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

Supreme Court briefDec 30, 2020

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No. 19-508

IN THE

Supreme Court of the United States

————

AMG CAPITAL MANAGEMENT, LLC, ET AL.,

Petitioners,

FEDERAL TRADE COMMISSION,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

REPLY BRIEF FOR PETITIONERS

————

PAUL C. RAY

PAUL C. RAY, CHTD

8670 West Cheyenne Ave.

Suite 120

Las Vegas, NV 89129

(702) 823-2292

paulcraylaw@gmail.com

JEFFREY A. LAMKEN

Counsel of Record

MICHAEL G. PATTILLO, JR.

SARAH J. NEWMAN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioners

(Additional Counsel Listed on Inside Cover)

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002

JENNIFER E. FISCHELL

MOLOLAMKEN LLP

430 Park Ave.

New York, NY 10022

(212) 607-8160

MATTHEW J. FISHER

MOLOLAMKEN LLP

300 N. LaSalle St.

Chicago, IL 60654

(312) 450-6700

Counsel for Petitioners

TABLE OF CONTENTS

Page

Introduction ................................................................

Argument ....................................................................

Section 13(b) Does Not Authorize

Monetary Relief ..............................................

A. The Term “Permanent Injunction”

Does Not Encompass Retrospective

Monetary Relief Like Restitution ..........

B. Equity Courts’ Ancillary

Jurisdiction Does Not Expand

§ 13(b)’s Scope ...........................................

1. Equity’s Power To Award

“Complete Relief ” Cannot

Expand the Commission’s

§ 13(b) Authority .................................

2. Early Patent and Copyright

Cases Do Not Support

Expanding § 13(b) ...............................

C. The Commission’s Reading of

§ 13(b) Defies the FTC Act’s

Structure and History..............................

D. Precedent Requires Adhering to

§ 13(b)’s Text .............................................

E. Policy Arguments Are Properly

Addressed to Congress ............................

II. The Monetary Award Here Is

Improper Even If § 13(b) Authorizes

Equitable Monetary Remedies .....................

Conclusion ...................................................................

(i)

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Hillman,

296 U.S. 222 (1935) ......................................... 2, 7, 9

Alexander v. Sandoval,

532 U.S. 275 (2001) .................................. 20, 22, 23

Arrow-Hart & Hegeman Elec. Co. v.

FTC, 291 U.S. 587 (1934) ..................................

Bell v. Hood, 327 U.S. 678 (1946) ......................... 12

Cain v. Cain, 20 N.Y.S. 45

(Sup. Ct. N.Y. Cnty. 1892)................................

California v. Am. Stores Co.,

495 U.S. 271 (1990) ...................................... 6, 7, 23

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

Ex parte Chamberlain, 55 F. 704

(C.C.D.S.C. 1893) ..............................................

City of Oklahoma City v. Tuttle,

471 U.S. 808 (1985) ............................................ 26

Civ. Aeronautics Bd. v. Delta Air

Lines, Inc., 367 U.S. 316 (1961) ....................... 22

Comm’rs of Wash. Cnty. v. Sch. Comm’rs,

26 A. 115 (Md. 1893) ..........................................

FTC v. AbbVie Inc., 976 F.3d 327

(3d Cir. 2020) ..................................................... 20

FTC v. Credit Bureau Ctr., LLC,

937 F.3d 764 (7th Cir. 2019) .......................... 15, 20

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

Knudson, 534 U.S. 204 (2002) ............. 6, 11, 12, 23

Huguenin v. Baseley (1808)

33 Eng. Rep. 722 ..............................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935) ............................................ 22

Jesus Coll. v. Bloom (1745)

26 Eng. Rep. 953 ............................................... 10

Kansas v. Nebraska, 574 U.S. 445 (2015) ........... 23

Lacassagne v. Chapuis,

144 U.S. 119 (1892) ............................................

Liu v. SEC, 140 S. Ct. 1936 (2020) ........ 23, 25, 26, 27

Meghrig v. KFC W., Inc.,

516 U.S. 479 (1996) ................................... 19, 23, 24

Memphis Grocery Co. v. Trotter,

7 So. 550 (Miss. 1890) ........................................

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993) .................................... 3, 11, 12

Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 288 (1960) .......... 21, 22, 23

Montanile v. Bd. of Trs. of Nat’l

Elevator Indus. Health Benefit

Plan, 577 U.S. 136 (2016) ............................... 9, 11

Nat’l Ass’n of Home Builders v.

Defs. of Wildlife, 551 U.S. 644 (2007) .............. 20

Nken v. Holder, 556 U.S. 418 (2009) .................. 4, 17

Osborn v. Bank of U.S.,

22 U.S. (9 Wheat.) 738 (1824) ...........................

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) ............................. 20, 21, 22, 23

Root v. Ry. Co., 105 U.S. 189 (1882) ............ 10, 13, 14

SAS Inst. Inc. v. Iancu,

138 S. Ct. 1348 (2018) ........................................ 24

TABLE OF AUTHORITIES—Continued

Page(s)

SCA Hygiene Prods. Aktiebolag v.

First Quality Baby Prods., LLC,

137 S. Ct. 954 (2017) .......................................... 20

Stevens v. Gladding, 58 U.S. 447 (1855) ........... 12, 13

Stribley v. Hawkie (1744) 26 Eng. Rep. 961 .......

Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) .......

Tex. & Pac. Ry. Co. v. Abilene Cotton

Oil Co., 204 U.S. 426 (1907) .............................. 20

Tilghman v. Proctor, 125 U.S. 136 (1888) ........... 13

Tull v. United States, 481 U.S. 412 (1987) ..........

In re Tyler, 149 U.S. 164 (1893) ...........................

United States v. Union Pac. Ry. Co.,

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

Warth v. Seldin, 422 U.S. 490 (1975) ................... 11

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................ 15

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .............. 12

STATUTES AND RULES

Federal Trade Commission Act, Pub. L.

No. 63-203, ch. 311, 38 Stat. 717 (1914),

codified as amended at 15 U.S.C.

§§ 41 et seq. ................................................... passim

15 U.S.C. § 45(a)(4) ....................................... 20

15 U.S.C. § 45(b) ........................................... 18

15 U.S.C. § 45(l) ...................................... passim

15 U.S.C. § 53(b) ..................................... passim

15 U.S.C. § 53(b)(2)....................................... 16

15 U.S.C. § 57b ........................................ passim

15 U.S.C. § 57b(a) ......................................... 18

TABLE OF AUTHORITIES—Continued

Page(s)

15 U.S.C. § 57b(a)(2).................................. 15, 19

15 U.S.C. § 57b(b) ............................ 3, 15, 17, 21

15 U.S.C. § 57b(c)(2) ..................................... 15

15 U.S.C. § 57b(d) ...................................... 15, 19

Act of Feb. 15, 1819, Pub. L.

