While the Federal Trade Commission has pursued consumer protection enforcement primarily in federal court for the last several decades, it has still relied heavily on the administrative law process in antitrust enforcement as well as in rulemaking.  And with the Supreme Court nuking the FTC’s monetary relief authority in federal court last year in AMG, we are beginning to see the FTC bring more consumer protection cases administratively where the possibility of obtaining monetary relief still exists if and after the FTC wins the case and can prove to a federal judge that the misconduct was “dishonest or fraudulent”.

A long-time criticism of FTC administrative adjudication has been that it sits as prosecutor, judge and jury, in that it both files the complaint, which is heard by a not entirely independent administrative law judge (“ALJ”), and then sits as a court of appeal after the administrative trial, with independent judicial review available only after its final decision has been issued. To past FTC defendants who think the administrative deck may have been stacked against them, they would not be wrong: The FTC has not lost a case on its home turf in a quarter century.     

This perceived lack of due process and unfairness has now reached the U.S. Supreme Court, which will have its second opportunity in a year to issue a momentous decision affecting the agency’s enforcement powers, one that could be even more existential for the agency than the loss of its monetary authority in federal court.

The issue has arrived at the Supreme Court’s door step following a constitutional challenge to the FTC’s structure and procedures in an antitrust fight between FTC and Axon Enterprise, a maker of body cameras and other police equipment.  In January 2020, when a proposed acquisition by Axon was under investigation by the FTC, Axon struck first in a declaratory relief suit in federal district court challenging the constitutionality of both the FTC’s administrative process and insulation of the FTC’s members from Executive oversight and removal.  The FTC then sued Axon administratively to block the merger.  The request for declaratory relief was denied, on the ground that the district court lacked jurisdiction because Axon first had to bring its constitutional challenge through the FTC’s administrative process.  After the Ninth Circuit affirmed, the Supreme Court granted certiorari last month and will hear the case next term. 

The main issue before the Court skirts the underlying constitutional question concerning the FTC’s administrative structure and procedures.  Rather, the Court will decide only the limited procedural question of whether a district court has jurisdiction to hear a challenge to the FTC’s constitutionality before it has been adjudicated through the very administrative process that is the subject of the challenge. But it is unlikely that the Court accepted the case just so that it could decide that narrow issue and then call it a day. The hostility of the Court’s conservative supermajority to the “administrative state,” and specifically to independent agencies like the FTC, whose members (and “quasi-independent” ALJs) are beyond the president’s removal powers, and thus unaccountable to the Executive, is no secret.

In addition to deciding the jurisdictional question, Axon also has asked the Court to find that insulation of the FTC’s ALJs from presidential removal unconstitutionally violates the separation of powers.  A decision against the FTC on that issue is distinctly possible given that not long ago, in a similar case, the Court found the structure of the Consumer Financial Protection Bureau to be unconstitutional because its director had also been shielded from presidential removal.

A decision in Axon’s favor on either issue could be a precursor to a future decision declaring the entire administrative structure of the FTC – including its triple-duty function as “prosecutor- judge-jury” and insulation of its members from presidential control – unconstitutional.  In its certiorari petition, Axon stated that it “challenges the very existence of the Federal Trade Commission—an independent agency created by Congress—as unconstitutional.”  That is not an overstatement. As the FTC struggles to overcome the blow to its enforcement clout from AMG, it now has an even more worrisome and bigger fight on its hands in the High Court: a threat to its very existence as we have known it.

No marketing method has incurred the wrath of the Federal Trade Commission, with more dire consequences (asset freezes, receiverships, ruinous monetary judgments) to the targets of its wrath, than continuity, subscription or auto-renewal plans containing a “negative option” feature (under which the consumer agrees in advance to recurring charges for a product or service until he cancels). The FTC has shut down dozens if not hundreds of businesses, seizing and forcing the disgorgement of their (and their owners’) assets, for failing to disclose a negative option, or failing to do so effectively in its judgment, thus harming consumers who did not realize they were enrolling in an auto-renewal plan and did not knowingly authorize the recurring charges. The FTC puts deceptive negative options in the “fraud” category in its hierarchy of enforcement priorities, and policing them lies at the heart of its fraud enforcement program.

