WEBVTT - SCOTUS Guts FTC Power to Recoup Billions for Consumers 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.560 --> 0:00:12.080 There's a lot of legal maneuvering going on as the 0:00:12.119 --> 0:00:17.920 Biden administration navigates tricky territory in implementing its own environmental policies. 0:00:18.200 --> 0:00:21.520 Lawyers in the Justice Department and other agencies have evaluated 0:00:21.520 --> 0:00:25.080 the government's position in hundreds of pending cases, pressing pause 0:00:25.160 --> 0:00:28.480 on as many as possible. The focus is on strategic 0:00:28.560 --> 0:00:32.880 delays rather than dramatic changes in position, although new policies 0:00:32.920 --> 0:00:36.839 are already under attack by Republicans. Joining me is Pat Parento, 0:00:36.920 --> 0:00:40.320 a professor of environmental law at Vermont Law School. So 0:00:40.560 --> 0:00:45.879 what's the strategy that the Biden administration is using impending 0:00:46.200 --> 0:00:51.240 environmental cases. It seems like there isn't a uniform approach 0:00:51.920 --> 0:00:56.080 to how the Biden administration is going to undo what 0:00:56.280 --> 0:01:00.280 the Trump administration did on environmental issues. For exact sample, 0:01:00.320 --> 0:01:03.320 with the two big pipeline cases, we saw right out 0:01:03.320 --> 0:01:08.160 of the box, Biden killed the Keystone XL pipeline because 0:01:08.360 --> 0:01:10.520 he was able to do that at a time before 0:01:10.800 --> 0:01:14.080 actual construction in the United States portion was underway, or 0:01:14.120 --> 0:01:16.360 at least part of it. With regard to the Dakota 0:01:16.440 --> 0:01:19.280 Access pipeline. On the other hand, Biden and the d 0:01:19.400 --> 0:01:23.399 o J have decided not to stop the flow of 0:01:23.440 --> 0:01:26.920 oil through that pipeline, which is already built. And if 0:01:26.920 --> 0:01:30.200 you look at these two pipelines, the common theme from 0:01:30.200 --> 0:01:33.679 both of them is the impact on jobs. And the 0:01:33.800 --> 0:01:36.920 unions were all over Biden when he killed Keystone and 0:01:36.959 --> 0:01:41.120 said you've cost us thousands of potential jobs. With regard 0:01:41.200 --> 0:01:45.240 to Dakota Access, those are jobs that are already underway. 0:01:45.319 --> 0:01:48.520 And I think it was a political calculation in these 0:01:48.560 --> 0:01:51.880 two cases. So I think what we're gonna see is 0:01:51.960 --> 0:01:54.520 that the Biden administration is going to look at each 0:01:54.560 --> 0:01:58.280 one of these environmental issues in its context and decide 0:01:58.640 --> 0:02:02.400 which ones can it immediately reverse and which ones is 0:02:02.400 --> 0:02:05.040 it going to take longer to reverse. And a good 0:02:05.040 --> 0:02:08.840 example of that is happening right now today where a 0:02:08.919 --> 0:02:16.320 judge in Virginia is hearing arguments to overturn Trump's NIPA rules, 0:02:16.400 --> 0:02:21.000 which greatly watered down and weakened NIPA analysis. And in 0:02:21.040 --> 0:02:24.840 that case, the Biden administration has asked the court to 0:02:25.120 --> 0:02:29.560 stay the case and allow c e Q to review, 0:02:29.880 --> 0:02:33.600 of course, the Trump rules and decide how they're going 0:02:33.680 --> 0:02:37.600 to make changes. They signaled very strongly that they have 0:02:37.919 --> 0:02:42.320 serious problems with the Trump NIPA rules. But it's curious 0:02:42.400 --> 0:02:47.440 that they didn't agree to let the judge rule that 0:02:47.480 --> 0:02:50.440 the Trump NIPA rules are in fact illegal, even though 0:02:50.919 --> 0:02:54.760 the Biden c e Q filing in the case has 0:02:54.800 --> 0:03:00.560 identified all the same reasons why the Trump rules are illegal. Right, 0:03:00.639 --> 0:03:05.080 so you can't figure out exactly what the strategy is 0:03:05.600 --> 0:03:08.880 from the Biden administration, except it seems to depend on 0:03:09.080 --> 0:03:12.680 each individual case. Do you think that there is a 0:03:12.760 --> 0:03:17.160 broad strategy in place or it's just case by case. 0:03:18.440 --> 0:03:21.160 I think that the broad strategy is we do want 0:03:21.200 --> 0:03:24.560 to reverse these Trump policies, but each one is going 0:03:24.600 --> 0:03:28.760 to be apparently evaluated, I guess, as I say, in 0:03:28.840 --> 0:03:33.600 its own context, in its own circumstances, and the thinking 0:03:33.680 --> 0:03:40.880 behind when Biden takes a decisive action and when he differs. 