No. 15-19, 3 Stat. 481 ..................................... 12, 13

Act of July 4, 1836, Pub. L.

No. 24-357, § 17, 5 Stat. 117, 124 ................... 12, 13

Sup. Ct. R. 15.2....................................................... 25

LEGISLATIVE MATERIALS

S. Rep. No. 93-151 (1973) ......................................

Oversight of the Fed. Trade Comm’n:

Hearing Before the S. Comm. on Com.,

Sci. & Transp., 116th Cong. (Aug. 5,

2020) (statement of the Federal Trade

Commission), https://www.ftc.gov/

system/files/documents/public_

statements/1578963/p180101testimony

ftcoversight20200805.pdf .................................

S. 4626, 116th Cong. § 403 (2020)..........................

OTHER AUTHORITIES

1 D. Dobbs, Law of Remedies

(2d ed. 1993) .......................................................

1 R. Foster, A Treatise on Federal Practice,

Civil and Criminal (4th ed. 1909) ...................

J. High, A Treatise on the Law of

Injunctions (1873) ............................................

1 H. Joyce, A Treatise on the Law Relating

to Injunctions (1909) ........................................ 6, 9

TABLE OF AUTHORITIES—Continued

Page(s)

1 J. Pomeroy, A Treatise on Equity

Jurisprudence (1881) ..................................... 9, 10

3 J. Pomeroy, A Treatise on Equity

Jurisprudence (1883) .......................................

T. Spelling, A Treatise on the Law

Governing Injunctions (1926) .........................

2 J. Story, Commentaries on Equity

Jurisprudence (1836) .......................................

IN THE

Supreme Court of the United States

————

NO. 19-508

AMG CAPITAL MANAGEMENT, LLC, ET AL.,

Petitioners,

FEDERAL TRADE COMMISSION,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

REPLY BRIEF FOR PETITIONERS

————

INTRODUCTION

Section 13(b) is clear: Where a person “is violating, or

is about to violate” the FTC Act, “the Commission may

seek * * * a permanent injunction.” 15 U.S.C. § 53(b).

Restitution and monetary relief are not a “permanent

injunction.” The Commission concedes that, “[a]s Congress’s own creation, the Commission could have only the

authority conveyed to it by statute.” Resp.Br. 40. Here,

§ 13(b) conveys authority for “the Commission [to] seek”

a “permanent injunction.” Section 13(b) does not also

authorize the Commission—which suffers no loss from

the misconduct it alleges—to demand restitution putatively owed to third parties § 13(b) never mentions. And

§ 13(b) stands in stark contrast to another provision—

enacted in the same legislation—that authorizes the

Commission to seek an injunction “and * * * other and

further equitable relief.” 15 U.S.C. § 45(l) (emphasis added).

The Commission’s position defies § 13(b)’s structure.

Section 19 expressly authorizes monetary relief, but imposes important preconditions, including prior notice that

the conduct is proscribed and protections for third parties. The Commission would convert § 13(b) into an implied route to the same relief, but strip away those safeguards. The Commission also never explains why, if

§ 13(b) encompasses retrospective monetary relief, Congress would limit that provision to cases where the defendant “is violating, or is about to violate” the FTC Act,

excluding cases where the violation is complete.

The Commission instead argues that, where equity

courts had jurisdiction to issue injunctions, they also

“had the power to order restorative” monetary relief “incident” to the injunction—i.e., ancillary jurisdiction to

“ ‘decree complete relief.’ ” Resp.Br. 18, 20 (quoting

Alexander v. Hillman, 296 U.S. 222, 242 (1935)). But

§ 13(b) is not about the jurisdiction of equity courts. It

specifies the Commission’s power to “seek” particular relief—namely, an injunction. And the Commission misconstrues the “complete relief ” maxim it invokes. Under

it, equity courts with jurisdiction over equitable claims

could also exercise concurrent jurisdiction to decide legal issues between the parties. That maxim does not give

parties substantive rights to additional relief they do not

otherwise have. The maxim thus cannot authorize the

Commission to demand relief beyond the “permanent injunction” that § 13(b) authorizes. And the Commission’s

argument that monetary relief may be awarded “ ‘adjunct

to,’ ” “incident to,” or “ancillary to” an injunction, see

Resp.Br. 12, 32, only confirms that such relief is not itself

injunctive relief.

By the Commission’s reasoning, any reference in any

statute to any equitable remedy would authorize a party

to pursue every remedy that exists at equity and at law,

unless Congress expressly states otherwise. That cannot

be right. Where Congress specifies the right to an injunction, that term “must mean something less than all

relief.” Mertens v. Hewitt Assocs., 508 U.S. 248, 258 n.8

(1993).

ARGUMENT

I. SECTION 13(b) DOES NOT AUTHORIZE MONETARY

RELIEF

A. The Term “Permanent Injunction” Does Not

Encompass Retrospective Monetary Relief

Like Restitution

1. Section 13(b) states that “the Commission may

seek” a “permanent injunction.” 15 U.S.C. § 53(b). The

term “permanent injunction” does not mean “restitution,” “all forms of equitable relief,” or “monetary relief.”

Section 5(l), enacted in the same legislation as § 13(b),

see Pet.Br. 7, makes that clear: It authorizes “injunctions” and “other and further equitable relief,” 15 U.S.C.

§ 45(l). And § 19, enacted two years later, authorizes the

Commission to request equitable and legal monetary relief such as “the refund of money” and “payment of damages.” Id. § 57b(b). If Congress had meant § 13(b) to

authorize relief beyond injunctions, it would have included similar language in § 13(b) as well. But § 13(b) authorizes the Commission to seek a permanent injunction, not

such injunctions and “further equitable relief.” Where

“ ‘Congress includes particular language in one section of

a statute but omits it in another section of the same Act,

it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.’ ”

Nken v. Holder, 556 U.S. 418, 430 (2009). The Commission cannot deny that, as a matter of text, Congress understood “permanent injunction” to be distinct from

“monetary relief ” and “equitable relief ” generally.

2. The Commission responds that, “[w]hen Congress

uses a statutory term like ‘injunction’ with a longestablished legal understanding, the term ‘brings the old

soil with it.’ ” Resp.Br. 20 (quoting Taggart v. Lorenzen,

139 S. Ct. 1795, 1801 (2019)). That is true—but it undermines the Commission’s expansive view. Myriad authorities attest that the “prospective” nature of injunctive

relief is incompatible with awarding monetary relief for

past harms. Pet.Br. 22-25. The Commission tries to dismiss those authorities as “simply not[ing] in passing that

injunctions are prospective,” without foreclosing their

use to award retrospective monetary relief. Resp.Br. 31.

