FTC v. Credit Bureau Center, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2847 & 18-3310
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
v.
CREDIT BUREAU CENTER, LLC,
and MICHAEL BROWN,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 194 — Matthew F. Kennelly, Judge.
____________________
ARGUED APRIL 17, 2019 — DECIDED AUGUST 21, 2019
____________________
Before MANION, SYKES, and BRENNAN, Circuit Judges.
SYKES, Circuit Judge. Michael Brown is the sole owner and
operator of Credit Bureau Center, a credit-monitoring ser-
vice. (We refer to both collectively as “Brown.”) Brown’s
websites used what’s known as a “negative option feature”
to attract customers. The websites offered a “free credit
report and score” while obscuring a key detail in much
smaller text: that applying for this “free” information auto-
2 Nos. 18-2847 & 18-3310
matically enrolled customers in an unspecified $29.94
monthly “membership” subscription. The subscription was
for Brown’s credit-monitoring service, but customers learned
this information only when he sent them a letter after they
were automatically enrolled. Brown’s most successful con-
tractor capitalized on the confusion by posting Craigslist
advertisements for fake rental properties and telling appli-
cants to get a “free” credit score from Brown’s websites.
The Federal Trade Commission eventually took notice. It
sued Brown under section 13(b) of the Federal Trade Com-
mission Act (“FTCA”), 15 U.S.C. § 53(b), alleging that the
websites and referral system violated several consumer-
protection statutes. The Commission sought a permanent
injunction and restitution. Relevant here, the district judge
found that Brown was a principal for his contractor’s fraudu-
lent scheme and that the websites failed to meet certain
disclosure requirements in the Restore Online Shopper
Confidence Act (“ROSCA”). Id. § 8403. The judge entered a
permanent injunction and ordered Brown to pay more than
$5 million in restitution to the Commission.
Brown now concedes liability as a principal for his con-
tractor’s Craigslist scam. And he doesn’t dispute that his
own websites failed to meet some of ROSCA’s disclosure
requirements. So we have no trouble affirming the judge’s
decision to hold him liable for both. We also affirm the
issuance of a permanent injunction. Brown’s argument there
rests on an erroneous understanding of the Eighth Amend-
ment’s Excessive Fines Clause.
But the restitution award is a different matter. By its
terms, section 13(b) authorizes only restraining orders and
injunctions. But the Commission has long viewed it as also
Nos. 18-2847 & 18-3310 3
authorizing awards of restitution. We endorsed that starkly
atextual interpretation three decades ago in FTC v. Amy
Travel Service, Inc., 875 F.2d 564, 571 (7th Cir. 1989). Since
Amy Travel, the Supreme Court has clarified that courts must
consider whether an implied equitable remedy is compatible
with a statute’s express remedial scheme. See Meghrig v. KFC
W., Inc., 516 U.S. 479, 487–88 (1996). And it has specifically
instructed us not to assume that a statute with “elaborate
enforcement provisions” implicitly authorizes other reme-
dies. Id. at 487.
Applying Meghrig’s instructions, we conclude that section
13(b)’s grant of authority to order injunctive relief does not
implicitly authorize an award of restitution. Every reason
Meghrig gave for not finding an implied monetary remedy
applies here. Most notably, the FTCA has two detailed
remedial provisions that expressly authorize restitution if the
Commission follows certain procedures. Our current read-
ing of section 13(b) allows the Commission to circumvent
these elaborate enforcement provisions and seek restitution
directly through an implied remedy.
Stare decisis cannot justify adherence to an approach that
Supreme Court precedent forecloses. Accordingly, we over-
rule Amy Travel and hold that section 13(b) does not author-
ize restitutionary relief.1 Because the Commission brought
this case under section 13(b), we vacate the restitution
award.
1 Because this opinion overrules circuit precedent and creates a circuit
split, we circulated it under Circuit Rule 40(e) to all judges in active
service. A majority did not favor rehearing en banc.
4 Nos. 18-2847 & 18-3310
I. Background
In January 2014 Brown contracted with Danny Pierce to
direct customers to his credit-monitoring service. Brown
gave Pierce several functionally identical websites with
names like “eFreeScore.com” and “FreeCreditNation.com”
to use for referrals. As their names suggest, these websites
invited people to sign up for a “free credit report and score.”
But signing up for the free score also automatically enrolled
applicants in Brown’s credit-monitoring service, which
charged a monthly subscription fee.
Brown didn’t tell prospective customers about the credit-
monitoring service. His websites almost entirely focused on
the free credit score and report. Three disclaimers, buried in
much smaller font, told consumers that applying for the free
offer also enrolled them in an unspecified “membership”
subscription that cost $29.94 each month. Customers later
learned that this subscription was for credit monitoring
when Brown sent them a letter after the automatic enroll-
ment.
Pierce did nothing to clear up this confusion. Indeed, it’s
undisputed that his method for drumming up referrals was
fraudulent. He subcontracted with Andrew Lloyd, who
posted Craigslist advertisements for nonexistent rental
properties at bargain prices. Lloyd invited prospective
tenants to email the landlord. Posing as the “landlord,” he
then responded and instructed them to obtain a credit report
and score through one of Brown’s websites. But once appli-
cants got this “free” information—and were automatically
enrolled in the credit-monitoring service—Lloyd stopped
replying to emails.
Nos. 18-2847 & 18-3310 5
The plan was effective. Pierce quickly became Brown’s
most successful recruiter. Over the course of their relation-
ship, Pierce referred more than 2.7 million customers to
Brown, generating just over $6.8 million in revenue. Unsus-
pecting customers were understandably upset. They flooded
Brown’s customer-service operators, questioning the month-
ly subscription charge. They complained that the Craigslist
advertisements were scams. And many were blindsided by
the fact that requesting a free credit score automatically
enrolled them in a costly credit-monitoring service. Brown
told his customer-service team to deny any involvement
with Pierce’s operation. And although Brown typically
agreed to cancel future charges, he often refused to issue
refunds. He also instructed his representatives to offer
reduced prices to retain customers. Some customers accept-
ed the offer, but others told their credit-card companies to
cancel Brown’s charges. Credit-card companies cancelled
more than 10,000 of Brown’s charges.
Consumers complained to the Commission, which
opened an investigation. In January 2017 it sued Brown
under section 13(b) of the FTCA seeking an injunction and
restitution. The Commission alleged that the Craigslist
advertisements violated the FTCA’s prohibition on “unfair or
deceptive acts or practices.” 15 U.S.C. § 45(a). The suit also
alleged that Brown’s websites violated the same provision of
the FTCA, as well as ROSCA, id. § 8403; the Fair Credit
Reporting Act (“FCRA”), id. § 1681j(g); and the Free Credit
Reports Rule, 12 C.F.R. §§ 1022.130–.138.
On the Commission’s motion, the judge issued a tempo-
rary injunction, froze Brown’s assets, and appointed a re-
ceiver to manage his company. Brown and the Commission
6 Nos. 18-2847 & 18-3310
later filed cross-motions for summary judgment. In addition
to contesting liability, Brown argued that section 13(b)
doesn’t authorize an award of restitution and, alternatively,
that it doesn’t authorize penalties or legal restitution (as
opposed to equitable restitution, which requires tracing a
plaintiff’s entitlement to a particular account or fund).
The judge ruled for the Commission across the board,
holding that Brown violated the FTCA as a principal for the
Craigslist scheme and that the websites violated the FTCA,
ROSCA, the FCRA, and the Free Credit Reports Rule. The
judge issued a permanent injunction that imposed extensive
conditions on Brown’s continued involvement in the credit-
monitoring industry and ordered Brown to pay $5,260,671.36
in restitution. He also denied Brown’s motion to unfreeze
funds to pay his attorneys.
II. Discussion
Brown contests his liability, the permanent injunction,
and the restitution award. Different standards of review
apply. For liability, we review the summary judgment de
novo, viewing the evidence in the light most favorable to
Brown and drawing reasonable inferences in his favor.
Holloway v. Soo Line R.R. Co., 916 F.3d 641, 643 (7th Cir. 2019).
We review the judge’s decision to enter a permanent injunc-
tion for abuse of discretion. SEC v. Yang, 795 F.3d 674, 681
(7th Cir. 2015). Finally, Brown’s challenge to the restitution
award raises legal questions, which we review de novo.
Breneisen v. Motorola, Inc., 656 F.3d 701, 704 (7th Cir. 2011).
A. Liability Issues
The Commission sued under section 13(b) of the FTCA,
which by its terms authorizes temporary restraining orders
Nos. 18-2847 & 18-3310 7
and permanent injunctions to enjoin violations of federal
trade law. § 53(b)(1). To impose individual liability on the
basis of a corporate practice, the Commission must prove
(1) that the practice violated the FTCA; (2) that the individu-
al “either participated directly in the deceptive acts or
practices or had authority to control them”; and (3) that the
individual “knew or should have known about the deceptive
practices.” FTC v. World Media Brokers, 415 F.3d 758, 764 (7th
Cir. 2005).
Based on the summary-judgment record, the judge held
that Brown violated the FTCA as a principal for the
Craigslist marketing scheme contrived by Pierce and Lloyd.
He also held that Brown’s websites violated the FTCA,
ROSCA, the FCRA, and the Free Credit Reports Rule. Final-
ly, the judge concluded that Brown was individually liable
for the violations because he owned and operated all aspects
of his company.
While Brown concedes liability for the Craigslist scheme,
he challenges his liability for the website violations. He
asserts that his websites contained no misrepresentations in
violation of the FTCA and satisfied ROSCA’s disclosure
requirements. He also argues that the Commission must
enforce the FCRA and the Free Credit Reports Rule through
an internal adjudication. See 15 U.S.C. § 1681s(a)(1) (stating
that FCRA violations “shall be subject to enforcement by the
Federal Trade Commission under section 5(b) of the Federal
Trade Commission Act”).
It’s unnecessary to consider every theory of liability.
Brown’s challenges to the injunction and restitution award
do not turn on which statute his websites violated. And
section 13(b) permits the Commission to seek relief against
8 Nos. 18-2847 & 18-3310
Brown for violating “any provision of law” it enforces.
§ 53(b).
So we start and end with ROSCA, which restricts the use
of a “negative option feature” to sell goods or services on the
Internet. § 8403. A negative-option feature is “a provision [in
an offer] under which the customer’s silence or failure to
take an affirmative action to reject goods or services or to
cancel the agreement is interpreted by the seller as ac-
ceptance of the offer.” 16 C.F.R. § 310.2(w); see also § 8403
(incorporating this definition by reference). ROSCA prohib-
its this feature unless the seller “(1) provides text that clearly
and conspicuously discloses all material terms of the trans-
action before obtaining the consumer’s billing information;
(2) obtains a consumer’s express informed consent before
charging the consumer … ; and (3) provides simple mecha-
nisms for a consumer to stop recurring charges.” § 8403.
ROSCA violations are “unfair or deceptive acts or practices”
under the FTCA, so the Commission can use the FTCA’s
enforcement regime against violators. Id. § 8404.
There’s no dispute that Brown used a negative-option
feature to enroll customers in his credit-monitoring service.
The only question is whether he complied with ROSCA’s
disclosure requirements. In the apt words of the district
judge, Brown’s websites were “virtually devoid of any
mention of the [credit-monitoring] service aside from the
statement that the customer is to be billed for it.” Moreover,
Brown concealed this incomplete disclosure behind more
prominent language offering a free credit score and report.
The judge determined that these partial and obscure disclo-
sures did not “clearly and conspicuously disclose[] all
Nos. 18-2847 & 18-3310 9
material terms of the transaction” or ensure that customers
gave “express informed consent.” § 8403(1)–(2).
Brown focuses on the conclusion that the disclosures
weren’t conspicuous. He parses font sizes, details his web-
sites’ color schemes, and takes a microscope to the Commis-
sion’s affidavits in an effort to highlight evidence that
consumers read and understood the disclosures. But he
gives only passing attention to the decisive point: His web-
sites didn’t provide certain information that ROSCA re-
quires—namely, that the subscription was for a credit-
monitoring service.
This oversight is fatal to Brown’s defense. Setting aside
whether his disclosures satisfied the “clear and conspicu-
ous” standard (and on that point we see nothing unsound in
the judge’s ruling that they did not), Brown violated ROSCA
if the disclosures failed to provide “all material terms of the
transaction.” § 8403(1). The service Brown provided in
exchange for the subscription is clearly a material term. See
Material Term, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A
contractual provision dealing with a significant issue such as
subject matter … or the work to be done.”). And the websites
did not tell consumers that they were enrolling in a credit-
monitoring service. Brown seeks refuge in the form letter
that he delivered to new subscribers, which did provide this
information. But ROSCA required Brown to disclose the
material terms “before obtaining the consumer’s billing
information.” § 8403. Brown protests that he sent the letter
“almost instantaneously” upon subscription. But almost
instantaneously is still too late under ROSCA.
