On Aug. 21, 2019, the U.S. Court of Appeals for the Seventh Circuit overturned a district court order that required a credit-monitoring service, Credit Bureau Center, and its principal, Michael Brown, to pay a $5.2 million award to the FTC under §13(b) of the Federal Trade Commission Act (the FTC Act). 15 U.S.C. §53(b); FTC v. Credit Bureau Ctr., 937 F.3d 764 (7th Cir. 2019). The FTC’s petition for certiorari is currently pending at the Supreme Court alongside two other petitions relating to Ninth Circuit decisions concerning 13(b). Petition for Writ of Certiorari, Publishers Business Service v. FTC, No. 19-507 (U.S. Oct. 18, 2019); Petition for Writ of Certiorari, AMG Capital Mgmt. v. FTC, No. 19-508 (U.S. Oct. 18, 2019).

In all three petitions, the Supreme Court has been asked to decide whether a district court’s authority to grant a permanent injunction under §13(b) of the FTC Act includes the authority to require wrongdoers to return money that they illegally obtained, in the form of a restitutionary or disgorgement award. While the court has yet to grant certiorari in any of these cases, the failure to overturn, or a decision to affirm, the Seventh Circuit will have wide-sweeping ramifications for the FTC’s enforcement strategy in competition matters.