But this Court has plainly stated that “[t]he function of

an injunction is to afford preventive relief, not to redress

alleged wrongs which have been committed already.”

Lacassagne v. Chapuis, 144 U.S. 119, 124 (1892) (emphasis added); see also T. Spelling, A Treatise on the Law

Governing Injunctions § 21 (1926).

Accordingly, “[a]n injunction will not be used to take

property out of the possession of one party and put it into

that of another.” Lacassagne, 144 U.S. at 124 (emphasis

added). Traditionally, injunctions encompass judicial

commands “other than the payment to the complainant of

a sum of money.” 1 R. Foster, A Treatise on Federal

Practice, Civil and Criminal § 205 (4th ed. 1909) (emphasis added). Neither the Commission nor its amici iden-

tify one case where a court ordered the payment of

money as compensation for past harms via an injunction.

3. The Commission urges (at 29-30) that injunctions

“have * * * been used to order the return of money,”

invoking Osborn v. Bank of United States, 22 U.S. (9

Wheat.) 738 (1824). In Osborn, however, a first injunction was issued to restrain a state official from collecting

an allegedly illegal tax on the bank. Id. at 836-838. The

official’s agent collected the tax anyway, entering the

bank and taking $100,000 “in specie and bank notes.” Id.

at 836. The agent gave the currency to the state treasurer, who kept it “separate from the other funds of the

treasury.” Id. at 833. The bank then obtained a second

injunction “to restrain” the treasurer “from paying * * *

away” the property in his “possession.” Id. at 869, 871.

But when it came to returning the property, the court

ordered “restitution of the specific sum” the treasurer

held. Id. at 871 (emphasis added). Osborn confirms “injunction” and “restitution” are distinct.

Nor can the Commission find support in Dobbs’s statement that “ ‘some restitution is compelled by resort to a

form of injunction.’ ” Resp.Br. 30 (quoting 1 D. Dobbs,

Law of Remedies § 1.1, at 7 (2d ed. 1993)). Dobbs explains that injunctions are used for that purpose only

when a case “require[s] coercive intervention” in the face

of defiance, such as “order[ing] the defendant to reconvey” specific property to the plaintiff. 1 Dobbs, supra,

§ 4.1(1), at 556. Indeed, the cases cited by the Commission and its amici all involved the turnover of specifically

identifiable property that rightfully belonged to the

plaintiff.1 While § 5(l)’s express authority for “mandatory

See Stribley v. Hawkie (1744) 26 Eng. Rep. 961, 961; Huguenin v.

Baseley (1808) 33 Eng. Rep. 722, 722-723; Memphis Grocery Co. v.

Trotter, 7 So. 550, 550 (Miss. 1890); Comm’rs of Wash. Cnty. v. Sch.

injunctions” theoretically might encompass such relief, 15

U.S.C. § 45(l), § 13(b)’s authorization of a “permanent

injunction” does not, id. § 53(b). No one would think of a

one-time order to turn over property as a “permanent

injunction.” Regardless, the Commission does not seek

turnover of specific property under § 13(b) here. Where a

party does not seek the return of “particular funds or

property in the defendant’s possession” that could be

“traced” to the plaintiff—but instead seeks to “impose

personal liability on the defendant”—the remedy “is not”

considered “equitable” relief at all, much less an injunction. Great-West Life & Annuity Ins. Co. v. Knudson,

534 U.S. 204, 213-214 (2002) (emphasis added).

4. That leaves the Commission’s assertion that

“[t]reatises have * * * recognized for centuries that injunctions may serve restorative purposes.” Resp.Br. 30.

But those same treatises stress that injunctions are

“generally preventative, * * * rather than restorative.” 2

J. Story, Commentaries on Equity Jurisprudence § 862

(1836); see also 1 H. Joyce, A Treatise on the Law Relating to Injunctions § 2a (1909) (same). Injunctions may be

“restorative” in that, by “prohibit[ing] the continuance

of ” an offending act, they will at the same time “compel[ ]

the defendant to restore the thing to its original situation.” 3 J. Pomeroy, A Treatise on Equity Jurisprudence § 1337 (1883) (emphasis added). But injunctions

remain prospective relief; they do not provide compensation for past wrongs. Pet.Br. 22-24.

California v. American Stores Co., 495 U.S. 271 (1990),

demonstrates the point. There, the Court held that

Comm’rs, 26 A. 115, 116-117 (Md. 1893); Cain v. Cain, 20 N.Y.S. 45,

45-46 (Sup. Ct. N.Y. Cnty. 1892); Ex parte Chamberlain, 55 F. 704,

705, 709 (C.C.D.S.C. 1893); In re Tyler, 149 U.S. 164, 191 (1893).

“divestiture is a form of injunctive relief within the

meaning of § 16” of the Clayton Act. Id. at 275. The

Court explained that, while divestiture may be backwardlooking or restorative insofar as it orders the defendant

“to rescind an unlawful purchase of stock or assets,” id.

at 295, it prospectively “prevent[s]” further “harm” to

consumers that otherwise “persists” as a result of an

illegal merger, id. at 282. The same cannot be said of the

purely retrospective monetary relief the Commission

seeks under § 13(b).

B. Equity Courts’ Ancillary Jurisdiction Does Not

Expand § 13(b)’s Scope

Unable to show that the term “injunction” itself encompasses monetary relief, the Commission urges that

“[e]quity courts have always had the power to order

restorative remedies as * * * incident to an injunction.”

Resp.Br. 18 (emphasis added). Whenever a party sought

an injunction, the Commission asserts, the court was empowered to “ ‘decree complete relief,’ ” including monetary relief. Id. at 20 (quoting Alexander, 296 U.S. at 242).

“Congress,” the Commission insists, “drew upon” the

“understanding that a court with the power to enter an

injunction may award restorative relief necessary to

achieve complete justice.” Id. at 17. The notion that

Congress understood authority to seek an injunction as

authority to seek any and all relief is fanciful. See pp. 1419, infra. The Commission’s position defies statutory

text and misconstrues the “complete relief ” maxim regardless. This Court has previously rejected efforts to

invoke the maxim to expand statutory remedies.

1. Equity’s Power To Award “Complete Relief ”

Cannot Expand the Commission’s § 13(b)

Authority

The Commission argues that, because a “ ‘court in

equity’ ” could exercise jurisdiction to “ ‘award monetary

restitution as an adjunct to injunctive relief,’ ” Resp.Br.

