In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 18-2847 & 18-3310 

FEDERAL TRADE COMMISSION, 

Plaintiff-Appellee, 

v.

CREDIT BUREAU CENTER, LLC, 

and MICHAEL BROWN, 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 17 C 194 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED APRIL 17, 2019 — DECIDED AUGUST 21, 2019 

____________________ 

Before MANION, SYKES, and BRENNAN, Circuit Judges. 

SYKES, Circuit Judge. Michael Brown is the sole owner and 

operator of Credit Bureau Center, a credit-monitoring service. (We refer to both collectively as “Brown.”) Brown’s 

websites used what’s known as a “negative option feature” 

to attract customers. The websites offered a “free credit 

report and score” while obscuring a key detail in much 

smaller text: that applying for this “free” information auto-
2 Nos. 18-2847 & 18-3310 

matically enrolled customers in an unspecified $29.94 

monthly “membership” subscription. The subscription was 

for Brown’s credit-monitoring service, but customers learned 

this information only when he sent them a letter after they 

were automatically enrolled. Brown’s most successful contractor capitalized on the confusion by posting Craigslist 

advertisements for fake rental properties and telling applicants to get a “free” credit score from Brown’s websites. 

The Federal Trade Commission eventually took notice. It 

sued Brown under section 13(b) of the Federal Trade Commission Act (“FTCA”), 15 U.S.C. § 53(b), alleging that the 

websites and referral system violated several consumerprotection statutes. The Commission sought a permanent 

injunction and restitution. Relevant here, the district judge 

found that Brown was a principal for his contractor’s fraudulent scheme and that the websites failed to meet certain 

disclosure requirements in the Restore Online Shopper 

Confidence Act (“ROSCA”). Id. § 8403. The judge entered a 

permanent injunction and ordered Brown to pay more than 

$5 million in restitution to the Commission. 

Brown now concedes liability as a principal for his contractor’s Craigslist scam. And he doesn’t dispute that his 

own websites failed to meet some of ROSCA’s disclosure 

requirements. So we have no trouble affirming the judge’s 

decision to hold him liable for both. We also affirm the 

issuance of a permanent injunction. Brown’s argument there 

rests on an erroneous understanding of the Eighth Amendment’s Excessive Fines Clause. 

But the restitution award is a different matter. By its 

terms, section 13(b) authorizes only restraining orders and 

injunctions. But the Commission has long viewed it as also 
Nos. 18-2847 & 18-3310 3 

authorizing awards of restitution. We endorsed that starkly 

atextual interpretation three decades ago in FTC v. Amy 

Travel Service, Inc., 875 F.2d 564, 571 (7th Cir. 1989). Since 

Amy Travel, the Supreme Court has clarified that courts must 

consider whether an implied equitable remedy is compatible 

with a statute’s express remedial scheme. See Meghrig v. KFC 

W., Inc., 516 U.S. 479, 487–88 (1996). And it has specifically 

instructed us not to assume that a statute with “elaborate 

enforcement provisions” implicitly authorizes other remedies. Id. at 487. 

Applying Meghrig’s instructions, we conclude that section 

13(b)’s grant of authority to order injunctive relief does not 

implicitly authorize an award of restitution. Every reason 

Meghrig gave for not finding an implied monetary remedy 

applies here. Most notably, the FTCA has two detailed 

remedial provisions that expressly authorize restitution if the 

Commission follows certain procedures. Our current reading of section 13(b) allows the Commission to circumvent 

these elaborate enforcement provisions and seek restitution 

directly through an implied remedy. 

Stare decisis cannot justify adherence to an approach that 

Supreme Court precedent forecloses. Accordingly, we overrule Amy Travel and hold that section 13(b) does not authorize restitutionary relief.1 Because the Commission brought 

this case under section 13(b), we vacate the restitution 

award. 

