Respondents Brief — AMG Capital Management, LLC, et al., Petitioners v. Federal Trade Commission

Supreme Court briefNov 30, 2020

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No. 19-508

IN THE

Supreme Court of the United States

—————

AMG CAPITAL MANAGEMENT, LLC; BLACK CREEK

CAPITAL CORPORATION; BROADMOOR CAPITAL

PARTNERS, LLC; LEVEL 5 MOTORSPORTS, LLC;

SCOTT A. TUCKER; PARK 269 LLC; AND KIM C. TUCKER,

PETITIONERS

FEDERAL TRADE COMMISSION

—————

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—————

BRIEF FOR THE FEDERAL TRADE COMMISSION

—————

ALDEN F. ABBOTT

General Counsel

Counsel of Record

JOEL MARCUS

Deputy General Counsel

for Litigation

MICHAEL BERGMAN

THEODORE (JACK) METZLER

MATTHEW M. HOFFMAN

Attorneys

FEDERAL TRADE COMMISSION

600 Pennsylvania Ave. NW

Washington, D.C. 20580

(202) 326-2505

aabbott@ftc.gov

QUESTION PRESENTED

Section 13(b) of the Federal Trade Commission Act, 15

U.S.C. 53(b), authorizes the Federal Trade Commission to

sue in federal district court those who violate the laws

under the Commission’s purview and authorizes the district court in such cases to issue “a permanent injunction.”

The question presented is:

Whether, when the Commission seeks a permanent

injunction under Section 13(b), the district court may order

the defendant to return money unlawfully taken from

consumers as part of the relief.

(I)

PARTIES TO THE PROCEEDING BELOW

The caption of the case in this Court contains the names

of all parties to the proceeding in the court of appeals.

III

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutes Involved ................................................................. 2

Introduction .......................................................................... 2

Statement .............................................................................. 3

A. Congress’s Creation And Expansion Of The

Commission’s Enforcement Powers ........................ 3

B. The Commission’s Use Of Section 13(b) To

Obtain Restorative Monetary Relief ....................... 8

C. The Commission’s Enforcement Case .................... 9

Summary of the Argument ............................................... 11

Argument ............................................................................ 16

I. Section 13(b)’s Grant Of The Equitable Power Of

Injunction Conveys The Power To Order The

Return Of Unlawfully Taken Money. ........................ 16

A. In Traditional Equity Practice, A Court

Hearing A Suit For An Injunction Could

Order Restorative Monetary Relief. .................. 18

B. Statutory Authority To Grant An “Injunction”

Includes The Power To Grant Restorative

Monetary Relief. ..................................................... 20

C. Section 13(b) Grants The District Courts

Equitable Jurisdiction To Enter An Injunction

And The Attendant Authority To Order

Restorative Monetary Relief. ................................. 24

D. Congress Has Twice Ratified The Lower Court

Rulings That Section 13(b) Allows Monetary

Relief. ........................................................................ 27

E. Tucker’s Arguments That Section 13(b)

Precludes Monetary Relief Are Incorrect. ........ 29

1. Injunctions have always included restorative

remedies.................................................................... 29

2. Tucker cannot escape Porter, Mitchell, and the

centuries of equity jurisprudence preceding

them........................................................................... 33

II. Nothing In The FTC Act Provides A Clear

Legislative Command To Restrict The Traditional

Powers Of Equity. ........................................................ 37

A. Congress Created Two Enforcement Pathways

In The FTC Act With Appropriate Statutory

Text For Each. ......................................................... 39

1. Monetary remedies under Section 13(b) are

compatible with Section 19, as its savings

clauses make clear. .................................................. 42

2. The provision for “equitable relief” in Section

5(l) does not restrict the scope of remedies

under Section 13(b).................................................. 47

B. Tucker Offers No Rational Explanation Why

Congress Would Have Intended Wrongdoers To

Keep The Proceeds Of Their Illegal Conduct. ..... 50

III.The Determination Of Monetary Remedies Below

Was Correct. ................................................................. 51

Conclusion ........................................................................... 55

TABLE OF AUTHORITIES

Page

Cases:

Alexander v. Hillman, 296 U.S. 222 (1935) ..................... 20

Alexander v. Sandoval, 532 U.S. 275 (2001) ........ 13, 34, 35

Belford v. Scribner, 144 U.S. 488 (1892)........................... 21

Brown v. Swann, 35 U.S. 497 (1836)................................. 38

Bouie v. City of Columbia, 378 U.S. 347 (1964) .............. 45

California v. American Stores Co.,

495 U.S. 271 (1990) ....................................................... 37

Camp v. Boyd, 229 U.S. 530 (1913) ................................... 20

Civil Aeronautics Bd. v. Delta Air Lines, Inc.,

367 U.S. 316 (1961) ....................................................... 40

Colburn v. Sims, 67 Eng. Rep. 223 (Ch. 1843) ................ 19

Cortez Byrd Chips, Inc. v. Bill

Harbert Constr. Co., 529 U.S. 193 (2000) ................... 34

Dean v. Mason, 61 U.S. 198 (1858) ................................... 21

Dombrowski v. Pfister, 380 U.S. 479 (1965) .................... 31

Envtl. Def. v. Duke Energy Corp.,

549 U.S. 561 (2007) ....................................................... 49

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ....................................................... 39

FTC v. Amy Travel Serv., Inc.,

875 F.2d 564 (7th Cir. 1989)...................................... 8, 27

FTC v. Bronson Partners, LLC,

654 F.3d 359 (2d Cir. 2011) ............................................. 8

FTC v. Credit Bureau Center, LLC,

937 F.3d 764 (7th Cir. 2019)...................................... 8, 28

FTC v. Direct Mktg. Concepts, Inc.,

624 F.3d 1 (1st Cir. 2010) ................................................ 8

FTC v. Febre, 128 F.3d 530 (7th Cir. 1997)........................ 28

FTC v. Freecom Commc’ns, Inc.,

401 F.3d 1192 (10th Cir. 2005) .................................. 8, 28

FTC v. Gem Merchandising Corp.,

87 F.3d 466 (11th Cir. 1996).......................................... 28

FTC v. H.N. Singer, Inc.,

668 F.2d 1107 (9th Cir. 1982) .................................... 8, 27

FTC v. Pantron I Corp.,

33 F.3d 1088 (9th Cir. 1994).......................................... 28

FTC v. Ross,

743 F.3d 886 (4th Cir. 2014)............................................ 8

FTC v. Sec. Rare Coin & Bullion Corp.,

931 F.2d 1312 (8th Cir. 1991) .................................... 8, 27

FTC v. U.S. Oil & Gas Corp.,

748 F.2d 1431 (11th Cir. 1984) .................................. 8, 27

FTC v. Virginia Homes Mfg. Corp.,

509 F. Supp. 51 (D. Md. 1981) ........................................ 8

FTC v. Wyndham Worldwide Corp.,

799 F.3d 236 (3d Cir. 2015) ........................................... 45

Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204 (2002) ......................... 16, 32, 54

Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251 (1916) ........................ 22

Heater v. FTC, 503 F.2d 321 (9th Cir. 1974) ....................... 7

Hecht Co. v. Bowles, 321 U.S. 321 (1944)................... 25, 41

Hogg v. Kirby, 32 Eng. Rep. 336 (Ch. 1803) .................... 19

Holland v. Florida, 560 U.S. 631 (2010) ........................... 38

Huguenin v. Basely,

33 Eng. Rep. 722 (Ch. 1808) ........................................ 29

Jesus College v. Bloom, 26 Eng. Rep. 953,

27 Eng. Rep. 31 (Ch. 1745) .................................... 17, 18

Kansas v. Nebraska, 574 U.S. 445 (2015)............. 12, 20, 37

Lacassagne v. Chapuis, 144 U.S. 119 (1892) ................... 31

Liu v. SEC, 140 S. Ct. 1936 (2020) ........................... passim

VII

Livingston v. Woodworth, 56 U.S. 546 (1854) .................. 22

Lorillard v. Pons, 434 U.S. 575 (1978) .............................. 26

Manhattan Properties, Inc. v.

Irving Trust Co., 291 U.S. 320 (1934) ........................ 27

Meghrig v. KFC Western, Inc.,

516 U.S. 479 (1996) ........................................... 14, 35, 36

Mertens v. Hewitt Associates,

508 U.S. 248 (1993) ..................................... 20, 32, 34, 54

Middlesex Cnty. Sewerage Auth. v.

Nat’l Sea Clammers Ass’n,

453 U.S. 1 (1981) ........................................................... 47

Mitchell v. Robert DeMario Jewelry,

Inc., 361 U.S. 288 (1960) .................. 8, 13, 17, 24, 33, 34

Nationwide Mut. Ins. Co. v. Darden,

503 U.S. 318 (1992) ....................................................... 25

Nken v. Holder, 556 U.S. 418 (2009) ................................. 48

NLRB v. Bell Aerospace Co.,

416 U.S. 267 (1974) ....................................................... 50

Osborn v. Bank of the United States,

22 U.S. 738 (1824) ................................................... 29, 30

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) ................................................... 25

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) .............................................. passim

Rubber Co. v. Goodyear,

76 U.S. 788 (1869) ......................................................... 21

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) ....................................................... 48

SEC v. Manor Nursing Ctrs., Inc.,

458 F.2d 1082 (2d Cir. 1972) ......................................... 26

SEC v. Tex. Gulf Sulphur Co.,

446 F.2d 1301 (2d Cir. 1971) ......................................... 26

VIII

Sheldon v. Metro-Goldwyn Pictures Corp.,

309 U.S. 390 (1940) ................................................. 12, 22

Standard Oil Co. v. United States,

221 U.S. 1 (1911) ........................................................... 20

Stevens v. Gladding, 58 U.S. 447 (1855) ............... 12, 17, 21

Stribley v. Hawke,

26 Eng. Rep. 961 (Ch. 1744) ........................................ 29

Swift & Co. v. United States,

276 U.S. 311 (1928) ....................................................... 31

Taggart v. Lorenzen,

139 S. Ct. 1795 (2019) ................................................... 20

Tilghman v. Procter,

125 U.S. 136 (1888) ........................... 3, 12, 17, 18, 21, 22

Tull v. United States,

481 U.S. 412 (1987) ................................................. 12, 19

United States v. Grote,

961 F.3d 105 (2d Cir. 2020) ..................................... 10, 11

United States v. Morton Salt Co.,

338 U.S. 632 (1950) ....................................................... 40

United States v. Union Pacific R. Co.,

160 U.S. 1 (1895) ........................................................... 20

United States v. W.T. Grant Co.,

345 U.S. 629 (1953) ....................................................... 32

Warth v. Seldin, 422 U.S. 490 (1975) ................................ 31

Weinberger v. Romero–Barcelo,

456 U.S. 305 (1982) ................................................. 25, 41

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ..................... 13, 35

Statutes and Legislative Materials:

15 U.S.C. 26 ......................................................................... 37

15 U.S.C. 45(a)(1) ................................................................. 3

15 U.S.C. 45(a)(2) ................................................................. 3

15 U.S.C. 45(a)(4) ............................................................... 28

15 U.S.C. 45(b) .......................................................... 4, 40, 41

15 U.S.C. 45(c) ...................................................................... 4

15 U.S.C. 45(g) .................................................................... 40

15 U.S.C. 45(l) ..................................................................... 41

15 U.S.C. 45(m) ............................................................... 7, 41

15 U.S.C. 53(a) ................................................................ 5, 26

15 U.S.C. 53(b) ................................................ 4, 5, 26, 41, 49

15 U.S.C. 57a ......................................................................... 7

15 U.S.C. 57b(a)(1) ......................................................... 7, 43

15 U.S.C. 57b(a)(2) ................................................... 6, 41, 44

15 U.S.C. 57b(b) .............................................................. 7, 41

15 U.S.C. 57b(d) .............................................................. 7, 44

15 U.S.C. 57b(e) ............................................ 7, 15, 39, 45, 46

15 U.S.C. 68e(b) ............................................................. 5, 26

15 U.S.C. 69g(b) .............................................................. 5, 26

15 U.S.C. 70f ................................................................... 5, 26

15 U.S.C. 77t(b) .................................................................. 25

15 U.S.C. 78u(d)(1) ............................................................. 26

15 U.S.C. 78u(d)(5) ............................................................. 26

15 U.S.C. 1601 ....................................................................... 9

15 U.S.C. 1667f ..................................................................... 9

29 U.S.C. 217 ....................................................................... 24

42 U.S.C. 6972(a) ................................................................ 36

Emergency Price Control Act of 1942,

Pub. L. No. 77-421 ........................................................ 23

Magnuson-Moss Warranty—Federal Trade

Commission Improvement Act,

Pub. L. No. 93-637 (1975) ........................................ 6, 43

Trans-Alaska Pipeline Authorization Act,

Pub. L. No. 93-153 (1973) .......................................... 4, 6

Pub. L. No. 15-19 (1819) .................................................... 21

Pub. L. No. 24-357 (1836) .................................................. 21

Pub. L. No. 73-22 (1933) .................................................... 25

Pub. L. No. 73-291 (1934) .................................................. 25

Pub. L. No. 103-312 (1994) .......................................... 27, 28

Pub. L. No. 107-204 (2003) ................................................ 26

Pub. L. No. 109-455 (2006) ................................................ 28

H.R. Conf. Rep. 93-1606 (1975) ........................................... 7

S. Rep. No. 93-151 (1973)......................... 5, 6, 26, 43, 49, 50

S. Rep. No. 103-130 (1993)................................................. 28

S. Rep. No. 107-205 (2002)................................................. 26

Other Authorities:

American Bar Association, Report of the ABA

Commission to Study the Federal Trade

Commission (1969) .................................................... 4, 5

Black’s Law Dictionary (11th ed. 2019) ........................... 31

Dobbs, Dan B., Law of Remedies (2d ed. 1993)

§ 1.1 ................................................................................ 30

§ 4.3 ................................................................................ 18

FTC, FTC Refunds to Consumers,

Fiscal Year: 2016 to 2020 ......................................... 9, 53

FTC, Semiannual Federal Court

Litigation Status Report (2020) ................................... 8

High, James L., A Treatise on the

Law of Injunctions (1873)

§ 1 ................................................................................... 30

§ 451 ............................................................................... 19

Joyce, Howard C., Treatise on the

Law Relating to Injunctions (1909)

§ 2 ................................................................................... 30

§ 2a ................................................................................. 30

§ 10 ................................................................................. 19

Pomeroy, John Norton, Treatise on

Equity Jurisprudence (1881)

1 Pomeroy § 181 ................................................ 19, 20, 32

1 Pomeroy § 231 ............................................................ 19

1 Pomeroy § 236 ...................................................... 17, 19

1 Pomeroy § 237 ............................................................ 19

Pomeroy, John Norton, Treatise on

Equity Jurisprudence (1883)

3 Pomeroy § 1337 .......................................................... 30

Restatement (Third) of Restitution

and Unjust Enrichment (2011)

§ 51 ........................................................................... 16, 54

Scalia, Antonin & Bryan A. Garner,

Reading Law: The Interpretation

of Legal Texts (2012) .................................................... 27

Story, Joseph, Commentaries on Equity

Jurisprudence (1836)

2 Story § 861 ................................................................. 30

2 Story § 862 ................................................................. 30

2 Story § 917 ................................................................. 18

2 Story § 933 ................................................................. 19

Supreme Court of the United States

—————

NO. 19-508

AMG CAPITAL MANAGEMENT, LLC, ET AL.,

PETITIONERS

FEDERAL TRADE COMMISSION

—————

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—————

BRIEF FOR THE FEDERAL TRADE COMMISSION

—————

OPINIONS BELOW

The court of appeals’ opinion (Pet. App. 1a-40a) is reported at 910 F.3d 417. The district court’s opinion on

liability (Pet. App. 41a-73a) is reported at 29 F. Supp.3d

1338, and its opinion on remedy (Pet. App. 74a-116a) is

unreported.

