Consumer Protection Branch

THE FEDERAL TRADE COMMISSION ACT


CPB is responsible for civil and criminal actions brought under the Federal Trade Commission Act, 15 U.S.C. §§ 41-58 ("FTC Act"). These cases generally fall into three categories: 1) enforcement actions for civil penalties and injunctive relief based on violations of final orders issued by the FTC; 2) enforcement actions for civil penalties and injunctive relief based on violations of FTC trade regulation rules; and 3) prosecutions for criminal violations of the FTC Act, and for violations of district court orders obtained under the FTC Act.

A. Referral of Cases

In general, under the FTC Act, the FTC must notify the Attorney General of its intention to commence, defend, or intervene in any civil penalty action under the Act. 15 U.S.C. § 56(a)(1). The Department of Justice ("Department") then has 45 days, from the date of the receipt of notification by the Attorney General, in which to commence, defend or intervene in the suit. Id. If the Department does not act within the 45-day period, the FTC may file the case in its own name, using its own attorneys. Id.

However, the Department may commence, defend or intervene in the suit even after the 45-day period expires, during which time the Department and the FTC have concurrent authority. United States v. Restland Funeral Home, Inc., 51 F.3d 56 (5th Cir. 1995), cert. denied, 116 S. Ct. 772 (1996).

Notification under 15 U.S.C. § 56 is made directly to the Attorney General and transmitted to CPB for review. The FTC frequently asks the Department to decline to handle, and thus permit the FTC to file in its own name, cases alleging violations of antitrust orders. The Department acquiesces in these requests if nothing about the case suggests that CPB's participation is needed, such as a potential for criminal violations.

Other than the cases discussed above, the Department generally files all cases that are referred. After CPB reviews the case, the appropriate pleadings are transmitted to the United States Attorney's Office for final review and filing. In general, CPB personally handles these FTC cases.

B. Actions for Civil Penalties and Injunctive Relief for Violations of Final Orders Issued by the FTC

These actions are primarily brought under two sections of the Act: (1) Section 45(l) for violations of orders previously entered by the FTC against the defendant under the FTC Act; and (2) Section 45(m)(1)(B) for violations of orders previously entered by the FTC against entities other than the defendant under the FTC Act. Both sections authorize civil penalties of up to $10,000 per violation. United States v. Reader's Digest Association, Inc., 494 F. Supp. 770 (D. Del. 1980), aff'd, 662 F.2d 955 (3d Cir. 1981), cert. denied, 455 U.S. 908 (1982), discusses criteria that have been used to assess such penalties.

In 1995, CPB obtained injunctive relief and a civil penalty of $2.75 million against Dahlberg, Inc., for violations of an FTC order that precluded the company from falsely advertising its "Miracle Ear" hearing aid. United States v. Dahlberg, Inc., No. 4-94-CV-165 (D. Minn., decree entered November 22, 1995). The false claims involved the device's alleged ability to amplify only desired conversation, filtering out unwanted background noise. The civil penalty is the largest ever collected for violations of a consumer protection administrative order.

A defendant in a civil penalties action has a right to a jury trial on the issue of liability. In 1998, a jury found the defendant in United States v. National Talent Associates, et al., No. 96-CV-2617 (D. N.J.), liable for over 20,000 violations. The violations involved claims made in home sales presentations that were forbidden by an FTC order. A Dateline NBC story that aired shortly before trial showed a salesman, who testified at trial, making such claims.

C. Actions for Civil Penalties and Injunctive Relief for Violations of FTC Trade Regulation Rules

These cases are brought under 15 U.S.C. § 45(m)(1)(A) for violations of FTC trade regulation rules regarding unfair or deceptive acts or practices. Regulated firms are liable for violations if they act with actual knowledge that their acts or practices are unfair or deceptive and prohibited by the rule; or with such knowledge fairly implied on the basis of objective circumstances. This section also authorizes civil penalties of up to $10,000 per violation. For a discussion of the criteria used to assess such penalties, see, United States v. Building Inspector of America, Inc., 894 F. Supp. 507, 521 (D. Mass. 1995), a case involving violations of the FTC's Franchise Rule.

CPB, frequently cooperates with the FTC and other federal and state agencies in bringing numerous civil cases as part of a "sweep" involving a particular type of consumer rip-off. Several of these sweeps have involved violations of the FTC's Franchise Rule, which requires specific disclosures to consumers before they invest in a franchise operation. In one of these sweeps, CPB filed 22 complaints naming 50 defendants in eight jurisdictions. CPB collected over $200,000 in civil penalties, and obtained injunctions by consent in all of the cases except one. In the remaining case, the court found on summary judgment that the defendant had violated the Franchise Rule.

D. Criminal Actions

There are potential criminal penalties for violations of certain sections of the FTC Act. For instance, 15 U.S.C. § 50 creates a misdemeanor for the refusal by a subpoenaed witness to testify at an FTC proceeding, or making a false entry or statement in a report that is submitted to the FTC. In addition, 15 U.S.C. § 54, creates a misdemeanor for disseminating a false advertisement relating to a food, drug, device, or cosmetic. Pursuant to 18 U.S.C. § 401(3), CPB, with USAOs, brings criminal contempt actions for violations of district court orders obtained under the FTC Act or other acts the FTC enforces. See, e.g., United States v. Vlahos, 33 F.3d 758 (7th Cir. 1994) (procedural ruling in case alleging violations of order prohibiting deceptive acts related to advertising of government repossessed cars); United States v. Vlahos, 95 F.3d 1154 (table) 1996 WL 459937 (7th Cir. 1996) (affirming conviction after bench trial).

In recent criminal contempt actions, CPB has obtained sentences of four to five years' imprisonment for violations of final judgments in FTC cases. This has resulted from analysis under the Sentencing Guidelines which takes into account the amount of fraudulent behavior the defendant engaged in that violated the Order.

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Updated October 20, 2014

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