 

1 Because this opinion overrules circuit precedent and creates a circuit 

split, we circulated it under Circuit Rule 40(e) to all judges in active 

service. A majority did not favor rehearing en banc. 
4 Nos. 18-2847 & 18-3310 

I. Background

In January 2014 Brown contracted with Danny Pierce to 

direct customers to his credit-monitoring service. Brown 

gave Pierce several functionally identical websites with 

names like “eFreeScore.com” and “FreeCreditNation.com” 

to use for referrals. As their names suggest, these websites 

invited people to sign up for a “free credit report and score.” 

But signing up for the free score also automatically enrolled 

applicants in Brown’s credit-monitoring service, which 

charged a monthly subscription fee. 

Brown didn’t tell prospective customers about the creditmonitoring service. His websites almost entirely focused on 

the free credit score and report. Three disclaimers, buried in 

much smaller font, told consumers that applying for the free 

offer also enrolled them in an unspecified “membership” 

subscription that cost $29.94 each month. Customers later 

learned that this subscription was for credit monitoring 

when Brown sent them a letter after the automatic enrollment.

Pierce did nothing to clear up this confusion. Indeed, it’s 

undisputed that his method for drumming up referrals was 

fraudulent. He subcontracted with Andrew Lloyd, who 

posted Craigslist advertisements for nonexistent rental 

properties at bargain prices. Lloyd invited prospective 

tenants to email the landlord. Posing as the “landlord,” he 

then responded and instructed them to obtain a credit report 

and score through one of Brown’s websites. But once applicants got this “free” information—and were automatically 

enrolled in the credit-monitoring service—Lloyd stopped 

replying to emails. 
Nos. 18-2847 & 18-3310 5 

The plan was effective. Pierce quickly became Brown’s 

most successful recruiter. Over the course of their relationship, Pierce referred more than 2.7 million customers to 

Brown, generating just over $6.8 million in revenue. Unsuspecting customers were understandably upset. They flooded 

Brown’s customer-service operators, questioning the monthly subscription charge. They complained that the Craigslist 

advertisements were scams. And many were blindsided by 

the fact that requesting a free credit score automatically 

enrolled them in a costly credit-monitoring service. Brown 

told his customer-service team to deny any involvement 

with Pierce’s operation. And although Brown typically 

agreed to cancel future charges, he often refused to issue 

refunds. He also instructed his representatives to offer 

reduced prices to retain customers. Some customers accepted the offer, but others told their credit-card companies to 

cancel Brown’s charges. Credit-card companies cancelled 

more than 10,000 of Brown’s charges. 

Consumers complained to the Commission, which 

opened an investigation. In January 2017 it sued Brown 

under section 13(b) of the FTCA seeking an injunction and 

restitution. The Commission alleged that the Craigslist 

advertisements violated the FTCA’s prohibition on “unfair or 

deceptive acts or practices.” 15 U.S.C. § 45(a). The suit also 

alleged that Brown’s websites violated the same provision of 

the FTCA, as well as ROSCA, id. § 8403; the Fair Credit 

Reporting Act (“FCRA”), id. § 1681j(g); and the Free Credit 

Reports Rule, 12 C.F.R. §§ 1022.130–.138. 

On the Commission’s motion, the judge issued a temporary injunction, froze Brown’s assets, and appointed a receiver to manage his company. Brown and the Commission 
6 Nos. 18-2847 & 18-3310 

later filed cross-motions for summary judgment. In addition 

to contesting liability, Brown argued that section 13(b) 

doesn’t authorize an award of restitution and, alternatively, 

that it doesn’t authorize penalties or legal restitution (as 

opposed to equitable restitution, which requires tracing a 

plaintiff’s entitlement to a particular account or fund). 

The judge ruled for the Commission across the board, 

holding that Brown violated the FTCA as a principal for the 

Craigslist scheme and that the websites violated the FTCA, 

ROSCA, the FCRA, and the Free Credit Reports Rule. The 

judge issued a permanent injunction that imposed extensive 

conditions on Brown’s continued involvement in the creditmonitoring industry and ordered Brown to pay $5,260,671.36 

in restitution. He also denied Brown’s motion to unfreeze 

funds to pay his attorneys. 