0:03:41.560 --> 0:03:47.040 It's not clear yet whether it's politics or whether it's 0:03:46.600 --> 0:03:51.440 a different kind of strategy that would strengthen the ultimate 0:03:51.480 --> 0:03:54.640 decision that Biden is going to make. We don't really 0:03:54.640 --> 0:03:59.560 know yet. Um we have a similar situation with the 0:04:00.120 --> 0:04:03.320 litigation over the Clean Power Plan. This is the rule 0:04:03.360 --> 0:04:08.360 of course regulating greenhouse gases from power plants. And that again, 0:04:08.400 --> 0:04:13.000 the Trump Rule, which replaced the Obama Rule, has been 0:04:13.040 --> 0:04:17.040 struck down by the d C Circuit, And the DC 0:04:17.080 --> 0:04:21.839 Circuit also struck down the Trump rule that repeals the 0:04:21.920 --> 0:04:25.960 Clean Power Plan. But again the Biden administration did not 0:04:26.200 --> 0:04:31.279 agree to reinstate the Clean Power Plan. Rather, it sets 0:04:31.320 --> 0:04:35.080 to the d C Circuit hold off on that part 0:04:35.080 --> 0:04:38.640 of your order to give us time to figure out 0:04:38.680 --> 0:04:41.799 what kind of a new rule we want to adopt 0:04:41.839 --> 0:04:45.719 for power plants. In that case, it might make some 0:04:45.880 --> 0:04:49.840 sense to do that because the Clean power Plant has 0:04:49.920 --> 0:04:56.680 already been overtaken by market forces, which have reduced emissions 0:04:56.760 --> 0:05:00.279 from the power plant sector by more than what Clean 0:05:00.320 --> 0:05:02.360 Power Plan would have done. The Clean Power Plan was 0:05:02.400 --> 0:05:08.880 talking about reduction and emissions. We've already achieved reduction and 0:05:08.920 --> 0:05:13.880 emissions measured from two thousand and five baseline. So again, 0:05:13.920 --> 0:05:15.839 you know you're gonna I think we're gonna all have 0:05:15.880 --> 0:05:19.840 to be patient and and watch to see, you know, 0:05:20.320 --> 0:05:22.440 how Biden is going to deal with each one of 0:05:22.480 --> 0:05:26.440 these issues, and how quickly the administration is going to 0:05:26.520 --> 0:05:29.200 be able to come up with new rules when those 0:05:29.240 --> 0:05:33.200 are required for new decisions, and I'm not sure there 0:05:33.279 --> 0:05:36.520 is a uniform approach yet. Are the courts in general 0:05:36.720 --> 0:05:41.440 allowing the Biden administration to press the pause button on 0:05:41.480 --> 0:05:44.440 these cases? Well, not in the case of the nap 0:05:44.520 --> 0:05:48.040 of rule, Judge Jones. It is in Virginia. You know, 0:05:48.200 --> 0:05:51.720 the Biden administration went into his court weeks ago and 0:05:51.800 --> 0:05:54.039 asked the judge to put a hold on the case. 0:05:54.080 --> 0:05:56.440 And the judge said, no, the case is being briefed 0:05:56.680 --> 0:05:59.680 and these Trump rules are on the books and agencies 0:05:59.720 --> 0:06:01.839 are lying on them and the way they're doing their 0:06:01.960 --> 0:06:06.880 environmental impact assessments, and no, we need to decide this case. 0:06:07.120 --> 0:06:10.440 You're not giving me any firm deadline by which you 0:06:10.560 --> 0:06:14.000 intend to take an action that would resolve the issues 0:06:14.040 --> 0:06:16.600 in this case. So no, I think we should proceed. 0:06:16.720 --> 0:06:19.360 And I predict that Judge Jones is going to make 0:06:19.400 --> 0:06:23.119 that same decision at argument, and he's probably gonna rule 0:06:23.560 --> 0:06:26.720 on the merits of the case challenging the Trump rule. 0:06:27.040 --> 0:06:30.160 And the Biden administration is in a really awkward position. 0:06:30.200 --> 0:06:34.440 They certainly can't defend the Trump rule. So you know, 0:06:34.560 --> 0:06:36.760 if the judge says, no, I'm not going to hold 0:06:36.800 --> 0:06:40.520 this case back, I'm going to decide it with or 0:06:40.560 --> 0:06:44.080 without the input of the Biden administration. That's a really 0:06:44.160 --> 0:06:48.560 unusual situation that one. To me, it's very hard to understand. 