Transcript THE FEDERAL TRADE COMMISSION UNDER

THE FEDERAL TRADE COMMISSION UNDER THE TRUMP
ADMINISTRATION: PAST, PRESENT, AND FUTURE
February 15, 2017
PANELISTS
• Joel Winston, Partner: Former Associate Director, Division of
Financial Practices; Associate Director, Division of Privacy and
Identity Protection; Deputy Assistant Director, Bureau of Consumer
Protection; and Assistant Director, Division of Advertising Practices,
FTC.
• Jean Noonan, Partner: Former Associate Director, Division of Credit
Practices, FTC
• Lucy Morris, Partner: Former Assistant Director, Division of
Financial Practices and Assistant Director, Bureau of Consumer
Protection, FTC. Former Deputy Enforcement Director, Consumer
Financial Protection Bureau
• Rebecca Kuehn, Partner: Former Assistant Director, Division of
Privacy and Identity Protection, FTC
• Michael Goodman, Partner: Former staff attorney, Division of
Marketing Practices, FTC
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THE FEDERAL TRADE COMMISSION
• History – created 1914
• Commission Structure
• Powers – enforcement, rulemaking, guidance,
consumer education (but no supervision)
• Jurisdiction: any entity “in or affecting
commerce,” except
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Banks/depository institutions
Non-profits
Common carrier activities (e.g., telecoms)
Business of insurance
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LAWS AND RULES ENFORCED
• FTC Act, Section 5 (unfair or deceptive acts or practices)
• Consumer credit statutes (Truth in Lending Act, Equal Credit
Opportunity Act, Fair Credit Reporting Act, Consumer Leasing
Act, Fair Credit Billing Act)
• Fair Debt Collection Practices Act
• Privacy laws (Children’s Online Privacy Protection Act,
Gramm-Leach-Bliley Act and Privacy and Safeguards Rules)
• Telemarketing Sales Rule
• CAN-SPAM Act and rules
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RELATIONSHIP WITH CFPB
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Areas of overlapping jurisdiction
Areas of distinct jurisdiction
Different structure
Different powers and remedies
MOU
UDAP vs. UDAAP
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KEY POLICY STATEMENTS
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Policy Statement on Deception
Policy Statement on Unfairness
Policy Statement Regarding Advertising Substantiation
Enforcement Policy Statement on Deceptively Formatted
Advertisements
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ENFORCEMENT REMEDIES
• Cease and desist orders – “fencing in” relief
• Disclosure requirements
• Temporary restraining orders and preliminary
injunctions
• Civil penalties (in some cases)
• Consumer restitution
• Disgorgement of ill-gotten gains
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DIVISION OF FINANCIAL PRACTICES
Ensures compliance with laws governing consumer
financial products and services:
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Debt collection
Debt relief services
Mortgage lending/servicing and consumer finance
Motor vehicle sales, financing and leasing
Financial technology (e.g., payment systems)
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DIVISION OF PRIVACY AND IDENTITY
PROTECTION
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Oversees issues relating to consumer privacy, information
security, and identity theft
Enforces privacy laws and rules (e.g., Gramm-Leach-Bliley Act
and Privacy and Safeguards Rules)
Enforces Fair Credit Reporting Act against consumer
reporting agencies, data furnishers, and consumer report
users.
Operates Identity Theft Data Clearinghouse (federal
government’s repository for consumer ID theft complaints)
and call center for ID theft victims
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DIVISION OF ADVERTISING PRACTICES
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Monitors and enforces laws covering advertising of wide
range of products and services (e.g., dietary supplements,
health-related products, tobacco, alcohol and other
consumer goods)
Monitors new advertising techniques and media (e.g., social
media)
Applies Guides on Use of Endorsements and Testimonials in
advertising
Oversees advertising to children, including marketing of
violent movies, games, and music.
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DIVISION OF MARKETING PRACTICES
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Brings enforcement actions against various forms of
consumer fraud, including internet and other high-tech
scams, business opportunity schemes, and pyramid schemes
Enforces Telemarketing Sales Rule against telemarketers
engaged in unfair or deceptive practices.
Oversees Do-No-Call registry and brings cases against
violators
Enforces CAN-SPAM Act against illegal email scams
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DIVISION OF ENFORCEMENT
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Monitors and enforces compliance with FTC administrative
and federal court orders entered in consumer protection
cases
Coordinates with criminal law enforcement agencies to
encourage criminal prosecution of consumer fraud
Develops, reviews, and enforces variety of consumer
protection rules (e.g., R-Value Rule, Green Guides, Mail or
Telephone Order Merchandise Rule)
Provides guidance to other parts of the agency on
bankruptcy issues
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OTHER CONSUMER PROTECTION
DIVISIONS
• Division of Consumer & Business Education
• Division of Consumer Response & Operations
• Division of Litigation Technology & Analysis
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THE TAXONOMY OF AN
INVESTIGATION
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Investigation opened
Discovery – Civil Investigative Demands (documents, answers
to interrogatories, investigational hearings)
Wait … in some cases for a long time
Communication of findings – close or consent authority
Settlement negotiations
Consent order or Complaint filed
Litigation
Appeal rights within FTC
Similar to CFPB, except …
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ILLUSTRATIVE RECENT CASES
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Uber – deceptive advertising claims
Auto recall cases – deceptive omissions
Amazon, VIZIO – unfair privacy practices
LabMD, Wyndham – unfair and deceptive data security
practices
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PREDICTING THE FUTURE
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Appropriations – will there be cuts?
New personnel
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Past changes in administrations
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New acting Chairman – Maureen Ohlhausen
Three new Commissioners to be appointed (and a fourth in
September!)
Will be new senior staff, where much of the work of the
agency takes place
The Continuity Model
The Upheaval Model
CFPB Gaps
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CONTACT INFORMATION
Michael Goodman
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006
 202-327-9704
 [email protected]
Lucy Morris
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006
 202-327-9710
 [email protected]
Rebecca E. Kuehn
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006
 202-715-2008
 [email protected]
Joel Winston
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006
 202-327-9716
 [email protected]
Jean Noonan
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006
 202-327-9705
 [email protected]