The FTC’s authority to prevent deceptive negative option marketing online rests on Section 5 of the FTC Act, which prohibits unfair and deceptive business conduct, and on the “Restore Online Shoppers’ Confidence Act” (“ROSCA”). (For negative option offers made over the telephone, the FTC’s Telemarketing Sales Rule (“TSR”) applies.)  ROSCA codifies the principle – articulated in FTC orders, guidance documents and court decisions – that for a negative option offer to be lawful, all material terms, including recurring charges, must be “clearly and conspicuously” disclosed before the consumer submits his billing information; the consumer must give his express informed consent to the offer; and it must be easy to cancel. ROSCA applies to third party “post-transaction” negative option offers facilitated by an initial merchant as well as to the initial transaction.

Given the prevalence of negative option marketing and the legal patchwork governing the practice, in 2019 the FTC announced a new rulemaking to consider whether to expand its existing “Rule on the Use of Prenotification Negative Option Plans” (applicable only to such offerings as “book of the month clubs”) to cover more modern and various forms of negative option offers.  While the Commission has received public comment on the proposed regulation, the rulemaking is still in its fairly early stages with no final rule, if any, foreseen for a while.

Since then, of course, there has been a presidential election and a significant change in leadership at the FTC with the appointment of a new FTC Chair, progressive Democrat Lina Khan, who has already forcefully grabbed the reins by announcing a host of policy and procedural changes to demonstrate to the business community that the FTC intends to aggressively enforce the law and use all its tools to deter and punish bad behavior.  At the same time, as she took office, she had to confront the reality of the recent loss of the FTC’s most potent enforcement tool, which is the power to obtain monetary relief in federal court, an authority the Supreme Court took away (in all but order and rule violation cases)  last April. (See “Supreme Court Guts FTC’s Enforcement Powers and Clout,” April 2021).

This fall, under Chair Khan’s leadership, the FTC has revealed that one of the ways in which it plans to confront that loss of power is a broad-based public communications campaign to inform and provide compliance guidance – and the consequences of non-compliance – to a diverse array of advertisers and marketers, in the hope that the uncertainty and cost of incurring the FTC’s wrath will have the same deterrent effect that its erstwhile unbridled authority to obtain money judgments had.  As discussed here last month (See “FTC Unveils Sweeping New Enforcement Strategy Following AMG,” Oct. 2021), we have seen this strategy unveiled through the issuance of so-called Penalty Offense Notices to over two thousand companies, notifying and educating them on FTC legal principles and cease and desist orders governing testimonials, endorsements, product reviews, and moneymaking claims, and warning them of the risk of ruinous civil penalties, to be levied under a heretofore long dormant statutory authority, for knowing violations of those principles and orders.

Now, in a different form of communication, but with the same “educate, guide, create uncertainty and warn” goal in mind, the FTC, even as it proceeds with its negative option rulemaking, has just issued a formal “Enforcement Policy Statement Regarding Negative Option Marketing.”  Such a maneuver, in the midst of an ongoing formal rulemaking, is highly unusual (prompting a dissent from one of the two Republican commissioners), and serves to underscore the impatience of the new FTC regime with bureaucratic process and the urgency it feels to make its presence felt in the marketplace.

Because the FTC can still get monetary relief, including civil penalties, for negative option marketing violations of ROSCA and the TSR, there would not seem to have been the same urgency from the new FTC leadership’s perspective to issue the Enforcement Policy Statement (“EPS”) as there presumably was with the Penalty Offense Notices.  Still, as with those notices, the EPS serves the same purpose of reminding  negative option sellers that the practice remains a top FTC enforcement priority and that especially with the financial risk of becoming an FTC target, it would be best to err on the conservative side of uncertainty by taking the guidance offered to heart and reviewing one’s offers for compliance with the EPS.

The EPS itself does not really break new ground in the FTC’s legal approach to negative option marketing.  Essentially consolidating in one document the key elements of its past decisions and orders and the provisions of ROSCA, it is organized around the three pillars of disclosure, consent, and ease of cancellation. Here is a summary of those requirements.

Disclosure:  The FTC and ROSCA require disclosure of all material terms that are necessary to prevent deception, including: (1) any initial charges and all recurring charges after any applicable trial period ends, and that the recurring charges will continue unless the consumer cancels; (2) the frequency of charges and date by which the consumer must act to stop them; the date each charge will be submitted for payment; and (4) all information necessary to cancel and stop the charges. The disclosures must be “clear and conspicuous,” meaning easily noticeable or unavoidable and easily understandable by ordinary consumers.  If in writing, including on the internet, they must appear immediately next to the spot where the consumer gives his consent to the negative option.