0:06:49.440 --> 0:06:56.279 Has the Biden administration completely eliminated any Trump error rules? Oh, 0:06:56.360 --> 0:07:00.680 let's see, the so called secret Science rule is off 0:07:00.680 --> 0:07:04.279 the books, but that was done through the Congressional Review Act. 0:07:04.839 --> 0:07:10.440 The methane rules are also, I think gonna be revoked 0:07:10.440 --> 0:07:13.000 by this d r A, as it's called the Congressional 0:07:13.000 --> 0:07:20.120 Review Act Resolution, the rule that would have changed the 0:07:20.160 --> 0:07:24.560 interpretation of the Migratory Bird Treaty Act. That's been vacated 0:07:25.240 --> 0:07:29.200 with the Biden administration's approval. But you know, you have 0:07:29.280 --> 0:07:31.680 to go sort of issue by issue, don't you. And 0:07:32.040 --> 0:07:35.520 I'd have to say that very few of the Trump 0:07:35.600 --> 0:07:40.280 rules have been acts at this point. Have industry groups 0:07:40.520 --> 0:07:46.240 and Republicans have they begun mounting a legal campaign against 0:07:47.200 --> 0:07:52.400 the Biden agenda which is unfolding. Oh? Yes, yes, for sure. 0:07:52.600 --> 0:07:56.960 The so called Red States, the Republican ages have challenged 0:07:57.000 --> 0:08:01.000 the moratorium on oil and gas leasing, both on on land, 0:08:01.080 --> 0:08:03.320 on the public lands in the West and off shore. 0:08:03.960 --> 0:08:10.280 The States and some of the power companies still have 0:08:10.360 --> 0:08:16.120 an opportunity to take the Clean Power Plan and the 0:08:16.200 --> 0:08:19.840 so called eighths rule that replaced it to the Supreme Court. 0:08:20.400 --> 0:08:24.080 The time period for filing a petition for review by 0:08:24.120 --> 0:08:27.600 the Supreme Court will expire in May, so we don't 0:08:27.600 --> 0:08:29.480 know are they going to try to get the Supreme 0:08:29.520 --> 0:08:33.440 Court to actually overturn the DC Circuits decision which struck 0:08:33.520 --> 0:08:37.960 down the eighth rule. So yeah, I would say we're 0:08:37.960 --> 0:08:44.320 only beginning now to see pushback coming from the opponents, well, 0:08:44.360 --> 0:08:46.760 either the supporters of the Trump rule or the opponents 0:08:46.800 --> 0:08:49.760 of the Obama rules that preceded them. Same with the 0:08:49.840 --> 0:08:53.839 Chamber of Commerce, the Pacific Legal Foundation on the clean 0:08:53.880 --> 0:08:59.880 Water rule. The District Court in Colorado had overturned the 0:09:00.040 --> 0:09:03.640 Trump Water rule. The Tent Circuit set that injunction aside 0:09:03.640 --> 0:09:07.440 and set it back to Colorado. But but the the 0:09:07.559 --> 0:09:11.400 opponents to the Obama Clean Water Rule and the supporters 0:09:11.440 --> 0:09:15.240 of the Trump replacement rule, they're continuing to press in 0:09:15.280 --> 0:09:18.240 the cases that are that are trying to decide which 0:09:18.240 --> 0:09:21.480 are those rules is going to survive. So you know, 0:09:21.520 --> 0:09:25.520 there is there is so much litigation going on with 0:09:25.559 --> 0:09:28.560 all of these environmental rules now it's very difficult to 0:09:28.600 --> 0:09:31.240 keep track of it all and it's very very hard 0:09:31.280 --> 0:09:33.880 to predict how it's all going to come out, because 0:09:33.880 --> 0:09:36.079 sooner or later many of these issues are going to 0:09:36.200 --> 0:09:39.480 have to go to the Supreme Court. Is this similar 0:09:39.520 --> 0:09:44.520 to what's happened in other changes of administration from Democratic 0:09:44.520 --> 0:09:49.520 to Republican or Republican to Democratic, not at this scale. No. 0:09:50.120 --> 0:09:53.160 In my fifty years of practice, so going on fifty years, 0:09:53.200 --> 0:09:58.840 I haven't seen this much turmoil and so many major 0:09:59.040 --> 0:10:02.640 rules up in the air and in doubt, and again 0:10:02.800 --> 0:10:05.480 blooming over all of this is the uncertainty about how 0:10:05.559 --> 0:10:10.199 much is the current Supreme Court going to allow these 0:10:10.240 --> 0:10:16.360 agencies to assert authority under statutory provisions that are ambiguous. 0:10:16.360 --> 0:10:20.560 The term waters of the United States is still undecided. 