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FTC’s Ability to Seek Relief in Federal District Court Based on Past Conduct Is Called Into Question

Section 13(b) of the Federal Trade Commission Act (“Act”), 15 U.S.C. § 53(b), authorizes the Federal Trade Commission (“FTC”) to, among other things, seek injunctive relief (including preliminary and permanent injunctive relief) in federal district court in aid of an administrative proceeding “[w]henever the [FTC] has reason to believe … that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the [FTC] ….” Despite the explicit—and what would appear to be unambiguous—language of this provision, the FTC has taken the position that its authority to seek injunctive relief in federal district court pursuant to section 13(b) of the Act extends to situations where past conduct is “likely to recur” or “there exists some cognizable danger of a recurrent violation.” The FTC’s position is based, in part, on U.S. Supreme Court precedent holding that injunctive relief may be an appropriate remedy in situations where past conduct is likely to recur.

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