JURISDICTION

The court of appeals entered judgment on December 3,

2018, and denied rehearing on June 20, 2019. On September 3, 2019, Justice Kagan extended the time to file a petition for a writ of certiorari to October 18, 2019, and the

petition was filed on that date. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

(1)

STATUTES INVOLVED

Pertinent provisions of the Federal Trade Commission

Act, 15 U.S.C. 41 et seq., are reproduced in the Appendix.

App., infra, 1a-12a.

INTRODUCTION

Scott Tucker ran a deceptive payday lending scheme so

egregious that he ultimately went to prison for it. He stole

more than $1.3 billion from consumers by misrepresenting

loan terms and causing borrowers to pay more than seven

times the interest they were told they would pay, violating

the Federal Trade Commission Act’s prohibition on deceptive practices. In this civil case, Tucker and his companies

were enjoined from further consumer lending and ordered

to pay back the victims.

Tucker’s scam is just one example of the many ways in

which fraudsters reap enormous profits at the expense of

American consumers. From bogus health insurance scams,

to debt-relief schemes, to quack cancer cures, con artists

are endlessly creative in fleecing consumers, and the

Commission wages a ceaseless battle against them. It

brings scores of enforcement cases every year which have

returned billions of dollars to cheated victims. Often, legal

action by the Commission is the only practical means of

stopping the misconduct and securing monetary recovery.

Tucker does not dispute that he violated the law or that

the district court properly enjoined his future conduct.

Instead, he insists that because the Commission sued him

under a provision authorizing a “permanent injunction,”

the district court was powerless to award any kind of monetary relief, and he should have kept his ill-gotten gains.

That position conflicts with basic principles of equity

and nearly three hundred years of precedent. Since the

eighteenth century, equity jurisprudence has recognized

that a court’s jurisdiction to issue an injunction carries with

it the authority to provide complete relief, including the

restoration of property or money improperly taken from its

owner or an accounting of profits. Such restorative remedies rest on the “foundational principle” that “the wrongdoer should not profit ‘by his own wrong.’” Liu v. SEC, 140

S. Ct. 1936, 1943 (2020) (quoting Tilghman v. Procter, 125

U.S. 136, 145 (1888)).

Applying traditional principles of equity, the Court has

repeatedly held that unless Congress clearly directs otherwise, a statute authorizing an “injunction” allows a court

not only to restrict future conduct, but also award restorative monetary remedies. As the Court explained in Porter v.

Warner Holding Co., 328 U.S. 395, 399 (1946), “[n]othing is

more clearly a part of the subject matter of a suit for an

injunction than the recovery of that which has been illegally acquired and which has given rise to the necessity for

injunctive relief.”

That principle controls this case. When Congress empowered courts in FTC enforcement cases to issue “permanent injunction[s],” it relied on and incorporated that

established understanding of the term. Nothing in the FTC

Act shows that Congress intended to depart from the bedrock principles of equity that Section 13(b) incorporates.

STATEMENT

A. Congress’s Creation And Expansion Of The Commission’s Enforcement Powers

Section 5 of the Federal Trade Commission Act outlaws

and directs the Commission to prevent “unfair methods of

competition” and “unfair or deceptive acts or practices.” 15

U.S.C. 45(a)(1), 45(a)(2). Congress has provided two different avenues for the Commission to enforce the Act: an

administrative one in which the Commission acts as an

adjudicative body, and a judicial one in which the Commission sues in federal district court and acts as a litigant. The

Commission has discretion to decide which route is appropriate for any given matter.

1. The administrative enforcement avenue dates back to

the original FTC Act of 1914. Section 5 of the Act sets forth

a process—entirely new at the time—by which the Commission issues a complaint, considers evidence, and determines whether a violation has occurred. 15 U.S.C. 45(b). If

the Commission finds a violation, it may order the respondent to cease and desist from the illegal conduct. Ibid.

A respondent can challenge the Commission’s order in a

court of appeals, but “[t]he findings of the Commission as

to the facts, if supported by evidence, shall be conclusive.”

15 U.S.C. 45(c).

2. Congress created the judicial enforcement pathway in

1973 when it added to the Act a new Section 13(b)—the

provision at issue here. Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153, § 408(f), 87 Stat. 576, 592

(1973) (codified as amended at 15 U.S.C. 53(b)). Section

13(b) was enacted in response to criticism that the Act did

not give the Commission sufficient authority to effectively

combat fraud. At President Nixon’s request, the American

Bar Association undertook a study of the Commission’s

operations. The ABA found that fraud against consumers

was being “practiced on a vast scale.” American Bar Association, Report of the ABA Commission to Study the Federal Trade Commission 49 (1969). The report further

found that the Commission lacked an effective program to

enforce cease-and-desist orders entered in the administrative adjudication pathway. Id. at 44. The ABA suggested

reforms to shore up the Commission’s adjudications, such

as expanding the ability to halt illegal practices during an

administrative adjudication by obtaining preliminary injunctive relief in federal court. Id. at 62-64. The ABA also

noted that consumers had no way to recover money lost to

fraud and recommended the creation of private rights of

action for recovery. Ibid.

The bulk of Section 13(b) answers the ABA’s specific

recommendation to expand the Commission’s authority to

seek preliminary relief in federal court to stop illegal conduct while an administrative adjudication is pending. Previously, that authority was limited to narrow categories of

cases, such as food and drug advertising and textile labeling. E.g., 15 U.S.C. 53(a), 68e(b), 69g(b), 70f. Section 13(b)

extended the authority to seek preliminary relief to cases

involving the violation of “any provision of law” enforced

by the Commission. 15 U.S.C. 53(b).

Section 13(b) also created a means for the Commission

to enforce the Act directly in federal court as an alternative

to the administrative forum. Allowing judicial enforcement

alleviated the ABA’s concern about the ability of administrative enforcement to keep pace with the prevalence of

consumer fraud. Section 13(b) states: “Provided further,

That in proper cases the Commission may seek, and after

proper proof, the court may issue, a permanent injunction.” 1 Ibid. A Senate report explained that this provision

would give the Commission the ability to “seek a permanent injunction in those situations in which it does not

desire to further expand upon the prohibitions of the Federal Trade Commission Act through the issuance of a

cease-and-desist order.” S. Rep. No. 93-151, at 31 (1973). In

that way, “Commission resources will be better utilized,

In this brief, we use “Section 13(b)” to mean the permanentinjunction authority unless the context shows otherwise.

and cases can be disposed of more efficiently” than through

the Commission’s own adjudicative process. Ibid.

The permanent injunction authority thus created a new

judicial enforcement pathway in which the Commission

may forgo its own adjudicative process and factfinding

authority and instead employ the federal courts to redress

violations of the FTC Act. In such cases, a court, rather

than the Commission, determines in the first instance

whether a violation has occurred and whether relief is

warranted; the Commission acts only as a litigant.

3. In the same 1973 act, Congress also amended the

FTC Act to augment the administrative pathway, and it did

so again in legislation enacted in 1975. The 1973 law expanded Section 5(l), which authorizes civil penalties for the

violation of a Commission cease-and-desist order, to also

authorize “mandatory injunctions and such other and further equitable relief as [courts] deem appropriate.” 87 Stat.

at 591. The Senate Report explains that this language was

directed at “persons in violation of a Commission order for

whom the threat of economic penalty is more apparent

than real because they have no available resources with

which to pay the penalty.” S. Rep. No. 93-151, at 29.

The 1975 legislation further expanded the Commission’s

ability to enforce its own orders. See Magnuson-Moss

Warranty—Federal Trade Commission Improvement Act,

Pub. L. No. 93-637, 88 Stat. 2183 (1975). Most relevant

here, the 1975 act created a new Section 19, which authorizes the Commission to obtain additional relief after finding

in an administrative proceeding that a defendant engaged

in unfair or deceptive practices. In cases where a reasonable person would have known that the conduct was “dishonest or fraudulent,” 15 U.S.C. 57b(a)(2), a court may

“grant such relief as the court finds necessary to redress

injury to consumers or other persons,” including “rescis-

sion or reformation of contracts, the refund of money or

return of property, the payment of damages, and public

notification.” 15 U.S.C. 57b(b). The administrative proceeding must begin within three years of the violation, and the

Section 19 action within one year of the final cease-anddesist order. 15 U.S.C. 57b(d).

This new authority was enacted in the wake of Heater v.

FTC, 503 F.2d 321 (9th Cir. 1974), which held that the

Commission could not order consumer redress on its own

authority in an administrative proceeding. Congress made

clear, however, that the new remedies did not limit any

existing ones. Congress specified that the new remedies

“are in addition to, and not in lieu of, any other remedy or

right of action provided by State or Federal law,” and that

“nothing in [Section 19] shall be construed to affect any

authority of the Commission under any other provision of

law.” 15 U.S.C. 57b(e). Legislative history confirms that

Congress did not intend to express any view on the Commission’s existing enforcement powers. H.R. Conf. Rep. 931606, at 42 (1975). 2

The 1975 act also codified the Commission’s authority to promulgate

rules defining unfair or deceptive acts or practices, see 15 U.S.C. 57a,

and created mechanisms to enforce such rules. Section 19(a)(1) allows

the Commission to sue rule violators in federal or state court for the

consumer redress relief described above, 88 Stat. at 2201 (codified as

amended at 15 U.S.C. 57b(a)(1), 57b(b)). Section 5(m) permits civil

penalties for knowing rule violations. It also authorizes civil penalty

actions against those who knowingly violate a cease-and-desist order

even if they were not a party to the original proceeding. 88 Stat. at

2200-2201 (codified as amended at 15 U.S.C. 45(m)).

B. The Commission’s Use Of Section 13(b) To Obtain

Restorative Monetary Relief

The Commission brought its first case under the permanent injunction provision in 1979. See FTC v. Virginia

Homes Mfg. Corp., 509 F. Supp. 51 (D. Md. 1981). Since

then, the permanent injunction provision of Section 13(b)

has become a mainstay of the Commission’s enforcement

program. Before the Seventh Circuit’s decision in FTC v.

Credit Bureau Center, LLC, 937 F.3d 764 (7th Cir. 2019),

eight courts of appeals had held, without exception, that

under this Court’s decisions in Porter v. Warner Holding

Co., 328 U.S. 395 (1946), and Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 288 (1960), judicial authority to

enter a permanent injunction includes the authority to

require the return of wrongfully obtained money. 3

Today, the agency brings dozens of cases every year

seeking a permanent injunction and the return of illegally

obtained funds. 4 Section 13(b) enforcement cases have

resulted in the return of billions of dollars to consumers

See FTC v. H.N. Singer, Inc., 668 F.2d 1107, 1112-1113 (9th Cir.

1982); FTC v. U.S. Oil & Gas Corp., 748 F.2d 1431, 1432, 1434 (11th Cir.

1984) (per curiam); FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 571572 (7th Cir. 1989); FTC v. Sec. Rare Coin & Bullion Corp., 931 F.2d

1312, 1314-1315 (8th Cir. 1991); FTC v. Freecom Commc’ns, Inc., 401

F.3d 1192, 1202 n.6 (10th Cir. 2005); FTC v. Direct Mktg. Concepts, Inc.,

624 F.3d 1, 15 (1st Cir. 2010); FTC v. Bronson Partners, LLC, 654 F.3d

359, 365 (2d Cir. 2011); FTC v. Ross, 743 F.3d 886, 890-892 (4th Cir.

2014).

In mid-2020, there were 56 such cases pending in district courts. See

FTC, Semiannual Federal Court Litigation Status Report, at 6-70

(2020), https://www.ftc.gov/system/files/attachments/litigation-statusreport/2020_06_semiannual_litigation_report_public.pdf.

who have fallen victim to a wide variety of illegal scams and

anticompetitive practices. 5

C. The Commission’s Enforcement Case

1. Petitioner Scott Tucker ran a large-scale deceptive

payday lending scheme through his wholly owned companies, including petitioner AMG Capital Management. Pet.

App. 4a-6a. A payday loan is a high-interest, short-term

loan, typically marketed to low-income consumers in need

of quick cash. Tucker’s loan documents contained a disclosure box mandated by the Truth in Lending Act (TILA), 15

U.S.C. 1601-1667f, purporting to display the key financial

terms of the loan. For example, if a customer sought to

borrow $300, Tucker’s TILA box disclosed a finance charge

of $90 (30% of the amount borrowed) and total payments of

$390, to be withdrawn in one payment two weeks later

from the consumer’s bank account. Pet. App. 8a, 45a.