Brown next contends that even if corporate liability is es-
tablished, he should not be held personally liable. But it’s
10 Nos. 18-2847 & 18-3310
undisputed that he controlled the websites and was aware of
their content. That’s enough to establish personal liability for
the ROSCA violations.
B. The Permanent Injunction
The judge held that Brown’s conduct warranted a per-
manent injunction, applying our standard under the Securi-
ties and Exchange Act. See Yang, 795 F.3d at 681 (asking
whether “there is a reasonable likelihood of future violations
in order to obtain [injunctive] relief”) (quotation marks
omitted). The ensuing injunction imposes extensive re-
quirements on Brown if he ever operates a credit-monitoring
business again.
We don’t need to decide whether our standard for an in-
junction under the Securities and Exchange Act also applies
to section 13(b) because Brown’s challenge doesn’t turn on
that question. His attack on the injunction rests largely on
the Excessive Fines Clause. U.S. CONST. amend. VIII. He
contends that the injunction is unconstitutionally harsh and
disproportionate. But he skips a necessary step in the analy-
sis—whether the injunction is a “fine” at all. It’s not. The
Supreme Court has limited “fines” to “cash [or] in-kind
payment[s] imposed by and payable to the government.”
Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 136 n.6
(2002) (quotation marks omitted); see also Zamora-Mallari v.
Mukasey, 514 F.3d 679, 695 (7th Cir. 2008) (“The Board’s
removal order … is not a ‘fine,’ and thus the Excessive Fine
Clause of the Eighth Amendment does not apply.”). Because
an injunction isn’t a fine, the permanent injunction doesn’t
implicate the Excessive Fines Clause.
Nos. 18-2847 & 18-3310 11
Brown also offers an assortment of drive-by arguments,
all of which are too undeveloped to establish an abuse of
discretion. See Roger Whitmore’s Auto. Serv., Inc. v. Lake Coun-
ty, 424 F.3d 659, 664 n.2 (7th Cir. 2005) (“It is the parties’ duty
to package, present, and support their arguments … .”). We
affirm the permanent injunction.
C. The Restitution Award
The bulk of Brown’s appeal challenges the restitution or-
der. His primary argument is that section 13(b) does not
authorize an award of restitution. This is fundamentally a
question of statutory interpretation, but it’s obscured by
layers of caselaw, so bear with us while we untangle the
knot. A brief overview of the FTCA’s remedial structure is
helpful to a proper understanding of section 13(b), so we
begin there.
The FTCA gives the Commission several tools to enforce
the Act’s prohibition on unfair or deceptive trade practices.
Under its “cease and desist” power, the Commission adjudi-
cates a case before an administrative law judge, who can
issue an order prohibiting the respondent from engaging in
the illegal conduct at issue. See 15 U.S.C. § 45(b). This order
becomes final if it survives administrative appeal and judi-
cial review. Id. § 45(g).
A final cease-and-desist order empowers the Commission
to sue the violator for legal and equitable relief, but only if “a
reasonable man would have known under the circumstances
[that the conduct] was dishonest or fraudulent.” Id.
§ 57b(a)(2), (b). After it becomes final, the order also draws a
line in the sand for both the respondent and anyone else
who engages in the prohibited conduct. If the respondent
12 Nos. 18-2847 & 18-3310
later violates the order, the Commission can sue for civil
penalties and any equitable relief “the court finds neces-
sary.” Id. § 45(l). If anyone else engages in the prohibited
conduct after the order becomes final, the Commission can
seek civil penalties if it can prove that the violator acted with
“actual knowledge” that his conduct was unlawful. Id.
§ 45(m)(1)(B).
The Commission has two other enforcement mechanisms
at its disposal. First, it can promulgate rules that “define
with specificity acts or practices which are unfair or decep-
tive.” Id. § 57a(a)(1)(B). By preemptively resolving whether
certain conduct violates the FTCA, rulemaking permits the
Commission to pursue “quick enforcement” actions against
violators. Nicholas R. Parrillo, Federal Agency Guidance and
the Power to Bind: An Empirical Study of Agencies and Indus-
tries, 36 YALE J. ON REG. 165, 225–26 (2019). Once the
Commission promulgates a rule, it can seek legal and equi-
table remedies, including restitution, from violators. See
15 U.S.C. § 57b(a)(1), (b). And if it establishes that a violator
had “actual knowledge or knowledge fairly implied on the
basis of objective circumstances” that his conduct violated a
rule, the Commission can also pursue civil penalties. Id.
§ 45(m)(1)(A).
The Commission’s remaining enforcement mechanism is
different. Under section 13(b) of the FTCA, the Commission
can forego any administrative adjudication or rulemaking
and directly pursue a temporary restraining order and a
preliminary or permanent injunction in federal court.
§ 53(b). As noted, the Commission sued Brown under this
provision.
Nos. 18-2847 & 18-3310 13
1. Section 13(b)
The restitution order against Brown rests on section
13(b)’s permanent-injunction provision, which states that “in
proper cases the Commission may seek, and after proper
proof, the court may issue, a permanent injunction.” Id.
Brown’s straightforward argument is that section 13(b)
doesn’t authorize restitution because it doesn’t mention
restitution.
We start with the obvious: Restitution isn’t an injunction.
“Injunction” is of course a broad term. See Injunction,
BLACK’S LAW DICTIONARY (10th ed. 2014) (“A court order
commanding or preventing an action.”). But statutory
authorizations for injunctions don’t encompass other dis-
crete forms of equitable relief like restitution. See, e.g.,
Meghrig, 516 U.S. at 484 (“[N]either [a mandatory or prohibi-
tory injunction] contemplates … equitable restitution.”)
(quotation marks omitted); Owner-Operator Indep. Drivers
Ass’n v. Landstar Sys., Inc., 622 F.3d 1307, 1324 (11th Cir. 2010)
(“Injunctive relief constitutes a distinct type of equitable
relief; it is not an umbrella term that encompasses restitution
or disgorgement.”); see also Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 365 (2011) (holding that an equitable order for
backpay isn’t an injunction); Nken v. Holder, 556 U.S. 418, 430
(2009) (“Whether [a deportation stay] might technically be
called an injunction is beside the point; that is not the label
by which it is generally known.”).
The Commission doesn’t seriously argue otherwise. It in-
stead contends that section 13(b) implicitly authorizes restitu-
tion. We endorsed that reading in Amy Travel, 875 F.2d at 571,
which Brown asks us to overturn. We’ll discuss Amy Travel
in a moment, but we begin with a closer look at the FTCA
14 Nos. 18-2847 & 18-3310
itself. If the Commission’s reading is correct, there’s no need
to reconsider our precedent.
Section 13(b) provides:
Whenever the Commission has reason to be-
lieve--
(1) that any person, partnership, or corpora-
tion is violating, or is about to violate, any pro-
vision 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 re-
view, or until the order of the Commission
made thereon has become final, would be in
the interest of the public--
the Commission … 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 re-
straining order or a preliminary injunction may
be granted without bond: Provided, however,
That if a complaint is not filed within such pe-
riod (not exceeding 20 days) as may be speci-
fied by the court after issuance of the
temporary restraining order or preliminary in-
junction, the order or injunction shall be dis-
Nos. 18-2847 & 18-3310 15
solved 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 injunc-
tion. …
An implied restitution remedy doesn’t sit comfortably
with the text of section 13(b). Consider its requirement that
the defendant must be “violating” or “about to violate” the
law. Requiring ongoing or imminent harm matches the
forward-facing nature of injunctions. See 11A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2942, at
47 (3d ed. 2013) (“[I]njunctive relief looks to the future and is
designed to deter … .”). Conversely, restitution is a remedy
for past actions. See 1 DAN. B. DOBBS, LAW OF REMEDIES
§ 4.1(1), at 551 (2d ed. 1993) (“Restitution is a return or
restoration of what the defendant has gained in a transac-
tion.”). Beyond the conceptual tension, this requirement
raises an illogical implication: It would condition the
Commission’s ability to secure restitution for past conduct
on the existence of ongoing or imminent unlawful conduct.
Section 13(b)’s second requirement—that the Commis-
sion must reasonably believe that enjoining an ongoing or
imminent violation would be in the public interest—raises a
similar problem. The public interest in stopping or prevent-
ing a violation is distinct from the public interest in remedy-
ing a past harm. And yet the Commission’s reading ties
restitution to this inapposite inquiry.
The rest of section 13(b) is likewise keyed to injunctions,
not other forms of equitable relief. For example, the statute
conditions the district court’s authority to issue a temporary
restraining order or preliminary injunction on injunction-
16 Nos. 18-2847 & 18-3310
specific requirements—such as “weighing the equities and
considering the Commission’s likelihood of ultimate suc-
cess”—and dissolves the order or injunction within 20 days
if the Commission doesn’t issue an administrative complaint.
§ 53(b). These demands don’t apply to equitable restitution,
which has its own preconditions. See Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212–15 (2002).
True, this appeal concerns section 13(b)’s permanent-
injunction provision, not the provision governing temporary
restraining orders and preliminary injunctions, which is tied
to the subsequent initiation of an administrative proceeding.
And we have held that at least some of section 13(b)’s re-
quirements don’t apply to permanent injunctions. See United
States v. JS & A Grp., 716 F.2d 451, 456–57 (7th Cir. 1983)
(holding that the Commission can seek a permanent injunc-
tion without initiating an internal adjudication). But see FTC
v. Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019)
(requiring the Commission to allege an ongoing or imminent
violation to receive a permanent injunction). But that’s
beside the point. Even if some of section 13(b)’s requirements
do not apply to permanent injunctions, they inform the
meaning of “injunction.” We see no contextual support for
giving vastly different meanings to section 13(b)’s two uses
of the word “injunction.” See Hall v. United States, 566 U.S.
506, 519 (2012) (“At bottom, identical words and phrases
within the same statute should normally be given the same
meaning.”) (quotation marks omitted). And in any event, we
haven’t drawn an interpretive distinction in the past. See FTC
v. Elders Grain, Inc., 868 F.2d 901, 907 (7th Cir. 1989) (holding
that section 13(b)’s preliminary-injunction provision also
authorizes implied equitable relief).
Nos. 18-2847 & 18-3310 17
The FTCA’s two other enforcement provisions amplify
the poor fit between section 13(b) and restitution. Both use
more than the word “injunction” to authorize other forms of
equitable relief. As discussed, when a person violates a final
cease-and-desist order, the district courts are empowered to
“grant mandatory injunctions and such other and further
equitable relief as they deem appropriate.” § 45(l) (emphasis
added). And when someone engages in conduct prohibited
by a rule, the FTCA authorizes “such relief as the court finds
necessary … , [including] the refund of money or return of
property.” § 57b(b) (emphasis added).
The absence of similar language in section 13(b) is con-
spicuous. “[W]here 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 inten-
tionally and purposely in the disparate inclusion or exclu-
sion.” Nken, 556 U.S. at 430 (quotation marks omitted). This
instruction applies with particular force here, where Con-
gress simultaneously expanded § 45(l) to allow for “other
and further equitable relief” and enacted section 13(b)
without this language. See Trans-Alaska Pipeline Authoriza-
tion Act, Pub. L. No. 93-153, § 408, 87 Stat. 576, 591 (1973).
Moreover, Congress expressly approved restitution as a
remedy under § 57b(b) two years after enacting section 13(b).
See Magnuson-Moss Warranty Act, Pub. L. No. 93-637, § 206,
88 Stat. 2183, 2202 (1975). If section 13(b) permitted restitu-
tion as a general matter, Congress would have had no reason
to enact § 57b, which authorizes restitution under narrower
circumstances.
Remedial scope isn’t the only difference between section
13(b) and the FTCA’s other enforcement mechanisms. The
18 Nos. 18-2847 & 18-3310
latter procedures also impose a detailed framework that the
Commission must follow before obtaining a restitution
order. This framework counterbalances the FTCA’s amor-
phous “unfair or deceptive practices” standard by requiring
the Commission to give defendants fair notice, either
through cease-and-desist orders or rules that “define with
specificity” prohibited acts. §§ 45(b); 57a(a)(1). The Commis-
sion can bypass these notice requirements only if it obtains a
cease-and-desist order against a violator, brings a suit in
court, and then establishes that the prohibited practice “is
one which a reasonable man would have known under the
circumstances was dishonest or fraudulent.” § 57b(a)(2).
Finally, the FTCA imposes a three-year statute of limitations
on bringing actions against most violators. § 57b(d).
