaint.

FTC v. FleetCor Technologies, Inc., No. 19-cv-05727 (N.D. Ga.)

On May 17, 2021, defendants filed a motion for partial summary judgment, asserting that, following AMG, “the FTC is not entitled to relief on its claim for equitable monetary relief, and [] the FTC is not entitled to relief on its claim for prospective injunctive relief.”

In reply, the FTC noted that it only seeks injunctive relief: “In its opening brief, the FTC did argue that FleetCor’s challenged statements were ‘widely disseminated’ as a proxy for reliance . . . but that showing is necessary only to obtain monetary relief, which the FTC concedes it cannot obtain at this time”.

On July 12, 2021, Defendants filed their reply brief, arguing that the FTC is not entitled to injunctive relief that that the FTC lacks authority to enjoin past conduct.

On August 13, 2021, the FTC filed a motion to stay pending the resolution of administrative litigation, or in the alternative, to dismiss without prejudice. The FTC indicated its intention to file a Section 19 administrative claim in order to obtain monetary relief. On August 27, 2021, the defendants filed a response, arguing that the FTC is using Section 19 to forum shop so that the Commission itself can decide the motions pending before the Court. There will be oral arguments on FTC’s motion to stay or voluntarily dismiss on December 10, 2021.

On May 19, 2021, the FTC, along with the attorneys general of Arizona, Indiana, Michigan, North Carolina, and Wisconsin, and the People of the State of California, filed a Complaint against Frontier Communications Corporation. The Complaint seeks a temporary and permanent injunction by the FTC under Section 13(b). The attorneys general of Arizona, Indiana, Michigan, North Carolina, and Wisconsin also seek monetary remedies pursuant to consumer protection and business regulation authority.

On July 20, 2021, Defendant filed a motion to dismiss the Complaint, noting that the Court lacks jurisdiction and that plaintiffs fail to state a deceptive advertising claim. The motion to dismiss also argues that the FTC had been pressuring Frontier to pay a monetary penalty under the FTC Act, but since AMG and the filing of this Complaint, the FTC seeks only injunctive relief for itself and has recruited 6 states to join its lawsuit so that the complaint can include demands for money.

On October 3, 2021, the Court granted in part and denied in part Frontier’s motion to dismiss. The Court granted the motion and dismissed the claims alleged by Arizona, Indiana, Michigan, North Carolina and Wisconsin, but denied the motion as to the FTC and the State of California.

FTC v. Hornbeam Special Situations, LLC, No. 17-cv-03094 (N.D. Ga.)

On July 2, 2021, the FTC filed a notice of supplemental authority re AMG, noting that “the FTC hereby provides notice to the Court and Defendants that it is not currently seeking equitable monetary relief under Section 13(b) of the FTC Act as to any defendant in this matter. However, the FTC continues to seek injunctive conduct relief under Section 13(b), as well as equitable monetary relief under Section 19.”

On August 10, 2021, the FTC filed motions for summary judgment. The FTC only sought permanent injunction under Section 13(b), but also sought summary judgment on the fact that the defendants violated Section 5(a) of the FTC Act, ROSCA, and the Telemarking Sales Rule. The FTC sought equitable monetary relief against the estate of one defendant. Defendants filed motions for summary judgment on that same day, the estate argued that AMG barred monetary relief. All motions remain pending. A video hearing is set for December 21, 2021.

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 be more “fruitful” based on AMG’s holding. On July 7, 2021, the Court was notified that the parties “settled the case subject to the contingency of approval of the Commission.”

FTC v. Mail Tree Inc., No. 15-cv-61034 (S.D. Fla.)

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.

On June 7, 2021, the FTC filed its response to the 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 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 July 1, 2021, defendants filed a notice of supplemental authority, noting that the United States District Court for the District of Columbia in FTC v. Facebook, Inc., held that the FTC may not seek injunctive relief in federal courts under Section 13(b) of the FTC Act for long-past conduct without some evidence that the defendant is committing or is about to commit another violation.