II. Discussion 

Brown contests his liability, the permanent injunction, 

and the restitution award. Different standards of review 

apply. For liability, we review the summary judgment de 

novo, viewing the evidence in the light most favorable to 

Brown and drawing reasonable inferences in his favor. 

Holloway v. Soo Line R.R. Co., 916 F.3d 641, 643 (7th Cir. 2019). 

We review the judge’s decision to enter a permanent injunction for abuse of discretion. SEC v. Yang, 795 F.3d 674, 681 

(7th Cir. 2015). Finally, Brown’s challenge to the restitution 

award raises legal questions, which we review de novo. 

Breneisen v. Motorola, Inc., 656 F.3d 701, 704 (7th Cir. 2011). 

A. Liability Issues 

The Commission sued under section 13(b) of the FTCA, 

which by its terms authorizes temporary restraining orders 
Nos. 18-2847 & 18-3310 7 

and permanent injunctions to enjoin violations of federal 

trade law. § 53(b)(1). To impose individual liability on the 

basis of a corporate practice, the Commission must prove 

(1) that the practice violated the FTCA; (2) that the individual “either participated directly in the deceptive acts or 

practices or had authority to control them”; and (3) that the 

individual “knew or should have known about the deceptive 

practices.” FTC v. World Media Brokers, 415 F.3d 758, 764 (7th 

Cir. 2005). 

Based on the summary-judgment record, the judge held 

that Brown violated the FTCA as a principal for the 

Craigslist marketing scheme contrived by Pierce and Lloyd. 

He also held that Brown’s websites violated the FTCA, 

ROSCA, the FCRA, and the Free Credit Reports Rule. Finally, the judge concluded that Brown was individually liable 

for the violations because he owned and operated all aspects 

of his company. 

While Brown concedes liability for the Craigslist scheme, 

he challenges his liability for the website violations. He 

asserts that his websites contained no misrepresentations in 

violation of the FTCA and satisfied ROSCA’s disclosure 

requirements. He also argues that the Commission must 

enforce the FCRA and the Free Credit Reports Rule through 

an internal adjudication. See 15 U.S.C. § 1681s(a)(1) (stating 

that FCRA violations “shall be subject to enforcement by the 

Federal Trade Commission under section 5(b) of the Federal 

Trade Commission Act”). 

It’s unnecessary to consider every theory of liability. 

Brown’s challenges to the injunction and restitution award 

do not turn on which statute his websites violated. And 

section 13(b) permits the Commission to seek relief against 
8 Nos. 18-2847 & 18-3310 

Brown for violating “any provision of law” it enforces. 

§ 53(b). 

So we start and end with ROSCA, which restricts the use 

of a “negative option feature” to sell goods or services on the 

Internet. § 8403. A negative-option feature is “a provision [in 

an offer] under which the customer’s silence or failure to 

take an affirmative action to reject goods or services or to 

cancel the agreement is interpreted by the seller as acceptance of the offer.” 16 C.F.R. § 310.2(w); see also § 8403 

(incorporating this definition by reference). ROSCA prohibits this feature unless the seller “(1) provides text that clearly 

and conspicuously discloses all material terms of the transaction before obtaining the consumer’s billing information; 

(2) obtains a consumer’s express informed consent before 

charging the consumer ... ; and (3) provides simple mechanisms for a consumer to stop recurring charges.” § 8403. 

ROSCA violations are “unfair or deceptive acts or practices” 

under the FTCA, so the Commission can use the FTCA’s 

enforcement regime against violators. Id. § 8404.

There’s no dispute that Brown used a negative-option 

feature to enroll customers in his credit-monitoring service. 