0:10:21.200 --> 0:10:23.760 The scope of what I p A can do under 0:10:23.800 --> 0:10:27.520 the Clean Air Act to regulate greenhouse gas emissions from 0:10:27.600 --> 0:10:33.000 stationary sources is still undecided. The scope of the Endangered 0:10:33.040 --> 0:10:37.280 Species Act is very much in doubt these days. So 0:10:37.960 --> 0:10:43.160 I haven't seen so many bed rock environmental laws and 0:10:43.320 --> 0:10:48.160 rules in such a state of chaos in my entire career. 0:10:49.440 --> 0:10:54.080 Tell us about this unusual suit by Arizona where they're 0:10:54.200 --> 0:11:00.160 using federal environmental law against the Biden administration. Right, it's 0:11:00.200 --> 0:11:03.800 the border wall case. And they flipped the script. You know, 0:11:03.960 --> 0:11:08.040 when when Trump was building his border wall without fully 0:11:08.120 --> 0:11:13.719 complying with NIPA, UM, California and some environmental groups took 0:11:13.760 --> 0:11:18.880 him to court and they lost. And so now the 0:11:18.920 --> 0:11:23.800 proponents of the border are trying to argue that Biden's 0:11:23.840 --> 0:11:28.640 decision to stop building the wall m was done without 0:11:28.720 --> 0:11:32.480 compliance with NIPA. So I mean, you know, crocodile tears, 0:11:32.520 --> 0:11:35.400 I guess is what you'd say. Um, And we'll see 0:11:35.400 --> 0:11:37.199 what the courts do with it. They mean, the courts 0:11:37.240 --> 0:11:40.240 were not very sympathetic two people that were trying to 0:11:40.320 --> 0:11:44.200 stop the construction using NIPA. I'm not sure the courts 0:11:44.200 --> 0:11:46.320 are going to be any more sympathetic to those that 0:11:46.320 --> 0:11:49.240 are trying to keep the construction of the wall going 0:11:49.559 --> 0:11:53.360 because of non compliance with NIPA. Can a court really 0:11:53.520 --> 0:11:57.559 forced an administration to spend billions of dollars on our wall? 0:11:58.720 --> 0:12:02.080 I really can't mean it can certainly say you didn't, 0:12:02.280 --> 0:12:04.880 you know, jump through some of the hoops that NIPA 0:12:05.280 --> 0:12:10.160 or some other statute procedural requirements. There's another statutes impose 0:12:10.240 --> 0:12:13.520 you can you can certainly find the administration isn't following 0:12:13.520 --> 0:12:16.600 certain procedures and and require that they do. So the 0:12:16.679 --> 0:12:19.600 question of whether you can order the government to spend 0:12:19.600 --> 0:12:22.640 money or to continue construction, you know, those are what 0:12:22.679 --> 0:12:25.920 we call, you know, questions of equity, where you're asking 0:12:25.960 --> 0:12:30.040 the court to exercise the extraordinary remedies, and those are 0:12:30.080 --> 0:12:33.360 just very rare. I mean, even when environmentalists are trying 0:12:33.400 --> 0:12:36.439 to stop project if you think the Code to Access 0:12:36.840 --> 0:12:40.360 pipeline again, you know, the environmental groups have not actually 0:12:40.400 --> 0:12:43.800 been able to stop the flow of oil even though 0:12:43.800 --> 0:12:47.320 the courts are finding violations of law. So I think 0:12:47.360 --> 0:12:50.520 these efforts to try to force Biden to do things 0:12:50.559 --> 0:12:53.680 like spend money and build the wall, um, well, they're 0:12:53.679 --> 0:12:55.760 going to run into a brick wall. That's my feeling. 0:12:56.960 --> 0:12:59.920 Let's talk about some of the legal questions that play 0:13:00.120 --> 0:13:04.080 the Obama administration, that went on resolved during the Trump 0:13:04.280 --> 0:13:10.439 administration that are now posing an obstacle for the Biden administration. 0:13:11.040 --> 0:13:14.240 For example, the proper scope of the Clean Water Act, 0:13:14.720 --> 0:13:19.319 the limits of presidential authority to create national monuments, and 0:13:19.679 --> 0:13:25.240 the e p A wielding it's regulatory tools against climate change. Yeah, 0:13:25.280 --> 0:13:27.720 those are all big ones. And you know what each 0:13:27.800 --> 0:13:30.160 one that you mentioned. The scope of the Clean Water Act, 0:13:30.480 --> 0:13:33.800 the scope of the President's power to designate monuments under 0:13:33.800 --> 0:13:37.720 the Antiquities Act, the scope of epas authority to deal 0:13:37.760 --> 0:13:41.080 with climate change under the Clean Ract. All three of 0:13:41.120 --> 0:13:46.079 those huge environmental issues are ultimately going to have to 0:13:46.120 --> 0:13:48.920 go to the Supreme Court. I don't think any one 0:13:48.960 --> 0:13:52.959 of them is going to be settled by lower court decisions. 