19 (quoting Tull v. United States, 481 U.S. 412, 424

(1987)) (emphasis added), the Commission’s authority to

“seek * * * a permanent injunction” under § 13(b) must

extend beyond seeking injunctions as well. That fails.

Section 13(b) is not about courts’ equity jurisdiction. It

defines the Commission’s authority. It says “the Commission may seek * * * a permanent injunction.” 15

U.S.C. § 53(b) (emphasis added). It is part of the FTC

Act, not the Judicial Code. As an agency within the

executive branch, the Commission “possess[es] only such

powers as are granted by statute.” Arrow-Hart &

Hegeman Elec. Co. v. FTC, 291 U.S. 587, 598 (1934); see

Resp.Br. 40. Where the Act authorizes remedies beyond

a “permanent injunction,” it does so expressly, as in § 5(l),

which authorizes injunctions and “further equitable

relief,” and § 19, which authorizes retrospective monetary

relief.

The Commission cannot rewrite § 13(b) to

authorize permanent injunctions and any other relief it

might want.

The Commission fundamentally misunderstands the

“complete relief ” maxim regardless. That maxim does

not empower parties to seek, or courts to award, relief

the law does not otherwise authorize. As the Commission

acknowledges, the power to award monetary relief adjunct to an injunction 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.’ ” Resp.Br.

19 (quoting 1 J. Pomeroy, A Treatise on Equity Jurisprudence § 181 (1881)) (emphasis added); see also J.

High, A Treatise on the Law of Injunctions § 451 (1873);

Camp v. Boyd, 229 U.S. 530, 551-552 (1913); Alexander,

296 U.S. at 242. In other words, where a claim for

“ ‘purely equitable relief ’ ” invokes the equity court’s

“ ‘exclusive jurisdiction,’ ” the court also has “ ‘concurrent

jurisdiction’ ” to make “ ‘a complete adjudication’ ” and

“ ‘establish purely legal rights and grant legal remedies

which would otherwise’ ” require resort to a court of law.

United States v. Union Pac. Ry. Co., 160 U.S. 1, 52 (1895)

(quoting 1 Pomeroy, supra, § 181) (emphasis added).

This Court has thus described equity courts’ concurrent

jurisdiction as “ancillary jurisdiction.” Montanile v. Bd.

of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 577

U.S. 136, 148 (2016). But that jurisdiction does not give

parties new rights to relief the law does not otherwise

provide.

To the contrary, the purpose of concurrent jurisdiction

was efficiency—“complete and final relief in a single

action in respect of all matters between the same parties

growing out of the same general transaction.” 1 Joyce,

supra, § 10. Allowing equity courts to provide legal relief

ancillary to equitable remedies spared the parties “the

double expense and trouble of an action at law” in addition to the equitable case. 1 Pomeroy, supra, § 237; see

also High, supra, § 451 (purpose of rule is “to afford complete redress, without compelling a resort to law”).

The maxim the Commission invokes thus does not expand the relief a plaintiff can seek. Concurrent jurisdiction affords relief beyond an injunction only where parties otherwise had a right to that further relief:

The concurrent jurisdiction embraces all those civil

cases in which the primary right * * * of the complaining party sought to be maintained, enforced, or

redressed, is one which is cognizable by the law,

and in which the remedy conferred is of the same

kind as that administered, under the like circumstances, by the courts of law—being ordinarily a recovery of money in some form.

1 Pomeroy, supra, § 139. But where a party did not otherwise have a right to monetary relief (in law or equity),

the maxim did not authorize equity courts to invent such

an entitlement merely because the party got an injunction.

The accounting remedy, on which the Commission’s

case depends, illustrates the point. Jesus College v.

Bloom (1745) 26 Eng. Rep. 953, explained that, where a

landlord sought an injunction against ongoing waste by a

tenant, an equity court could also order an account for

past harms. Id. at 953-954. But that was permissible because the landlord otherwise had a right to a “damages”

remedy in “an action at law.” Ibid. The equity court’s

power to award “a complete decree” was based “merely

upon the maxim of preventing multiplicity of suits.” Ibid.

The Commission’s patent cases (Resp.Br. 21-22) rest on

the same principle: The basis for allowing an accounting

in a suit for injunction was as “a substitute for damages”

the patentee otherwise had a right to pursue in a court of

law. Root v. Ry. Co., 105 U.S. 189, 215 (1882) (emphasis

added).

The “complete relief ” maxim thus cannot help the

Commission. The Commission acknowledges that, “[a]s

Congress’s own creation, [it] could have only the authority conveyed to it by statute.” Resp.Br. 40. Section 13(b)

plainly states the extent of the authority conveyed:

“[T]he Commission may seek” an “injunction.” 15 U.S.C.

§ 53(b). It does not say the Commission is entitled to sue

for compensation for injuries suffered by others, or

restitution of funds it never lost. Cf. Warth v. Seldin, 422

U.S. 490, 499 (1975) (“[T]he plaintiff generally must

assert his own legal rights and interests, and cannot rest

his claim to relief on the legal rights or interests of third

parties.”). If a statute entitled the Commission to sue for

specified relief at law or equity, the complete-relief maxim would give equity courts jurisdiction to grant that relief as well. But it does not mean courts can rewrite a

statute entitling the agency only to a “permanent injunction” to create a right to monetary remedies to which the

agency is not otherwise entitled.

This Court has rejected the argument that the

complete-relief maxim expands remedies beyond those

expressly authorized by statute. In Montanile, the Court

held that ERISA’s authorization of “equitable relief”

under § 502(a)(3) does not authorize a plaintiff to seek a

money decree against general assets—a form of legal

relief. 577 U.S. at 147-148. The Court acknowledged that

“[e]quity courts could award” that type of legal relief “as

part of their ancillary jurisdiction to award complete

relief.” Id. at 148. But it “rejected the argument that

‘equitable relief ’ under § 502(a)(3) means ‘whatever relief

a court of equity is empowered to provide in the particular case at issue,’ including ancillary legal remedies.”

Id. at 147 (quoting Mertens, 508 U.S. at 256).

