My friend and former colleague Sam Bray writes in Reason that:
There was a very significant decision yesterday from the Seventh Circuit on whether the Federal Trade Commission can seek restitution under Section 13(b) of the Federal Trade Commission Act. The case is FTC v. Credit Bureau Center, and the question is about whether Section 13(b) of the Act, which authorizes injunctions, thereby impliedly authorizes restitutionary relief (so-called "disgorgement"). Another section of the Act authorizes restitution, but it has additional requirements. So the FTC naturally wants to use the injunction provision to get restitution, and it has been allowed to do that by the federal courts for decades. But not any more. The Seventh Circuit panel, in an opinion written by Judge Sykes, concludes: "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" (p. 21). Not just that, but the panel (using the Seventh Circuit practice of circulating to active judges for consideration whether to rehear en banc) overruled a previous Seventh Circuit decision that allowed restitution through Section 13(b). It did so on the basis of Supreme Court decisions like Meghrig and Kokesh (especially the former).
(Kokesh, and specifically its third footnote, raises a similar issue for the SEC. For background, see Steve Bainbridge's Kokesh Footnote 3 Notwithstanding.)
I appreciate the shoutout! Those of you who labor in these vineyards will want to go read the whole thing.