0:13:52.960 --> 0:13:56.640 They're too big, and each one of them implicates issues 0:13:56.679 --> 0:14:01.040 that this current Conservative Supreme Court is very interested in. 0:14:01.360 --> 0:14:05.319 For example, the scope of deference under the Chevron doctrine 0:14:05.440 --> 0:14:08.800 and whether that doctrine is going to enable the Biden 0:14:08.920 --> 0:14:12.960 e p A To interpret statutes that have some vague 0:14:13.040 --> 0:14:16.360 terms in them. Waters of the US under the Antiquities 0:14:16.400 --> 0:14:20.840 Act areas that are limited to those scope necessary to 0:14:20.960 --> 0:14:25.480 protect objects of scientific interest? What does that mean? Right? So, 0:14:26.080 --> 0:14:32.800 these are huge issues of statutory interpretation, and this Conservative 0:14:32.840 --> 0:14:38.640 Supreme Court is very suspicious of agencies exercising broad authority 0:14:39.240 --> 0:14:44.600 under vague statutory terms. Right. They're also interested in reviving 0:14:44.600 --> 0:14:48.800 what's called the non delegation doctrine. This is a constitutional 0:14:49.000 --> 0:14:51.840 doctrine in which and this is going to be applicable 0:14:51.880 --> 0:14:56.600 to the Antiquities Act, and so these conservative justices and 0:14:56.760 --> 0:14:59.920 Robert signaled this, by the way, Chief Justice Robert signaled 0:15:00.080 --> 0:15:04.680 is in the Seamounts case, this is the national monument 0:15:04.760 --> 0:15:09.400 off the Atlantic coast that has these very high biological values. 0:15:09.960 --> 0:15:13.960 That Obama designated this huge area of the North Atlantic 0:15:14.120 --> 0:15:19.360 as a marine monument. And so Roberts has agreed that 0:15:19.560 --> 0:15:23.920 the challenge from the fisherman to that monument designation is 0:15:23.960 --> 0:15:26.960 no longer right for the Court to review. But he's 0:15:27.040 --> 0:15:30.000 also signaled that this question of the scope of the 0:15:30.000 --> 0:15:34.000 president's power under the Antiquities Act is an open question. 0:15:34.280 --> 0:15:38.480 And he specifically said, even though we have never found 0:15:38.520 --> 0:15:42.400 a case where the president has exceeded that authority, that 0:15:42.480 --> 0:15:45.240 doesn't mean that there aren't limits to it. That's a 0:15:45.280 --> 0:15:49.000 pretty clear signal that the scope of the Antiquities Act power, 0:15:49.440 --> 0:15:52.640 which is going to relate to Bear's Ears Monument and 0:15:52.680 --> 0:15:57.640 the Grand Staircase monument. It's a pretty clear signal that 0:15:57.680 --> 0:16:02.400 the Supreme Court may exercise its final judgment on what 0:16:02.440 --> 0:16:05.640 the scope of those powers are. So, yeah, we are 0:16:05.720 --> 0:16:11.320 in for years of uncertainty about all of these big powers. 0:16:12.200 --> 0:16:15.080 Thanks for being the Bloomberg Law Show. Pat that's professor 0:16:15.120 --> 0:16:20.200 Pat Parento of their Mont Law School. The Scott Tucker 0:16:20.360 --> 0:16:24.480 paid a lending business was illegal from top to bottom. 0:16:24.640 --> 0:16:28.080 Scott Tucker walked away with over four hundred million dollars 0:16:28.120 --> 0:16:32.760 money taken from struggling consumers. Scott Tucker was charging two 0:16:32.880 --> 0:16:35.480 or three times that interest rates that the New York 0:16:35.520 --> 0:16:39.080 City mafia loan Shark instin. The kids charged. You didn't 0:16:39.080 --> 0:16:44.560 hear a moral person. I'm a business person. Scott Tucker, 0:16:44.680 --> 0:16:48.320 a subject of the Netflix documentary series Dirty Money, was 0:16:48.400 --> 0:16:51.800 sentenced in ten to more than sixteen years in prison 0:16:51.840 --> 0:16:55.400 for racketeering. The Federal Trade Commission also got a one 0:16:55.440 --> 0:16:58.520 point three billion dollar judgment against Tucker in a civil 0:16:58.600 --> 0:17:02.120 case on behalf of the sumers he defrauded, but