While the Commission invokes Mertens and GreatWest as recognizing that equity courts could grant “ ‘all

relief ’ ” (including “ ‘legal remedies’ ”) “once [the courts’]

jurisdiction [was] properly invoked,” Resp.Br. 32, those

cases rejected the view that a statutory reference to

“equitable relief ” authorizes such ancillary relief. Mer-

tens, 508 U.S. at 257-258 & n.8; Great-West, 534 U.S. at

209-210. They confirm that, where a statute authorizes

“ ‘[e]quitable’ relief,” that term “must mean something

less than all relief.’ ” Mertens, 508 U.S. at 258 n.8. If a

broad statutory authorization of “equitable relief ” does

not encompass additional remedies over which equity

courts could assert ancillary jurisdiction, § 13(b)’s more

limited authorization of a “permanent injunction” does

not do so either.2

2. Early Patent and Copyright Cases Do Not

Support Expanding § 13(b)

Citing early patent and copyright cases, the Commission argues that, “[f ]or more than 150 years, the Court

has construed statutes authorizing an ‘injunction’ ” as “includ[ing] the power to grant restorative monetary remedies.” Resp.Br. 20-21. In cases under the 1819 and 1836

patent and copyright statutes, this Court held that, in a

suit for an injunction, “the court could also award monetary relief in the form of an accounting.” Id. at 21 (citing,

e.g., Stevens v. Gladding, 58 U.S. 447, 455 (1855)). The

Commission states that “[n]either statute referred to any

equitable remedy other than an ‘injunction.’ ” Ibid. But

the Commission misreads the statutes’ text and this

Court’s cases.

None of those cases concerned a federal agency that

was limited to seeking only relief Congress specified by

statute. More fundamentally, the relevant statutes were

not limited to “injunctions.” The 1819 Act broadly pro2

Decisions in other contexts confirm that the right to an injunction

does not open the door to all other remedies. For example, it “is

established practice” for “federal courts to issue injunctions to

protect” constitutional rights. Bell v. Hood, 327 U.S. 678, 684 (1946).

Yet damages are not always available for violations of those rights.

See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1855-1857 (2017).

vided that federal courts “shall have original cognisance,

as well in equity as at law, of all actions” under the patent and copyright laws. Act of Feb. 15, 1819, Pub. L. No.

15-19, 3 Stat. 481, 481 (emphasis added). The 1836 Act

likewise stated that patent suits “shall be originally

cognizable, as well in equity as at law,” in federal courts.

Act of July 4, 1836, Pub. L. No. 24-357, § 17, 5 Stat. 117,

124 (emphasis added). They expressly gave federal

courts jurisdiction over claims for infringement.

Both statutes mentioned injunctions. See 3 Stat. at

481; § 17, 5 Stat. at 124. But this Court explained that

they had “conferred upon the courts of the United

States” not just authority to issue an injunction, but “general equity jurisdiction.” Tilghman v. Proctor, 125 U.S.

136, 144 (1888) (emphasis added); see Stevens, 58 U.S. at

455 (describing the 1819 Act as conferring “the usual and

known jurisdiction exercised by courts of equity”). That

general jurisdictional grant was necessary because, before 1819, no statute authorized federal courts to decide

patent-infringement suits absent diversity jurisdiction.

Root, 105 U.S. at 193. The acts did not “ ‘enlarge or alter

the powers of the court,’ ” but merely “ ‘extend[ed] its

jurisdiction to parties not before falling within it’ ”—

giving federal courts jurisdiction to enforce the substantive rights to relief previously asserted in state courts.

Ibid.

The Commission invokes this Court’s statement in

Stevens that “ ‘[t]he right to an account of profits is incident to the right to an injunction.’ ” Resp.Br. 21 (quoting

Stevens, 58 U.S. at 455). But this Court later made clear

that the right to an accounting did not derive from the

right to an injunction itself—it derived from an equity

court’s general authority to resolve equitable and legal

issues in a single case. The question in Root was whether

a party could bring “a bill in equity for a naked account of

profits and damages against an infringer of a patent.”

105 U.S. at 215. The Court held that such a bill “cannot

be sustained.” Id. at 215-216. It held that a plaintiff

must seek “some” form of purely equitable relief to

“secure[ ] * * * his standing in court,” id. at 216 (emphasis

added); only then could the plaintiff invoke the equity

court’s ancillary jurisdiction to “administer[ ] an entire

remedy and complete justice,” id. at 214. The Court

acknowledged that “the most general ground for equitable interposition is” a request for an “injunction” prohibiting further infringement. Id. at 216. But the Court

explained “that grounds of equitable relief may arise,

other than by way of injunction,” that could give an

equity court jurisdiction over the patentee’s claims in the

first instance. Ibid. (emphasis added).

The early patent and copyright cases thus do not support reading a statutory authorization of an “injunction”

to create a right to ancillary monetary remedies. The

cases merely apply the “complete relief ” principle of jurisdiction discussed above: Where the law entitles a party to both injunctive relief and damages, an equity court

can assert jurisdiction to grant both. See pp. 7-12, supra.

That does not mean that, where the law entitles an

agency to an injunction, courts may invent a right to

monetary relief that Congress did not grant.

C. The Commission’s Reading of § 13(b) Defies the

FTC Act’s Structure and History

The Commission is correct that “Congress created two

alternative pathways for adjudicating violations of the

Act: administrative proceedings before the Commission

and permanent-injunction litigation in federal court.”

Resp.Br. 38-39. But those two alternative pathways are

pathways to different relief. Section 13(b) states what

relief the Commission “may seek” by initiating proceedings directly in district court: an “injunction.” 15 U.S.C.

§ 53(b). Alternatively, § 19 specifies the pathway for the

Commission to obtain remedies “to redress injury to consumers,” including “rescission or reformation of contracts, the refund of money or return of property, [and]

the payment of damages.” Id. § 57b(b).

Section 19, moreover, imposes important preconditions to monetary relief for violations of the FTC Act.

The Commission must conduct an administrative adjudication, “satisfy the court” that a reasonable person would

know the conduct was “dishonest or fraudulent,” 15

U.S.C. § 57b(a)(2), comply with the statute of limitations,

id. § 57b(d), and notify alleged victims of “the pendency

of [the] action,” id. § 57b(c)(2). The Commission’s arguments that Congress intended § 13(b) to implicitly authorize the very same remedies expressly authorized in

§ 19, without imposing those requirements, defy the FTC

Act’s structure and history—not to mention common

sense.

1. The Commission cannot explain why, if Congress

intended to open a direct judicial pathway to retrospective monetary relief in § 13(b), it would have required

such efforts to be “incident” to an action for an injunction. Resp.Br. 18. Consistent with the forward-looking

nature of injunctive relief, § 13(b) authorizes the Commission to “bring suit” only where a person “is violating, or is

about to violate” laws the Commission enforces. 15

U.S.C. § 53(b). It would be “illogical” for Congress to limit the Commission’s authority to seek retrospective monetary redress for consumers to situations involving “ongoing or imminent unlawful conduct.” FTC v. Credit Bureau Ctr., LLC, 937 F.3d 764, 772-773 (7th Cir. 2019).