Instead of applying those terms, Tucker regularly made

multiple withdrawals, assessing the finance charge and

automatically “renewing” the loan for another two weeks.

Tucker claimed that practice was justified by loan terms

hidden in a maze of confusing fine print, asterisks, and

footnotes. But even that text did not reveal that unless the

borrower affirmatively opted out, the loan would be renewed 10 times, with a new finance charge each time. The

net result was that a person who borrowed $300 expecting

to pay back $390, but who did not opt out of the default

plan, paid a total of $975. Id. at 8a-9a, 48a-50a. In the four

years from 2008 to 2012, Tucker made more than five million loans and collected about $1.32 billion in deceptive

See FTC, FTC Refunds to Consumers, Fiscal Year: 2016 to 2020,

https://public.tableau.com/profile/federal.trade.commision#!/vizhome/

Refunds_15797958402020/RefundsbyDate.

finance charges over and above the amounts disclosed in

the TILA box. Id. at 4a-5a, 15a, 17a-18a.

2. The Commission sued to halt Tucker’s fraudulent

scheme under Section 13(b), alleging that it violated Section 5’s prohibition on deceptive acts or practices and

TILA. Id. at 5a-6a, 42a, 51a. The district court granted

summary judgment for the FTC. Id. at 41a-73a. It held

that the “net impression” of the loan documents was “likely

to mislead borrowers acting reasonably under the circumstances because the large prominent print in the TILA Box

implies that borrowers will incur one finance charge while

the fine print creates a process under which multiple finance charges will be automatically incurred unless borrowers take affirmative action.” Id. at 60a-70a, 78a. The

Court found Tucker personally responsible for the acts of

his company because of his “pervasive role and authority

* * * which extended to almost every facet of the company’s business and operations,” and his “sustained and

continuous conduct that perpetuated the deceptive lending.” Id. at 92a, 98a.

The court entered an injunction that barred Tucker

from engaging in consumer lending and related practices

and ordered him to pay $1.27 billion in equitable monetary

relief to be used for consumer redress and attendant expenses (any money that cannot practicably be returned to

victims may be deposited in the Treasury). Id. at 105a108a. 6

In October 2017, Tucker was convicted criminally on fourteen counts

of racketeering, conspiracy, and fraud offenses arising out of his payday lending scheme, including “five counts of making false statements

in disclosures required by the Truth in Lending Act.” United States v.

Grote, 961 F.3d 105, 109 (2d Cir. 2020). Tucker now claims that he

merely “managed” a business for tribal “lenders.” Br. 11. In fact, the

tribes were “fronts” that Tucker used “to avoid detection of [his]

3. The court of appeals affirmed. Id. at 1a-40a. It agreed

that Tucker’s loan documents were “deceptive” and “did

not accurately disclose the loan’s terms,” and that the “fine

print * * * is riddled with still more misleading statements.” Id. at 9a-10a. The court also upheld the district

court’s monetary judgment as consistent with circuit precedent. Id. at 15a-17a.

Judge O’Scannlain, joined by Judge Bea, specially concurred to question whether prior decisions had properly

construed Section 13(b) as authorizing monetary relief and

suggested that the court rehear the case en banc (ultimately, no judge voted for rehearing). Id. at 23a-37a, 119a.

SUMMARY OF THE ARGUMENT

I. Nearly three centuries of equity jurisprudence

demonstrate that the authority Congress granted to district courts in Section 13(b)—to issue a “permanent injunction”—includes the power to order restorative monetary

relief. Since at least 1745, equity courts have held that

when a plaintiff seeks an injunction against ongoing or

threatened misconduct, the court may not only prohibit

future action, but also grant monetary relief to redress

past harm.

What happened here is fully consistent with that equitable tradition. The Commission sued Tucker under Section 13(b) for running a deceptive loan scam that cheated

consumers of more than $1.3 billion. The Commission

sought to enjoin Tucker from continuing to trick borrowers

and require him to pay back the money he stole. The district court granted both parts of that request. Tucker does

not deny his deceptive practices or challenge the injunction;

usurious lending practices or to give those practices the appearance of

legality.” 961 F.3d at 111. Tucker went so far as to build and staff “sham

business office facilities” on tribal lands as part of the charade. Id. at 113.

he merely claims that he should get to keep the money.

Legions of judicial decisions emphatically say otherwise.

A. Since before the founding of the Republic, equity

courts have awarded restorative monetary remedies incident to an injunction. Leading equity commentators, including Justice Story and Professor Pomeroy, recognized

this principle as black-letter law by the mid-nineteenth

century. Today, the Court continues to recognize that “a

court in equity may award monetary restitution as an

adjunct to injunctive relief,” Tull v. United States, 481 U.S.

412, 424 (1987), and that a court of equity will shape its

remedies so as to “accord full justice,” Kansas v. Nebraska,

574 U.S. 445, 456 (2015) (quoting Porter, 328 U.S. at 398).

The Court has always construed statutes that authorize

district courts to grant an injunction to also authorize them

to exercise the full range of their equitable authority unless

the statute clearly says otherwise. The Court thus read

patent and copyright statutes authorizing courts to “grant

injunctions” to allow an accounting on the ground that such

monetary relief is “incident to the right to an injunction.”

Stevens v. Gladding, 58 U.S. 447, 455 (1855). The Court has

repeatedly reaffirmed this principle. See Tilghman v.

Procter, 125 U.S. 136, 144 (1888); Sheldon v. MetroGoldwyn Pictures Corp., 309 U.S. 390, 399 (1940). It follows that when Congress authorizes the government to

seek an injunction against the violation of a regulatory

statute, “[u]nless otherwise provided by statute, all the

inherent equitable powers of the District Court are available for the proper and complete exercise” of the court’s

equity jurisdiction. Porter, 328 U.S. at 398. That jurisdiction includes the power to grant restorative monetary

relief, because “[n]othing is more clearly a part of the subject matter of a suit for an injunction than the recovery of

that which has been illegally acquired and which has given

rise to the necessity for injunctive relief.” Id. at 399.

The interpretation of Section 13(b)’s permanent injunction clause is controlled by that equity precedent. By authorizing the district courts to grant permanent injunctions, Congress conferred on them all the traditional powers of a court of equity, including the power to grant restorative monetary relief. Nothing in the FTC Act shows

that Congress intended to depart from traditional equitable practice. Indeed, Congress has twice signaled approval

of judicial decisions upholding monetary remedies under

Section 13(b).

B. Tucker’s arguments for disregarding Porter and its

equity antecedents lack merit. He claims that the power of

injunction is strictly limited to prospective relief and can

never be used to order restorative remedies, but centuries

of equity precedent refute that argument. Injunctions are

preventative and forward-looking, but they are not limited

to such relief. The decisions Tucker relies on describe

common properties of an injunction, but do not address

whether a court issuing an injunction may also order restorative remedies. Porter and centuries of equity jurisprudence do address that question and hold squarely that

when a court of equity enjoins ongoing or future acts, it

may also order restorative monetary relief. Tucker does

not cite any decision from this Court holding otherwise.

Tucker cannot avoid Porter on the ground that the statute

there authorized the court to enter an injunction or “other

order.” The Court rejected the same argument in Mitchell

v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960), making clear that Porter’s explication of the powers of a court

of equity did not turn on the additional phrase. Nor is

Tucker helped by Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),

or Alexander v. Sandoval, 532 U.S. 275 (2001). Those cases

considered whether private plaintiffs without an express

right to sue for the requested relief nevertheless had an

implied cause of action. This case involves an express right

to sue and the express remedy of an injunction, which

carries with it the long-established understanding of that

remedy. Tucker is also wrong to suggest that the Court

abandoned Porter and its equity antecedents in Meghrig v.

KFC Western, Inc., 516 U.S. 479 (1996). To the degree the

Court discussed Porter, it described how the intricacies of a

statutory regime very different from the FTC Act provided

the kind of compelling evidence of congressional intent

needed before the Court will find a limitation on the equity

powers of district courts. That the Court has not abandoned Porter is obvious from the numerous times it has

recently relied on the decision.

II. Under a century-old line of precedent, Congress

must express its intent to limit the district court’s equitable

powers “in so many words” or “by a necessary and inescapable inference.” Porter, 328 U.S. at 398. Contrary to

Tucker’s argument, neither Section 19 nor Section 5(l) of

the FTC Act supports any inference, let alone an “inescapable” one, that Congress meant to limit the scope of the

district courts’ equitable jurisdiction under the permanent

injunction authority of Section 13(b).

Sections 19 and 5(l) play roles in the FTC Act’s enforcement regime different from Section 13(b). The Act

provides two independent avenues of Commission enforcement, administrative and judicial, with analogous

features and remedies. The different wording of the provisions reflects their different roles and origins.

Section 13(b), which created the judicial pathway, draws

upon centuries of established law defining the court’s powers, such as the authority to enter preliminary relief, the

contempt power, and the historic power of equity to provide

restorative monetary remedies. The administrative adjudication pathway, by contrast, rests upon no similar tradition.

Congress created it from scratch and therefore had to

define whatever elements in that process it wished to correspond to traditional elements of the judicial process.

Thus, a cease-and-desist order functions similarly to an

injunction; Section 19 resembles a court’s power in equity

to provide monetary redress; and Section 5(l) provides a

remedy for defying Commission orders, analogous to the

contempt power.

Accordingly, contrary to Tucker’s argument, reading

Section 13(b) to authorize monetary relief does not make

Section 19 superfluous. Section 19 provides a remedy in the

administrative enforcement pathway that otherwise would

be unavailable. Moreover, Congress plainly did not intend

Section 19 to limit Section 13(b) because it expressly stated

that “[r]emedies provided in [Section 19] are in addition to,

and not in lieu of, any other remedy or right of action provided by State or Federal Law,” and that “[n]othing in

[Section 19] shall be construed to affect any authority of

the Commission under any other provision of law.” 15

U.S.C. 57b(e).

Similarly, the authority for “equitable relief ” in Section

5(l) does not show that Congress intended to exclude such

relief from Section 13(b). Unlike Section 13(b), Section 5(l)

is not a means of enforcing the Act itself, but only of punishing violations of administrative cease-and-desist orders.

Congress did not draw upon traditional equity practices in

authorizing a penalty and thus had to use different terminology than it used in Section 13(b).

III. Tucker waived his challenges to the calculation of

the monetary judgment. He argued below neither that the

district court should have deducted any legitimate costs of

business nor that the court could not impose joint-andseveral liability.

In any event, Tucker has shown no legal infirmity in the

judgment. Section 13(b)’s unqualified permanent injunction

remedy allows the court to order relief necessary to

achieve complete justice. Moreover, the judgment reflects

only the amount paid by borrowers in excess of the charges

disclosed in the loan documents. Pet. App. 17a, 101a. That

methodology excludes from the judgment legitimately

charged amounts, which cover the genuine costs of doing

business. Tucker and his companies were partners engaged

in concerted wrongdoing, properly subject to joint liability

under Liu v. SEC, 140 S. Ct. 1936 (2020).

Finally, Tucker is wrong that monetary judgments in

equity require tracing to particular tainted funds. The

Court imposed no tracing requirement in Liu, and other

sources recognize that an accounting is an equitable remedy that allows a general claim on assets. See, e.g., GreatWest Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214

n.2 (2002); Restatement (Third) of Restitution and Unjust

Enrichment § 51 cmt. b (2011).

ARGUMENT

I. Section 13(b)’s Grant Of The Equitable Power Of

Injunction Conveys The Power To Order The Return

Of Unlawfully Taken Money.

Nearly three centuries of equity jurisprudence establish

that a court’s authority to grant a “permanent injunction”

under Section 13(b) includes the power not only to restrain

future conduct, but also to redress wrongdoing by ordering

the return of ill-gotten gains. As early as 1745, the English

Court of Chancery held that when it was asked to enjoin

ongoing misconduct, it could also order an accounting—a

form of restorative money judgment—to remedy past

harms. See Jesus College v. Bloom, 26 Eng. Rep. 953, 27

Eng. Rep. 31 (Ch. 1745). 7 By the nineteenth century, it was

black-letter law that “wherever the court of equity has

jurisdiction to grant the remedy of injunction * * * it may

go on and decide all the issues, and make a final decree

granting full relief.” 1 John Norton Pomeroy, Treatise on

Equity Jurisprudence § 236 (1881).

Applying that principle, the Court has recognized since

the 1850s that statutory authority to grant an “injunction”

conveys the authority to order monetary relief through an

accounting. See, e.g., Stevens v. Gladding, 58 U.S. 447, 453455 (1855); Tilghman v. Procter, 125 U.S. 136, 144-145

(1888). The same principle underlies the Court’s decisions

in Porter and Mitchell, both of which held that where a

statute authorizes the government to seek an injunction,

the court is not limited to prohibiting future misconduct

but may also award restorative monetary relief. Porter, 328

U.S. at 397-403; Mitchell, 361 U.S. at 291-296.

Those authorities control the interpretation of Section

13(b). When Congress gave courts the authority to grant a

“permanent injunction” in Commission enforcement cases,

it drew upon centuries of equity jurisprudence and the

common understanding that a court with the power to

enter an injunction may award restorative relief necessary

to achieve complete justice.

The citations in the text to Jesus College are to two reported versions stating its holding in slightly different form.

A. In Traditional Equity Practice, A Court Hearing A Suit For An Injunction Could Order

Restorative Monetary Relief.

Equity courts have always had the power to order restorative remedies as part of or incident to an injunction.

One such remedy is an accounting—a general command to

the defendant to turn over money earned through unlawful

activity. See Dan B. Dobbs, Law of Remedies § 4.3(5), at

608 (2d ed. 1993). As the Court explained last Term, such

restorative monetary remedies have been called both “restitution” and “disgorgement,” but “[n]o matter the label,”

they rest on the “foundational principle” of equity that “the

wrongdoer should not profit ‘by his own wrong.’” Liu v.

SEC, 140 S. Ct. 1936, 1943 (2020) (quoting Tilghman, 125

U.S. at 145).