Section 13(b) doesn’t offer any of these protections. And
yet the Commission contends that it provides an unqualified
right to the very remedies that the FTCA’s other enforcement
provisions give with heavy qualification. Reading an im-
plied restitution remedy into section 13(b) makes these other
provisions largely pointless. Without a clear textual signal,
we cannot presume that Congress implicitly made such a
consequential shift in policy. See Whitman v. Am. Trucking
Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress … does not
alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions … .”).
The tensions we’ve just discussed dissipate if we read
section 13(b) to mean what it says: The remedy is limited to
injunctive relief. In fact, giving section 13(b) its plain mean-
ing harmonizes the three enforcement mechanisms. The
FTCA gives the Commission a pair of backward-facing
methods to obtain monetary relief for past injury. Its cease-
Nos. 18-2847 & 18-3310 19
and-desist power targets individual violations. See § 45(b).
And its rule-enforcement authority under § 57b(a)(1) allows
it to more efficiently address widespread unfair or deceptive
practices. See Parrillo, supra, at 225–26.
Section 13(b) serves a different, forward-facing role: en-
joining ongoing and imminent future violations. This au-
thority aligns with the predicate requirements it imposes—
notably, a reasonable belief that a violation is ongoing or
imminent and that stopping the violation is in the public
interest. § 53(b). It also explains the lack of procedural
protections. As Congress reported when enacting section
13(b), the Commission’s existing enforcement processes
couldn’t quickly address ongoing or imminent violations. See
§ 408(a)(1), 87 Stat. 576, 591 (finding that the Commission
had “been restricted and hampered because of inadequate
legal authority … to seek preliminary injunctive relief to
avoid unfair competitive practices”) (emphasis added).
Section 13(b) corrected this problem, providing an expedited
pathway to injunctive relief. See id. § 408(b) (noting that the
“purpose of [the] act” was to give the Commission “the
requisite authority to insure prompt enforcement of the laws
[it] administers by granting statutory authority … to seek
preliminary injunctive relief”) (emphasis added).
The Commission’s argument to the contrary rests almost
entirely on the saving clause in § 57b(e): “Remedies provid-
ed 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.” According to the Commission, § 57b(e) explains away
20 Nos. 18-2847 & 18-3310
the tensions that its reading of section 13(b) otherwise
creates.
We disagree for two reasons. To start, the Commission’s
understanding of the saving clause runs against more than a
century of interpretive practice. The Supreme Court has long
instructed that acts “cannot be held to destroy [themselves]”
through saving clauses. Tex. & Pac. Ry. Co. v. Abilene Cotton
Oil Co., 204 U.S. 426, 446 (1907); accord Adams Express Co. v.
Croninger, 226 U.S. 491, 507 (1913); Nader v. Allegheny Airlines,
Inc., 426 U.S. 290, 299 (1976); Am. Tel. & Tel. Co. v. Cent. Office
Tel., Inc., 524 U.S. 214, 228 (1998). Put differently, we cannot
read a saving clause to “allow specific provisions of the
statute that contains it to be nullified.” PMC, Inc. v. Sherwin-
Williams Co., 151 F.3d 610, 618 (7th Cir. 1998). This principle
extends to claims that a particular statutory provision im-
plicitly authorizes new remedies. See Middlesex Cty. Sewerage
Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 15–16 (1981) (“It
is doubtful that the phrase ‘any statute’ [in a saving clause]
includes the very statute in which this statement was con-
tained.”). As we’ve explained, the Commission’s reading of
section 13(b) effectively nullifies § 57b. We cannot read
§ 57b(e) to authorize that self-defeating effect.
And even if the Commission’s reading of the saving
clause were correct, we couldn’t infer a right to restitution in
section 13(b). The saving clause preserves only those reme-
dies that exist. It does not inform the question whether
section 13(b) contains an implied power to award restitution.
The Commission also suggests that Congress “ratified”
an implied section 13(b) restitution remedy in its 1993 and
2006 amendments to the FTCA. We disagree. The 1993
amendment reworked section 13(b)’s venue and service-of-
Nos. 18-2847 & 18-3310 21
process provisions but didn’t alter its remedial scope. The
2006 amendment fares no better as a prop for the Commis-
sion’s argument. It simply empowered the Commission to
use “[a]ll remedies available to [it] with respect to unfair and
deceptive acts or practices … , including restitution,” when
prosecuting certain violations in foreign commerce.
§ 45(a)(4)(B). The Commission contends that the use of
“restitution” in this provision refers to an implied restitution
remedy in section 13(b). But the FTCA expressly authorizes
restitution through § 45(l) and § 57b(b). So the 2006 amend-
ment says nothing about the Commission’s authority to seek
that remedy under section 13(b).
In short, nothing in the text or structure of the FTCA
supports an implied right to restitution in section 13(b),
which by its terms authorizes only injunctions. Unsurpris-
ingly, the Commission wagers nearly all of its case on stare
decisis rather than the plain meaning of section 13(b). So we
turn to that question.
2. The Road to Amy Travel
The Commission correctly observes that we addressed a
materially identical challenge to the scope of section 13(b) in
Amy Travel, 875 F.2d 564. Brown in turn invites us to revisit
that decision in light of intervening Supreme Court deci-
sions. We of course can do so. “Although we must give
considerable weight to our prior decisions, we are not bound
by them absolutely and may overturn circuit precedent for
compelling reasons.” Russ v. Watts, 414 F.3d 783, 788 (7th Cir.
2005). An intervening Supreme Court decision that displaces
the rationale of our precedent is one such reason. See Glaser
v. Wound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir.
2009).
22 Nos. 18-2847 & 18-3310
Brown’s invitation implicates a line of Supreme Court
precedents long predating Amy Travel. The prevailing inter-
pretation of section 13(b) developed in the shadow of two
decisions that took a capacious view of implied remedies:
Porter v. Warner Holding Co., 328 U.S. 395 (1946), and Mitchell
v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960). To under-
stand Amy Travel, we must begin with them.
Porter considered section 205(a) of the Emergency Price
Control Act of 1942, which limited the rent that certain
landlords could collect from their tenants. The act empow-
ered district courts to issue a “permanent or temporary
injunction, restraining order, or other order” against persons
who collect rents above its limits. Porter, 328 U.S. at 397. The
Court held that section 205(a) authorizes restitution, offering
this reasoning:
Unless otherwise provided by statute, all the
inherent equitable powers of the District Court
are available for the proper and complete exer-
cise of [its equitable] jurisdiction. … 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 ju-
risdiction is to be recognized and applied. The
great principles of equity, securing complete
justice, should not be yielded to light infer-
ences, or doubtful construction.
Id. at 398 (citations and quotation marks omitted).
Porter later clarified that implied remedies must be “con-
sistent with the statutory language and policy, the legislative
background and the public interest.” Id. at 403; see also id. at
Nos. 18-2847 & 18-3310 23
400 (“In framing such remedies under § 205(a), courts must
act primarily to effectuate the policy of the Emergency Price
Control Act and to protect the public interest while giving
necessary respect to the private interests involved.”). In
short, Porter adopted a presumption in favor of implying
equitable remedies that accord with statutory purpose. But it
also recognized that an express statement or a “necessary
and inescapable inference” to the contrary could rebut this
presumption. Id. at 398.
Returning to the Price Control Act, the Court held that
restitution was a proper “other order” under section 205(a).
Id. at 399. It offered two justifications. First, restitution could
be an “equitable adjunct to an injunction.” Id. Second, resti-
tution advanced the purpose of the statute. See id. at 400
(“[T]he statutory policy of preventing inflation is plainly
advanced if prices or rents which have been collected in the
past are reduced to their legal maximums.”). Still, the Court
found that an “inescapable inference” foreclosed one partic-
ular remedy. The statute’s separate right of action for dam-
ages “provide[d] an exclusive remedy relative to damages.”
Id. at 401. But “save [this] one aspect,” the statute invoked
“the broad equitable jurisdiction that inheres in courts.” Id.
at 403.
In Mitchell the Court applied Porter to section 17 of the
Fair Labor Standards Act (“FLSA”), which gave district
courts the jurisdiction to “restrain violations” of the statuto-
ry prohibition on firing employees for reporting workplace
violations. 361 U.S. at 289. After quoting Porter’s broad
language about equitable remedies, Mitchell reiterated that
implied remedies must fit with the statutory purpose:
“When Congress entrusts to an equity court the enforcement
24 Nos. 18-2847 & 18-3310
of prohibitions contained in a regulatory enactment, 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 291–92.
Applying Porter’s presumption, the Court drew on its
understanding of the FLSA’s purpose, which was to achieve
“minimum labor standards” by using worker complaints as
a private enforcement mechanism. Id. at 292. The Court
reasoned that restitution furthered that purpose. Without it,
the “fear of economic retaliation” would stifle worker com-
plaints. Id.
Mitchell then assessed whether anything in the FLSA pre-
cluded restitution as an implied remedy. The defendants
pointed to the statute’s ban on awarding unpaid minimum
wages and overtime compensation as one such provision,
but the Court disagreed. It found “no indication in the
language of the [ban], or in the legislative history, that
Congress intended [it] to have a wider effect.” Id. at 294.
Porter and Mitchell were typical of their era: The Court
would resolve ambiguities by identifying a statute’s purpose
and “deducing the result most consonant with that pur-
pose.” William N. Eskridge Jr., Politics Without Romance:
Implications of Public Choice Theory for Statutory Interpretation,
74 VA. L. REV. 275, 282 (1988); see also John F. Manning,
Foreword: The Means of Constitutional Power, 128 HARV. L. REV.
1, 16–17 (2014) (“However clearly Congress framed its
statutes, the Court could rework them to fit with the back-
ground policies that inspired them.”). Using this interpretive
approach, the Court assumed that the judiciary could freely
craft remedies to fully enforce whatever rights Congress had
recognized. See Frank H. Easterbrook, Foreword: The Court
Nos. 18-2847 & 18-3310 25
and the Economic System, 98 HARV. L. REV. 4, 45–51 (1983). As
the Court would proclaim four years after Mitchell, “it is the
duty of the courts to be alert to provide such remedies as are
necessary to make effective the congressional purpose.”
J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964).
* * *
Lower-court interpretations of section 13(b) built on
Porter and Mitchell. The trail starts with FTC v. H. N. Singer,
Inc., 668 F.2d 1108 (9th Cir. 1982). There the Ninth Circuit
held that section 13(b)’s permanent-injunction provision
implicitly authorizes preliminary injunctions and asset
freezes.2 Id. at 1113. While its analysis was cursory, Singer
channeled Porter and Mitchell. The court held that prelimi-
nary injunctions and asset freezes advanced section 13(b)’s
purpose by ensuring that assets were available at the end of
the enforcement process. Singer also rejected the defendant’s
claim that the express equitable remedies in § 57b foreclosed
implied remedies in section 13(b), pointing to the saving
clause in § 57b(e).
Singer sparked a line of appellate cases holding that sec-
tion 13(b) is a broad grant of equitable authority. The Elev-
2 Shortly before Singer, the Fifth Circuit held that section 13(b)’s
preliminary-injunction provision implicitly authorizes asset freezes. See
FTC v. Sw. Sunsites, Inc., 665 F.2d 711, 718 (5th Cir. 1982). But its holding
appeared to preclude the possibility of restitution in section 13(b),
pointing instead to § 57b for monetary remedies. Id. at 719 (“[T]he
exhortation in [Mitchell] to preserve the possibility of complete relief …
makes it appropriate to consider that the final, complete relief in this case
may entail consumer redress through a [§ 57b] proceeding.”). Predicta-
bly, no circuit has materially relied on Southwest Sunsites to support an
implied restitution award.
26 Nos. 18-2847 & 18-3310
enth Circuit followed Singer’s lead two years later. After
quoting Porter’s language on implied remedies, the court
concluded that it “agree[d] with Singer’s interpretation of
[section] 13(b)” and without further discussion held that
section 13(b) authorizes asset freezes. FTC v. U.S. Oil & Gas
Corp., 748 F.2d 1431, 1434 (11th Cir. 1984) (per curiam).
Our decision in FTC v. World Travel Vacation Brokers, Inc.,
861 F.2d 1020 (7th Cir. 1988), was next. There, the defendant
passingly suggested that section 13(b)’s permanent-
injunction provision does not implicitly authorize prelimi-
nary injunctions. (Recall that the statute’s express authoriza-
tion for temporary restraining orders and preliminary
injunctions is tied to the eventual initiation of an administra-
tive proceeding.) We held that the defendant waived the
argument, but we discussed the issue anyway “in order to
satisfactorily explain our disposition of … other issues.” Id.
at 1026. Because it was dicta, our reasoning was understand-
ably brief. We simply quoted language from Singer and
noted that we had “no reason to disagree with the conclu-
sion of our colleagues of the Ninth and Eleventh Circuits
that the authority to grant permanent injunctive relief also
includes the authority to grant interlocutory relief.” Id. Other
than distinguishing a prior decision, we did not discuss the
matter further.