2. Congress, moreover, does not “hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 468 (2001). It is hard to imagine a bigger elephant than “ ‘all relief available’ in equity,” including ancillary “legal” relief, Resp.Br. 53-54, hiding in the mousehole of a provision authorizing the Commission to seek a

“permanent injunction.” Indeed, such authority would be

hidden within a secondary proviso—a second “Provided

* * * [t]hat” clause—in a paragraph authorizing the Commission to “bring suit * * * to enjoin [an allegedly unlawful] act or practice” “pending the issuance” and resolution of an administrative “complaint by the Commission.”

15 U.S.C. § 53(b), (b)(2). It makes no sense to read that

proviso as silently authorizing relief far beyond the injunctive relief—“enjoin[ing an] act or practice”—that is

§ 13(b)’s express focus. The Commission’s construction,

moreover, hides an entire herd of elephants: On its view,

every mention of an “injunction” in the U.S. Code would

entitle the plaintiff to all equitable and legal relief.

The Commission responds that “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.” Resp.Br. 39. That fails for the

reasons given above. See pp. 3-14, supra. But the notion

that Congress intended § 13(b)’s mention of a permanent

injunction to authorize the Commission to seek restitution approaches the farcical. When Congress intends to

authorize equitable or other monetary relief in addition

to an injunction, it says so expressly. See Pet.Br. 21 &

n.3 (citing statutes). In the very legislation that added

§ 13(b), Congress authorized courts to “grant mandatory

injunctions” for violations of Commission cease-anddesist orders, “and such other and further equitable

relief as they deem appropriate.” 15 U.S.C. § 45(l) (em-

phasis added). Congress’s omission of that language

from § 13(b) speaks volumes. See Nken, 556 U.S. at 430.3

Even if the legislative history suggests that “Congress

understood that it was opening a separate enforcement

pathway” in § 13(b), Resp.Br. 26, there is no suggestion

Congress understood the § 13(b) “pathway” to encompass

monetary remedies. The Senate Report the Commission

cites says the opposite: The provision would give the

Commission “the ability, in the routine fraud case, to

merely seek a permanent injunction in those situations

in which it does not desire to further expand upon the

prohibitions of the [FTC] Act.” S. Rep. No. 93-151, at 31

(1973) (emphasis added).

If it were so obvious that Congress intended § 13(b) to

be a pathway to monetary relief, surely the Commission—the agency charged with administering the

FTC Act—would have understood that immediately. But

the Commission nowhere denies its officials long had the

opposite understanding, seeing no basis in § 13(b)’s text

or legislative history to argue that the provision authorized monetary remedies. See Pet.Br. 9-10.

3. There is, moreover, no reason why Congress

would have needed to authorize “the refund of money or

return of property” by enacting § 19, 15 U.S.C. § 57b(b), if

it had already authorized the Commission to seek those

remedies when enacting § 13(b) two years earlier.

Pet.Br. 25-27. The Commission cites no evidence Congress thought § 13(b) already offered those remedies, but

wanted to expand their availability through an adminis3

The Commission argues that the injunctive relief authorized by

§ 13(b) and § 5(l) serve distinct purposes. Resp.Br. 48-49. That is no

answer: When Congress authorized relief beyond injunctions, it said

so expressly.

trative pathway under § 19. More important, the Commission cannot explain why, if Congress intended two

pathways to the same relief, it would have provided rigorous substantive and procedural protections—including

notice to injured parties—in only one of those pathways.

See Pet.Br. 27-29. The Commission claims Congress

“had to define * * * how administrative adjudication

would work.” Resp.Br. 40. But § 19 does not define

administrative adjudication—it addresses the circumstances under which the Commission can seek relief in

district court, after an administrative adjudication is

complete. See 15 U.S.C. § 57b.

The Commission errs in speculating that Congress

provided additional protections in § 19 because “it authorized monetary judgments based solely on an administrative agency’s determination of legality.” Resp.Br. 44.

Section 19 does not allow monetary remedies “based

solely on an administrative agency’s determination of

legality.” Section 19 relief may follow either a cease-anddesist order or a rule promulgated by the Commission.

15 U.S.C. § 57b(a). But cease-and-desist orders are subject to review in the federal courts of appeals, id. § 45(b),

and the violation of a regulation must be litigated in

district court under § 19. The Commission cannot explain

why Congress would have demanded clear notice to defendants as a precondition to monetary relief—and notice

to injured parties—under § 19, but omitted those requirements from § 13(b).

The Commission claims Congress did not need § 19’s

limits in § 13(b) because courts would exercise an “equitable duty to prevent unjust monetary awards” in § 13(b)

actions, where “the Commission is treated like any

litigant that must prove both a substantive violation and

the appropriate redress.” Resp.Br. 44. That makes no

sense. Section 19 proceedings are also brought in district

court, so Congress could have relied on the courts’

“equitable duty” in that context, too. Yet Congress

deemed it necessary to specify that monetary remedies

are not appropriate for violations of the Act under § 19

unless the Commission proves that “a reasonable man

would have known under the circumstances” that the

challenged practice “was dishonest or fraudulent.” 15

U.S.C. § 57b(a)(2). The Commission cannot explain why,

having cabined the court’s authority under § 19, it would

allow a court to award the same remedies under § 13(b)

upon a mere showing that a person “is violating” a law

enforced by the Commission. Id. § 53(b). The Commission’s suggestion that the minimum constitutional standard for notice is an adequate substitute for § 19’s rigorous standard, Resp.Br. 44-45, requires no response.

Nor can the Commission explain away the fact that,

where § 19 imposes a statute of limitations for monetary

relief, 15 U.S.C. § 57b(d), § 13(b) contains none. To suggest that courts can “take concerns of repose into account

in the exercise of their equitable discretion,” Resp.Br. 44,

is no answer. The Commission argued the opposite below. C.A.App. 1492-1493. “If Congress had intended”

§ 13(b) to afford monetary remedies, “the absence” of a

limitations period “would be striking.” Meghrig v. KFC

W., Inc., 516 U.S. 479, 486 (1996).

4. The Commission retreats to § 19’s savings clause,

claiming it proves § 19 “was not meant to limit remedies

available” under § 13(b). Resp.Br. 45. The point is not

that § 19 rescinded authority previously granted in

§ 13(b). The point is that it would have been nonsensical

for Congress to authorize monetary relief in § 19, subject

to rigorous substantive and procedural protections, while

granting the Commission authority to obtain the same

relief, without those protections, in § 13(b). See Pet.Br.

32. A savings clause cannot be read in a way that causes

a statute to “destroy itself.” Tex. & Pac. Ry. Co. v.

Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907).