The basic principle was articulated in 1745 by the Lord

Chancellor in the Jesus College case. He explained that

while a landlord could recover damages for a tenant’s past

waste in an action at law, if the landlord sought an injunction against ongoing or future waste, “this Court will decree an account of waste done at the same time with an

injunction.” 27 Eng. Rep. at 31. “[I]n bills for injunctions,”

the Chancellor emphasized, “the court will make a complete decree, and give the party a satisfaction, and not

oblige him to bring an action at law, as well as a bill here.”

26 Eng. Rep. at 954.

Equity commentators universally recognized this principle. Justice Story, for example, explained that by bringing

a bill in equity for an injunction, “not only may future

waste be prevented,” but “an account may be decreed, and

compensation given for past waste.” 2 Joseph Story, Commentaries on Equity Jurisprudence § 917 (1836). Pomeroy

likewise explained that in a suit for an injunction against

waste, the court “will retain the cause, and decree full and

final relief, including damages.” 1 Pomeroy, supra, § 237;

see also James L. High, A Treatise on the Law of Injunctions § 451 (1873) (“in all cases where a bill for an injunction will lie to restrain waste, an account of and satisfaction

for the waste already committed will be allowed”).

Restorative monetary relief in the form of an accounting was likewise available in patent and copyright cases at

equity, where the Chancellor would typically both enjoin

future infringement and order an accounting of profits

from past infringement. See Hogg v. Kirby, 32 Eng. Rep.

336, 339 (Ch. 1803) (remedy in copyright case is “an injunction and account”); Colburn v. Sims, 67 Eng. Rep. 224, 226

(Ch. 1843); 2 Story, supra, § 933 (in patent and copyright

cases an account “will, in all cases * * * be decreed as incidental, in addition to the other relief of a perpetual injunction”). Courts in this country applied the same principle in

a variety of situations where plaintiffs sought injunctions

against ongoing harm. See Howard C. Joyce, Treatise on

the Law Relating to Injunctions § 10 (1909) (collecting

state cases awarding monetary relief incident to injunction).

The Court has continued to recognize that “a court in

equity may award monetary restitution as an adjunct to

injunctive relief.” Tull v. United States, 481 U.S. 412, 424

(1987). That approach reflects the broader rule of equity

that “when a court of equity has jurisdiction over a cause

for any purpose, it may retain the cause for all purposes

and proceed to a final determination of all the matters at

issue” so as to reach “a complete adjudication.” 1 Pomeroy,

supra, § 181; see also id. §§ 231, 236 (restating this principle and applying it specifically to injunctions).

The Court has regularly invoked that principle. In 1913,

the Court held that “[a] court of equity ought to do justice

completely, and not by halves,” and may even “determine

purely legal rights that otherwise would not be within the

range of its authority.” Camp v. Boyd, 229 U.S. 530, 551552. In 1935, it held that, “having jurisdiction of the parties

to controversies brought before them,” equity courts “will

decide all matters in dispute and decree complete relief.”

Alexander v. Hillman, 296 U.S. 222, 242; see also United

States v. Union Pacific R. Co., 160 U.S. 1, 52 (1895). More

recently, the Court recognized that when an equity court’s

jurisdiction is properly invoked, it may award “all relief.”

Mertens v. Hewitt Associates, 508 U.S. 248, 256-257 (1993)

(citing 1 Pomeroy § 181). And when the Court itself sat in

equity to resolve a water usage dispute between states, it

awarded a monetary judgment against the state that withdrew more than its share of water. Kansas v. Nebraska, 574

U.S. 445, 456 (2015). The Court reaffirmed its duty in equity to “‘mould each decree to the necessities of the particular case’ and ‘accord full justice’ to all parties.” Ibid. (quoting Porter, 328 U.S. at 398).

B. Statutory Authority To Grant An “Injunction”

Includes The Power To Grant Restorative

Monetary Relief.

When Congress uses a statutory term like “injunction”

with a long-established legal understanding, the term

“brings the old soil with it.” Taggart v. Lorenzen, 139 S. Ct.

1795, 1801 (2019) (citation and quotation marks omitted).

Thus, where words have “a well-known meaning at common law,” Congress is “presumed to have * * * used [them]

in that sense.” Standard Oil Co. v. United States, 221 U.S.

1, 59 (1911). For more than 150 years, the Court has construed statutes authorizing an “injunction” consistently

with the principles discussed above. The Court has established that absent clear congressional direction to the

contrary, authority to grant an “injunction” includes the

power to grant restorative monetary remedies.

In 1819 and 1836, Congress authorized federal courts to

“grant injunctions” against patent and copyright infringement. Pub. L. No. 15-19, 3 Stat. 481 (1819) (patent and

(patent). Neither statute referred to any equitable remedy

other than an “injunction.” Nevertheless, the Court held

that in a suit in equity for an “injunction” under the 1819

statute, the court could also award monetary relief in the

form of an accounting. Stevens v. Gladding, 58 U.S. 447

(1855). The Court explained that under the traditions of

equity, “[t]he right to an account of profits is incident to the

right to an injunction.” Id. at 455. The Court reaffirmed

that principle in numerous cases decided in the ensuing 15

years. E.g., Dean v. Mason, 61 U.S. 198, 203 (1858) (plaintiff was entitled to recover “the amount of profits received

by the unlawful use of the [infringing] machines”); Rubber

Co. v. Goodyear, 76 U.S. 788, 802 (1869) (accounting was “in

accordance with the rule in equity cases established by this

court”).

The Court continued to hold that an accounting was

available in copyright even after Congress codified the

accounting remedy for patent infringement and did not

make a corresponding change to the copyright law. E.g.,

Belford v. Scribner, 144 U.S. 488, 506-508 (1892). With

respect to patent suits, the Court explained that although

Congress “expressly affirm[ed]” the authority to order an

accounting, that power was already inherent in its use of

the word “injunction.” Tilghman, 125 U.S. at 148-149, 144.

The Court held that although the statute “simply conferred

upon the courts of the United States general equity jurisdiction, with the power to grant injunctions,” the rule allowing a restorative monetary remedy accords “complete

justice between the parties.” Id. at 144-145. “[I]n equity,”

the Court explained, “profits made by the infringer of a

patent belong to the patentee and not to the infringer” and

it would be “inconsistent with the ordinary principles and

practice of courts of chancery * * * to permit the wrongdoer to profit by his own wrong.” Id. at 145.

The Court reiterated these points fifty years later, explaining that although copyright law provided no express

statutory recovery of profits before 1909, accounting was

“appropriate equitable relief incident to a decree for an

injunction.” Sheldon v. Metro-Goldwyn Pictures Corp., 309

U.S. 390, 399 (1940). Monetary relief, the Court explained,

is “given in accordance with the principles governing equity jurisdiction * * * to prevent an unjust enrichment by

allowing injured complainants to claim ‘that which, ex

aequo et bono, is theirs.’” Ibid. (quoting Livingston v.

Woodworth, 56 U.S. 546, 560 (1854)); see also HamiltonBrown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 259

(1916) (in injunction case under trademark statute, “the

court of equity, having acquired jurisdiction upon such a

ground, retains it for the purpose of administering complete relief ”). And just last Term, the Court invoked this

line of patent and copyright cases to hold that statutory

authority to enter “equitable relief ” permits monetary

judgments. Liu, 140 S. Ct. at 1944. The same principles

apply to the statutory power to enter an injunction.

The Court’s decisions in Porter and Mitchell follow directly from the centuries of equity precedent described

above and this Court’s long-settled understanding of the

power conferred by the statutory term “injunction.” Porter

involved the Emergency Price Control Act of 1942, which

gave a government official, the Price Administrator, power

to sue violators of price and rent controls for “a permanent

or temporary injunction, restraining order, or other order.”

Pub. L. No. 77-421, § 205(a), 56 Stat. 23, 33 (1942). When a

landlord charged rents above the permitted maximum, the

Administrator sued, seeking both to enjoin further overcharges and a refund of past overcharges. Porter, 328 U.S.

at 396-397. The Court held that the district court could

award both remedies.

The Court explained that where Congress gives equitable

jurisdiction to a court through the injunctive power,

“[u]nless otherwise provided by statute, all the inherent

equitable powers of the District Court are available for the

proper and complete exercise of that jurisdiction.” Id. at

398. And when “the public interest is involved,” as it is in

government enforcement cases, “those equitable powers

assume an even broader and more flexible character than

when only a private controversy is at stake.” Ibid. An equity court’s mandate, the Court explained, is to “accord full

justice to all the real parties in interest,” and it may grant

“whatever other relief may be necessary” to do “complete

rather than truncated justice.” Ibid.

Applying those principles, the Court found it “readily

apparent * * * that a decree compelling one to disgorge

profits, rents or property acquired in violation of [the law]

may properly be entered by the District Court once its

equity jurisdiction has been invoked.” Id. at 398-399. The

Court found that an order for the “recovery and restitution” of the illegal rents was proper for two reasons. First,

such an order “may be considered as an equitable adjunct

to an injunction decree.” Id. at 399. It explained that

“[n]othing is more clearly a part of the subject matter of a

suit for an injunction than the recovery of that which has

been illegally acquired and which has given rise to the

necessity for injunctive relief.” Ibid. Second, the Court

relied on the deterrent effect of monetary relief, holding

that “[f]uture compliance may be more definitely assured if

one is compelled to restore one’s illegal gains.” Id. at 400.

In Mitchell, the Court reaffirmed the teachings of Porter and applied them to a provision of the Fair Labor

Standards Act (FLSA) that authorizes district courts to

“restrain violations” of the Act’s anti-retaliation ban. See

29 U.S.C. 217. The Secretary of Labor sued an employer

for wrongfully terminating employees, seeking both reinstatement and reimbursement of lost wages. The Court

held that even though the statute did not contain the

phrase “other order,” Porter still controlled. The applicability of Porter’s principles, the Court held, “is not to be denied * * * because, having set forth the governing inquiry,

[the Court] went on to find in the language of the statute

affirmative confirmation of the power to order reimbursement.” Mitchell, 361 U.S. at 291. “When Congress entrusts

to an equity court the enforcement of prohibitions contained in a regulatory enactment,” the Court explained, “it

must be taken to have acted cognizant of the historic power

of equity to provide complete relief in light of the statutory

purposes.” Id. at 291-292.

C. Section 13(b) Grants The District Courts Equitable Jurisdiction To Enter An Injunction And

The Attendant Authority To Order Restorative

Monetary Relief.

This case is controlled by Porter, Mitchell, and their equity antecedents. Like the statutes in Porter and Mitchell

and the 1819 and 1836 patent and copyright laws, Section

13(b) gives district courts the authority to issue an injunction. That “jurisdiction is an equitable one,” and absent a

clear indication of contrary congressional intent, “all the

inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdic-

tion.” Porter, 328 U.S. at 397-398. The district court may do

whatever is necessary to “accord full justice to all the real

parties in interest,” including compelling the defendant to

“disgorge profits * * * or property acquired in violation of ”

the law. Id. at 398-399. As the Court put it in Liu, an order

of monetary relief that “restores the status quo” is situated

“squarely within the heartland of equity.” 140 S. Ct. at

1943.

When Congress enacted Section 13(b), it relied on the

established understanding of “injunction.” “It is a commonplace of statutory interpretation that Congress legislates against the backdrop of existing law.” Parker Drilling

Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019)

(cleaned up). “A court must infer, unless the statute otherwise dictates, that Congress means to incorporate the

established meaning.” Nationwide Mut. Ins. Co. v. Darden,

503 U.S. 318, 322 (1992) (cleaned up). That principle carries

particular force with respect to equitable remedies such as

injunctions. “[C]ases in which injunctions are sought in the

federal courts reflect a ‘practice with a background of

several hundred years of history,’ a practice of which Congress is assuredly well aware.” Weinberger v. Romero–

Barcelo, 456 U.S. 305, 313 (1982) (quoting Hecht Co. v.

Bowles, 321 U.S. 321, 329 (1944)). The Court “do[es] not

lightly assume that Congress has intended to depart from

established principles.” Ibid.

Indeed, just a few years before Congress enacted Section 13(b), a court of appeals had interpreted nearly identical securities statutes to permit monetary remedies. The

Securities Act of 1933 and the Securities Exchange Act of

1934 both authorized suits for a “permanent or temporary”

injunction against violations of the securities laws. See

Pub. L. No. 73-22, § 20(b), 48 Stat. 74, 86 (1933) (codified as

amended at 15 U.S.C. 77t(b)); Pub. L. No. 73-291, § 21(e),

48 Stat. 881, 900 (1934) (codified as amended at 15 U.S.C.

78u(d)(1)). 8 The Second Circuit, relying on Porter and

Mitchell, read those statutes to authorize monetary relief.

See SEC v. Tex. Gulf Sulphur Co., 446 F.2d 1301, 1307 (2d

Cir. 1971); SEC v. Manor Nursing Ctrs., Inc., 458 F.2d

1082, 1103-1104 (2d Cir. 1972). Congress is presumed to be

aware of such judicial interpretations when it passes a new

statute. Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).

Tucker claims (Br. 40) that Section 13(b) was modeled

on what is now Section 13(a), authorizing preliminary injunctions and temporary restraining orders in aid of administrative proceedings in certain false advertising cases.

See 15 U.S.C. 53(a). That is true for the first part of 13(b),

which expanded the availability of such preliminary relief

to cases involving “any provision of law” enforced by the

Commission. 15 U.S.C. 53(b). But Section 13(a) does not

authorize permanent injunctions, 9 and Congress understood that it was opening a separate enforcement pathway

by adding the new proviso conveying such authority. See

S. Rep. No. 93-151, at 31. Section 13(b)’s preliminary relief

provisions therefore do not overcome the presumption that

In 2002, after many additional courts of appeals had held that the

securities laws’ injunction provision authorized monetary relief (with

none reaching a contrary conclusion), Congress added “any equitable

relief ” to the list of remedies. Pub. L. No. 107-204, § 305(b), 116 Stat.