The only question is whether he complied with ROSCA’s 

disclosure requirements. In the apt words of the district 

judge, Brown’s websites were “virtually devoid of any 

mention of the [credit-monitoring] service aside from the 

statement that the customer is to be billed for it.” Moreover, 

Brown concealed this incomplete disclosure behind more 

prominent language offering a free credit score and report. 

The judge determined that these partial and obscure disclosures did not “clearly and conspicuously disclose[] all 
Nos. 18-2847 & 18-3310 9 

material terms of the transaction” or ensure that customers 

gave “express informed consent.” § 8403(1)–(2). 

Brown focuses on the conclusion that the disclosures 

weren’t conspicuous. He parses font sizes, details his websites’ color schemes, and takes a microscope to the Commission’s affidavits in an effort to highlight evidence that 

consumers read and understood the disclosures. But he 

gives only passing attention to the decisive point: His websites didn’t provide certain information that ROSCA requires—namely, that the subscription was for a creditmonitoring service. 

This oversight is fatal to Brown’s defense. Setting aside 

whether his disclosures satisfied the “clear and conspicuous” standard (and on that point we see nothing unsound in 

the judge’s ruling that they did not), Brown violated ROSCA 

if the disclosures failed to provide “all material terms of the 

transaction.” § 8403(1). The service Brown provided in 

exchange for the subscription is clearly a material term. See 

Material Term, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A 

contractual provision dealing with a significant issue such as 

subject matter ... or the work to be done.”). And the websites 

did not tell consumers that they were enrolling in a creditmonitoring service. Brown seeks refuge in the form letter 

that he delivered to new subscribers, which did provide this 

information. But ROSCA required Brown to disclose the 

material terms “before obtaining the consumer’s billing 

information.” § 8403. Brown protests that he sent the letter 

“almost instantaneously” upon subscription. But almost 

instantaneously is still too late under ROSCA.

Brown next contends that even if corporate liability is established, he should not be held personally liable. But it’s 
10 Nos. 18-2847 & 18-3310 

undisputed that he controlled the websites and was aware of 

their content. That’s enough to establish personal liability for 

the ROSCA violations. 

B. The Permanent Injunction 

The judge held that Brown’s conduct warranted a permanent injunction, applying our standard under the Securities and Exchange Act. See Yang, 795 F.3d at 681 (asking 

whether “there is a reasonable likelihood of future violations 

in order to obtain [injunctive] relief”) (quotation marks 

omitted). The ensuing injunction imposes extensive requirements on Brown if he ever operates a credit-monitoring 

business again. 

We don’t need to decide whether our standard for an injunction under the Securities and Exchange Act also applies 

to section 13(b) because Brown’s challenge doesn’t turn on 

that question. His attack on the injunction rests largely on 

the Excessive Fines Clause. U.S. CONST. amend. VIII. He 

contends that the injunction is unconstitutionally harsh and 

disproportionate. But he skips a necessary step in the analysis—whether the injunction is a “fine” at all. It’s not. The 

Supreme Court has limited “fines” to “cash [or] in-kind 

payment[s] imposed by and payable to the government.” 

Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 136 n.6 

(2002) (quotation marks omitted); see also Zamora-Mallari v. 

Mukasey, 514 F.3d 679, 695 (7th Cir. 2008) (“The Board’s 

removal order ... is not a ‘fine,’ and thus the Excessive Fine 

Clause of the Eighth Amendment does not apply.”). Because 

an injunction isn’t a fine, the permanent injunction doesn’t 

implicate the Excessive Fines Clause. 
Nos. 18-2847 & 18-3310 11 

Brown also offers an assortment of drive-by arguments, 

all of which are too undeveloped to establish an abuse of 

discretion. See Roger Whitmore’s Auto. Serv., Inc. v. Lake County, 424 F.3d 659, 664 n.2 (7th Cir. 2005) (“It is the parties’ duty 

to package, present, and support their arguments ... .”). We 

affirm the permanent injunction. 