5. Finally, the Commission urges that Congress ratified lower court understandings when it amended the

FTC Act in 1994 and 2006. Resp.Br. 27-28. But the key

language providing for “permanent injunction[s]” remains unchanged from 1973. Neither amendment concerned courts’ interpretations of § 13(b). The 1994

amendment included a discrete change concerning venue

and service of process—it “did not change the remedies

available” under § 13(b). FTC v. AbbVie Inc., 976 F.3d

327, 377 (3d Cir. 2020). And the 2006 amendment extended already “available” remedies, “including restitution to

domestic or foreign victims,” to claims “involving foreign

commerce.” 15 U.S.C. § 45(a)(4). The amendment’s

“reference to restitution” does not implicate § 13(b)

because “the availability of restitution under Sections 5

and 19” was “well-settled.” AbbVie, 976 F.3d at 377; see

also Credit Bureau, 937 F.3d at 775.

“Nothing that Congress has done since [1973] has altered the meaning” of “injunction” under § 13(b) through

amendment or reenactment. SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954,

966-967 (2017); see Alexander v. Sandoval, 532 U.S. 275,

292-293 (2001) (requiring “comprehensive[ ] revis[ion]” to

draw inferences from other amendments). The Commission’s claim of “implied amendment[ ]” fails. Nat’l Ass’n

of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 664

n.8 (2007).

D. Precedent Requires Adhering to § 13(b)’s Text

Lacking support in § 13(b)’s text, the Commission

turns to Porter v. Warner Holding Co., 328 U.S. 395

(1946), and Mitchell v. Robert DeMario Jewelry, Inc., 361

U.S. 288 (1960). Neither case bears the weight the Commission places on them.

1. Unlike § 13(b), the provision at issue in Porter authorized not only “ ‘injunction[s],’ ” but also “ ‘other order[s],’ ” which encompasses restitution. 328 U.S. at 397;

see Pet.Br. 33-34. The Commission claims the outcome

in Porter “did not turn on the phrase ‘other order,’ ” and

that Mitchell “directly rejected” such an argument.

Resp.Br. 33. But Porter stressed that “the term ‘other

order’ contemplates a remedy other than that of an injunction,” including “[a]n order for the recovery [of ] restitution.” 328 U.S. at 399. Section 13(b), by contrast,

contains no textual basis for monetary remedies. The

provision in Mitchell, moreover, concerned the jurisdiction of “District Courts,” not the scope of agency

authority to demand relief. Mitchell, 361 U.S. at 289; see

p. 8, supra.

Critically, in both Porter and Mitchell, the Court examined the entire statutory scheme and concluded that

no “other provision” provided for restitution and thus

“expressly or impliedly preclude[d] a court from ordering

restitution” pursuant to the provision authorizing injunctive relief. Porter, 328 U.S. at 403; see Mitchell, 361 U.S.

at 294 (same). Here, the opposite is true. In the FTC

Act, both § 5(l) and § 19 expressly provide for restitution

and other equitable relief. See 15 U.S.C. §§ 45(l), 57b(b).

Congress’s failure to include similar language in § 13(b)

precludes this Court from blue-penciling that relief into

§ 13(b). See Pet.Br. 35-36; pp. 3-4, 16-17, supra.

2. This Court, moreover, has long since rejected

Porter’s and Mitchell’s approach to statutory construction. See Pet.Br. 36-37. Where Porter assumed that “all

the inherent equitable powers of the District Court are

available” unless “restrict[ed]” by a “clear and valid legislative command,” 328 U.S. at 398, the Court now limits

remedies to those expressly provided in the statutory

text. See Pet.Br. 37. “The judicial task is to interpret

the statute Congress has passed to determine whether it

displays an intent to create not just a private right but

also a private remedy”—not to employ any remedy not

expressly foreclosed. Sandoval, 532 U.S. at 286-287.

Nor can the Commission persuasively argue that,

“[w]hen Congress enacted Section 13(b),” “it relied on”

Porter ’s and Mitchell’s expansive judicial implication of

remedies. Resp.Br. 25. Whatever the view of implying

extra-statutory remedies when § 13(b) was enacted in

1973, this Court, “[h]aving sworn off the habit of venturing beyond Congress’s intent,” should “not accept [the

Commission’s] invitation to have one last drink.” Sandoval, 532 U.S. at 287.

That principle applies with extra force where, as here,

the statute addresses agency authority. As an administrative agency, the Commission is empowered “to carry

into effect legislative policies embodied in the statute”

only “in accordance with the legislative standard therein

prescribed.” Humphrey’s Ex’r v. United States, 295 U.S.

602, 628 (1935). As the Commission acknowledges, “ ‘the

determinative question is . . . what Congress has said [the

Commission] can do,’ ” Resp.Br. 40 (quoting Civ. Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 322

(1961)) (emphasis added), not what actions Congress has

expressly forbidden.

Those principles cannot be dismissed as limited to the

context of implied “ ‘private rights of action,’ ” as opposed

to implied remedies. Resp.Br. 34-35. This Court has

broadly rejected the view that courts should “ ‘provide

such remedies as are necessary to make effective the con-

gressional purpose.’ ” Sandoval, 532 U.S. at 287 (emphasis added). It has explained that courts should not imply

“private remed[ies],” “no matter how desirable that

might be as a policy matter.” Id. at 286-287 (emphasis

added). And it has adhered to that view in cases involving implied remedies as well as implied causes of action.

See, e.g., Great-West, 534 U.S. at 209 (courts should be

“ ‘reluctant to tamper with’ ” a statutory scheme “by extending remedies not specifically authorized by its text”).

Indeed, the Court has rejected the cornerstone of the

Commission’s argument here—the notion that an equity

court’s historic power “to award complete relief,” Porter,

328 U.S. at 399; Mitchell, 361 U.S. at 292, means that

courts can create remedies beyond those in statutory

text. Pp. 11-12, supra.4

3. The Commission’s efforts to distinguish Meghrig

v. KFC Western, Inc., 516 U.S. 479 (1996), see Pet.Br. 3739, demonstrate its error. In Meghrig, the Court refused

to interpret the RCRA’s reference to injunctive relief as

“contemplat[ing] the award of past cleanup costs [of

hazardous waste], whether these are denominated ‘damages’ or ‘equitable restitution.’ ” 516 U.S. at 484. The

Court contrasted that statute with a provision of

CERCLA, which expressly authorized such monetary

relief. Id. at 485. “Congress thus demonstrated in

CERCLA that it knew how to provide for the recovery of

cleanup costs, and that the language used to define the

The Commission contends that this Court has “relied on Porter and

its antecedents” “many times.” Resp.Br. 37 (citing Liu v. SEC, 140

S. Ct. 1936 (2020); Kansas v. Nebraska, 574 U.S. 445 (2015); Am.

Stores, 495 U.S. 271). None of those cases held that a statutory

reference to an “injunction” opened the door to monetary relief.

