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The Powers of the FTC after Liu and Seila Law

In this virtual edition of NCLA Lunch & Law, Senior Litigation Attorney John Vecchione moderates a discussion with featured guest Cynthia Fleming Crawford, Senior Policy Counsel with Americans for Prosperity Foundation, to discuss LiuSeila Law and other recent developments that may help rein in the administrative overreach of the Federal Trade Commission. Ms. Crawford has litigated directly against the FTC and brings a depth of experience in trial and appellate courts to these questions.

From online sales to antitrust and online security, the FTC has claimed and has often been granted, regulatory power. It has also claimed and been granted by courts the right to put Americans through its administrative procedures before any Article III Court gets to review Constitutional claims against it.

The FTC may bring an action in its own regulatory forum or before the district courts of the United States. The target does not get to choose. Recently, in Liu v. SEC and Seila Law, the Supreme Court cut back the “disgorgement” authority of the SEC and limited the independence of the CFPB from control by the Executive Branch. The FTC has relied on similar language, administrative structure, and litigation strategy in its interpretation of the FTC Act. Courts have begun to push back on the FTC’s regulatory overreach.