Consent:  The FTC and ROSCA require “express informed consent” to a negative option offer. To attain it, the negative option seller must: (1) obtain the consumer’s acceptance of the negative option offer separately from any other portion of the entire transaction; (2) do nothing that could undermine the ability of consumers to provide their express informed consent to the negative option; (3) obtain the consumer’s unambiguously affirmative consent to the negative option and the entire transaction; and (6) be able to verify the consumer’s consent.

Cancellation:   ROSCA requires negative option sellers to provide a simple, reasonable means for consumers to cancel a negative option plan. To meet this standard, the cancellation mechanism must be at least as easy to use as the method the consumer used to accept the negative option, and should be at least through the same medium (such as website or mobile application) the consumer used to consent to it. If telephone cancellation is an additional method, at a minimum, a telephone number must be provided and all calls to it must be answered timely during normal business hours.  All properly requested cancellations must be honored.

For additional important information on negative option marketing requirements set forth in the EPS, see https://www.federalregister.gov/documents/2021/11/04/2021-24094/enforcement-policy-statement-regarding-negative-option-marketing.

So, you’re an advertiser and one day a thick package arrives in the mail from the Federal Trade Commission.  It’s a letter accompanied by a notice of “penalty offenses” and a bunch of FTC cases. You’re not under investigation as far as you know and are told you aren’t being accused of anything, so you wonder why the FTC is sending this to you. You read the letter and it says that enclosed are FTC decisions and cease and desist orders governing endorsements, testimonials and product reviews. The letter goes on to say, in boldface, that “Receipt of the notice puts your company on notice that engaging in conduct described therein could subject the company to civil penalties of up to $43,792 per violation.”

Last week, over 700 hundred businesses, comprised mainly of large companies, top advertisers, leading retailers, top consumer product companies, and major advertising agencies, got one of these letters. If you happen to have been one of the unlucky recipients, then you already know what I’m describing.

How in the world, you may ask, can the FTC sue and obtain civil penalties from someone for violating an order against someone else to which it was not a party, just because it sends you a copy of the order.  The answer is an obscure provision of the FTC Act, enacted decades ago, that until now has rarely if ever been used and has never been legally tested. The section, 15 U.S.C. § 45(m)(1)(B), specifically states that:

 “If the Commission determines in a proceeding…that any act or practice is unfair or deceptive, and issues a final cease and desist order, other than a consent order, with respect to such act or practice, then the Commission may commence a civil action to obtain a civil penalty in a district court of the United States against any person, partnership, or corporation which engages in such act or practice—

(1) after such cease and desist order becomes final (whether or not suchpersonpartnership, or corporation was subject to such cease and desist order), and

(2) with actual knowledge that such act or practice is unfair or deceptive….”  

(Emphasis added)

And you may ask, why is the FTC all of a sudden resorting to this heretofore dormant remedy. The answer to that may be more obvious and simpler: earlier this year, as I’ve written (see “Supreme Court Guts FTC’s Enforcement Powers and Clout,” April 2021), the Supreme Court, in a unanimous decision in AMG Capital Management v. FTC, stripped away the FTC’s most potent enforcement weapon, namely, the ability to get money from alleged wrongdoers in federal court actions.  Currently, therefore, unless you are violating a final FTC order or trade regulation rule for which monetary relief is still available, the only remedy the FTC can obtain is an injunction, which normally doesn’t have the same deterrent effect as a money judgment. So this newly used, so-called “penalty offense” authority is a nifty device which allows the FTC  (while waiting and hoping for Congress to restore its full monetary authority) to regain some measure of its prior enforcement clout by extending its ability to get money for order violations to any business in America who receives direct notice of that order from the FTC.

As noted, because this provision has hardly ever been used, it is totally untested legally and raises some obvious due process questions concerning sufficiency of notice.  How clear are the legal requirements set forth in the decisions and orders contained in the “penalty offense” notice? How applicable are the facts and circumstances in those cases to the business practices of the recipient? What constitutes “actual knowledge” that the practice is unfair or deceptive?  The statute anticipates these notice questions by providing that if the predicate order was not issued against the defendant in the civil penalty action, then “the issues of fact… shall be tried de novo” and upon request of any party, the court “shall also review” the FTC’s prior “determination of law that the act or practice…constituted an unfair or deceptive act or practice….”  Whether these procedural safeguards will be enough for this statutory provision to survive a due process challenge only time will tell, when a “penalty offense” case is brought.