this 0:17:02.200 --> 0:17:06.120 week the Supreme Court overturned that judgment in a decision 0:17:06.119 --> 0:17:09.520 that also eliminates the legal tool the FTC has used 0:17:09.560 --> 0:17:12.879 to recoup billions of dollars for defrauded consumers over the 0:17:12.920 --> 0:17:16.320 past decade. Joining me is Andrea, a tuition a professor 0:17:16.320 --> 0:17:19.240 at Penn State Law School. So with this decision, the 0:17:19.320 --> 0:17:22.919 Supreme Court has taken away what the FTC calls the 0:17:23.000 --> 0:17:27.080 strongest tool it has to recoup money for consumers who 0:17:27.080 --> 0:17:29.800 have been defrauded? Are you surprised that this was a 0:17:29.920 --> 0:17:34.240 unanimous decision? While it may be viewed to a surprise 0:17:34.320 --> 0:17:39.800 in some ways, in the reading of the decision, it 0:17:40.119 --> 0:17:45.680 is a statutory interpretation exercise that was done very precisely 0:17:45.800 --> 0:17:52.000 by the Court, so the unanimity is understandable in that way. However, 0:17:52.160 --> 0:17:57.479 the Court does point out that in other circumstances, when 0:17:57.560 --> 0:18:01.359 it has been faced with somewhat are a little questions, 0:18:01.560 --> 0:18:05.760 the Court has not always engaged in such a narrow 0:18:05.880 --> 0:18:09.800 reading of a statute. So here the Supreme Court made 0:18:09.960 --> 0:18:13.040 a strategic choice to engage in the narrow reading of 0:18:13.080 --> 0:18:18.360 the statute and to punt the conversation over the policy 0:18:18.480 --> 0:18:24.000 and the availability of the streamlined remedy that the FTC 0:18:24.160 --> 0:18:29.159 has been using offensively through into the halls of Congress. 0:18:29.359 --> 0:18:33.320 So in that way, this is definitely a bump in 0:18:33.359 --> 0:18:38.959 the road for the FTC. However, that said Congress is 0:18:39.119 --> 0:18:42.280 poised to act to correct this. So tell us about 0:18:42.320 --> 0:18:46.080 the Senate hearing earlier this week where they addressed what 0:18:46.200 --> 0:18:49.600 could be done to restore the FTC's power to recoup 0:18:49.680 --> 0:18:55.560 money for consumers. So on Tuesday, there was testimony from 0:18:55.560 --> 0:18:59.760 four FTC commissioners, all four in front of the Senate 0:18:59.760 --> 0:19:04.840 com the e Commerce, Science, and Transportation, and Senator Maria 0:19:04.960 --> 0:19:10.680 Cantwell indicated her readiness to act withly in the eventuality 0:19:10.800 --> 0:19:14.679 that the Supreme Court did decide in the way that 0:19:14.760 --> 0:19:18.719 we see the verdict coming down today, and it was 0:19:18.920 --> 0:19:23.920 reassuring to see that this was a bipartisan approach. So 0:19:24.000 --> 0:19:29.320 the ranking member, Senator Wicker agreed with the framing that 0:19:29.400 --> 0:19:34.320 the FTC performs a critical function in preserving remedies for 0:19:34.520 --> 0:19:39.760 considers against fraud, and in particular in a time when 0:19:40.240 --> 0:19:45.720 fake COVID remedies and fought and misleading advertising around the 0:19:45.800 --> 0:19:51.280 health treatments are prevalent enough that Congress had earlier this 0:19:51.359 --> 0:19:56.719 year already given the FTC additional authority in connection with 0:19:56.840 --> 0:20:02.280 COVID relief. We see bipartisan in risks in preserving the 0:20:02.440 --> 0:20:06.199 enforcement authority of the FTC, and it was a very 0:20:06.400 --> 0:20:11.240 non acrimonious hearings. There was much agreement among both senators 0:20:11.240 --> 0:20:13.440 on the one hand and STEC commissioners on the other 0:20:13.920 --> 0:20:19.480 regarding the need for certainly preserving and in some directions 0:20:19.480 --> 0:20:24.520 expanding the authority of the FTC to address both traditional 0:20:24.600 --> 0:20:28.000 areas of entering and deceptive practices and the kind of 0:20:28.280 --> 0:20:32.200 fraud that we sensibly see an issue in the facts 0:20:32.320 --> 0:20:37.679 of case allegedly, but also in particular around some of 0:20:37.720 --> 0:20:41.800 the concerning technology practices that are at the center of 0:20:41.840 --> 0:20:46.440 our discussions, not only in terms of the data security 0:20:46.520 --> 0:20:50.199 engagement