745, 779 (2003) (codified at 15 U.S.C. 78u(d)(5)). This is the language

the Court interpreted in Liu. A Senate Report on the 2002 amendment

states that “[f]or a securities law violation, currently an individual may

be ordered to disgorge funds that he or she received ‘as a result of the

violation.’ Rather than limiting disgorgement to these gains, the bill

will permit courts to impose any equitable relief necessary or appropriate to protect, and mitigate harm to, investors.” S. Rep. No. 107-205,

at 27 (2002).

Nor did the other provisions authorizing preliminary relief in support of administrative adjudication. E.g., 15 U.S.C. 68e(b), 69g(b), 70f.

Congress intended the permanent injunction language to

be construed like similar language in other statutes that

had been addressed by the courts.

D. Congress Has Twice Ratified The Lower Court

Rulings That Section 13(b) Allows Monetary

Relief.

Following the enactment of Section 13(b), several appellate courts held that it permits restorative monetary remedies. Congress ratified those rulings twice by substantively

amending the FTC Act—including Section 13(b) itself—

without changing the authority to seek “a permanent injunction.” As the Court has held, when Congress amends a

statute without altering text that a growing body of cases

has uniformly interpreted, it shows “that the construction

adopted by the courts has been acceptable to the legislative

arm of the government.” Manhattan Properties, Inc. v.

Irving Trust Co., 291 U.S. 320, 336 (1934); see also Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012) (When a statute “has been

given a uniform interpretation by inferior courts * * *, a

later version of that act perpetuating the wording is presumed to carry forward that interpretation.”).

In 1994, Congress thoroughly reviewed the Commission’s operations and reauthorized the FTC Act with numerous substantive changes. Pub. L. No. 103-312, 108 Stat.

1691 (1994). By that time, four circuits had held that monetary relief was available under Section 13(b), and none had

ruled to the contrary. 10 Far from overturning or limiting

those decisions, Congress made it easier to sue under the

See Security Rare Coin, 931 F.2d at 1314-1315; Amy Travel Serv.,

875 F.2d at 571-572; U.S. Oil & Gas Corp., 748 F.2d at 1432, 1434; H.N.

Singer, 668 F.2d at 1113.

statute, amending Section 13(b) to relax the venue and

joinder rules and to authorize nationwide service of process. See 108 Stat. at 1695-1696. The Senate Report notes

that under Section 13(b), the Commission could “go into

court ex parte to obtain an order freezing assets, and * * *

obtain consumer redress” and that the amendments would

“assist the FTC in its overall efforts” at enforcement.

S. Rep. No. 103-130, at 15-16 (1993). Congress understood

that the Commission was using Section 13(b) to obtain

monetary relief (and asset freezes in aid of such relief) and

wanted to facilitate such efforts.

Congress again signaled its approval of monetary relief

under Section 13(b) in 2006, when it clarified that Section

5’s prohibition of unfair or deceptive acts or practices extends to certain activities involving foreign commerce and

authorized “all remedies available to the Commission” with

respect to such conduct. Pub. L. No. 109-455, §§ 3, 120 Stat.

3372 (2006) (codified at 15 U.S.C. 45(a)(4)). Congress specified in the statute itself that those remedies “includ[e]

restitution to domestic or foreign victims.” Ibid. By that

time, dozens of decisions had affirmed judgments under

Section 13(b) and many had described the monetary relief

as “restitution.”11 Given that the statute preserves “all

remedies available to the Commission,” those decisions

render implausible the Seventh Circuit’s theory that the

statute was describing relief only under Section 19 or Section 5(l). See Credit Bureau Center, 937 F.3d at 775.

See, besides the cases the cases cited in n.10, Freecom Commc’ns,

401 F.3d at 1202 & n.6; FTC v. Febre, 128 F.3d 530, 534 (7th Cir. 1997);

FTC v. Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir. 1994); FTC v. Gem

Merch. Corp., 87 F.3d 466, 469 (11th Cir. 1996).

E. Tucker’s Arguments That Section 13(b) Precludes Monetary Relief Are Incorrect.

Tucker principally contends that “injunction” has a narrow meaning that refers exclusively to forward-looking

remedies and by definition excludes restorative monetary

remedies. The overwhelming weight of authority, including

the Court’s decisions in Porter and Mitchell, soundly defeats

that claim. While injunctions are generally prospective in

operation, they have always been used for restorative

purposes as well. Tucker’s attempt to distinguish Porter is

squarely foreclosed by Mitchell, and he is simply wrong

that the Court has abandoned Porter and the principles it

is based on.

1. Injunctions have always included restorative

remedies.

a. Tucker relies heavily on the simplistic assertion that

“[r]estitution isn’t an injunction.” Br. 20. He contends that

injunctions are strictly limited to prospective relief and

therefore can never be used to order restorative remedies.

See id. at 14-15, 19-21. That cramped reading is plainly

inconsistent with the law. Equity courts have recognized

for centuries that an injunction may direct the return of

property. In 1744, for example, the Lord Chancellor issued

an “injunction to the defendant to deliver possession” of

property rightfully belonging to the plaintiff. Stribley v.

Hawke, 26 Eng. Rep. 961 (Ch. 1744). In 1808, the Court of

Chancery granted “a Writ of Injunction * * * enjoining the

Defendant to deliver up possession of the estate.” Huguenin v. Basely, 33 Eng. Rep. 722 (Ch. 1808).

Injunctions have similarly been used to order the return

of money. In Osborn v. Bank of the United States, 22 U.S.

738 (1824), state officers unlawfully seized banknotes and

coins. The Court affirmed an injunctive decree barring

them from spending the money and ordering them to make

restitution, including interest. Id. at 743-744, 871. And as

discussed above, the power to award restorative relief was

not limited to the return of specific items of property. For

centuries, equity courts have had the power to order an

accounting as an adjunct to an injunction.

Treatises have likewise recognized for centuries that injunctions may serve restorative purposes. Justice Story

explained that injunctions are “generally preventive, and

protective, rather than restorative,” but are “by no means

confined to the former.” 2 Story, supra § 862. Thus, an

injunction “may contain a direction to the party defendant

to yield up * * * the possession of lands or other property,

constituting the subject-matter of the decree, in favor of

the other party.” Id. § 861. Joyce agreed that an injunction

“may * * * be used to reinstate the rights of persons to

property of which they have been deprived.” Joyce, supra,

§ 2a. He explained further that “the injunction has been

regarded as more flexible and adjustable to circumstances

than any other process known to the law,” permitting a

court “by a single exercise of equitable power” to ensure

“an injury is both restrained and repaired.” Id. § 2. High

noted that an injunction can be “restorative as well as

preventive.” High, supra § 1. And Pomeroy observed that a

mandatory injunction’s “essential nature” is “wholly restorative and compels the defendant to restore the thing to

its original situation.” 3 John Norton Pomeroy, Treatise on

Equity Jurisprudence § 1337 (1883).

Modern sources agree. Professor Dobbs explains that

injunctions “may attempt to prevent harm or to compel

some form of reparation for harm already done,” and “[i]n

fact, some restitution is compelled by resort to a form of

injunction.” Dan B. Dobbs, Law of Remedies § 1.1, at 7 (2d

ed. 1993); see also Injunction, Black’s Law Dictionary

(11th ed. 2019) (A “reparative injunction” “require[s] the

defendant to restore the plaintiff to the position that the

plaintiff occupied before the defendant committed a

wrong.”).

b. Tucker gets no help from commentary and decisions

stating that injunctions are preventive and forwardlooking. Br. 22-23. As just described, the treatises Tucker

relies on generally recognize that injunctions are not limited to such relief. And the cases he relies on do not address whether a court issuing an injunction may also order

restorative remedies. For the most part, they simply note

in passing that injunctions are prospective. E.g., Warth v.

Seldin, 422 U.S. 490, 515 (1975) (mentioning “a declaration,

injunction, or some other form of prospective relief ”);

Swift & Co. v. United States, 276 U.S. 311, 326 (1928) (noting that suits for an injunction deal “primarily” with

“threatened future” violations). The other cases address

whether an injunction was appropriate at all in specific

circumstances; they do not address the scope of available

remedies once the equitable jurisdiction of the court has

been properly invoked. See Dombrowski v. Pfister, 380

U.S. 479, 485 (1965); Lacassagne v. Chapuis, 144 U.S. 119,

124 (1892). The Court’s decision in Porter and equity cases

stretching back to and before the founding of the Republic

do address that question. They hold squarely that when a

court of equity enjoins ongoing or future acts, it may also

order restorative monetary relief. Tucker fails to cite even

a single case prior to the Seventh Circuit’s decision in

Credit Bureau Center holding that a court of equity may

not order such relief in connection with a forward-looking

injunction.

For similar reasons, Tucker is wrong that Section 13(b)

excludes monetary relief by authorizing the Commission to

file suit when it has “reason to believe that any person,

partnership, or corporation is violating, or is about to violate” the law. The claim is that the statute addresses only

present or future conduct, revealing an intent to exclude

remedies for past conduct. Br. 15, 25-26. But that language

simply reflects the forward-looking nature of injunctive

relief generally. See United States v. W.T. Grant Co., 345

U.S. 629, 633 (1953) (an injunction is appropriate where

there “exists some cognizable danger of recurrent violation”). It says nothing about the scope of relief a court may

order when the standard for an injunction is met. And it

does not remotely suggest that Congress intended defendants who are subject to an injunction to keep the fruits of

their illegal activity. When the Commission properly invokes the court’s jurisdiction to enter an injunction—as it

undisputedly did here—it may seek all the restorative

relief that the court has power to grant in such a case.

The Court held nothing to the contrary in Mertens or

Great-West Life & Annuity Insurance Co. v. Knudson, 534

U.S. 204 (2002). Neither decision addressed the scope of

relief that can be granted along with an injunction. In

Mertens, the plaintiffs did not seek an injunction, and the

relief they requested was “nothing other than compensatory damages.” 508 U.S. at 255. Far from holding that an

equity court could not award restorative relief ancillary to

an injunction, the Court recognized that once a court of

equity’s jurisdiction is properly invoked, it may provide “all

relief ” allowed in equity, including “establish[ing] purely

legal rights and grant[ing] legal remedies which would

otherwise be beyond the scope of its authority.” Id. at 256257 (quoting 1 Pomeroy § 181). In Great-West, the plaintiffs

sought an “injunction to compel the payment of money past

due under a contract”; which the Court held was relief “not

typically available in equity.” 534 U.S. at 210-211. Here, by

contrast, the Commission sought, and the court granted, an

injunction barring future conduct, a classic equitable remedy that Tucker does not contest. In Great-West, the Court

did not address the availability of restorative monetary

relief as part of or incident to an injunction.

2. Tucker cannot escape Porter, Mitchell, and the

centuries of equity jurisprudence preceding

them.

Tucker argues that Porter (but not Mitchell) is distinguishable and that both cases rest on jurisprudence that

the Court has since abandoned. Neither argument is

correct.

a. Tucker tries to distinguish Porter on the ground that

the Price Control Act considered there allowed not just an

injunction but also an “other order.” Br. 33-34. But as we

have shown, the 1819 and 1836 copyright statutes only

authorized an “injunction” and the Court held repeatedly

that they allowed monetary remedies. See part I.B, supra.

Furthermore, Porter’s explication of the powers of a court

of equity did not turn on the phrase “other order.” Rather,

the Court held that the jurisdiction to enjoin “is an equitable one” under which “all the inherent equitable powers of

the District Court are available,” including the powers “to

accord full justice to all the real parties in interest” and

to “do complete rather than truncated justice.” 328 U.S.

at 398.

In Mitchell, the Court directly rejected the “other order” argument that Tucker relies on. The law in that case

empowered the district court to “restrain” violations, but

did not authorize an “other order”; the Court found that

Porter still controlled. 361 U.S. at 289. It explained that the

“applicability of th[e] principle” that equity will provide

complete justice “is not to be denied” simply because,

“having set forth the governing inquiry, [the Court in Porter] went on to find in the language of the statute affirmative confirmation of the power to order reimbursement.”

Id. at 291. In other words, the “other order” clause served

only to reaffirm the existing scope of the equitable power

to grant complete relief incident to an injunction.12 Notably,

Tucker does not argue that this case is distinguishable

from Mitchell.

b. Tucker next claims that the Court has abandoned the

historical understanding of injunctive relief, which purportedly rests on discredited “implied remedies” jurisprudence. Br. 37-38. He argues that while the Court “once

assumed that ‘all the inherent equitable powers of the

District Court are available’ unless ‘restricted’ by ‘a clear

and valid legislative command,’ the Court now takes the

opposite approach.” Br. 37, quoting Porter, 328 U.S. at 398

(cleaned up). Now, Tucker contends, the Court limits remedies to those “explicit in the statutory text itself.” Br. 37.

The decisions that Tucker relies on show no such thing.

They address whether a cause of action may be implied in

favor of private plaintiffs where Congress has not provided

an express cause of action. Alexander v. Sandoval, 532 U.S.

275, 286-287 (2001), held that private plaintiffs lacked an

implied cause of action to enforce regulations issued under

For similar reasons, statutes that use terms such as “restitution” or

“equitable remedies” in addition to the word “injunction” (see Br. 21 &

n.3) do not show that statutes authorizing only an injunction necessarily restrict the traditional authority of equity. Congress has taken a

variety of approaches to defining judicial remedies for the enforcement

of federal law; the construction of those laws should be “specific to the

statute.” Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S.

193, 204 (2000); see also Mertens, 508 U.S. at 257 (the scope of equitable relief authorized under a statute “remains a question of interpretation in each case”).

Title VI of the Civil Rights Act. The Court explained that

“private rights of action to enforce federal law must be

created by Congress” and rejected its prior “method for

discerning and defining causes of action” based on an

effort to effectuate congressional purpose. Ibid. (emphasis

added). Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), declined to

extend the implied Bivens cause of action to permit private

plaintiffs detained after the September 11 attacks to challenge their detention. The Court recognized the “notable

change in the Court’s approach to recognizing implied

causes of action” following Alexander. Id. at 1857 (emphasis added).

This case does not involve an implied private right of action. Section 13(b) provides the Commission with an express right of action to sue in federal court for an injunction. The only question is whether in creating that express

cause of action, Congress intended to limit the power to

grant restorative monetary relief that equity courts have

traditionally exercised in injunction cases. As discussed

further in part II below, Congress must express such an

intent directly or by unavoidable inference. Porter, 328

U.S. at 398. Nothing in the FTC Act shows such an intent,

and Tucker does not cite a single case where the Court

restricted a remedy sought by the government in a law

enforcement action brought under an express right to sue

for an unqualified injunction remedy.

