Since its inception in 1914, the Federal Trade Commission (FTC), the nation’s consumer protection watchdog with antitrust oversight, has shapeshifted as its enforcement authority has fluctuated with prevailing executive and legislative sentiment. The commission’s oversight areas have also evolved with newly emerging forms of fraud and deception.
Using Docket Alarm Analytics, we look more closely at FTC enforcement actions in the last five years by case volume, type, and forum. We also highlight consumer protection and antitrust issues the FTC is presently grappling with.
A filtered Docket Alarm party search shows that the FTC has been a plaintiff in about 450 cases over the last five years, whether in federal court or in the FTC administrative forum.
The timeline also indicates a downward trend in FTC-initiated actions in the last five years. Drawing on the FTC’s 2022 Annual Performance Report, lower case filings could be the result of increasing costs of litigation, including the processing and storing of vast troves of electronic investigation and case data. Changes in law, as discussed more below, were also cited as potential barriers to enforcement actions.
Statutory and Administrative Tags Dominates Case Types
Several case types by PACER tag characterize FTC actions: Statutory Actions – Other (196), Administrative (185), and Antitrust (30). These results align with agency’s missions to protect the public from deceptive or unfair business practices and from unfair competition.
Home Court Advantage, Please
The FTC’s preferred forum is its own, with approximately 185 agency-initiated cases taking place before the administrative tribunal in the last five years. The federal district housing the agency, the District of Columbia, came second.
California’s Northern District came third with 33 cases filed therein, and its Southern District fifth with 19 cases. The Southern District of Florida, home to Miami, was fourth. The substantial distribution in these jurisdictions is perhaps due to their relatively large populations of both consumers and companies, with California being a notorious tech hub.
Consumer Protection Efforts Both Expanded by New Laws and Curtailed by Court Decisions
In recent years, the FTC has continued its long-term efforts to combat illegal robocalls and protect other traditional consumer rights, like the right to repair products ranging from Harley Davidsons to grills and outdoor power equipment.
Recent actions have also made use of new congressional authorizations under laws including the Opioid Addiction Recovery Fraud Prevention Act, the COVID-19 Consumer Protection Act, and the Military Lending Act.
In a case demonstrating the opioid law’s vast reach, the FTC took on the maker of a health tonic marketed to curb alcohol cravings. The commission leveraged the opioid legislation, which prohibits the deceptive marketing of a product used for the prevention, treatment, or cure of a substance use disorder, to obtain a permanent injunction against Rejuvica LLC, an Irvine, Calif. company earlier this summer. Last March, the FTC used the COVID-19 law to rein in proprietors of Earth Tea for claiming that the tea cured the virus.
While the FTC has seen expanded enforcement in some areas, it says it has had to work around a 2021 Supreme Court decision which found that the FTC did not have authority to obtain monetary relief pursuant to Section 13(b) of the FTC Act. In turn, and according the FTC’s 2022 Annual Performance Report, it has “reinvigorated underused remedial powers, such as the FTC’s Penalty Offense authority, and pursued rulemakings, including finalizing the Made in the USA Rule, initiating an auto rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act, initiating a rule to prohibit impersonation frauds, and initiating a rule to address deceptive and unfair earnings claims.”
Yet the Supreme Court dealt another blow to the commission when it released a second unanimous decision in Axon Enterprise Inc. v. Federal Trade Commission in April. According to SCOTUSblog, the decision confirmed “a new avenue for pre-enforcement challenges to the administrative proceedings of federal agencies” that will likely “spur an uptick in cases trying to forestall commission enforcement proceedings.”
Antitrust Enforcement Questioned
Chairwoman Lina Khan has garnered attention for her strong antitrust stand. Since her tenure began in 2021, she has doggedly taken on Big Tech. For example, the commission has gone after Amazon for wage theft allegations, Meta for purported antitrust violations, and Google for allegedly deceptive advertising.
With mixed results, commentators wonder whether the FTC should be expending taxpayer dollars only to lose in court, while others claim that though not victorious, the agency is gaining ground through favorable rulings. In addition, two commissioners resigned from the FTC before the expiry of their terms with former Commissioner Christine S. Wilson doing so in response to a perceived “abuse of power.”
At the moment, all eyes are on the FTC’s bid to halt Microsoft’s $68.7 billion purchase of video game maker Activision Blizzard. The FTC claims that the deal would harm competitors of Microsoft’s Xbox console and would dangerously accelerate the growth of Microsoft’s already booming subscription content and cloud-gaming business.
The Northern District of California court originally overseeing the case refused to preliminarily enjoin the merger in July. Subsequently, both the district judge and a Ninth Circuit panel refused to stop the deal during the FTC’s appeal. Briefing is now underway before the appellate court with the FTC arguing that the district judge misapplied the preliminary injunction standard.
For the second time, amici have joined the fray, including former federal government antitrust enforcers writing on behalf of Microsoft.