of the FTC and the privacy concerns that consumers have, 0:20:50.720 --> 0:20:54.840 but also the competition concerns around the high degree of 0:20:54.880 --> 0:20:59.520 concentration that we're seeing in the largest technology company. So 0:21:00.160 --> 0:21:03.200 it's an expect in the one hands, this opinion certainly 0:21:03.480 --> 0:21:07.000 is as the FTC put it, a major obstacle for 0:21:07.080 --> 0:21:12.160 their continued use of existing tools as they've been using them. However, 0:21:12.359 --> 0:21:16.280 the small upside, if we can call it that, is 0:21:16.359 --> 0:21:19.080 that there does seem to be bipartisan interest in the 0:21:19.119 --> 0:21:23.040 Senate on ensuring that the call from the Supreme Court 0:21:23.200 --> 0:21:28.719 for congressional clarification and policy articulation has been heard, and 0:21:28.800 --> 0:21:32.440 the Senate may indeed move swiftly to address the questions 0:21:32.440 --> 0:21:36.199 that the Supreme Court raised in today's According to reports, 0:21:36.280 --> 0:21:40.000 five hundred million dollars of that judgment has already been 0:21:40.040 --> 0:21:42.840 given back to victims. What happens to that. Are they 0:21:42.920 --> 0:21:46.159 going to try to claud that back? So certainly I 0:21:46.200 --> 0:21:49.480 would expect there to be some attempt on the part 0:21:49.600 --> 0:21:55.240 of the defendant in this case, Scott Tucker and his counsel, 0:21:55.320 --> 0:22:00.080 to attempt to cause that back. There will undoubtedly be 0:22:00.560 --> 0:22:04.679 pushed back through other procedural means from the FTC on 0:22:04.760 --> 0:22:10.800 that and the existing avenues that are otherwise provided by 0:22:10.880 --> 0:22:14.159 the FTC Act will undoubtedly be used by the FTC 0:22:14.320 --> 0:22:16.840 to try to hold onto as much of that consumer 0:22:17.240 --> 0:22:20.960 redress as possible. But yes, I would expect there to 0:22:21.040 --> 0:22:25.520 be continuing litigation with respect of the substance of this 0:22:25.640 --> 0:22:30.800 case and the illegal conduct that was relevant here. So 0:22:30.960 --> 0:22:34.440 can the FTC go back and start again and go 0:22:34.800 --> 0:22:37.880 down the route that the Supreme Court has left them 0:22:37.960 --> 0:22:43.960 in this case? Well, certainly there is the opportunity to 0:22:44.240 --> 0:22:48.840 go through the other processes that are created by the 0:22:48.960 --> 0:22:54.720 FTC Act, and to go through the administrative decision making 0:22:54.880 --> 0:23:00.600 process and to uh attempt to engage with the conduct 0:23:00.640 --> 0:23:05.800 in in other ways. We'll see whether there is engagement 0:23:05.840 --> 0:23:09.879 with this alternative enforcement task on the part of the FTC. 0:23:10.280 --> 0:23:13.320 Um There has not been a statement by them as 0:23:13.320 --> 0:23:16.600 to what they're expected next conduct will be so we'll 0:23:16.600 --> 0:23:19.520 have to wait and see how this place out. What 0:23:19.600 --> 0:23:22.680 are some other and going back to the opinion, Basically, 0:23:22.680 --> 0:23:25.320 the Supreme Court has said that the route that the 0:23:25.440 --> 0:23:28.720 FTC was using to go straight to court for monetary 0:23:28.800 --> 0:23:32.639 penalties using a provision that allows it to seek injunctions 0:23:33.000 --> 0:23:35.680 was not proper and so has been cut off. So 0:23:35.720 --> 0:23:41.760 the way the Court framed the questions involved what has 0:23:41.800 --> 0:23:45.120 sometimes been framed as two parallel structure as a possible 0:23:45.160 --> 0:23:47.840 relief on the part of the FTC. So, on the 0:23:47.880 --> 0:23:52.720 one hand, we have the traditional administrative proceedings that then 0:23:53.040 --> 0:23:57.000 lead to potential subsequent litigation as a results of the 0:23:57.000 --> 0:24:01.520 outcomes through those administrative proceedings there or we're looking to 0:24:02.200 --> 0:24:06.320 Section nineteen. But here in this particular case, we're looking 0:24:06.359 --> 0:24:11.919 at the other parallel avenue, which in thirteen B creates 0:24:11.960 --> 0:24:15.840 an explicit authorization for the FTC to seek injunctive relief. 