Nor did the Court abandon Porter and its equity antecedents in Meghrig v. KFC Western, Inc., 516 U.S. 479

(1996). Meghrig turned on the intricacies of a statutory

scheme very different from the FTC Act. The Resource

Conservation and Recovery Act (RCRA) governs the handling of hazardous waste. Congress assigned primary

enforcement responsibility to the government, but also

permitted citizen suits where waste presents an “immi-

nent” danger to health or the environment and the government declines to act. Id. at 483-484, 486. Private-party

plaintiffs may ask a district court to “restrain” persons who

contributed to contamination or “to order such person to

take such other action as may be necessary.” Id. at 484

(quoting 42 U.S.C. 6972(a)).

The plaintiff in Meghrig had already cleaned up a contaminated site, which therefore presented no imminent

danger. The lawsuit sought neither a mandatory nor a

prohibitory injunction, but asked only for an award of

cleanup costs. The Court held that RCRA did not permit

that remedy. RCRA was not “designed * * * to compensate

those who have attended to the remediation of environmental hazards.” 516 U.S. at 483. Rather, it only “provide[s] a remedy that ameliorates present or obviates the

risk of future ‘imminent’ harms.” Id. at 486. Congress

provided for cost recovery in a companion statute,

CERCLA, which was designed for that purpose. At bottom, RCRA provides a remedy for present and imminent

future harm, whereas CERCLA provides for the recovery

of cleanup costs. Id. at 485-486. The two statutes are not

different routes to the same end.

The Court rejected the amicus curiae argument of the

United States that, under the reasoning of Porter, RCRA

would hypothetically allow a plaintiff to recover past cleanup costs in an appropriate case. The Court concluded that

the text of RCRA, together with that of CERCLA, “amply

demonstrate[d] that Congress did not intend for a private

citizen to be able to undertake a cleanup and then proceed

to recover its costs under RCRA” in any circumstances. 516

U.S. at 487. Given the purposes of the two statutes as reflected in their remedial provisions, the Court determined

that allowing a private plaintiff to recover cleanup costs

under RCRA would be “wholly irrational.” Id. at 486-487.

But the Court did not remotely suggest that Porter was no

longer good law. At most, its opinion illustrates the kind of

compelling evidence of congressional intent needed before

the Court will find a limitation on the equity powers of

district courts. As we show in part II below, Congress

expressed no such intent in the FTC Act.

That the Court has not abandoned traditional principles

of equitable remedies is obvious from the many times it has

relied on Porter and its antecedents. In 2015, for example,

the Court cited Porter to support a restorative monetary

remedy in an interstate water dispute. Kansas v. Nebraska, 574 U.S. at 456. The Court explained that the judiciary’s “equitable authority to grant remedies is at its apex

when public rights” are at stake. Id. at 472. The Court has

also cited Porter to hold that authorization under Section

16 of the Clayton Act, 15 U.S.C. 26, to issue “injunctive

relief ” conveyed the power to order divestiture of illegally

obtained assets. California v. American Stores Co., 495

U.S. 271, 275, 281 (1990). And during the last Term, the

Court relied on Porter to hold that when federal courts sit

in equity, “all * * * inherent equitable powers * * * are

available for the proper and complete exercise of that jurisdiction.” Liu, 140 S. Ct. at 1946-1947. Relying on that

principle and on the many cases finding a right to monetary remedies under statutes that provided for injunctions,

the Court found that the statutory term “equitable relief,”

which does not mention money, includes monetary remedies.

II. Nothing In The FTC Act Provides A Clear Legislative Command To Restrict The Traditional Powers

Of Equity.

Congress may override the traditional rules of equity

and limit a court’s power to grant complete relief in injunction cases, but only if it says so directly. “Unless a statute

in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full

scope of that jurisdiction is to be recognized and applied.”

Porter, 328 U.S. at 398. That principle follows from a longestablished rule of statutory interpretation that a court of

equity will “secur[e] complete justice” unless the legislature has stated a contrary intent “in so many words, or by

an inference which does not admit of a doubt.” Brown v.

Swann, 35 U.S. 497, 503 (1836). The same rule applies

today: the Court “will not construe a statute to displace

courts’ traditional equitable authority absent the clearest

command.” Holland v. Florida, 560 U.S. 631, 646 (2010)

(cleaned up).

Tucker points to nothing in the FTC Act that “in so

many words” restricts courts from exercising the traditional scope of their authority in permanent injunction

cases under Section 13(b). He asks the Court to infer Congress’s intent to restrict the scope of injunctive relief from

the structure of the Act in two ways. First, he contends

that allowing monetary remedies under Section 13(b)

would render Section 19, which has various procedural

limitations absent from Section 13(b), superfluous. Br. 16,

26-27, 32. Second, he claims that by authorizing a “mandatory injunction” and “other and further equitable relief ” in

a civil penalty action under Section 5(l), Congress signaled

that it did not intend to allow anything other than prospective injunctive relief under Section 13(b). Br. 35.

Neither Section 19 nor Section 5(l) supports any inference—let alone an inescapable one—that Congress intended to displace the traditional equitable powers of the district courts. The provisions perform different roles under

the FTC Act and those roles drive how each section is

written. Congress created two alternative pathways for

adjudicating violations of the Act: administrative proceed-

ings before the Commission and permanent-injunction

litigation in federal court. Congress did not need to spell

out the parameters of the judicial pathway because it could

piggyback on the centuries of established law of injunctions

described above. That was not true for administrative

adjudication. Instead, in Sections 19 and 5(l), Congress had

to specifically define the remedies it wished to authorize to

support the agency’s adjudications. Driving the point home

in Section 19, Congress stated explicitly that the remedies

available there do not displace other remedies available to

the agency and that the provision may not be read to restrict the Commission’s authority. 15 U.S.C. 57b(e).

A. Congress Created Two Enforcement Pathways

In The FTC Act With Appropriate Statutory Text

For Each.

Congress provided two different pathways through

which the Commission may enforce the prohibitions of the

FTC Act: the original administrative pathway, leading to a

cease-and-desist order under Section 5(b), and a judicial

enforcement pathway, leading to a permanent injunction

under Section 13(b). Both Section 19 and Section 5(l) of the

Act play important roles in the administrative pathway.

Section 19 allows the Commission to seek consumer redress that the Commission cannot order using its ceaseand-desist authority, and Section 5(l) creates a mechanism

to enforce compliance with cease-and-desist orders, which

the Commission also lacks power to order on its own. Neither provision says anything about the powers the court

may exercise when the Commission chooses the judicial

pathway under Section 13(b). Understanding how those

sections and others function within the two enforcement

pathways shows that Congress has created “a symmetrical

and coherent regulatory scheme,” and that the parts of the

FTC Act fit “into an harmonious whole.” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(cleaned up).

When Congress enacted the FTC Act in 1914, administrative enforcement was a novel concept. Adjudication by

an expert administrative body and cease-and-desist orders

were “newcomers in the field of law,” without grounding in

longstanding tradition. United States v. Morton Salt Co.,

338 U.S. 632, 642 (1950). As Congress’s own creation, the

Commission could have only the authority conveyed to it by

statute. See Civil Aeronautics Bd. v. Delta Air Lines, Inc.,

367 U.S. 316, 322 (1961) (“the determinative question is

* * * what Congress has said [an agency] can do”). Congress therefore had to define with specificity how administrative adjudication would work: the required allegations in

a complaint, how hearings would be conducted, what relief

the Commission could order, and when a Commission order

becomes final. See 15 U.S.C. 45(b), 45(g); cf. Liu, 140 S. Ct.

at 1946 (“[I]t makes sense that Congress would expressly

name the equitable powers it grants to an agency for use in

administrative proceedings.”). Congress likewise had to be

specific when it crafted the judicial support for administrative adjudication in Sections 19 and 5(l) of the Act.

Until 1973, administrative adjudication was the sole

pathway in which the Commission could enforce the FTC

Act. See pp. 3-8, supra. The agency could not enforce the

Act directly in court, and courts had no power to determine

in the first instance whether a practice violated the Act.

That changed when Congress enacted Section 13(b). Congress granted new authority not only to the Commission,

which for the first time could seek to enforce the Act directly in court, but also to the district courts, which were

granted the power to adjudicate those cases in the first

instance.

But while the authority granted by Section 13(b) was

new, the cause of action it created was not: “cases in which

injunctions are sought in the federal courts reflect a ‘practice with a background of several hundred years of history.’” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313

(1982) (quoting Hecht v. Bowles, 321 U.S. 321, 329 (1944)).

Congress could rely on courts to exercise their new permanent injunction authority under Section 13(b) just as

they had exercised that authority in other cases for centuries.

Having created separate, parallel enforcement paths,

Congress naturally gave administrative cease-and-desist

adjudication features and remedies similar to traditional

permanent-injunction litigation in federal court. Thus,

whereas Section 13(b) invokes the court’s traditional powers and jurisdiction in a suit for a permanent injunction,

the power to prohibit future conduct is mirrored in the

Commission’s power to enter a cease-and-desist order. 15

U.S.C. 45(b). The district court’s authority to halt challenged conduct during a permanent-injunction proceeding

(under Federal Rule of Civil Procedure 65) is replicated by

separate authority to seek preliminary relief during an

administrative adjudication. 15 U.S.C. 53(b). Congress

likewise provided an analog to the district court’s inherent

power to punish violations of an injunction through contempt, including the imposition of monetary sanctions, by

authorizing civil penalties, “mandatory injunctions,” and

“other equitable relief ” to address violations of cease-anddesist orders. 15 U.S.C. 45(l), 45(m). And in place of the

traditional power in equity to order restorative remedies

along with an injunction, the FTC Act separately authorizes an action for consumer redress following a cease-anddesist proceeding. 15 U.S.C. 57b(a)(2), 57b(b).

Each time the Commission enforces the Act, it decides

which pathway is most appropriate. Despite their similar

endpoints, the routes have their own advantages and disadvantages. The administrative pathway allows the Commission to establish policy and render legal conclusions on

its own authority and under deferential standards of review. But adjudication can draw heavily on the agency’s

limited resources. Judicial enforcement, on the other hand,

conserves agency resources and makes available the traditional powers of the district court. When the Commission

chooses that approach, however, it forgoes the power to

define unlawful conduct, find facts under a deferential

standard of review, and draw legal conclusions.

1. Monetary remedies under Section 13(b) are compatible with Section 19, as its savings clauses

make clear.

The functions that Sections 13(b) and 19 perform within

their respective enforcement pathways show that Congress

did not intend to limit the jurisdiction it granted in the

former when it enacted the latter, and that monetary relief

in one pathway does not render similar relief in the other

redundant. Tucker claims “[t]here would have been no

need” for Congress to authorize monetary remedies in

Section 19 if courts could grant such relief in permanent

injunction actions. Br. 16, 26. But Congress determined

that Section 19 was necessary because without it, consumer

redress was not available in the administrative pathway. 13

By adding Section 19, Congress ensured that both enforcement methodologies would be effective. The differences between the two forums also show that seeking a

Congress added Section 19 specifically to address the remedial gap

in the administrative pathway, noting that “cease-and-desist orders

have prospective application only and afford no specific consumer

redress to consumers who have been injured.” S. Rep. No. 93-151, at 28.

permanent injunction under Section 13(b) is not just an end

run to avoid Section 19’s procedural protections. If any

doubt remains, Congress foreclosed it by clearly specifying

that Section 19’s remedies do not displace other remedial

options, and that it may not be construed to limit the

Commission’s authority.

a. Tucker’s claim that monetary relief under Section

13(b) makes Section 19’s remedies redundant misses the

mark. Section 19 is simply the administrative-pathway

analog to the district court’s traditional authority to enter

monetary relief in permanent injunction cases. Section

13(b) does not make Section 19’s monetary remedy redundant any more than its permanent injunction authority

renders cease-and-desist orders redundant. They are simply analogous remedies in the two enforcement pathways

that Congress created.

In fact, the administrative and judicial pathways are

mutually exclusive in nearly every case. If the Commission

chooses to proceed under Section 13(b), it will not also

commence an administrative case that may lead to relief

under Section 19. If it chooses administrative adjudication,

it will not also seek a permanent injunction under Section

13(b). The only situation where the Commission may proceed directly under both Section 13(b) and Section 19 is

when it sues in court to enforce a Commission rule. 15

U.S.C. 57b(a)(1). But that overlap does not make the two

sections redundant; it simply reflects an additional flexibility that Congress afforded for rule violations, giving the

Commission multiple options to address them.

b. For similar reasons, Tucker is incorrect that the ability to return money to consumers under Section 13(b)

nullifies procedural protections contained in Section 19 and

subjects violators to monetary liability without fair notice.

Br. 27-29. Tucker relies specifically on Section 19’s re-

quirements, absent from Section 13(b), that the Commission show that a reasonable person would have understood

the unlawful practice to be dishonest or fraudulent, 15

U.S.C. 57b(a)(2), and its statute of limitations, 15 U.S.C.

57b(d). He contends that without a prior cease-and-desist

order or Commission rule, he could not have known that

his conduct was illegal and that Congress could not have

meant to allow the Commission to avoid those restrictions

simply by filing suit under Section 13(b). Br. 27-29.

Those arguments ignore important differences between

the administrative process created by Congress and traditional judicial proceedings. Congress was understandably

cautious when it authorized monetary judgments based

solely on an administrative agency’s determination of

legality. In what was then a novel situation, Congress prudently limited the availability of monetary redress through

the reasonable person requirement and the statute of

limitations.

The same concerns do not arise in cases adjudicated in

the first instance by Article III courts. Proceedings for a

permanent injunction under Section 13(b) are conducted by

a federal judge, not the Commission itself. In court, the

Commission is treated like any litigant that must prove

both a substantive violation and the appropriate redress.