Two months after World Travel, we concluded in Elders
Grain that section 13(b)’s preliminary-injunction provision
implicitly authorizes rescission. 868 F.2d at 907. Perhaps
because the parties didn’t dispute the issue, our analysis was
again cursory. But it was highly consequential. We articulat-
ed a new standard for inferring equitable remedies: “[T]he
statutory grant of the power to issue a preliminary injunc-
Nos. 18-2847 & 18-3310 27
tion carries with it the power to issue whatever ancillary
equitable relief is necessary to the effective exercise of the
granted power.” Id. Notably absent was any inquiry into
whether an implied remedy was compatible with the statu-
tory text and structure or whether Congress precluded the
implied remedy. We instead would permit whatever implied
remedies furthered the exercise of the express remedy.
The effect of this reasoning was evident in our justifica-
tion for inferring the power to order rescission. We simply
restated the facts of the case, which involved a transaction
timed to avoid the Commission’s review, and observed that
“[t]o reward these tactics by holding that a district court has
no power under section 13(b) to rescind a consummated
transaction would go far toward rendering the statute a dead
letter.” Id.
We extended Elders Grain to the permanent-injunction
provision three months later in Amy Travel. The district court
had ordered the defendants to pay more than $6 million in
restitution to the Commission. Amy Travel, 875 F.2d at 570.
The defendants argued on appeal that nothing in section
13(b) authorized monetary relief. We disagreed, explaining
that our then-recent decisions in World Travel and Elders
Grain “thwarted” the defendants’ arguments. Id. at 571. In
particular, we said that the reasoning in Elders Grain applied
“with equal force” to the permanent-injunction provision.
We adopted that expansive formulation, holding that section
13(b)’s “statutory grant of authority to the district court to
issue permanent injunctions includes the power to order any
ancillary equitable relief necessary to effectuate the exercise
of the granted powers.” Id. at 572. But unlike Elders Grain, we
never addressed how an award of restitution was “necessary
28 Nos. 18-2847 & 18-3310
to effectuate the exercise” of the power to issue an injunc-
tion. We simply noted that restitution was a “proper form[]
of ancillary relief.” Id. at 571.
Our approach in Amy Travel became the standard. Some
circuits held, on a similarly brief analysis, that section 13(b)
categorically authorizes the court’s “full equitable powers,”
including restitution. See FTC v. Gem Merch. Corp., 87 F.3d
466, 470 (11th Cir. 1996) (emphasis added); FTC v. Sec. Rare
Coin & Bullion Corp., 931 F.2d 1312, 1314–15 (8th Cir. 1991).
Others simply cited Amy Travel or other decisions to reach
the same conclusion. See FTC v. Bronson Partners, LLC,
654 F.3d 359, 365 (2d Cir. 2011); FTC v. Freecom Commc’ns,
Inc., 401 F.3d 1192, 1203 (10th Cir. 2005); FTC v. Pantron I.
Corp., 33 F.3d 1088, 1102 (9th Cir. 1994); see also FTC v. Ross,
743 F.3d 886, 891 (4th Cir. 2014) (conceding that “arguments
about how the structure, history, and purpose of the [FTCA]
weigh against the conclusion that district courts have the
authority to award consumer redress … are not entirely
unpersuasive” but allowing restitution because of Porter,
Mitchell, and uniform circuit practice).
To be sure, these decisions have attracted some judicial
skepticism. See Shire ViroPharma, 917 F.3d at 156, 161 n.19
(declining to decide whether section 13(b) authorizes mone-
tary relief but concluding that it wasn’t “meant to duplicate
[§ 45(b)], which already prohibits past conduct”); FTC v.
AMG Capital Mgmt., LLC, 910 F.3d 417, 429 (9th Cir. 2018)
(O’Scannlain, J., concurring) (disagreeing with the prevailing
interpretation). But the view that section 13(b) implicitly
Nos. 18-2847 & 18-3310 29
authorizes restitution has largely escaped critical examina-
tion.3
We have affirmed restitution awards under section 13(b)
three times since Amy Travel. See United States v. Tankersley,
96 F. App’x 419, 422 (7th Cir. 2004); FTC v. Think Achievement
Corp., 312 F.3d 259, 262 (7th Cir. 2002); FTC v. Febre, 128 F.3d
530, 534 (7th Cir. 1997). But Brown is the first litigant to
question our precedent.
3. Modern Implied-Remedies Jurisprudence
The Supreme Court’s understanding of implied remedies
evolved after Porter and Mitchell. Though the Court contin-
ued to presume that courts could “use any available remedy
to afford full relief” when a party had a general statutory
cause of action, over time it began to emphasize that this
presumption “yields where necessary to carry out the intent
of Congress or to avoid frustrating the purposes of the
statute involved.” Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 284 (1998) (quoting Guardians Ass'n v. Civil Serv.
Comm'n, 463 U.S. 582, 595 (1983) (White, J., op.)); see also
California v. Sierra Club, 451 U.S. 287, 297 (1981) (“The federal
3 Chief Judge Wood’s dissent from the denial of rehearing en banc relies
heavily on FTC v. Bronson Partners, LLC, 654 F.3d 359 (2d Cir. 2011), but
there the Second Circuit summarily followed the lead of other circuits in
reading section 13(b) to include an implied power to order restitution. Id.
at 365. The court quickly moved on to, and thoroughly considered, a
wholly different question: whether the implied restitution remedy is
equitable or legal. The lengthy passages quoted in the chief judge’s
dissent relate to that second-order question. Moreover, Bronson rejected
the view that the plain meaning of “injunction” encompasses restitution.
Id. at 367 (approving restitution because “section 13(b) does not limit the
district court to awarding only injunctions”) (emphasis added).
30 Nos. 18-2847 & 18-3310
judiciary will not engraft a remedy on a statute, no matter
how salutary, that Congress did not intend to provide.”). In
particular, the Court now recognizes the importance of
Congress’s choice to specify forms of relief. See, e.g., Franklin
v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 69 n.6 (1992) (noting
that the presumption in favor of relief doesn’t apply “under
a statute that expressly enumerated the remedies available to
plaintiffs”); see also Karahalios v. Nat’l Fed’n of Fed. Emps.,
489 U.S. 527, 533 (1989) (“It is … an elemental canon of
statutory construction that where a statute expressly pro-
vides a remedy, courts must be especially reluctant to pro-
vide additional remedies.”) (quotation marks omitted).
A prominent example is ERISA. Because Congress has
established a comprehensive remedial scheme for plaintiffs
to enforce their rights under an employee-benefits plan, the
Court has refused to infer additional extracontractual dam-
ages remedies. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 146 (1985) (“The presumption that a remedy was delib-
erately omitted from a statute is strongest when Congress
has enacted a comprehensive legislative scheme including
an integrated system of procedures for enforcement.”)
(quotation marks omitted). And where two environmental-
protection statutes provide private rights of action for in-
junctive relief but require plaintiffs to notify defendants 60
days before suing, the Court has refused to infer a damages
remedy or allow plaintiffs to obtain an injunction without
the requisite notice. See Nat’l Sea Clammers Ass’n, 453 U.S. at
15 (“In the absence of strong indicia of a contrary congres-
sional intent, we are compelled to conclude that Congress
provided precisely the remedies it considered appropri-
ate.”).
Nos. 18-2847 & 18-3310 31
These decisions collided with Porter and Mitchell in
Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996). Because
Brown’s challenge centers on Meghrig, it warrants close
review. There the Court addressed the Resource Conserva-
tion and Recovery Act of 1976 (“RCRA”), which permits
private parties to sue handlers of “solid or hazardous waste
which may present an imminent and substantial endanger-
ment to health or the environment.” 42 U.S.C.
§ 6972(a)(1)(B). The statute authorizes district courts “to
restrain” any person who contributes to handling the waste,
“to order such person to take such other action as may be
necessary, or both.” § 6972(a). The question in Meghrig was
whether § 6972(a) also allowed plaintiffs to recover waste-
cleanup costs as restitution.
The Supreme Court refused to find an implied restitu-
tionary remedy. “Under a plain reading of this remedial
scheme,” the Court explained, plaintiffs could receive “a
mandatory injunction, i.e., one that orders a responsible
party to ‘take action’ by attending to the cleanup and proper
disposal of toxic waste, or a prohibitory injunction, i.e., one
that ‘restrains’ a responsible party from further violating
[the] RCRA.” Meghrig, 516 U.S. at 484. But neither of these
forward-facing remedies “contemplates the award of past
cleanup costs, whether these are denominated ‘damages’ or
‘equitable restitution.’” Id.
The Court reinforced its holding by comparing the RCRA
to the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (“CERCLA”), 42 U.S.C.
§§ 9601 et seq., which addresses similar toxic-waste issues.
Meghrig, 516 U.S. at 485. Unlike the RCRA, CERCLA express-
ly authorizes monetary relief. 42 U.S.C. § 9607(a)(4). “Con-
32 Nos. 18-2847 & 18-3310
gress thus demonstrated in CERCLA that it knew how to
provide for the recovery of cleanup costs[] and that the
language used to define the remedies under [the] RCRA
does not provide that remedy.” Meghrig, 516 U.S. at 485.
The Court also pointed to the statute’s threshold re-
quirement that a party can sue only when the waste “may
present an imminent and substantial endangerment to
health or the environment.” § 6972(a)(1)(B). “The meaning of
this timing restriction [was] plain” to the Court:
“[S]ection 6972(a) was designed to provide a remedy that
ameliorates present or obviates the risk of future ‘imminent’
harms, not a remedy that compensates for past cleanup
efforts.” Meghrig, 516 U.S. at 485–86.
Finally, the Court looked to “[o]ther aspects of [the]
RCRA’s enforcement scheme.” Id. at 486. Unlike CERCLA,
the RCRA’s citizen-suit provision lacks a statute of limita-
tions or a requirement that any recovered costs must be
reasonable. The Court reasoned that “[i]f Congress had
intended § 6972(a) to function as a cost-recovery mechanism,
the absence of these provisions would be striking.” Id. The
RCRA also halts citizen suits when the EPA or a state pur-
sues an enforcement action, and it requires plaintiffs to give
90-days’ notice to potential defendants before suing. See id.
These two requirements made § 6972(a) a “wholly irrational
mechanism” for remedying past harms. Id.
The Court then acknowledged the “line of cases holding
that district courts retain inherent authority to award any
equitable remedy that is not expressly taken away from
them by Congress.” Id. at 487 (citing Porter, 328 U.S. 395). But
these cases couldn’t support an implied restitution remedy.
As the Court put it:
Nos. 18-2847 & 18-3310 33
[T]he limited remedies described in § 6972(a),
along with the stark differences between the
language of that section and the cost-recovery
provisions of CERCLA, amply demonstrate
that Congress did not intend for a private citi-
zen to be able to undertake a cleanup and then
proceed to recover its costs under [the]
RCRA. … [W]here Congress has provided
elaborate enforcement provisions for remedy-
ing the violation of a federal statute, as Con-
gress has done with [the] RCRA and CERCLA,
it cannot be assumed that Congress intended to
authorize by implication additional judicial
remedies for private citizens suing under the
statute. It is an elemental canon of statutory
construction that where a statute expressly
provides a particular remedy or remedies, a
court must be chary of reading others into it.
Id. at 487–88 (quotation marks omitted). Notwithstanding
Porter, the Court held that § 6972(a) does not “contemplate
the award of past cleanup costs.” Id. at 488.
Since Meghrig, the Court has adhered to this more limited
understanding of judicially implied remedies. See, e.g., Great-
West, 534 U.S. at 209 (“We have therefore been especially
reluctant to tamper with the enforcement scheme embodied
in [ERISA] by extending remedies not specifically author-
ized by its text.”) (quotation marks and alteration omitted);
Miller v. French, 530 U.S. 327, 340 (2000) (concluding that the
plain meaning of a provision expressed the congressional
intent to displace equitable authority); see also Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1385 (2015) (hold-
34 Nos. 18-2847 & 18-3310
ing that the Medicaid Act’s provision of a specific remedy
and the judicially unadministrable nature of the relevant
statutory provision “preclude[d] the availability of equitable
relief” in section 30(A) of the statute); Gebser, 524 U.S. at 284
(holding that courts cannot enlarge the “scope of available
remedies” under an implied right of action “in a manner at
odds with the statutory structure and purpose”). Rather than
presuming that Congress authorizes the judiciary to sup-
plement express statutory remedies, the Court now recog-
nizes that “the express provision of one method of enforcing
a substantive rule suggests that Congress intended to pre-
clude others.” Armstrong, 135 S. Ct. at 1385.