On August 2, 2021, the Court issued an Order on the Motion for Judgment on the Pleadings. The Court noted, “in light of the unambiguous pronouncement from the Supreme Court in AMG Capital regarding the unavailability of monetary relief under § 13(b), Defendants’ Motion as to FTC’s claim for monetary relief is granted. The remainder of Defendants’ Motion is denied.” The Court was not persuaded that the FTC needed to file an administrative proceeding before obtaining a preliminary injunction.

On May 4, 2021, the FTC filed an unopposed Motion to extend the summary judgment briefing schedule in light of AMG, explaining “that the priority for all parties is to address the continuing application of the Preliminary Injunction in light of AMG.” That Motion was granted.

On June 23, 2021, the FTC filed a motion for sanctions for contempt, alleging that the defendants violated the Final Order (by not tracking consumer complaints, discouraging consumer complaints, not responding to consumer complaints, and not investigating consumer complaints), and are in contempt of the Final Order by running prohibited marketing schemes, and misrepresenting potential income to consumers.

Due to AMG, a motion to lift the asset freeze remains pending. 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 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. This motion was denied.

On June 15, 2021, the Court issued an Order: “in the wake of the Supreme Court’s decision in AMG […], the Court issued an order requiring the parties to file a joint memorandum setting forth their views on ‘whether the asset freeze and receivership in this action should be modified or vacated in light of AMG Capital.’ After the parties filed their joint memorandum …, the Court held a hearing. IT IS SO ORDERED that the Court will take no action in response to the individual Defendants’ memorandum.”

On June 23, 2021, the FTC filed a motion for summary judgment as to monetary remedies. The FTC did not base this motion on 13(b), instead citing to Section 19 of the FTC Act and 15 U.S.C. Section 57b. On July 30, 2021, defendants filed a Motion to Dismiss Case, Motion to Dissolve the Preliminary Injunction Order and Motion to Stay or Dismiss Section 13(b) Proceedings. Defendants argued that the FTC must first file an administrative complaint before seeking a TRO or preliminary injunction. On August 6, 2021, the FTC filed its response noting that AMG permits it to get permanent injunctive relief.

On September 9, 2021, the Court granted the FTC’s motion for summary judgment on liability, noting that AMG does not “disturb the FTC’s ability to seek a permanent injunction pursuant to § 13(b) in this case”. On September 23, 2021, the Court granted the FTC’s motion to preliminary injunction with asset freeze and receivership based on the FTC’s Section 19 claims.

On October 8, 2021, the defendants filed a notice of interlocutory appeal to the 9th Circuit Court of Appeals.

On May 5, 2021, the defendants filed a motion for partial summary judgment 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.”

On June 2, 2021, the FTC filed a non-opposition response to defendants’ 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 hearing on the motions was held on July 9, 2021. FTC’s motion for partial summary judgment and the cross motion for partial summary judgment by defendants were both denied.

On July 26, 2021, the Court issued an Order denying the Motion to Dismiss for failure to state a claim, noting that the complaint adequately alleges a Telemarketing and Consumer Fraud and Abuse Prevention Act claim.

On September 15, 2021, the Court granted the defendants motion for partial summary judgment on the issue that the FTC may not seek equitable monetary relief under Section 13(b) or fines or penalties under BODA. The Court noted that the Utah Consumer Protection Division could seek fines or penalties under BODA where it can prove the violation of a cease and desist order, but it did not pursue that route in this matter.

On October 18, 2021, Plaintiffs filed a motion for summary judgment against all defendants, seeking an injunction under the FTC Act, and seeking consumer redress in the amount of over $102M against the Nudge defendants for violating the FTC Act, the Telemarking Sales Rule, the Consumer Sales Practices Act, the Business Opportunity Disclosure Act, and the Telephone Fraud Prevention Act.