C. The Restitution Award 

The bulk of Brown’s appeal challenges the restitution order. His primary argument is that section 13(b) does not 

authorize an award of restitution. This is fundamentally a 

question of statutory interpretation, but it’s obscured by 

layers of caselaw, so bear with us while we untangle the 

knot. A brief overview of the FTCA’s remedial structure is 

helpful to a proper understanding of section 13(b), so we 

begin there. 

The FTCA gives the Commission several tools to enforce 

the Act’s prohibition on unfair or deceptive trade practices. 

Under its “cease and desist” power, the Commission adjudicates a case before an administrative law judge, who can 

issue an order prohibiting the respondent from engaging in 

the illegal conduct at issue. See 15 U.S.C. § 45(b). This order 

becomes final if it survives administrative appeal and judicial review. Id. § 45(g). 

A final cease-and-desist order empowers the Commission 

to sue the violator for legal and equitable relief, but only if “a 

reasonable man would have known under the circumstances 

[that the conduct] was dishonest or fraudulent.” Id.

§ 57b(a)(2), (b). After it becomes final, the order also draws a 

line in the sand for both the respondent and anyone else 

who engages in the prohibited conduct. If the respondent 
12 Nos. 18-2847 & 18-3310 

later violates the order, the Commission can sue for civil 

penalties and any equitable relief “the court finds necessary.” Id. § 45(l). If anyone else engages in the prohibited 

conduct after the order becomes final, the Commission can 

seek civil penalties if it can prove that the violator acted with 

“actual knowledge” that his conduct was unlawful. Id. 

§ 45(m)(1)(B). 

The Commission has two other enforcement mechanisms 

at its disposal. First, it can promulgate rules that “define 

with specificity acts or practices which are unfair or deceptive.” Id. § 57a(a)(1)(B). By preemptively resolving whether 

certain conduct violates the FTCA, rulemaking permits the 

Commission to pursue “quick enforcement” actions against 

violators. Nicholas R. Parrillo, Federal Agency Guidance and 

the Power to Bind: An Empirical Study of Agencies and Industries, 36 YALE J. ON REG. 165, 225–26 (2019). Once the 

Commission promulgates a rule, it can seek legal and equitable remedies, including restitution, from violators. See 

15 U.S.C. § 57b(a)(1), (b). And if it establishes that a violator 

had “actual knowledge or knowledge fairly implied on the 

basis of objective circumstances” that his conduct violated a 

rule, the Commission can also pursue civil penalties. Id.

§ 45(m)(1)(A).

The Commission’s remaining enforcement mechanism is 

different. Under section 13(b) of the FTCA, the Commission 

can forego any administrative adjudication or rulemaking 

and directly pursue a temporary restraining order and a 

preliminary or permanent injunction in federal court. 

§ 53(b). As noted, the Commission sued Brown under this 

provision. 
Nos. 18-2847 & 18-3310 13 

1. Section 13(b)

The restitution order against Brown rests on section 

13(b)’s permanent-injunction provision, which states that “in 

proper cases the Commission may seek, and after proper 

proof, the court may issue, a permanent injunction.” Id.

Brown’s straightforward argument is that section 13(b) 

doesn’t authorize restitution because it doesn’t mention 

restitution. 

We start with the obvious: Restitution isn’t an injunction. 

“Injunction” is of course a broad term. See Injunction,

BLACK’S LAW DICTIONARY (10th ed. 2014) (“A court order 

commanding or preventing an action.”). But statutory 

authorizations for injunctions don’t encompass other discrete forms of equitable relief like restitution. See, e.g.,

Meghrig, 516 U.S. at 484 (“[N]either [a mandatory or prohibitory injunction] contemplates ... equitable restitution.”) 