4. Revisiting Amy Travel
As this perhaps drawn-out discussion shows, an explora-
tion of statutory purpose is no longer the Supreme Court’s
polestar in cases raising interpretive questions about the
scope of statutory remedies, and that shift has unsettled
Porter’s and Mitchell’s instruction to “provide complete relief
in light of the statutory purposes.” Mitchell, 361 U.S. at 292;
see also Singer, 668 F.2d at 1113 (grounding its reading of
section 13(b) on this premise). See generally Manning, supra,
at 23 (“[W]here ‘the statutory language is clear,’ the Court
has disclaimed the need even ‘to reach arguments based on
statutory purpose[] [or] legislative history.’” (quoting Boyle v.
United States, 556 U.S. 938, 950 (2009))); WILLIAM N. ESKRIDGE
JR., INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES
AND THE CONSTITUTION 81 (2016) (“We are all textualists.
That means that a judge must relate all sources of and
arguments about statutory interpretation to a text the legisla-
ture has enacted.”). Indeed, the Court has “abandoned” its
prior understanding that judges must “be alert to provide
Nos. 18-2847 & 18-3310 35
such remedies as are necessary to make effective the con-
gressional purpose expressed by a statute.” Alexander v.
Sandoval, 532 U.S. 275, 287 (2001) (quotation marks omitted);
accord Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). It is now
well settled that Congress, not the judiciary, controls the
scope of remedial relief when a statute provides a cause of
action. See Armstrong, 135 S. Ct. at 1385 (“Courts of equity
can no more disregard statutory and constitutional require-
ments and provisions than can courts of law.”) (quotation
marks omitted); Thomas W. Merrill, The Disposing Power of
the Legislature, 110 COLUM. L. REV. 452, 465–66 (2010).
Whatever strength Porter and Mitchell retain, Meghrig
clarifies that they cannot be used as Amy Travel saw them—a
license to categorically recognize all ancillary forms of
equitable relief without a close analysis of statutory text and
structure. To be sure, the Court still presumes that courts
retain their “traditional equitable authority.” Miller, 530 U.S.
at 340. But even under Porter and Mitchell, this authority
comes with an important qualifier: “unless otherwise pro-
vided by statute.” Porter, 328 U.S. at 398; Mitchell, 361 U.S. at
291. Unsurprisingly, every appellate court to consider the
relationship between Meghrig, Porter, and Mitchell recognizes
that Meghrig reinforced and clarified this qualifier.
Some circuits have concluded that a statute displaces eq-
uitable authority when it specifies a particular remedy. See
Owner-Operator Indep. Drivers Ass’n, Inc. v. Swift Transp. Co.,
632 F.3d 1111, 1121 (9th Cir. 2011) (finding that a statutory
provision allowing a person to seek “injunctive relief” acted
“to the exclusion of other equitable remedies”); Landstar Sys.,
622 F.3d at 1324 (noting that the statute at issue authorized
only injunctions and concluding that if it “allowed for
36 Nos. 18-2847 & 18-3310
restitution or disgorgement, it would have so stated”).
Others more narrowly construe Meghrig as a command that
“courts must consider a statute’s remedial scheme” when
determining whether a statute displaces equitable authority.
See United States v. Lane Labs-USA Inc., 427 F.3d 219, 235 (3d
Cir. 2005); see also United States v. Rx Depot, Inc., 438 F.3d
1052, 1057 (10th Cir. 2006) (reading Meghrig as showing that
“a statute’s particular characteristics” can displace equitable
authority).
The D.C. Circuit thoroughly examined the effect of
Meghrig in United States v. Philip Morris USA, Inc., 396 F.3d
1190 (D.C. Cir. 2005). Harmonizing Meghrig and Porter, it
held that a statute’s “comprehensive and reticulated scheme,
along with the plain meaning of the words themselves,
serves to raise a necessary and inescapable inference, suffi-
cient under Porter, that Congress intended to limit relief.” Id.
at 1200 (quotation marks and citation omitted).
We don’t need to plant ourselves firmly along this doctri-
nal spectrum to decide this case. It’s inescapable that Meghrig
not only displaced Amy Travel’s categorical approach to
judicially implied remedies but also its interpretation of
section 13(b). Every one of Meghrig’s reasons for refusing to
find restitutionary authority in the RCRA applies with equal
force to section 13(b).
Like the RCRA, section 13(b)’s plain text doesn’t contem-
plate an award of restitution. See Meghrig, 516 U.S. at 484. It
authorizes only temporary restraining orders and injunc-
tions. And like the relationship between the RCRA and
CERCLA, the relationship between section 13(b), § 45(l), and
§ 57b(b) “is telling.” Id. at 485. Both § 45(l) and § 57b(b)
expressly authorize additional equitable remedies. § 45(l)
Nos. 18-2847 & 18-3310 37
(“mandatory injunctions and such other and further equita-
ble relief as [courts] deem appropriate”); § 57b(b) (“such
relief as the court finds necessary … , [including] the refund
of money or return of property”). Section 13(b) lacks compa-
rable language.
Meghrig also instructs us to interpret remedial language
with reference to “the harm at which it is directed.” 516 U.S.
at 485. While the FTCA’s express restitution provisions
authorize the Commission to sue for past conduct, to pro-
ceed under section 13(b), the Commission must reasonably
believe that a person “is violating” or “about to violate” the
law. § 53(b)(1); cf. § 45(b) (empowering the Commission to
bring a cease-and-desist action when it reasonably believes
someone “has been or is” violating the act). As with the
RCRA, “[t]he meaning of this timing restriction is plain.”
Meghrig, 516 U.S. at 485. Section 13(b) “was designed to
provide a remedy that ameliorates present or obviates the
risk of future ‘imminent’ harms, not a remedy that compen-
sates” for past violations. Id. at 486.
Further, as we’ve explained, section 13(b) is procedurally
incompatible with restitution. For example, before invoking
section 13(b), the Commission must reasonably believe that
stopping an ongoing or imminent violation is in the public
interest. § 53(b)(2). And the statute dissolves a preliminary
injunction if the Commission doesn’t begin an administrative
proceeding before a court-set deadline. § 53(b). But the
Commission would have no need for an administrative
proceeding if it can get complete restitutionary relief
through section 13(b)’s permanent-injunction provision. In
short, section 13(b)’s prerequisites, like those in the RCRA,
38 Nos. 18-2847 & 18-3310
make it a “wholly irrational mechanism” for remedying past
harms. Meghrig, 516 U.S. at 486.
Relatedly, unlike § 57b(b), section 13(b) has no statute of
limitations. The absence of a limitations period in the RCRA
was “striking” to the Meghrig Court and provided strong
evidence that the RCRA’s injunction provision did not
implicitly authorize restitution. Id. The same is true here.
Section 13(b) also lacks a central feature of the FTCA pro-
visions that expressly permit monetary relief: a notice re-
quirement. When the Commission brings an administrative
cease-and-desist action, it can secure restitution only by
proving that the violation occurred after its order became
final or that “a reasonable man” would have known that the
conduct was fraudulent. §§ 45(l); 57b(a)(2). And notice is also
baked into the Commission’s power to promulgate and
enforce rules. The Commission must follow detailed proce-
dures before promulgating a final rule. See id. § 57a(b)(1)
(requiring publication of notice and an informal hearing for
rulemaking). Moreover, final rules must “define with speci-
ficity” the prohibited acts. § 57a(a)(1)(B).
The Supreme Court has held that similar provisions are
crucial to determining the remedial scope of implied rights
of action, a closely related context: “It would be unsound …
for a statute’s express system of enforcement to require notice
to the recipient and an opportunity to come into voluntary
compliance while a judicially implied system of enforcement
permits substantial liability without regard to the recipient’s
knowledge or its corrective actions upon receiving notice.”
Gebser, 524 U.S. at 289. We face the same unsound result
here: Reading an implied restitution remedy into section
Nos. 18-2847 & 18-3310 39
13(b) allows the Commission to circumvent the FTCA’s
detailed notice requirements.
Finally, we note that the difference in plaintiffs—private
citizens in Meghrig and a federal agency here—isn’t material.
To be sure, when “the public interest is involved in a pro-
ceeding,” a court’s “equitable powers assume an even
broader and more flexible character than when only a pri-
vate controversy is at stake.” Porter, 328 U.S. at 398; accord
Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015). But the public
interest doesn’t turn on the identity of the parties involved.
Virginian Railway Co. v. System Federation No. 40, 300 U.S.
515, 552 (1937), the authority Porter cited to invoke the
“public interest,” is instructive on this point. Even though
the suit was between a railroad company and a union, the
Court determined that “[m]ore [was] involved than the
settlement of a private controversy.” Id. “The peaceable
settlement of labor controversies … is a matter of public
concern.” Id.; see also id. (“The fact that Congress has indicat-
ed its purpose to make negotiation obligatory is in itself a
declaration of public interest and policy … .”). Presaging
Porter, the Court observed that “[c]ourts of equity may, and
frequently do, go much farther both to give and withhold
relief in furtherance of the public interest than they are
accustomed to go when only private interests are involved.”
Id.; cf. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326
& n.8 (1980) (“When the EEOC acts, albeit at the behest of
and for the benefit of specific individuals, it acts also to
vindicate the public interest in preventing employment
discrimination.” (citing Porter, 328 U.S. at 397–98)).
Under Virginian Railway Co., both Meghrig and this case
implicate the public interest. Both involve enforcing federal
40 Nos. 18-2847 & 18-3310
statutory obligations, and both involve matters of “public
concern”—environmental cleanup and consumer protection.
Even so, Meghrig did not find an implied right to restitution
in the RCRA. So the fact that the government is the plaintiff
here does not affect the analysis. Consider United States v.
Apex Oil Co., in which we examined Meghrig’s impact on
42 U.S.C. § 6973(a), the RCRA’s government-suit provision.
579 F.3d 734 (7th Cir. 2009). We did not draw a distinction
between the RCRA’s government and citizen-suit provisions.
Observing that the provisions use “identical language,” we
concluded that the RCRA “entitles the government only to
require the defendant to clean up the contaminated site at
the defendant’s expense.” Id. at 737. We then announced that
our “[e]arlier cases, … which allowed an award of clean-up
costs on the basis of general equitable principles set forth in
such cases as Mitchell v. Robert De Mario Jewelry, Inc., and
Porter v. Warner Holding Co., are dead after Meghrig.” Id.
(citations omitted).
Although section 13(b) doesn’t use identical language as
the RCRA’s citizen-suit provision, Meghrig remains material-
ly indistinguishable. So we must pay close attention to its
bottom line: “[W]here Congress has provided elaborate
enforcement provisions for remedying the violation of a
federal statute, … it cannot be assumed that Congress in-
tended to authorize by implication additional judicial reme-
dies … .” Meghrig, 516 U.S. at 487–88 (emphasis added)
(quotation marks omitted); see also Gebser, 524 U.S. at 290
(“Where a statute’s express enforcement scheme hinges its
most severe sanction on notice and unsuccessful efforts to
obtain compliance, we cannot attribute to Congress the
intention to have implied an enforcement scheme that allows
Nos. 18-2847 & 18-3310 41
imposition of greater liability without comparable condi-
tions.”) (emphasis added).
Our limited analysis in Amy Travel doesn’t offer a way to
distinguish Meghrig. It instead requires us to ignore section
13(b)’s text and disregard the FTCA’s “elaborate enforcement
provisions.” In light of the Court’s commands in Meghrig,
our holding in Amy Travel is no longer viable. Conversely,
reading section 13(b) as authorizing only injunctive relief—
that is, reading it to mean what it plainly says—harmonizes
Meghrig with Porter and Mitchell, which also called for a
statute-specific and remedy-specific inquiry before authoriz-
ing an implied form of relief. See, e.g., Porter, 328 U.S. at 403
(holding that a separate cause of action for damages was
enough to preclude courts from inferring that remedy
elsewhere).
We recognize that this conclusion departs from the con-
sensus view of our sister circuits. But when deciding wheth-
er we should overturn precedent, “[w]e are not merely to
count noses. The parties are entitled to our independent
judgment.” United States v. Hill, 48 F.3d 228, 232 (7th Cir.