Congress could reasonably rely on the court’s equitable

duty to prevent unjust monetary awards. And while Section 13(b) does not contain an express statute of limitations,

courts of equity have wide discretion in fashioning monetary remedies and may take concerns of repose into account in the exercise of their equitable discretion.

Similarly, the due process standards that apply to all

district court litigation are fatal to Tucker’s claim that

Section 13(b) can subject defendants to liability without

“fair notice that the FTC Act proscribes their conduct.”

Br. 27; see also id. at 27-28, 43. Tucker offers no reason to

believe that district courts are incompetent or unable to

prevent that result. Indeed, the courts have recognized

that fair notice is satisfied under the FTC Act “as long as

the company can reasonably foresee that a court could

construe its conduct as falling within the meaning of the

statute.” FTC v. Wyndham Worldwide Corp., 799 F.3d 236,

256 (3d Cir. 2015).

Tucker cannot seriously argue that he lacked notice that

his own conduct was illegal. See Br. 29-30. He claims that

“no existing Commission rule” prohibited his use of deceptive lending practices, but the statute’s prohibition of deceptive acts or practices speaks for itself. Indeed, Tucker

omits that his lending practices resulted in his criminal

conviction for fraud, despite the principle that no one “shall

be held criminally responsible for conduct which he could

not reasonably understand to be proscribed.” Bouie v.

City of Columbia, 378 U.S. 347, 351 (1964). Tucker did not

need the Federal Trade Commission—or the United States

Attorney for that matter—to tell him in advance that it was

deceptive to say that a $300 loan will be repaid in one installment with $90 interest while making ten withdrawals

and charging $675 interest.

c. If there were any doubt that Section 19 was not

meant to limit remedies available under Section 13(b),

Congress removed it with two express savings clauses.

Section 19 states explicitly that “[r]emedies provided in

this section are in addition to, and not in lieu of, any other

remedy or right of action provided by State or Federal

Law.” 15 U.S.C. 57b(e). The statute also contains an interpretive rule commanding that “[n]othing in this section

shall be construed to affect any authority of the Commission under any other provision of law.” Ibid.

Tucker attempts to do exactly what the plain language

of the clauses forbids, both by treating Section 19’s remedies as the exclusive means to redress harm to consumers

and by using those remedies as a means of constraining the

scope of relief available under Section 13(b). See Br. 26-27.

Recognizing the problem, Tucker asks the Court to simply

disregard the savings clauses for three reasons, all of

which fail.

First, he asserts that the savings clauses only preserve

existing remedies and cannot be construed as granting

authority to award monetary relief under Section 13(b). Br.

31. As we showed above, restorative monetary relief is an

existing remedy under the longstanding principle that a

court of equity can order such relief unless Congress expressly says otherwise. Porter, 328 U.S. at 399. The relevant question is whether anything in Section 19 limits the

traditional scope of equity, and the savings clauses make

clear that the answer is no.

Tucker next asserts that Section 19’s savings clauses do

not even apply to Section 13(b). He argues that Section 19’s

reference to remedies available under “any other provision

of law” excludes those available under the FTC Act itself

and applies only to statutes other than the FTC Act. Br. 32.

That is flatly contrary to the plain text of the statute. One

clause preserves “any other remedies” provided by “State

or Federal Law”; the other bars reading Section 19 “to

affect any authority of the Commission under any other

provision of law.” 15 U.S.C. 57b(e) (emphasis added). Section 13(b) clearly provides remedies under federal law and

is likewise a provision of law that grants authority to the

Commission.

Tucker incorrectly claims support for his atextual position in Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1 (1981). The statute

at issue in that case provided a private right of action that

required citizen-plaintiffs to comply with certain notice

requirements. Id. at 14-15. The plaintiffs did not comply,

but nevertheless claimed that the statute also gave them an

implied right of action without any notice requirement.

Ibid. They relied on a savings clause stating that nothing in

the citizen-suit provision restricted any enforcement right

that a person might have “under any statute or common

law.” Ibid. The Court rejected that contrived bootstrap

argument, finding it “doubtful that the phrase ‘any statute’

includes the very statute in which this statement was contained,” while resting its decision on other grounds. Id. at

15-16. No similar situation is presented here. The Court

should reject Tucker’s contrived claim that under Sea

Clammers, Section 19’s savings clauses mean the opposite

of what they say.

Finally, Tucker claims that applying the savings clauses

consistent with their plain language would cause the statute to “destroy itself.” Br. 32. That claim is a variation on

his argument that Section 19 would be redundant if monetary relief is available under Section 13(b), and it fails for

the same reasons.

2. The provision for “equitable relief ” in Section

5(l) does not restrict the scope of remedies under Section 13(b).

Tucker fares no better with his claim that the courts’ authority in Section 5(l) civil-penalty actions to order “mandatory injunctions and such other and further equitable

relief as they deem appropriate” shows that Congress

intended to strip monetary remedies from Section 13(b).

Br. 15, 20-21. He claims that Congress’s use of “equitable

relief ” in addition to “mandatory injunction” shows that

Section 13(b), which authorizes a “permanent injunction”

without mentioning “equitable relief,” can provide only

prospective remedies. Tucker invokes the principle that

when “Congress includes particular language in one section of a statute but omits it in another,” the Court presumes “that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Nken v. Holder, 556

U.S. 418, 430 (2009); see Br. 20-21.

But that interpretive guide is “no more than a rule of

thumb that can tip the scales when a statute could be read

in multiple ways.” Sebelius v. Auburn Reg’l Med. Ctr., 568

U.S. 145, 156 (2013) (cleaned up). Here, the structure of the

Act shows that Congress used different language in Section 5(l) and Section 13(b) because the two sections address

different issues. Unlike Section 13(b), Section 5(l) is not a

means of enforcing the Act itself, but rather a means to

enforce compliance with a Commission cease-and-desist

order issued though the administrative pathway. Section

5(l) provides an analog to a court’s power to enforce its own

orders through contempt, primarily by creating a civil

action for a penalty, but also by providing non-monetary

means of coercion. Its additional remedies—mandatory

injunctions and other equitable relief—were intended to

afford flexibility beyond monetary penalties in cases where

“the threat of economic penalty is more apparent than real

because [the defendant has] no available resources with

which to pay the penalty.”14 S. Rep. No. 93-151, at 29. The

word “injunction” thus has a “distinct characte[r]” in Section 5(l) that it does not have in Section 13(b) because of its

The difference between “mandatory injunction” and “permanent

injunction,” as well as Congress’s stated reasons for the injunctive

relief in Section 5(l), also refute Tucker’s argument that Congress must

have intended “injunction” to have the same meaning in Sections 5(l)

and 13(b) because the two provisions were enacted together. Br. 20-21.

“association with distinct statutory objects.” Envtl. Def. v.

Duke Energy Corp., 549 U.S. 561, 574 (2007).

The different functions of Section 5(l) and Section 13(b)

also belie Tucker’s suggestion that Congress would have

“said so expressly” in Section 13(b) if it intended to authorize monetary relief. Br. 15, 20. For all the reasons discussed

above, Congress did not need to specify that it intended

courts to exercise their traditional jurisdiction in suits for

an injunction—including the authority to enter restorative

monetary relief—when it authorized them to hear such

suits. It did need to specify the remedies it intended to

support administrative adjudication, which was Congress’s

own creation. By Tucker’s logic, the civil penalties authorized by Section 5(l) (and Section 5(m)) would imply that

district courts are not authorized to use the contempt power to enforce permanent injunctions. After all, those sections show that Congress knows how to authorize penalties

for violating an order to stop conduct found to violate the

FTC Act, but Section 13(b) is silent on the authority to

punish violations of permanent injunctions. Similarly, under Tucker’s theory, Congress would have “said so expressly” if it intended to authorize preliminary relief to maintain

the status quo in a permanent injunction action, yet the

first part of Section 13(b) authorizes preliminary relief only

in favor of administrative proceedings. See 15 U.S.C. 53(b).

In reality, the contempt power and the authority to enter

preliminary relief are inherent in federal district court

litigation just as the authority to enter monetary relief is

inherent in the power to enter an injunction.

B. Tucker Offers No Rational Explanation Why

Congress Would Have Intended Wrongdoers To

Keep The Proceeds Of Their Illegal Conduct.

As shown, the remedial sections of the FTC Act work in

harmony to allow the Commission to carry out its mission

effectively in either of two adjudicative forums. Tucker’s

interpretation would turn the judicial forum into a poor

relation for no good reason. In his view, Congress invoked

the traditional equitable power of the district courts only

halfway, silently withdrawing the remedial authority that

equity courts have used for centuries. Indeed, Tucker

attacks the very idea of “[a]llowing the Commission to

proceed straight to court under §13(b),” claiming that the

Commission’s “primary statutory role” is to “defin[e] prohibited conduct for the public, in advance, through administrative processes.” Br. 43, 17. Tucker therefore asserts that

the Commission may seek to redress consumer harm only

in the administrative pathway through Section 19. Id. at

42-44.

Tucker’s desire to cabin the Commission’s enforcement

discretion cannot be squared with Congress’s creation of

two enforcement pathways. When Congress creates two

means for an agency to proceed, it conveys the discretion

to choose between them. See generally NLRB v. Bell Aerospace Co., 416 U.S. 267, 293-295 (1974). Here, when the

Commission “does not desire to further expand upon the

prohibitions of the Federal Trade Commission Act through

the issuance of a cease-and-desist order,” it may sue in

federal court instead. S. Rep. No. 93-151, at 31.

Neither Tucker, his amici, nor any court below has offered a reason why Congress would have wanted the impaired scheme Tucker conjures. His contention that courts

may not exercise the traditional powers of equity in Com-

mission lawsuits violates the “foundational principle” of

equity that a wrongdoer should not “make a profit out of

his own wrong.” Liu, 140 S. Ct. at 1943 (quotation marks

omitted). In Tucker’s case, ignoring that principle would

allow him to walk away from his illegal scheme with more

than a billion ill-earned dollars in his pocket.

III. The Determination Of Monetary Remedies Below

Was Correct.

Tucker argues that even if Section 13(b) does authorize

monetary relief, the judgment against him was improper

under Liu. Tucker waived these challenges by failing to

raise them below, and they lack merit in any case.

Liu set forth two main criteria for calculating “equitable

relief ” in SEC enforcement cases seeking disgorgement.

First, legitimate expenses must be deducted from the

judgment, except where the “entire profit of a business or

undertaking results from the wrongdoing.” 140 S. Ct. at

1950 (cleaned up). Second, joint liability for disgorgement

is appropriate only for “partners engaged in concerted

wrongdoing.” Id. at 1949. In addition, under a provision in

the securities law requiring that monetary remedies be

“for the benefit of investors,” monetary remedies in securities cases must be paid to victims and not the Treasury. Id.

at 1947-1949. The Court did not address whether or how its

decision should apply outside the securities context.

a. Tucker waived his challenge to the deduction of legitimate expenses because he did not raise the issue below.

He neither asked the district court to deduct any expenses

nor identified any. Pet. App. 101a-104a. He asked both

courts below to exclude income from loans to repeat customers on the theory they were not deceived, id. at 18a,

102a-103a, but he makes no such claim here. In any event,

even if Liu applies to the FTC Act, the judgment does not

include deductible expenses. It rests on a calculation of the

amount paid by borrowers in excess of the charges disclosed in the loan documents. Pet. App. 17a, 101a. That

methodology by definition excludes legitimately charged

interest, which covers the genuine costs of doing business.

b. Tucker also waived his claim that the district court

improperly imposed joint-and-several liability. He did not

argue before the Ninth Circuit that joint liability was inappropriate, and he makes only a glancing argument to that

effect now. Br. 47-48. Even assuming that Liu applies here,

the district court below correctly imposed collective liability on Tucker and his companies. It held that Tucker actively controlled the companies, which themselves formed a

common enterprise, and that he personally participated in

their deceptive conduct. Pet. App. 4a, 77a, 87a-94a. Tucker

and his companies thus were “partners engaged in concerted wrongdoing” and properly subject to joint liability.15

Liu, 140 S. Ct. at 1945. Tucker offers no reason why an

individual fraudster and the wholly owned companies

through which he acts should not be deemed jointly liable

as an equitable matter under Liu.

c. The Court ruled in Liu that monetary judgments in

SEC enforcement cases generally must be paid directly to

victims to satisfy the statutory condition that the remedy

be “for the benefit of investors.” 140 S. Ct. at 1947-1949.

Section 13(b) contains no such restriction, but the judgTucker’s wife, Kim Tucker, and the company she created to purchase the couple’s Aspen vacation home were held separately liable as

relief defendants based on their receipt of tainted proceeds traceable

to Tucker’s scam. Pet. App. 18a n.5. Tucker does not claim that the

funds his wife and her company received were untainted and provides

no reason why equity would allow them to keep millions of dollars

diverted to them from consumer victims.

ment nonetheless contemplates that the FTC will deposit

the money it receives into a fund to be used for consumer

redress and attendant expenses. It states that if the Commission determines that “direct redress to consumers is

wholly or partially impracticable or money remains after

redress is completed,” it may apply the money to other

equitable remedies related to the defendants’ misconduct,

with any money not used for such equitable relief to be

deposited in the Treasury. Pet. App. 108a-109a. Thus, contrary to Tucker’s contention, Br. 47, money could go to the

Treasury only if payment to victims is infeasible.

The court’s order is consistent with the Commission’s

general practice of returning directly to victims the maximum amount possible except where infeasible. As a result,

payments to the Treasury are minimal in comparison with

the amount of money returned to consumers. From 2016 to

2020, the Commission returned approximately $1.1 billion

directly to consumers, and $10 billion more was returned

directly by defendants or other agencies. In contrast, the

Commission sent just over $22 million to the Treasury,

mostly where per-person payments were too small to justify the costs of processing or where victims could not be

located. 16

d. Tucker is wrong that the judgment must be reversed

because it imposes legal rather than equitable restitution.