(quotation marks omitted); Owner-Operator Indep. Drivers 

Ass’n v. Landstar Sys., Inc., 622 F.3d 1307, 1324 (11th Cir. 2010) 

(“Injunctive relief constitutes a distinct type of equitable 

relief; it is not an umbrella term that encompasses restitution 

or disgorgement.”); see also Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338, 365 (2011) (holding that an equitable order for 

backpay isn’t an injunction); Nken v. Holder, 556 U.S. 418, 430 

(2009) (“Whether [a deportation stay] might technically be 

called an injunction is beside the point; that is not the label 

by which it is generally known.”). 

The Commission doesn’t seriously argue otherwise. It instead contends that section 13(b) implicitly authorizes restitution. We endorsed that reading in Amy Travel, 875 F.2d at 571, 

which Brown asks us to overturn. We’ll discuss Amy Travel

in a moment, but we begin with a closer look at the FTCA 
14 Nos. 18-2847 & 18-3310 

itself. If the Commission’s reading is correct, there’s no need 

to reconsider our precedent. 

Section 13(b) provides: 

Whenever the Commission has reason to believe-- 

(1) that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the Federal Trade 

Commission, and 

(2) that the enjoining thereof pending the 

issuance of a complaint by the Commission 

and until such complaint is dismissed by the 

Commission or set aside by the court on review, or until the order of the Commission 

made thereon has become final, would be in 

the interest of the public-- 

the Commission ... may bring suit in a district 

court of the United States to enjoin any such 

act or practice. Upon a proper showing that, 

weighing the equities and considering the 

Commission’s likelihood of ultimate success, 

such action would be in the public interest, and 

after notice to the defendant, a temporary restraining order or a preliminary injunction may 

be granted without bond: Provided, however, 

That if a complaint is not filed within such period (not exceeding 20 days) as may be specified by the court after issuance of the 

temporary restraining order or preliminary injunction, the order or injunction shall be dis-
Nos. 18-2847 & 18-3310 15 

solved by the court and be of no further force 

and effect: Provided further, That in proper cases 

the Commission may seek, and after proper 

proof, the court may issue, a permanent injunction. ... 

An implied restitution remedy doesn’t sit comfortably 

with the text of section 13(b). Consider its requirement that 

the defendant must be “violating” or “about to violate” the 

law. Requiring ongoing or imminent harm matches the 

forward-facing nature of injunctions. See 11A CHARLES ALAN 

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2942, at 

47 (3d ed. 2013) (“[I]njunctive relief looks to the future and is 

designed to deter ... .”). Conversely, restitution is a remedy 

for past actions. See 1 DAN. B. DOBBS, LAW OF REMEDIES

§ 4.1(1), at 551 (2d ed. 1993) (“Restitution is a return or 

restoration of what the defendant has gained in a transaction.”). Beyond the conceptual tension, this requirement 

raises an illogical implication: It would condition the 

Commission’s ability to secure restitution for past conduct 

on the existence of ongoing or imminent unlawful conduct. 

Section 13(b)’s second requirement—that the Commission must reasonably believe that enjoining an ongoing or 

imminent violation would be in the public interest—raises a 

similar problem. The public interest in stopping or preventing a violation is distinct from the public interest in remedying a past harm. And yet the Commission’s reading ties 

restitution to this inapposite inquiry. 

The rest of section 13(b) is likewise keyed to injunctions, 

not other forms of equitable relief. For example, the statute 

conditions the district court’s authority to issue a temporary 

restraining order or preliminary injunction on injunction-
16 Nos. 18-2847 & 18-3310 

specific requirements—such as “weighing the equities and 

considering the Commission’s likelihood of ultimate success”—and dissolves the order or injunction within 20 days 

if the Commission doesn’t issue an administrative complaint. 

§ 53(b). These demands don’t apply to equitable restitution, 

which has its own preconditions. See Great-West Life & 

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212–15 (2002). 

True, this appeal concerns section 13(b)’s permanentinjunction provision, not the provision governing temporary 

restraining orders and preliminary injunctions, which is tied 

to the subsequent initiation of an administrative proceeding. 