1995). And we must break from our colleagues. As noted,
most circuits adopted their position by uncritically accepting
our holding in Amy Travel, which expanded on Elders Grain,
which expanded on Singer, which expanded on Porter and
Mitchell. No circuit has examined whether reading a restitu-
tion remedy into section 13(b) comports with the FTCA’s text
and structure. Nor has anyone determined whether § 45
forecloses this remedy. And although some have briefly
discussed § 57b, they have done so only to find refuge in the
saving clause in § 57b(e). Perhaps most importantly, no
42 Nos. 18-2847 & 18-3310
circuit has ever considered the effect of Meghrig in a section
13(b) case.
We are well aware that we need a compelling reason to
overturn circuit precedent. “However, important as stare
decisis is, it is equally important for us to respect the statutes
that Congress has passed and to correct any problems we see
in our prior interpretations of those statutes.” Ahng v. All-
steel, 96 F.3d 1033, 1037 (7th Cir. 1996); see also S. Ill. Power
Coop. v. EPA, 863 F.3d 666, 673 (7th Cir. 2017) (noting that
statutory stare decisis “is not without limits”). Even in the
realm of statutory interpretation, a Supreme Court decision
“on an analogous issue that compels us to reconsider our
position” counts as a compelling reason to overturn prece-
dent. Glaser, 570 F.3d at 915. We cannot favor our own
decisions over those of the Supreme Court.
Stare decisis alone cannot overcome Amy Travel’s clear
incompatibilities with the FTCA’s text and structure,
Meghrig, and the Supreme Court’s broader refinement of its
implied remedies jurisprudence. We therefore hold that
section 13(b)’s permanent-injunction provision does not
authorize monetary relief.4
4 Because we hold that section 13(b) doesn’t authorize monetary relief,
we have no need to consider Brown’s alternative arguments that the
Commission can’t pursue penalties or legal—as distinct from equitable—
restitution under section 13(b). See FTC v. AMG Capital Mgmt., LLC,
910 F.3d 417, 429 (9th Cir. 2018) (O’Scannlain, J., concurring) (discussing
these arguments). We also don’t need to consider the district court’s
asset-freeze determinations.
Nos. 18-2847 & 18-3310 43
III. Conclusion
For the foregoing reasons, we VACATE the restitution
award. In all other respects, we AFFIRM the judgment.
44 Nos. 18-2847 & 18-3310
WOOD, Chief Judge, with whom ROVNER and HAMILTON,
Circuit Judges, join, dissenting from the denial of rehearing en
banc. For decades, this court has successfully used a local rule,
Circuit Rule 40(e), for two important purposes: to highlight a
decision to create a conflict in the circuits, and to clean up ear-
lier decisions whose soundness has been undermined by later
legislation, Supreme Court activity, or a consensus among our
sister circuits. Yet we have taken care not to use Rule 40(e) in
a way that defeats our profound commitment to oral argu-
ment—a commitment that sets us apart from most of the other
circuits, and one that consistently improves the quality of our
decisionmaking. The opportunity to ask questions of counsel,
to hear the questions of fellow judges, and to have a full de-
bate after argument regularly reveals aspects of a case that
even the most thorough reading of the briefs on one judge’s
part cannot provide.
The majority, however, has chosen to use Rule 40(e) in the
case now before us. It is a singularly inappropriate case for
that treatment: it overrules not only a long-standing decision
from this court, FTC v. Amy Travel Serv., Inc., 875 F.2d 564 (7th
Cir. 1989), but it also pays no heed to the fact that eight other
circuits agree with the Amy Travel approach. See Brief of the
Federal Trade Commission at 28 n. 12. Perhaps if a recent Su-
preme Court decision demanded that sea change, the major-
ity’s opinion would be defensible. But there is no such deci-
sion. Instead, the majority extrapolates from the line of cases
addressing whether a private party has an implied right of ac-
tion to the issue presented here: whether a government
agency, the Federal Trade Commission, which enjoys an ex-
press right of action under a statute for injunctive relief, is en-
titled to a restitutionary remedy that is ancillary to, or part of,
the injunction.
Nos. 18-2847 & 18-3310 45
To my knowledge, no court has ever tied the hands of a
government agency in the way that the majority has done
here, and the majority cites none. It has taken this step with-
out the careful consideration that plenary en banc review
would have provided. I am reminded of the words spoken by
Gaius Julius Caesar in 49 B.C.E., as he approached the Rubi-
con river at the head of his army. He knew that the Roman
Senate forbade any armed force to enter Rome. But he decided
to flout that command, and as he marched with his troops
across the river, he is said to have proclaimed “alea iacta est”
– the die is cast. And indeed it was. Caesar’s act led to civil
war and eventually the end of the Roman Republic; he be-
came dictator for life and inaugurated the Roman Empire.
See, e.g., Meaning Behind the Phrase to Cross the Rubicon,
https://www.thoughtco.com/meaning-cross-the-rubicon-
117548. I devoutly hope that the majority here has not cast the
die in a way that will transform Rule 40(e) from an efficiency-
promoting rule for relatively routine updates to our circuit
law into something that erodes our commitment to plenary
consideration, along with oral argument, of every fully coun-
seled case. Time will tell. But the Rule is surely being misused
in this case. Perhaps that would not matter if no reasonable
person could question the correctness of the majority’s rea-
soning. Regrettably, that is not the case. From the materials
now before us, I believe that the court is making a mistake,
and it is doing so in a procedurally inappropriate way.
The central issue in the case relates to the proper interpre-
tation of section 13(b) of the FTC Act, 15 U.S.C. § 53(b), which
authorizes the Commission to sue for injunctive relief. Injunc-
tions come in all shapes and sizes: some are prohibitory, some
are mandatory, some include submission to an equitable mas-
ter, some include reporting requirements, and many include
46 Nos. 18-2847 & 18-3310
ancillary measures that are designed to ensure that the injunc-
tion is effective. At least since our decision in Amy Travel, the
Federal Trade Commission has understood that its authority
to seek an injunction from the court includes the authority to
seek a measure commanding the defendant to disgorge un-
lawfully acquired money or property. In other words, the in-
junction may include an order from the court for the disgorge-
ment type of restitution.
Obviously the restitution itself is not an “injunction,” any
more than the master is an “injunction,” or the reporting re-
quirements are an “injunction.” The injunction is the order
from the court either to do something or to refrain from doing
something. Black’s Law Dictionary lists 25 different types of
injunctions under that general heading. See entry for “injunc-
tion,” Black’s Law Dictionary at 904–05 (10th ed. 2014). The
term “injunction” itself is defined simply as “A court order
commanding or preventing an action.” Id. A “mandatory in-
junction” is one “that orders an affirmative act or mandates a
specified course of conduct.” Id. Nothing whatever in section
13(b) deletes from the list of possible affirmative acts that an
injunction may include an order requiring the enjoined party
to return ill-gotten gains, or to pay money into a court escrow
account, or otherwise to turn over property. That should be
enough by itself to show the error in the path the majority has
taken.
The majority rejects this straightforward reading of the
statute and argues to the contrary that “the textual case in the
FTCA against implying restitution in section 13(b) is over-
whelming.” But more than rhetoric is needed to establish that
point. From my standpoint, if the text is overwhelming at all,
I find it overwhelmingly to support the power of the FTC to
Nos. 18-2847 & 18-3310 47
use any of the tools that Congress gave it, including the one it
used here, which entitles it to seek injunctive relief from a
court.
The Supreme Court supported the approach I would take
in California v. American Stores Co., 495 U.S. 271 (1990). There
the question was whether “divestiture is a form of injunctive
relief within the meaning of” section 16 of the Clayton Act, 15
U.S.C. § 26. 495 U.S. at 275. After the FTC had decided not to
challenge a merger of certain grocery stores in California, the
merger was consummated. The next day, however, the State
of California filed an action in federal court alleging that the
merger violated section 1 of the Sherman Act, 15 U.S.C. § 1,
and seeking “an injunction requiring American to divest itself
of all of [the acquired firm’s] assets and businesses in the State
of California.” 495 U.S. at 276. The district court had granted
a preliminary injunction along those lines, but the Ninth Cir-
cuit reversed on the ground that the injunctive relief author-
ized by the statute did not include divestiture. The Supreme
Court reversed the court of appeals, finding that “the statu-
tory language [of section 16] indicates Congress’ intention
that traditional principles of equity govern the grant of injunc-
tive relief.” Id. at 281. An order of divestiture is almost identi-
cal to an order requiring equitable restitution: both require the
wrongdoer to turn over property that was unlawfully ob-
tained. Similarly, the language of section 16 of the Clayton Act
is not materially different from the language of section 13(b)
of the FTC Act. In my view, the majority’s approach conflicts
with the most closely applicable Supreme Court decision.
This is especially troubling because the majority has not
pointed to any case in which the Supreme Court has said that
a federal agency must avoid one type of remedial authority it
48 Nos. 18-2847 & 18-3310
holds and instead use a different type. That, effectively, is
what the majority has done here, in its discussion of the vari-
ous tools the FTC Act provides for enforcement of the prohi-
bition against unfair or deceptive trade practices. Ante at 11.
The Commission may use its “cease and desist” power in an
administrative proceeding, see FTC Act § 5(b), 15 U.S.C.
§ 45(b); it may, after providing notice to the Attorney General
under section 16 of the FTC Act, 15 U.S.C. § 56, sue someone
who violates a cease-and-desist order, see FTC Act § 5(l)–(m),
15 U.S.C. § 45(l)–(m); it may promulgate rules that define un-
fair or deceptive practices, FTC Act § 18, 15 U.S.C. § 57a; or it
may (as it did here) file a suit in federal court for an injunction,
FTC Act § 13(b), 15 U.S.C. § 53(b).
The Supreme Court recognizes that agencies have broad
discretion in their choice of which of several authorized pro-
cedural tools they wish to use as they carry out their mission.
The best-known example of this practice comes from the field
of labor law. The National Labor Relations Board has both
rulemaking power, see 29 U.S.C. § 156, and adjudicatory pow-
ers, see 29 U.S.C. § 160. The Board does not, however, follow
the practice of using its rulemaking powers when it an-
nounces new rules; it prefers to proceed on a case-by-case ba-
sis through the adjudicative process. See, e.g., Mark H.
Grunewald, The NLRB’s First Rulemaking: An Exercise in Prag-
matism, 41 DUKE L.J. 273 (1991). Over the years people have
challenged this choice on the ground that the Board is evading
the detailed protections for rulemaking that Congress has
provided in the Administrative Procedure Act, 5 U.S.C. § 553,
but the Supreme Court has always rejected those arguments.
See, e.g., NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S.
267 (1974), confirming the rule from NLRB v. Wyman-Gordon
Co., 394 U.S. 759 (1969), to this effect. As the Bell Aerospace
Nos. 18-2847 & 18-3310 49
opinion put it, “[t]he views expressed in Chenery II and Wy-
man-Gordon make plain that the Board is not precluded from
announcing new principles in an adjudicative proceeding and
that the choice between rulemaking and adjudication lies in
the first instance within the Board’s discretion. Although
there may be situations where the Board’s reliance on adjudi-
cation would amount to an abuse of discretion or a violation
of the Act, nothing in the present case would justify such a
conclusion.” 416 U.S. at 294.
I can think of no principled reason why the Labor Board
should have that discretion, but the FTC should not. The ma-
jority argues to the contrary from a line of cases that is inap-
posite. It conflates decisions about which plaintiffs are author-
ized to bring a suit (the implied-right-of-action line) with the
distinct question about what remedies are available to a party
that is expressly authorized by statute to sue, as the FTC
surely is here. The cases on which the panel relies all involve
private enforcement, where the Court has warned us to en-
sure that we should not permit a facile work-around to a com-
plex enforcement system. See, e.g., Middlesex Cnty. Sewerage
Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 14 (1981). A case
involving public enforcement is quite different. If the agency
believes that Path A has certain advantages and downsides,
while Path B has different plusses and minuses, neither ap-
proach should be read out of the statute. Both are available to
the agency, and each one will serve its intended functions,
constrained by its safeguards.
The majority thinks that it would be “wholly irrational”
for Congress to write a statute that provides for restitution as
part of a 13(b) temporary restraining order, preliminary in-
junction, or permanent injunction, while also spelling out
50 Nos. 18-2847 & 18-3310
less-streamlined options for the Commission to pursue. But
this ignores real differences among its options. Perhaps, be-
cause of the risk of dissipation of ill-gotten gains, the Com-
mission might want restitution to begin right away while the
case is pending, e.g., through payment into a court-operated
escrow account; in order to do that, it can seek a preliminary
injunction for the turn-over of funds. In another case, the
Commission might prefer to use the cease-and-desist route
and develop the factual record through its own administra-
tive processes—ensuring judicial deference to its fact-finding
down the road—rather than operate under the thumb of a
court.