To begin with, the Court recognized in Great-West and

Mertens that when a court of equity properly exercises its

power to enjoin (as it undisputedly did here), it may invoke

“all relief available” in equity, including the power of complete relief. The Court contrasted that broad grant of auSee FTC, FTC Refunds to Consumers, Fiscal Year: 2016 to 2020,

https://public.tableau.com/profile/federal.trade.commission#!/vizhome/

Refunds_15797958402020/RefundsbyDate.

thority with the more restrictive power to grant “equitable

relief,” which implied only those remedies that were typically available in equity. Mertens, 508 U.S. at 255, 257-258;

Great-West, 534 U.S. at 210. The question whether the

relief would be legal or equitable in the absence of a duly

granted injunction is a red herring.

In any event, the judgment here comports with the

Court’s understanding of equitable relief in decisions

stretching from the 1850s to last Term in Liu. As a result,

Tucker gets no help from Great-West, which he cites for the

proposition that equitable restitution requires the return of

particular funds or property in the defendant’s possession

or their traceable proceeds. 534 U.S. at 213. Great-West

also recognized that an “accounting for profits” is a form of

equitable restitution that can allow a general claim on

assets. Id. at 214 n.2. As the Restatement of Restitution

explains, this remedy (whether termed “disgorgement” or

“accounting”) “involves no claim to particular assets and no

requirement of tracing” and is “to be satisfied from the

defendant’s available assets.” Restatement (Third) of Restitution and Unjust Enrichment § 51 cmt. b (2011). In

keeping with that tradition of equity, the Court imposed no

tracing requirement in Liu. Instead, the Court remained

mindful of the “foundational principle” of equity that a

wrongdoer should not “make a profit out of his own

wrong.” Liu, 140 S. Ct. at 1943 (quotation marks omitted).

CONCLUSION

The Court should affirm the court of appeals’ decision.

Respectfully submitted.

ALDEN F. ABBOTT

General Counsel

JOEL MARCUS

Deputy General Counsel

for Litigation

MICHAEL BERGMAN

THEODORE (JACK) METZLER

MATTHEW M. HOFFMAN

Attorneys

FEDERAL TRADE COMMISSION

NOVEMBER 2020

APPENDIX

RELEVANT STATUTORY PROVISIONS

Section 5 of the Federal Trade Commission Act, 15

U.S.C. 45, provides, in relevant part:

§ 45. Unfair methods of competition unlawful; prevention by Commission

(a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed

to prevent persons, partnerships, or corporations, except

banks, savings and loan institutions described in section

57a(f)(3) of this title, Federal credit unions described in

section 57a(f)(4) of this title, common carriers subject to

the Acts to regulate commerce, air carriers and foreign air

carriers subject to part A of subtitle VII of Title 49, and

persons, partnerships, or corporations insofar as they are

subject to the Packers and Stockyards Act, 1921, as

amended, except as provided in section 406(b) of said Act,

from using unfair methods of competition in or affecting

commerce and unfair or deceptive acts or practices in or

affecting commerce.

(3) This subsection shall not apply to unfair methods of

competition involving commerce with foreign nations

(other than import commerce) unless-(A) such methods of competition have a direct,

substantial, and reasonably foreseeable effect-(i) on commerce which is not commerce with

foreign nations, or on import commerce with foreign

nations; or

(ii) on export commerce with foreign nations, of a

person engaged in such commerce in the United

States; and

(B) such effect gives rise to a claim under the provisions of this subsection, other than this paragraph.

If this subsection applies to such methods of competition

only because of the operation of subparagraph (A)(ii), this

subsection shall apply to such conduct only for injury to

export business in the United States.

(4)(A) For purposes of subsection (a), the term “unfair

or deceptive acts or practices” includes such acts or practices involving foreign commerce that-(i) cause or are likely to cause reasonably foreseeable

injury within the United States; or

(ii) involve material conduct occurring within the

United States.

(B) All remedies available to the Commission with respect to unfair and deceptive acts or practices shall be

available for acts and practices described in this paragraph, including restitution to domestic or foreign victims.

(b) Proceeding by Commission; modifying and setting

aside orders

Whenever the Commission shall have reason to believe

that any such person, partnership, or corporation has been

or is using any unfair method of competition or unfair or

deceptive act or practice in or affecting commerce, and if it

shall appear to the Commission that a proceeding by it in

respect thereof would be to the interest of the public, it

shall issue and serve upon such person, partnership, or

corporation a complaint stating its charges in that respect

and containing a notice of a hearing upon a day and at a

place therein fixed at least thirty days after the service of

said complaint. The person, partnership, or corporation so

complained of shall have the right to appear at the place

and time so fixed and show cause why an order should not

be entered by the Commission requiring such person,

partnership, or corporation to cease and desist from the

violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and

upon good cause shown may be allowed by the Commission

to intervene and appear in said proceeding by counsel or in

person. The testimony in any such proceeding shall be

reduced to writing and filed in the office of the Commission. If upon such hearing the Commission shall be of the

opinion that the method of competition or the act or practice in question is prohibited by this subchapter, it shall

make a report in writing in which it shall state its findings

as to the facts and shall issue and cause to be served on

such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and

desist from using such method of competition or such act

or practice. Until the expiration of the time allowed for

filing a petition for review, if no such petition has been duly

filed within such time, or, if a petition for review has been

filed within such time then until the record in the proceeding has been filed in a court of appeals of the United States,

as hereinafter provided, the Commission may at any time,

upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or

any order made or issued by it under this section. After the

expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such

time, the Commission may at any time, after notice and

opportunity for hearing, reopen and alter, modify, or set

aside, in whole or in part any report or order made or

issued by it under this section, whenever in the opinion of

the Commission conditions of fact or of law have so

changed as to require such action or if the public interest

shall so require, except that (1) the said person, partnership, or corporation may, within sixty days after service

upon him or it of said report or order entered after such a

reopening, obtain a review thereof in the appropriate court

of appeals of the United States, in the manner provided in

subsection (c) of this section; and (2) in the case of an order,

the Commission shall reopen any such order to consider

whether such order (including any affirmative relief provision contained in such order) should be altered, modified,

or set aside, in whole or in part, if the person, partnership,

or corporation involved files a request with the Commission which makes a satisfactory showing that changed

conditions of law or fact require such order to be altered,

modified, or set aside, in whole or in part. The Commission

shall determine whether to alter, modify, or set aside any

order of the Commission in response to a request made by

a person, partnership, or corporation under paragraph 1

(2) not later than 120 days after the date of the filing of

such request.

* * *

(l) Penalty for violation of order; injunctions and other

appropriate equitable relief

Any person, partnership, or corporation who violates an

order of the Commission after it has become final, and

while such order is in effect, shall forfeit and pay to the

United States a civil penalty of not more than $10,000 for

each violation, which shall accrue to the United States and

may be recovered in a civil action brought by the Attorney

General of the United States. Each separate violation of

such an order shall be a separate offense, except that in a

case of a violation through continuing failure to obey or

neglect to obey a final order of the Commission, each day

of continuance of such failure or neglect shall be deemed a

separate offense. In such actions, the United States district

courts are empowered to grant mandatory injunctions and

such other and further equitable relief as they deem appropriate in the enforcement of such final orders of the

Commission.

(m)Civil actions for recovery of penalties for knowing

violations of rules and cease and desist orders respecting unfair or deceptive acts or practices; jurisdiction; maximum amount of penalties; continuing

violations; de novo determinations; compromise or

settlement procedure

(1)(A) The Commission may commence a civil action to

recover a civil penalty in a district court of the United

States against any person, partnership, or corporation

which violates any rule under this subchapter respecting

unfair or deceptive acts or practices (other than an interpretive rule or a rule violation of which the Commission

has provided is not an unfair or deceptive act or practice in

violation of subsection (a)(1)) with actual knowledge or

knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule. In such action, such person, partnership,

or corporation shall be liable for a civil penalty of not more

than $10,000 for each violation.

(B) If the Commission determines in a proceeding under subsection (b) 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 such person, partnership, or corporation

was subject to such cease and desist order), and

(2) with actual knowledge that such act or practice is

unfair or deceptive and is unlawful under subsection (a)(1)

of this section.

In such action, such person, partnership, or corporation

shall be liable for a civil penalty of not more than $10,000

for each violation.

to comply with a rule or with subsection (a)(1), each day of

continuance of such failure shall be treated as a separate

violation, for purposes of subparagraphs (A) and (B). In

determining the amount of such a civil penalty, the court

shall take into account the degree of culpability, any history

of prior such conduct, ability to pay, effect on ability to

continue to do business, and such other matters as justice

may require.

(2) If the cease and desist order establishing that the

act or practice is unfair or deceptive was not issued against

the defendant in a civil penalty action under paragraph

(1)(B) the issues of fact in such action against such defendant shall be tried de novo. Upon request of any party to

such an action against such defendant, the court shall also

review the determination of law made by the Commission

in the proceeding under subsection (b) that the act or practice which was the subject of such proceeding constituted

an unfair or deceptive act or practice in violation of subsection (a).

(3) The Commission may compromise or settle any action for a civil penalty if such compromise or settlement is

accompanied by a public statement of its reasons and is

approved by the court.

* * *

Section 13 of the Federal Trade Commission Act, 15

U.S.C. 53, provides, in relevant part:

§ 53 False advertisements; injunctions and restraining

orders

(b) Temporary restraining orders; preliminary injunctions

Whenever the Commission has reason to believe-(1) that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the Federal Trade Commission, and

(2) that the enjoining thereof pending the issuance of

a complaint by the Commission and until such complaint is dismissed by the Commission or set aside by

the court on review, or until the order of the Commission made thereon has become final, would be in the interest of the public-the Commission by any of its attorneys designated by it for

such purpose may bring suit in a district court of the United States to enjoin any such act or practice. Upon a proper

showing that, weighing the equities and considering the

Commission's likelihood of ultimate success, such action

would be in the public interest, and after notice to the

defendant, a temporary restraining order or a preliminary

injunction may be granted without bond: Provided, however, That if a complaint is not filed within such period (not

exceeding 20 days) as may be specified by the court after

issuance of the temporary restraining order or preliminary

injunction, the order or injunction shall be dissolved by the

court and be of no further force and effect: Provided further, That in proper cases the Commission may seek, and

after proper proof, the court may issue, a permanent in-

junction. Any suit may be brought where such person,

partnership, or corporation resides or transacts business,

or wherever venue is proper under section 1391 of Title 28.

In addition, the court may, if the court determines that the

interests of justice require that any other person, partnership, or corporation should be a party in such suit, cause

such other person, partnership, or corporation to be added

as a party without regard to whether venue is otherwise

proper in the district in which the suit is brought. In any

suit under this section, process may be served on any person, partnership, or corporation wherever it may be found.

10a

Section 19 of the Federal Trade Commission Act, 15

U.S.C. 57b, provides, in relevant part:

§57b. Civil actions for violations of rules and cease and

desist orders respecting unfair or deceptive acts or

practices

(a) Suits by Commission against persons, partnerships,

or corporations; jurisdiction; relief for dishonest or

fraudulent acts

(1) If any person, partnership, or corporation violates

any rule under this subchapter respecting unfair or deceptive acts or practices (other than an interpretive rule, or a

rule violation of which the Commission has provided is not

an unfair or deceptive act or practice in violation of section

45(a) of this title), then the Commission may commence a

civil action against such person, partnership, or corporation

for relief under subsection (b) of this section in a United

States district court or in any court of competent jurisdiction of a State.

(2) If any person, partnership, or corporation engages

in any unfair or deceptive act or practice (within the meaning of section 45(a)(1) of this title) with respect to which the

Commission has issued a final cease and desist order which

is applicable to such person, partnership, or corporation,

then the Commission may commence a civil action against

such person, partnership, or corporation in a United States

district court or in any court of competent jurisdiction of a

State. If the Commission satisfies the court that the act or

practice to which the cease and desist order relates is one

which a reasonable man would have known under the circumstances was dishonest or fraudulent, the court may

grant relief under subsection (b) of this section.

11a

(b) Nature of relief available

The court in an action under subsection (a) of this section shall have jurisdiction to grant such relief as the court

finds necessary to redress injury to consumers or other

persons, partnerships, and corporations resulting from the

rule violation or the unfair or deceptive act or practice, as

the case may be. Such relief may include, but shall not be

limited to, rescission or reformation of contracts, the refund of money or return of property, the payment of damages, and public notification respecting the rule violation or

the unfair or deceptive act or practice, as the case may be;

except that nothing in this subsection is intended to authorize the imposition of any exemplary or punitive damages.

and desist proceedings; notice of judicial proceedings

to injured persons, etc.

(1) If (A) a cease and desist order issued under section

45(b) of this title has become final under section 45(g) of

this title with respect to any person’s, partnership’s, or

corporation’s rule violation or unfair or deceptive act or

practice, and (B) an action under this section is brought

with respect to such person’s partnership’s, or corporation’s rule violation or act or practice, then the findings of

the Commission as to the material facts in the proceeding

under section 45(b) of this title with respect to such person’s, partnership’s, or corporation’s rule violation or act or

practice, shall be conclusive unless (i) the terms of such

cease and desist order expressly provide that the Commission’s findings shall not be conclusive, or (ii) the order

became final by reason of section 45(g)(1) of this title, in

which case such finding shall be conclusive if supported by

evidence.

12a

(2) The court shall cause notice of an action under this

section to be given in a manner which is reasonably calculated, under all of the circumstances, to apprise the persons, partnerships, and corporations allegedly injured by

the defendant’s rule violation or act or practice of the pendency of such action. Such notice may, in the discretion of

the court, be given by publication.

(d) Time for bringing of actions

No action may be brought by the Commission under

this section more than 3 years after the rule violation to

which an action under subsection (a)(1) of this section relates, or the unfair or deceptive act or practice to which an

action under subsection (a)(2) of this section relates; except

that if a cease and desist order with respect to any person’s, partnership’s, or corporation’s rule violation or unfair or deceptive act or practice has become final and such

order was issued in a proceeding under section 45(b) of this

title which was commenced not later than 3 years after the

rule violation or act or practice occurred, a civil action may

be commenced under this section against such person,

partnership, or corporation at any time before the expiration of one year after such order becomes final.

(e) Availability of additional Federal or State remedies;

other authority of Commission unaffected

Remedies provided in this section are in addition to,

and not in lieu of, any other remedy or right of action provided by State or Federal law. Nothing in this section shall

be construed to affect any authority of the Commission

under any other provision of law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.