Meanwhile, the FTC is hoping, of course, that the mere receipt of the notices will cause those getting them to review their testimonial and endorsement practices and conform them to the law. To the extent that happens, that would be a salutary effect of the program. But because this is also a way for the FTC to reassert itself as the consumer “cop on the beat” through deployment of a monetary weapon in federal court again, you can be sure that it also is closely monitoring these over 700 companies for the best enforcement targets among them to sue for civil penalties. And when (not if) that happens, the legality of this novel remedial power will be put to the test. Stay tuned here for further developments, including issuance of more “penalty offense” notices dealing with other advertising practices, as this new FTC enforcement strategy plays itself out.

Within hours of the Supreme Court’s landmark decision in AMG Capital Management v. FTC last April overturning forty years of precedent to hold that the FTC cannot get money judgments in a direct federal court action (for discussion, see “Supreme Court Guts FTC’s Enforcement Powers and Clout,” April 2021), the phone began to ring from FTC defendants. Each wanted to know, can I get my judgment  thrown out?  My immediate answer, without the benefit of research, was probably not, given the judicial system’s strong interest in finality, but perhaps not impossible depending on the circumstances.  As it turns out, that was the correct “off the cuff” response, as two recent denials of motions to set aside monetary judgments pursuant to AMG brought in the Central District of California reveal. These decisions, discussed here, show that at least in that district under Ninth Circuit law, and probably in federal courts generally, an FTC defendant seeking to convince a judge to toss a monetary judgment will need an especially compelling set of circumstances to prevail.

If the time to appeal an FTC monetary judgment had not run out as of the date of AMG, such that the judgment was not yet absolutely final, a defendant in that circumstance would have been in luck; indeed, the Ninth Circuit, under well-established principles of judicial retroactivity aimed at ensuring similarly-situated parties are treated the same, has already vacated multiple such appealable judgments on the basis of the change in law in AMG.  If a judgment was no longer appealable, then the only recourse was a “collateral attack” under Rule 60(b) of the Federal Rules of Civil Procedure, which sets out five narrowly prescribed circumstances for granting relief from a final judgment, plus a “catch-all” provision for any “other reason to justify relief” that requires a showing of “extraordinary circumstances” and vests great equitable discretion in the judge to make that determination  Those circumstances are: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that reasonably could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; and (6) any other reason that justifies relief.  A motion based on any of the first three factors must be brought within one year of entry of the final judgment or order and within a “reasonable time” under the fifth and sixth.  There is no time limit on challenging a judgment as void.

The two motions sought relief under factors 4-6 and involved very different facts. One asked the court to set aside a nearly ten-year old summary judgment of $480 million, affirmed on appeal, for deceptive advertising and telemarketing of a real estate investment product.  The other (which I argued) asked the court to vacate a stipulated judgment for $3.5 million against a payments processor who had processed sales of allegedly deceptive free trial offers of nutraceuticals and other products.  That judgment was only a little more than a year old and remained entirely unpaid as of the AMG decision.  In both cases, the court said that its task in deciding a Rule 60(b) motion was to weigh the competing interests of finality and fairness so as to ensure that justice is done.

Both motions argued that the judgments were void because the court lacked subject matter jurisdiction.  To support this argument, they contended that Section 13(b) of the FTC Act, under which the cases were brought, was jurisdictional. The FTC contended otherwise, and the court in each instance agreed, finding that Section 13(b) was merely remedial, authorizing injunctive but not monetary relief, and that subject matter jurisdiction existed under other federal statutes.  The fact that a judgment may have been erroneous, the court said, did not make it void.

Both motions also sought relief under the fifth factor of Rule 60(b), on the ground that prospective enforcement of the monetary judgments would be inequitable.  While monetary judgments are normally considered to be retroactive in nature, providing redress for a past wrong, the defendant under the unpaid judgment argued that enforcement would still be prospective precisely because the judgment was still unpaid and that the FTC would have to set up an administrative procedure to send refunds to consumers from any payment of the judgment.  The court disagreed, adhering to the general view that monetary judgments are retrospective in application.

