UPDATING THE FEDERAL AGENCY ENFORCEMENT PLAYBOOK.

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Author: Aiste Zalepuga
Date: May 2021
From: Notre Dame Law Review(Vol. 96, Issue 5)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 11,695 words
Lexile Measure: 1900L

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INTRODUCTION

Multinational technology companies--including Amazon, Apple, Facebook, and Google--are leading news headlines for potentially anticompetitive behavior. (1) If anticompetitive behavior is found, then agencies may seek and courts will craft an appropriate remedy for the harm. (2) Remedies can be legal or equitable. While legal remedies tend to be formulaic, equitable remedies allow for significantly more discretion and creativity--providing the wielder of equity with a powerful tool against defendants. (3) The proposed remedies for "Big Tech" are far ranging and include equitable monetary relief, such as disgorgement and restitution. (4) Selecting one remedy over another could reshape industries and tangibly impact our daily lives. (5)

The relationship between courts and agencies plays an important role in the assignment of remedies. The "classic vision of lawmaking" focuses on a bill that becomes a law; however, the interpretation and implementation of statutes by courts and agencies provide most of the detail in federal law. (6) Recent federal court cases suggest a new trend in the relationship between courts and agencies when interpreting statutes. Federal courts appear to be sharpening the distinction between law and equity when interpreting statutes, in order to limit agency enforcement powers.

Recent federal court cases concerning the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) demonstrate this new relationship between the courts' insistence on equitable principles and the agencies' enforcement powers. For instance, in Liu v. SEC, (7) the Supreme Court limited SEC enforcement powers by holding the agency accountable to traditional principles of equity, (8) and similar implications arose for the FTC. In this respect, the FTC provides an interesting case study: the FTC's use of equitable remedies grew into a powerful tool to secure some of the agency's most significant settlements, (9) until federal courts stepped in to limit the FTC's arsenal of equitable remedies. For example, the Court unanimously curtailed section 13(b) of the FTC Act (10) in AMG Capital Management, LLC v. FTC, (11) returning the remedy in question to a traditional equitable category.

Section 13(b) expressly authorizes the FTC to seek permanent injunctions, but other equitable remedies--namely disgorgement and restitution--are not mentioned. (12) Nevertheless, the FTC has read section 13(b) in an increasingly expansive manner over the past four decades to secure large monetary remedies. (13) While the FTC's expansive use of section 13(b) has long been in debate, (14) a circuit split recently occurred: the Ninth Circuit affirmed a broad reading of section 13(b), while the Third and Seventh Circuits overruled longstanding precedent by holding that the FTC cannot obtain monetary relief under section 13(b). Against the backdrop of this circuit split, the Supreme Court decided the future of section 13(b) in AMG Capital, holding that the express right to obtain an injunction does not provide the FTC with the authority to obtain monetary relief. (15) The Court's interpretation of the FTC Act is instructive to the interpretation of other statutes, as the Court generally is applying an increasingly textualist approach to statutory interpretation. (16)

This Note explores the relationship...

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Gale Document Number: GALE|A666682361