Branding such a scheme as “wholly irrational” is unwar-
ranted without a more focused examination of why the Com-
mission might choose one route or another—a choice, I reiter-
ate, that we usually allow agencies to make. Cf. Bell Aerospace,
416 U.S. at 294–95 (concluding that agency has power to
choose adjudication or rulemaking as a means to announce
new principles while examining agency’s legitimate reasons
for pursuing one or the other method of proceeding). Such an
inquiry requires a deferential look at why Congress gave the
agency a menu of options. That is just what Congress did in
the FTC Act. The statute gives the Commission the ability to
move unilaterally when it uses its rulemaking or cease-and-
desist powers, and to act as a party before the court if it wants
a preliminary or permanent injunction. It is not up to us to
take away that which Congress gave.
Another inapposite line of cases on which the majority re-
lies addresses implied private rights of action—a problem we
surely do not have here. See, e.g., Alexander v. Sandoval, 532
U.S. 275 (2001). Rather than a private party, we have a
Nos. 18-2847 & 18-3310 51
government agency, and rather than an implied right of ac-
tion, we have an express statutory provision authorizing the
agency to seek injunctive relief. That makes a difference. In-
deed, in a number of areas—antitrust, securities regulation,
RICO—the Supreme Court has begun drawing a distinction
between the breadth of a private right of action and the
greater breadth appropriate for public enforcement. Thus, in
RJR Nabisco Inc. v. European Community, 136 S. Ct. 2090 (2016),
the Court found that private parties (including for this pur-
pose the European Community, which had no special govern-
mental status under the applicable law) cannot enforce RICO
extraterritorially, but that the U.S. government stands in a dif-
ferent position. The Court made the same point in F. Hoffman-
La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004):
In all three cases [on which the Empagran plain-
tiffs relied], however, the plaintiff was the Gov-
ernment of the United States. A Government
plaintiff, unlike a private plaintiff, must seek to
obtain the relief necessary to protect the public
from further anticompetitive conduct and to re-
dress anticompetitive harm. And a Government
plaintiff has legal authority broad enough to al-
low it to carry out this mission. 15 U.S.C. § 25 …
. Private plaintiffs, by way of contrast, are far
less likely to be able to secure broad relief.
See California v. American Stores Co., 495 U.S.
271, 295 (1990) (“Our conclusion that a district
court has the power to order divestiture in ap-
propriate cases brought [by private plaintiffs]
does not, of course, mean that such power
should be exercised in every situation in which
the Government would be entitled to such
52 Nos. 18-2847 & 18-3310
relief... .”); 2 P. Areeda, Hovenkamp & R. Blair,
Antitrust Law ¶¶ 303d–303e, pp. 40–45 (2d ed.
2000) (distinguishing between private and gov-
ernment suits in terms of availability, public in-
terest motives, and remedial scope) … . This dif-
ference means that the Government’s ability, in
these three cases, to obtain relief helpful to those
injured abroad tells us little or nothing about
whether this Court would have awarded similar
relief at the request of private plaintiffs.
Id. at 170–71.
The panel’s effort to explain why injunctive relief cannot
include an order to disgorge money by reference to Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011), is no more successful.
Wal-Mart was a class action case, through and through. Most
of it deals with the inappropriateness of a money-damages ac-
tion under Federal Rule of Civil Procedure 23(b)(3) for the
sprawling and unmanageable class that the plaintiffs had pro-
posed. But the Court also addressed the plaintiffs’ back-up
position, which was their effort to certify a class for backpay
claims under Rule 23(b)(2). Subpart (b)(2) of the rule allows a
class if “the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appro-
priate respecting the class as a whole.” Note the emphasis in
this language on general grounds, and relief that works for the
class as a whole. As the Court pointed out, that unity of inter-
ests is especially critical in a (b)(2) class, because the unnamed
class members have no right to notice and the chance to opt
out of such a class, yet they would be bound by the outcome
Nos. 18-2847 & 18-3310 53
of the lawsuit. Those concerns are miles away from what we
have in this case.
What the Court said in Wal-Mart is that claims for mone-
tary relief cannot be certified “at least where (as here) the
monetary relief is not incidental to the injunctive or declara-
tory relief.” 564 U.S. at 360. It went on to explain itself as fol-
lows:
One possible reading of [Rule 23(b)(2)] is that it
applies only to requests for such injunctive or
declaratory relief and does not authorize the
class certification of monetary claims at all. We
need not reach that broader question in this
case, because we think that, at a minimum,
claims for individualized relief (like the backpay
at issue here) do not satisfy the Rule. The key to
the (b)(2) class is “the indivisible nature of the
injunctive or declaratory remedy warranted—
the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of
the class members or as to none of them.” Na-
gareda, 84 N.Y.U.L.Rev., at 132. In other
words, Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would pro-
vide relief to each member of the class. It does
not authorize class certification when each indi-
vidual class member would be entitled to a dif-
ferent injunction or declaratory judgment
against the defendant. Similarly, it does not au-
thorize class certification when each class mem-
ber would be entitled to an individualized
award of monetary damages. …
54 Nos. 18-2847 & 18-3310
Given that structure, we think it clear that indi-
vidualized monetary claims belong in Rule
23(b)(3). The procedural protections attending
the (b)(3) class—predominance, superiority,
mandatory notice, and the right to opt out—are
missing from (b)(2) not because the Rule consid-
ers them unnecessary, but because it considers
them unnecessary to a (b)(2) class. When a class
seeks an indivisible injunction benefitting all its
members at once, there is no reason to under-
take a case-specific inquiry into whether class is-
sues predominate or whether class action is a
superior method of adjudicating the dispute.
Predominance and superiority are self-evident.
But with respect to each class member’s individ-
ualized claim for money, that is not so—which
is precisely why (b)(3) requires the judge to
make findings about predominance and superi-
ority before allowing the class.”
Id. at 360–63.
One cannot read this excerpt—lengthy in order to ensure
that the full context comes through—without seeing that the
Court was concerned solely about which type of class action
should be used where money is concerned. No such problem
is possible in the case before us. First, since there is only one
plaintiff—the Commission—we have no unnamed class
members to worry about. Second, the court in our case does
not need to worry about individualized relief. The FTC is it-
self entitled to seek relief on behalf of those injured by Credit
Bureau’s misdeeds. Cf. EEOC v. Bd. of Regents of the Univ. of
Wis. Sys., 288 F.3d 296, 300 (7th Cir. 2002) (EEOC may pursue
Nos. 18-2847 & 18-3310 55
age-discrimination case against a state entity on behalf of in-
dividual employees, even though individual cases would be
barred by the state’s sovereign immunity).
Credit Bureau must merely turn over to the FTC a single
lump sum representing the total restitution due. This is the
end of the court’s involvement with the equitable relief in this
case. As the district court wrote, “[j]udgment in the amount
of Five Million, Two Hundred Sixty Thousand, Six Hundred
Seventy-One and Thirty-Six Cents (“5,260,671.36”) is entered
in favor of the Commission against Defendants, jointly and
severally, as equitable monetary relief. Defendants are or-
dered to pay to the Commission [$5,260,671.36]. Such payment
must be made within 7 days of entry of this Order …” Final
Judgment and Order for Permanent Injunction and Other Eq-
uitable Relief Against Defendants Credit Bureau Center, LLC
and Michael Brown (Kennelly, J.) (June 26, 2018) (emphasis
added). It then falls to the Commission to craft a plan to return
the ill-gotten gains to each person who was harmed, where
possible, and then turn over the remaining money to the
Treasury. See FTC Office of Claims and Refunds Annual Re-
port 2017, https://www.ftc.gov/system/files/documents/re-
ports/bureau-consumer-protection-office-claims-refunds-an-
nual-report-2017-consumer-refunds-effectedjuly/redressre-
portformatedforweb122117.pdf. There is no risk that an un-
named class member’s claim would be lost through the oper-
ation of the law of preclusion. There is no risk, as in Wal-Mart,
that the court would need to “reevaluate the roster of class
members continually,” id. at 364. Nor, in contrast to Wal-Mart,
does this case present the problem of internal conflict within
a class. Id. at 365. Instead, the restitution issue can be resolved
in “one stroke.” Id. at 350. In sum, nothing in Wal-Mart says
that an injunction to turn over wrongfully acquired property
56 Nos. 18-2847 & 18-3310
(here, in the form of money) to a government agency is in any
way objectionable.
I next turn to the Supreme Court’s decision in Meghrig v.
KFC Western, Inc., 516 U.S. 479 (1996), on which the majority
relies so heavily. The issue in Meghrig was “whether § 7002 of
the Resource Conservation and Recovery Act of 1976 (RCRA),
42 U.S.C. § 6972, authorizes a private cause of action to re-
cover the prior cost of cleaning up toxic waste that does not,
at the time of suit, continue to pose an endangerment to health
or the environment.” 516 U.S. at 481. In order to answer that
question, the Court had to construe the citizen-suit provision
of RCRA, 42 U.S.C. § 6972(a). It held that two requirements of
section 6972 defeated plaintiff KFC’s suit: first, the citizen-suit
provision reaches only imminent and substantial harms, not
past problems that have been addressed; and second, the re-
medial language focuses only on the restraint of ongoing
clean-up and disposal problems, not on past clean-up costs
(“whether [those] are denominated ‘damages’ or ‘equitable
restitution’”). 516 U.S. at 484.
This was a pure question of statutory interpretation. The
relevant part of RCRA authorized a citizen suit “against any
person … who has contributed or who is contributing to the
past or present handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste which may present
an imminent and substantial endangerment to health or the envi-
ronment.” 42 U.S.C. § 6972(a)(1)(B) (emphasis added). The
Court gave that provision its natural reading—that is, as
something that did not include a remedy for past cleanup
costs. Id. at 485. It emphasized in that connection the im-
portance of the imminence requirement, which entirely ruled
out any form of relief, however labeled, for a fixed sum
Nos. 18-2847 & 18-3310 57
representing past expenditures. Only in that context did the
Court reject the argument that a plaintiff “could seek equita-
ble restitution of money previously spent on cleanup efforts.”
Id. at 487. General rules about equitable powers were of no
importance for a statute that drew the temporal line at prob-
lems that are “imminent and substantial.” Id. Interestingly,
the Court declined to rule on the question “whether a private
party could seek to obtain an injunction requiring another
party to pay cleanup costs which arise after a RCRA citizen
suit has been properly commenced … .” Id. at 488. That reser-
vation proves that the Court was not ruling out equitable
turn-over of funds, period. It was simply saying that past ex-
penditures were not covered by the statute in front of it.
So even Meghrig itself, a case involving private plaintiffs,
did not purport categorically to exclude from injunctive relief
an order to make payments. It is thus all the more remarkable
that the majority interprets Meghrig to impose such a limita-
tion on the relief that a government plaintiff can seek. As the
majority acknowledges, “when ‘the public interest is involved
in a proceeding,’ a court’s ‘equitable powers assume an even
broader and more flexible character than when only a private
controversy is at stake,’” ante at 38, quoting Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946). But it then goes on to
postulate that “the public interest doesn’t turn on the identity
of the parties involved.” Id. That is not accurate. One factor
informing the public interest is whether it is the government
that is seeking relief. See, e.g., Winter v. Nat. Res. Defense Coun-
cil, Inc., 555 U.S. 7 (2008) (attaching great weight to Navy’s in-
terest in realistic training of sailors). The FTC’s assessment of
the public interest here informs the scope of any injunctive re-
lief it is seeking.
58 Nos. 18-2847 & 18-3310
The presence of the government as a litigant is especially
important to the public-interest component of the analysis
when the government seeks remedies that (1) lie uniquely
within its toolbox and (2) are aimed squarely at undoing pub-
lic harms and preventing future ones through deterrence. As
the Second Circuit has noted in a section 13(b) case of its own
(discussed in further detail below), this is precisely what the
Commission seeks here by way of an injunction ordering eq-
uitable restitution in the form of disgorgement. “[D]isgorge-
ment is a distinctly public-regarding remedy, available only
to government entities seeking to enforce explicit statutory
provisions.” FTC v. Bronson Partners, LLC, 654 F.3d 359, 372
(2d Cir. 2011) (affirming an injunction ordering “restitution”
under 13(b) authority and discussing the theory underlying
what the court understood to be equitable disgorgement).
The Supreme Court has explicitly recognized this feature
of disgorgement in the SEC context. “SEC disgorgement is im-
posed by the courts as a consequence for violating what we
described in Meeker as public laws. The violation for which
the remedy is sought is committed against the United States
rather than an aggrieved individual—this is why, for exam-
ple, a securities-enforcement action may proceed even if vic-
tims do not support or are not parties to the prosecution.”