FTC v. Publishers Business Services, Inc., No. 19-507 (S. Ct.); Nos. 17-15600; 11-17270 (9th Cir.); No. 08-cv-00620 (D. Nev.)

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.

On September 17, 2021, the Court issued an Order, dismissing the FTC’s claim for monetary relief under Section 13(b).

The parties stipulated to allow the FTC to amend its complaint shortly following AMG.

On May 19, 2021, 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”).

On June 23, 2021, Defendants filed a motion to dismiss each of the FTC’s claims, stating: “On April 22, 2021, the Supreme Court published AMG …, which significantly limits the FTC’s ability to obtain damages. Defendants move to dismiss all the FTC’s claims on the grounds that (1) the FTC is not entitled to monetary relief…” The motion to dismiss also argued that MITOR does not authorize the FTC to obtain monetary relief because MITOR is a regulation, not a statute, and thus provides no authority for the FTC to obtain damages.

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.

On May 18, 2021 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…” Responses in opposition and replies by the FTC have been filed. There has not been an order on this motion yet.

FTC v. RCG Advances LLC, No. 20-cv-04432 (S.D.N.Y.)

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 Amended Complaint.

On June 10, 2021, the FTC filed an Amended Complaint where it sought 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. That defendant submitted two notices of supplemental authority 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.

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 and monetary relief under Section 19 of the Act.

On September 5, 2021, the Court denied the defendant’s motion to dissolve preliminary injunction, finding that under Section 19 of the Act, it had authority to issue the preliminary injunction, order the asset freeze, and appoint the Receiver.

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

On May 24, 2021, the FTC filed a response to the Motion to Dismiss, in which the FTC stated: “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). In the Amended Complaint, the FTC asks only for injunctive relief 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 the 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).

On June 22, 2021, the FTC filed a motion and memorandum in support of its motion for leave to Amend Complaint. On August 30, 2021, the FTC filed its Amended Complaint. In the Amended Complaint, the FTC brought claims under Section 5(a), 13(b) and 19 of the FTC Act, as well as 15 U.S.C. Section 53(b) and 57(b), and the R-value Rule.The FTC seeks a permanent injunction, monetary relief, and costs.

On May 14, 2021, the parties filed a joint stipulation, stating that, due to AMG, the FTC withdraws its request for equitable monetary relief under 13(b). The Court adopted the stipulation on May 17, 2021.

A status conference is scheduled for December 1, 2021.

In a post-AMG Complaint, the FTC brings claims under Sections 5(a), 5(m)(1)(A), 12, 13(b), 16(a)(1), and 19 of the FTC Act, 15 U.S.C. Sections 45(a), 45(m)(1)(A), 52, 53(b), 56(a)(1), 57b, MITOR, and CCPA, seeking permanent injunctive relief, rescission or reformation of contracts, the refund of monies paid, civil penalties, and other relief.

On August 30, 2021, Defendants filed their motion to dismiss, noting that under Section 13(b) the Commission may only seek a temporary restraining order or a preliminary injunction. Defendants noted that Sections 5 and 19 would permit the FTC to seek monetary relief.

On May 6, 2021, the court requested that the parties submit briefing to discuss how the AMG ruling impacts and applies to their case.

On May 12, 2021, Defendants filed a motion for partial summary judgment and memorandum in support as to relief under Section 13(b), arguing that the FTC is not entitled to equitable monetary relief under Section 13(b) (citing AMG) and that the Utah Division of Consumer Protection is not entitled to any monetary relief under BODA.

On May 28, 2021, the Utah Division of Consumer Protection filed its brief on how AMG impacts this litigation, noting that it did not assert a claim under Section 13(b) and that the Utah Code Section 13-11-17(1)(c) is not affected by AMG. On June 9, 2021, the Utah Division of Consumer Protection filed its memorandum in opposition to Defendants’ motion for partial summary judgment, making the same arguments that AMG does not impact BODA.

All motions for summary judgment and partial summary judgment remain pending.