0:24:16.640 --> 0:24:21.280 But the FTC has also, in connection with that injunctive relief, 0:24:21.880 --> 0:24:29.400 been successfully obtaining equitable monetary relief to compensate harmed consumers 0:24:29.480 --> 0:24:34.200 who have been the victims of the illegal conduct that 0:24:34.359 --> 0:24:38.320 is the subject of the injunctive relief and the reason 0:24:38.400 --> 0:24:42.359 that the FTC is in court on that occasion. So 0:24:42.560 --> 0:24:49.639 the spirit of the disgorgement through both possible avenues is 0:24:49.720 --> 0:24:54.359 parallel in the framing of a number of circuits up 0:24:54.359 --> 0:24:57.520 to this point. And so well we ended up with 0:24:57.560 --> 0:25:01.440 this circuits foot because there certainly is a plausible interpretation 0:25:01.680 --> 0:25:05.040 in in that way, particularly when you think about the 0:25:05.080 --> 0:25:09.200 framing of equitable relief, and say a contract law context 0:25:09.320 --> 0:25:14.040 where monetary damages are part of the package of possible 0:25:14.080 --> 0:25:17.159 remedies of the court might award in in that body 0:25:17.160 --> 0:25:21.240 of law, or in other circumstances where we give the 0:25:21.280 --> 0:25:28.959 court's discretion to offer relief, such as the circumstances warrant. 0:25:29.040 --> 0:25:32.080 But in this case, the general approaches that there were 0:25:32.119 --> 0:25:35.440 these two parallel paths, either of which could end up 0:25:35.600 --> 0:25:39.119 with a disgorgement of ill gotten gains in order to 0:25:39.160 --> 0:25:43.440 compensate consumers for the actual harms that were suffered. This 0:25:44.000 --> 0:25:50.080 UH duality of pathways in today's opinion is foreclosed by 0:25:50.320 --> 0:25:54.560 UM the Supreme Court as the Court understands for Team V. 0:25:55.119 --> 0:25:57.440 And so the Court is saying that their Team V 0:25:57.560 --> 0:26:01.200 should be narrowly understood UH. On the point of the 0:26:01.280 --> 0:26:04.959 injunctive relief, but it should not be considered by courts 0:26:05.000 --> 0:26:13.159 to include that secondary authorization for UH monetary relief and disgorgement. 0:26:14.040 --> 0:26:20.400 So the practical impact of what this means is that 0:26:20.520 --> 0:26:24.320 the run of the mill frauds that are well established 0:26:24.320 --> 0:26:28.520 to be within the type of unfair and deceptive trade 0:26:28.520 --> 0:26:36.159 practices that result in consumers being targeted by frauds will 0:26:36.200 --> 0:26:42.800 no longer potentially have a streamlined a pathway from the 0:26:43.119 --> 0:26:48.960 identification and enforcement action to stop the fun from continuing, 0:26:49.359 --> 0:26:55.400 through too through to the actual recovery of the ill 0:26:55.440 --> 0:27:03.120 gotten gains to make the consumers at least partially whole um. 0:27:03.200 --> 0:27:08.680 So that's in particular where I think Congress will UH 0:27:08.840 --> 0:27:16.919 step into clarify the role of thirteen b as at 0:27:17.000 --> 0:27:22.600 least now implicitly including that right to have the FTC 0:27:22.760 --> 0:27:29.600 seats that disgorgement. So Andrea this, what are some other 0:27:29.640 --> 0:27:33.680 things that Congress can do here? And I would encourage 0:27:33.720 --> 0:27:38.000 Congress to think even more creatively and to recognize that 0:27:38.080 --> 0:27:42.200 the same way as in civil litigation attorneys fees are 0:27:42.200 --> 0:27:47.119 recovered by UH plaintiffs and meritorious cases that the FTC 0:27:47.240 --> 0:27:51.080 is inctled to recovery for their lawyer time. UM. And 0:27:52.440 --> 0:27:56.760 the other thoughts that that I would highlight from the 0:27:56.960 --> 0:28:00.320 facts of this case is that in this case we 0:28:00.640 --> 0:28:04.879 don't have a sort of last generation, run of the 0:28:04.920 --> 0:28:08.280 mill offline frauds. We have a fraud that was facilitated 0:28:08.280 --> 0:28:14.239 by technology. So this was an Internet facilitated frauds. And 0:28:14.280 --> 0:28:17.920 so in that way, this sort of case fact connects 0:28:18.000 --> 0:28:23.000 with the broader discussions about technology practices that are permeating 0:28:23.240 --> 0:28:27.400 our legal and policy ecosystem today and in particular are 0:28:27.440 --> 0:28:32.720