The real battle ground was the “any other reason” catch-all clause of Rule 60(b)(6).  As noted, judges have wide discretion under this provision, with some characterizing it as a “grand reservoir of equitable power,” the exercise of which may be justified by an “intervening change of controlling law,” and others strictly construing the “extraordinary circumstances” needed to show that enforcement of a final judgment would result in a “manifest injustice.” In considering a Rule 60(b)(6) motion, courts, on a case-by-case basis, must “intensively balance numerous factors, including the competing policies of the finality of judgments and the incessant command of the court’s conscience that justice be done in light of all the facts.” In the Ninth Circuit, those factors, known as the “Phelps factors,” are: 1) the nature of the intervening change in the law; 2) the movant’s interest in pursuing relief; 3) the parties’ reliance interest in the finality of the case; 4) the delay between the judgment and the Rule 60(b) motion; and the 5) the relationship between the original judgment and the change in the law.    

In the motion seeking to set aside the much older summary judgment, the defendant did not really rely on the Phelps factors, but simply argued that it would be manifestly unfair to enforce a judgment now shown to have been legally unauthorized.  The court countered, however, that while a change in the controlling law can justify relief, it is not automatic and other interests must be considered, too.  In that case, the facts that: (1) the judgment was nearly a decade old; (2) the defendant had not challenged the FTC’s monetary authority at trial; and (3) the FTC had an alternative statutory path to monetary relief even if the Section 13(b) judgment were set aside, were enough to convince the judge that there were no “extraordinary circumstances” warranting a lifting of the judgment and no “manifest injustice” to prevent.

In the case of the much more recent, unpaid stipulated judgment, the defendant vigorously argued that the Phelps factors were in its favor, arguing that: (1) the change in law, reversing as it did decades old precedent, was historic, profound, and directly undercut the legal basis upon which the FTC had sought, and defendant had agreed to, a monetary remedy; (2) it had a strong and timely interest in pursuing relief; (3) the FTC had no real reliance interest in finality since it had not even pursued collection; (4) it moved for relief almost immediately after the change in the law; and there was a direct nexus between the original judgment, which was predicated on the prior, erroneous view of Section 13(b) monetary relief, and the change in the law. Indeed, the defendant testified that despite one lone, recent circuit court decision that went against the grain of that long-standing precedent, at the time of settlement he was not aware of any petition to the Supreme Court to consider the issue, much less a decision to hear it, and the law thus seemed so settled in the FTC’s favor that he never even considered litigating the issue.   

While the FTC argued that the Phelps factors were on its side, the principal thrust of its opposition zeroed in on the weak link in the motion, namely, that the judgment was agreed to by the defendant.  Even though there was no evidence that the defendant thought a change in law was possible at the time of settlement or that he ever considered going to trial to challenge the law, the FTC, citing what it considered to be controlling Supreme Court authority, argued that he had made a “conscious litigation choice” to give up the opportunity to litigate the issue in favor of settlement and thus had to live with the consequences of his decision. The court accepted this argument, quoting from the Supreme Court that when “a party makes a conscious and informed choice of litigation strategy, [that party] cannot seek extraordinary relief [under Rule 60(b)(6)] merely because his assessment of the consequences was incorrect.”  The court did not accept defendant’s counter-argument that this authority was distinguishable because he had not consciously weighed or even seen the possibility of the law changing and chose to settle for entirely other reasons.  The Court also felt the defendant’s awareness of the single appellate decision rejecting the FTC’s authority was enough to put him on notice that the issue was no longer settled, even though it was still the law in the Ninth Circuit, he did not know the Supreme Court had been asked to hear the case, and certiorari would not be granted until months after his settlement.

As these cases reveal, using the AMG decision to try to overturn a monetary judgment under Section 13(b) is indeed an uphill task, not impossible, but hard.  The circumstances must line up nearly perfectly: a fairly recent judgment; no alternative statutory path to monetary relief; in the case of a contested judgment, showing that a challenge had been made to the FTC’s Section 13(b) monetary authority in the original case; in the case of a stipulated judgment, a complete unawareness of any legal challenge to that monetary authority at the time of settlement; and in the case of either an adjudicated or stipulated judgment, the lack of, or only partial, execution of the judgment.  Certainly, if a judgment has been paid, it would be even harder to get a judge to “unscramble the egg” and thus unleash a potential floodgate of FTC defendants rushing into court to try to get their money back.  Finally, almost six months after AMG, any FTC defendant considering a Rule 60(b) motion must move fast to meet the “reasonable time” requirement. Since AMG, the FTC has been scrambling itself to get Congress to restore its Section 13(b) monetary authority.  A bill to do so has passed the House but is presently languishing in the Senate.