Amazon has filed a motion for a judgment on the pleadings in the case brought by the FTC because the FTC erroneously relies on Section 13b of the FTC Act to seek a permanent injunction absent bringing an administrative suit.
The FTC had an omelet issue, meaning harms it sought to stop would continue while it brought a case. This made crafting remedies akin to trying to unscramble eggs. This called for legislation allowing the FTC to *temporarily* enjoin conduct pending the completion of an administrative case.
Section 13b was originally interpreted, both by courts and the FTC itself, to apply to injunctions sought in support of an administrative case.
Things changed in the 1980s, when the FTC faced congressional criticism for overreach. In pursuit of "a more ambitious agenda", the FTC then decided to experiment with widening the scope of 13b to directly sue for a permanent injunction absent a pending administrative case.
This campaign to use Section 13b as a vehicle to widen its power has had some success, and has been used as a tool to bring forth antitrust cases. However, Amazon notes that the Supreme Court has not adopted this view.
Amazon underscores the plain language of Section 13b, limiting interpretation to the FTC's ability to seek an injunction as an "incidental power" in support of an administrative case.
Amazon also points to the fallout from such an expansive reading of their power under 13b.
The FTC's broader interpretation now emboldens it to "assert a right to obtain unspecified 'structural relief," which it would not have in its own administrative tribunal.
Lina Khan also got a call out. Amazon calls her out for bias, noting that courts typically rebuke FTC commissioners for pre-existing views on a company.
Finally, Amazon raises the constitutional issues that arise from the FTC's interpretation of 13b, namely that it creates a separation of powers problem.
Oral arguments on the motion have been requested, with a possible Jan 3rd date.
Vidushi Dyall
@vidushi_law_1
@progresschamber Breaking down key developments in important tech cases you should be following. Tech policy, cybersecurity, competition. Fordham Law alum.