Kokesh v. SEC, 137 S. Ct. 1635 (2017). As the Court acknowl-
edged in Kokesh, this understanding of disgorgement perme-
ates the case law of our sister circuits as well. See SEC v. Teo,
746 F.3d 90, 102 (3d Cir. 2014) (“[T]he SEC pursues [disgorge-
ment] independent of the claims of individual investors in or-
der to promot[e] economic and social policies”) (cleaned up);
SEC v. Rind, 991 F.2d 1486, 1491 (9th Cir. 1993) (“[D]isgorge-
ment actions further the Commission’s public policy mission
of protecting investors and safeguarding the integrity of the
Nos. 18-2847 & 18-3310 59
markets”). Here, the FTC is seeking to vindicate the public in-
terest through a public-facing remedy aimed at an ongoing
harm. That was not the case in Meghrig, which was certainly
about “environmental cleanup” but which rejected a back-
ward-looking remedy that in economic substance sought
damages.
The majority also asserts that cases decided since Meghrig
demonstrate that it represented a sweeping rejection of im-
plied remedies. Ante at 33. It cites Great-West Life & Annuity
Ins. Co. v. Knudson, 534 U.S. 204 (2002); Miller v. French, 530
U.S. 327 (2000); Armstrong v. Exceptional Child Ctr., Inc., 135 S.
Ct. 1378 (2015), and Gebser v. Lago Vista Ind. Schl. Dist., 524 U.S.
274 (1998), for this proposition. None of those cases, however,
addresses the situation before us: a governmental plaintiff
with an express right of action, and an agency that seeks an
injunction (also expressly authorized) ordering a wrongdoer
to disgorge ill-gotten gains.
Great-West was brought by a private party under the Em-
ployment Retirement Income Security Act (ERISA) to compel
a plan beneficiary to pay over money recovered from a third-
party tortfeasor to the plan. The Supreme Court held that the
petitioners essentially wanted “to impose personal liability on
respondents for a contractual obligation to pay money—relief
that was not typically available in equity.” Id. at 210. That took
their request beyond the bounds of equitable relief; as the
Court put it, “an injunction to compel the payment of money
past due under a contract was not typically available in eq-
uity.” Id. There is not a hint of contract law in our case, and so
Great-West is not applicable. Miller is equally beside the point.
There, Congress had acted explicitly to limit the equitable
power of the district courts to enjoin the automatic stay
60 Nos. 18-2847 & 18-3310
provided by the Prison Litigation Reform Act. 530 U.S. at 331.
The Supreme Court held that the statute did not permit dis-
trict courts to override that provision with a “stay of the stay,”
which is what the private litigants sought. No such effort to
undo a congressional prohibition exists in our case. Armstrong
and Gebser are even further afield. Armstrong holds only that
neither the Supremacy Clause (Art. VI, cl. 2 of the Constitu-
tion) nor the Medicaid Act confers a private right of action on
providers of rehabilitation services, whether for injunctive re-
lief or anything else. Gebser actually does recognize a limited
implied private right of action for sexual harassment of
schoolchildren. In short, nothing in Meghrig, and nothing in
the cases following Meghrig, comes close to holding that a
government agency acting pursuant to express authority to
seek injunctive relief cannot ask for a mandatory injunction
requiring turn-over of money.
Given our decision to cast off a precedent that has guided
both this court and other courts of appeals for decades, I add
a word about our now-abandoned decision in Amy Travel,
which held that the FTC is authorized to obtain restitution as
part of the injunctive relief covered by section 13(b). I already
have explained why I believe that ruling to be correct. My
comments here address the majority’s effort to trivialize the
fact that eight of our sister circuits agree with Amy Travel’s
holding. They brush off this consensus with the accusation
that these courts have done so unthinkingly.
I find that charge quite unwarranted. In the interest of
space, I focus on only one of those other cases: the Second Cir-
cuit’s opinion in Bronson, 654 F.3d 359 (Lynch, J.). There, the
FTC brought suit for an injunction against Bronson for engag-
ing in deceptive advertising of weight-loss products. The
Nos. 18-2847 & 18-3310 61
district court “entered a permanent injunction against Bron-
son and ordered it to pay $1,942,325 in monetary equitable re-
lief plus statutory interest.” Id. at 362. Bronson argued, just as
Brown and Credit Bureau have here, that section 13(b) did not
permit a court to order monetary relief. The Second Circuit
rejected that argument, along with the narrower point that
traceability of the ill-gotten gains was essential. But it did so
only after a thorough and thoughtful consideration of Bron-
son’s argument.
After first noting that section 13(b) of the FTC Act permits
the FTC to seek permanent injunctive relief, the Second Cir-
cuit noted that “courts have consistently held that ‘the un-
qualified grant of statutory authority to issue an injunction
under [S]ection 13(b) carries with it the full range of equitable
remedies, including the power to grant consumer redress and
compel disgorgement of profits.’” 654 F.3d at 365. The Second
Circuit explicitly joined that consensus, holding that section
13(b) of the FTC Act permits courts to grant ancillary equita-
ble relief, including equitable monetary relief. Id.
The court then turned to the argument that any kind of
monetary award would be “an impermissible legal, rather
than equitable, award, because the [district] court failed to
identify particular funds in the defendants’ hands that were
specifically traceable to the fraudulently marketed products.”
Id. at 369. After a lengthy and scholarly discussion of the law
of restitution, the Second Circuit concluded that the disgorge-
ment ordered in the case before it was a permissible adjunct
to the injunctive relief authorized by section 13(b). This was
so because “the district court’s award satisfies the require-
ments of equitable disgorgement … .” Id. at 370.
62 Nos. 18-2847 & 18-3310
The court went on to confirm that “disgorgement is a well-
established remedy in the Second Circuit,” often used in ac-
tions under section 21(e) of the Securities Exchange Act of
1934. That statute, which “authorizes an action to enjoin vio-
lations of the securities laws, also permits the district court to
award disgorgement as an equitable adjunct to its injunctive
decree.” Id. at 372. Importantly, “disgorgement—at least
when sought by public agencies such as the SEC and the
FTC—has several features that make it distinct from the rem-
edies available to private litigants seeking to press common
law claims.” Id. That is because “disgorgement is a distinctly
public-regarding remedy, available only to government enti-
ties seeking to enforce explicit statutory provisions.” Id. That
feature also plays a significant role in the case before us.
The Second Circuit also took note of another distinction
that I, too have stressed: “public entities [are not] required to
make any particular effort to compensate the victims that they
can identify,” because the victim is the government, not the
individual persons. Id. at 373. It added, “While agencies may,
as a matter of grace, attempt to return as much of the dis-
gorgement proceeds as possible, the remedy is not, strictly
speaking, restitutionary at all, in that the award runs in favor
of the Treasury, not of the victims.” Id. In my view, this point
underscores why the restitutionary payment bears no resem-
blance to individual money damages to the injured parties.
Whatever else one might want to say about the Second Cir-
cuit’s analysis in Bronson, it is surely impossible to character-
ize it as a drive-by ruling or one that was not carefully consid-
ered and thoroughly explained. I find it quite persuasive. It
demonstrates to me why both we and our sister circuits up
Nos. 18-2847 & 18-3310 63
until this time have understood that the injunctions author-
ized by section 13(b) can include a restitutionary component.
Finally, I want to emphasize that even if we were interpret-
ing this statute on a blank slate, rather than upending decades
of precedent and creating a split with eight other circuits, the
majority’s reading of section 13(b) is still not persuasive. The
majority grounds its argument in the contrast between the in-
junctive relief explicitly authorized in section 13(b) and the
remedies available to the agency if it opts to use its cease-and-
desist powers under section 5 of the FTC Act or to punish vi-
olators of promulgated rules under section 19. (Section 5 of
the Act is codified at 15 U.S.C. § 45, while section 19 is codified
at 15 U.S.C. § 57b. The majority uses the U.S. Code cites for
sections other than 13(b); my analysis below uses the same
scheme for ease of cross-reference with the majority’s opin-
ion.)
As the majority sees things, we must read 13(b)’s grant of
injunctive authority extremely narrowly given that section
57b(b) specifically mentions “the refund of money or return
of property” as a form of relief the court can order, and 45(l)
allows courts to “grant mandatory injunctions and such other
and further equitable relief as they deem appropriate.” I do
not quibble with the overarching principle that “it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion [of words in different sec-
tions of the same Act].” Nken v. Holder, 556 U.S. 418, 430 (2009)
(quotation marks omitted). But a close look at the two con-
trasting sections reveals that this is not a straightforward case
of a list comprised of “A, B, and C” and another consisting of
only “A and B.”
64 Nos. 18-2847 & 18-3310
I begin with section 57b(b), which lays out remedies for
violations of final rules. Our first clue that this subsection
should not be read to limit the scope of injunctive relief in a
13(b) action is that courts are directed in 57b(b) to “grant such
relief as the court finds necessary to redress injury to consum-
ers or other persons, partnerships, and corporations…” (em-
phasis added). These are largely backward-facing remedies.
As discussed above, courts have long recognized that dis-
gorgement of ill-gotten gains—the sort of equitable restitution
at issue here—is a forward-looking remedy aimed at deter-
rence. Making consumers whole is a possible, but not inevita-
ble, consequence of a disgorgement order. “[T]he primary
purpose of disgorgement orders is to deter violations of the []
laws by depriving violators of their ill-gotten gains.” Bronson,
654 F.3d at 737, quoting SEC v. Fishbach Corp., 133 F.3d 170,
175 (2d Cir. 1997). (Notably, section 57b(b) actually prohibits
courts from imposing “any exemplary or punitive damages.”)
Second, while section 57b(b) lists some more forward-looking
remedies, such as “public notification respecting the rule vio-
lation or the unfair or deceptive act or practice,” this language
only highlights how strained it is to read section 57b(b) as a
limitation on courts’ 13(b) injunctive authority. Would a court
issuing a 13(b) injunction be powerless to order a violator to
post “public notification respecting the … unfair or deceptive
act or practice,” simply because this remedy is listed in an-
other subsection? Surely not.
It is also important to recall that the list in 57b(b) is merely
illustrative: courts are authorized to order relief that “may in-
clude, but shall not be limited to,” the listed remedies. This
subsection is thus a poor candidate (at best) for the expressio
unius canon. (Compare “Visitors may bring pets into the park
on weekdays” with “Animals that visitors are permitted to
Nos. 18-2847 & 18-3310 65
bring into the park on weekends may include, but shall not be
limited to, dogs, cats, snakes, monkeys, and alligators.” Could
weekday visitors not bring dogs?) The savings clause in the
same section is the coup de grâce for the majority’s reasoning.
It cautions that “Remedies provided in this section are in addi-
tion 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.” Id. § 57b(e) (emphasis added). That says it all:
the non-exhaustive examples of relief Congress chose to men-
tion in one section do not limit what a court may or may not
include pursuant to another section—for instance, a 13(b) in-
junction.
The list of remedies available to the FTC in a cease-and-
desist action, spelled out in section 45(l), also provides little
help for the majority. True, this section authorizes the FTC to
“grant mandatory injunctions and such other and further eq-
uitable relief as they deem appropriate …” But so what? Some
forms of equitable relief make sense as standalone remedies,
injunction or no injunction. In contrast, equitable remedies are
available under 13(b) only if (1) a plaintiff satisfies the de-
manding burden of demonstrating why an injunction should
issue, see eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006);
and (2) the court is able to justify the relief it is ordering as a
proper adjunct to the injunctive decree. By allowing courts to
issue “such other and further equitable relief,” section 45(l)
clarifies that courts have a wide range of equitable relief avail-
able to them, no matter whether plaintiffs managed to obtain
an injunction or, if an injunction has issued, whether the rem-
edies are appropriate means of enforcing the decree. Under
45(l), a court could order an accounting or some sort of
66 Nos. 18-2847 & 18-3310
specific performance whether or not the requirements for a
mandatory injunction had been satisfied.
There are further weaknesses in the majority’s reading of
the statute, but I have said enough to show that its approach
is far from the most straightforward even if we did not have
decades of precedent, eight other circuits, and American Stores
on the other side. The FTC Act spells out a finely crafted sys-
tem of enforcement powers and remedies. The majority’s in-
terpretation upends what the agency and Congress have un-
derstood to be the status quo for thirty years, and in so doing
grants a needless measure of impunity to brazen scammers
like the defendant in this case.
I end where I began: This is an important case, and it de-
serves plenary consideration, not the truncated process that
Rule 40(e) provides for appropriate cases. The court’s refusal
to rehear this case en banc has, I fear, led us into error. I there-
fore dissent from the decision not to give this case plenary en
banc consideration.