They say nothing about the issue here.

remedies under [the] RCRA does not provide that remedy.” Ibid.

In discussing Meghrig, the Commission states that,

“[a]t bottom, RCRA provides a remedy for present and

imminent future harm, whereas CERCLA provides for

the recovery of cleanup costs. The two statutes are not

different routes to the same end.” Resp.Br. 36 (citation

omitted). But that precisely describes § 13(b) and § 19.

Section 13(b) provides a remedy for present and imminent future harm from ongoing violations in the form of

injunctions. By contrast, § 19 provides for monetary remedies where the conduct is complete, subject to distinct

safeguards. See pp. 17-19, supra. As in Meghrig, the two

statutory provisions are not different routes to the same

end.

E. Policy Arguments Are Properly Addressed to

Congress

The Commission’s amici press variations of the policy

argument that the Commission’s ability to obtain “restitution in appropriate Section 13(b) cases is vitally important.” Truth in Advert. Br. 7; see Am. Antitrust Inst. Br.

9-21; Nat’l Consumer Law Ctr., et al. Br. 10-20; Open

Mkts. Inst. Br. 16-19; States Br. 5-22. Whether it would

be good policy to allow the Commission to circumvent

§ 19’s requirements, and instead obtain monetary relief

under § 13(b), “isn’t [the Court’s] call to make.” SAS

Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018). “Policy

arguments are properly addressed to Congress, not this

Court.” Ibid.

To that end, the Commission recently asked Congress

to amend § 13(b) to authorize monetary remedies. See

Oversight of the Fed. Trade Comm’n: Hearing Before the

S. Comm. on Com., Sci. & Transp., 116th Cong. 3-5 (Aug.

5, 2020) (statement of the Federal Trade Commission),

available at https://www.ftc.gov/system/files/documents/

public_statements/1578963/p180101testimonyftcoversight

20200805.pdf. A bill has been proposed that would amend

§ 13(b) to expressly authorize “restitution,” “rescission,”

“the refund of money or return of property,” and “disgorgement,” without requiring the Commission to comply with § 19’s heightened requirements. See S. 4626,

116th Cong. § 403 (2020).

The question, moreover, is not whether putative

wrongdoers can “[k]eep” the proceeds of their misconduct. Resp.Br. 50. Victims of misconduct can sue for

relief under state consumer-protection statutes. The

question is whether the Commission can step into their

shoes and demand relief under § 13(b). If Congress decides the Commission’s proposal for § 13(b) is good policy,

it can authorize it. But the Commission’s view that the

term “injunction” already authorizes it to seek monetary

relief cannot be sustained.

II. THE MONETARY AWARD HERE IS IMPROPER EVEN

IF § 13(b) AUTHORIZES EQUITABLE MONETARY

REMEDIES

Regardless, the Ninth Circuit’s decision below must be

reversed because it fails to comply with the “bounds of

equity practice.” Liu, 140 S. Ct. at 1946.

A. The Commission’s assertion of waiver, Resp.Br.

51-52, is itself waived. The petition raised “the scope of

the limits or requirements” for monetary relief “if ” such

relief is available under § 13(b). Pet. i. It urged that the

conflict between the Second and Ninth Circuits regarding whether monetary relief under § 13(b) must comply

with equitable principles “would warrant review in its

own right.” Id. at 26-29. The brief in opposition, however, never asserted waiver. Under this Court’s Rule 15.2,

where the brief in opposition fails to assert that a “ques-

tion [presented] is not preserved,” the Court will “deem

the defect waived.” City of Oklahoma City v. Tuttle, 471

U.S. 808, 815-816 (1985).

The Commission’s waiver argument is also wrong.

Petitioners challenged the award as crossing the boundary of equitable relief. See Tucker C.A.Br. 89-90; Dist.

Ct. Dkt. 899 at 17-19. And everyone understood the argument to be foreclosed by Ninth Circuit precedent regardless. See Pet.App. 29a-34a.

B. The Commission’s argument that the Ninth Circuit’s award complies with equitable principles fares no

better. After the Ninth Circuit ruled, this Court held in

Liu that any award of monetary relief “in excess of a

defendant’s net profits from wrongdoing” would “transform[ ] an equitable remedy into a punitive sanction.” 140

S. Ct. at 1942, 1946. The award here was not petitioners’

net profits, but “the amount paid by borrowers in excess

of the charges disclosed in the loan documents.” Resp.Br.

52. While the Commission claims that amount “excludes

legitimately charged interest,” that is not the same as

subtracting all legitimate costs of doing business to

arrive at net profits. Ibid. Indeed, the amount was “triple” what “petitioners had allegedly ‘received.’ ” Pet.Br.

47.

Liu also explained that “imposing joint-and-several

* * * liability” would “test the bounds of equity practice.”

140 S. Ct. at 1946. The Commission does not deny that

the award here imposes joint-and-several liability, but

states Liu left the door open in cases of “ ‘concerted

wrongdoing.’ ” Resp.Br. 52 (quoting Liu, 140 S. Ct. at

1945). The Commission claims the standard is met, but it

cannot deny that the court ordered Mr. Tucker’s wife,

and an entity she owned that in turn owned her family

home, to collectively “disgorge[ ]” over $27 million when

neither had been accused of wrongdoing. Pet.App. 96a.

At a minimum, joint-and-several liability should be a matter for “the Ninth Circuit on remand.” Liu, 140 S. Ct. at

1949.

Liu also noted that “ordering the proceeds of fraud to

be deposited in Treasury funds instead of disbursing

them to victims” is generally inconsistent with equity.

140 S. Ct. at 1946. The Commission concedes the award

here will “go to the Treasury” if victim payments are

“infeasible,” Resp.Br. 53, but it cannot explain why that

would be “consistent with equitable principles,” Liu, 140

S. Ct. at 1949. Judge O’Scannlain thus observed that the

“restitution” ordered in this case “bears little resemblance to historically available forms of equitable relief,

and therefore [the Ninth Circuit] should lack the authority to impose it.” Pet.App. 34a. He was right.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PAUL C. RAY

PAUL C. RAY, CHTD

8670 West Cheyenne Ave.

Suite 120

Las Vegas, NV 89129

(702) 823-2292

paulcraylaw@gmail.com

MATTHEW J. FISHER

MOLOLAMKEN LLP

300 N. LaSalle St.

Chicago, IL 60654

(312) 450-6700

JEFFREY A. LAMKEN

Counsel of Record

MICHAEL G. PATTILLO, JR.

SARAH J. NEWMAN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

JENNIFER E. FISCHELL

MOLOLAMKEN LLP

430 Park Avenue

New York, NY 10022

(212) 607-8160

Counsel for Petitioners

DECEMBER 2020

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