And we have held that at least some of section 13(b)’s requirements don’t apply to permanent injunctions. See United 

States v. JS & A Grp., 716 F.2d 451, 456–57 (7th Cir. 1983) 

(holding that the Commission can seek a permanent injunction without initiating an internal adjudication). But see FTC 

v. Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019) 

(requiring the Commission to allege an ongoing or imminent 

violation to receive a permanent injunction). But that’s 

beside the point. Even if some of section 13(b)’s requirements 

do not apply to permanent injunctions, they inform the 

meaning of “injunction.” We see no contextual support for 

giving vastly different meanings to section 13(b)’s two uses 

of the word “injunction.” See Hall v. United States, 566 U.S. 

506, 519 (2012) (“At bottom, identical words and phrases 

within the same statute should normally be given the same 

meaning.”) (quotation marks omitted). And in any event, we 

haven’t drawn an interpretive distinction in the past. See FTC 

v. Elders Grain, Inc., 868 F.2d 901, 907 (7th Cir. 1989) (holding 

that section 13(b)’s preliminary-injunction provision also 

authorizes implied equitable relief). 
Nos. 18-2847 & 18-3310 17 

The FTCA’s two other enforcement provisions amplify 

the poor fit between section 13(b) and restitution. Both use 

more than the word “injunction” to authorize other forms of 

equitable relief. As discussed, when a person violates a final 

cease-and-desist order, the district courts are empowered to 

“grant mandatory injunctions and such other and further 

equitable relief as they deem appropriate.” § 45(l) (emphasis 

added). And when someone engages in conduct prohibited 

by a rule, the FTCA authorizes “such relief as the court finds 

necessary ... , [including] the refund of money or return of 

property.” § 57b(b) (emphasis added). 

The absence of similar language in section 13(b) is conspicuous. “[W]here Congress includes particular language in 

one section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Nken, 556 U.S. at 430 (quotation marks omitted). This 

instruction applies with particular force here, where Congress simultaneously expanded § 45(l) to allow for “other 

and further equitable relief” and enacted section 13(b) 

without this language. See Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153, § 408, 87 Stat. 576, 591 (1973). 

Moreover, Congress expressly approved restitution as a 

remedy under § 57b(b) two years after enacting section 13(b). 

See Magnuson-Moss Warranty Act, Pub. L. No. 93-637, § 206, 

88 Stat. 2183, 2202 (1975). If section 13(b) permitted restitution as a general matter, Congress would have had no reason 

to enact § 57b, which authorizes restitution under narrower 

circumstances. 

Remedial scope isn’t the only difference between section 

13(b) and the FTCA’s other enforcement mechanisms. The 
18 Nos. 18-2847 & 18-3310 

latter procedures also impose a detailed framework that the 

Commission must follow before obtaining a restitution 

order. This framework counterbalances the FTCA’s amorphous “unfair or deceptive practices” standard by requiring 

the Commission to give defendants fair notice, either 

through cease-and-desist orders or rules that “define with 

specificity” prohibited acts. §§ 45(b); 57a(a)(1). The Commission can bypass these notice requirements only if it obtains a 

cease-and-desist order against a violator, brings a suit in 

court, and then establishes that the prohibited practice “is 

one which a reasonable man would have known under the 

circumstances was dishonest or fraudulent.” § 57b(a)(2). 

Finally, the FTCA imposes a three-year statute of limitations 

on bringing actions against most violators. § 57b(d). 

Section 13(b) doesn’t offer any of these protections. And 

yet the Commission contends that it provides an unqualified 

right to the very remedies that the FTCA’s other enforcement 

provisions give with heavy qualification. Reading an implied restitution remedy into section 13(b) makes these other 

provisions largely pointless. Without a clear textual signal, 

we cannot presume that Congress implicitly made such a 

consequential shift in policy. See Whitman v. Am. Trucking 

Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress ... does not 

alter the fundamental details of a regulatory scheme in 

vague terms or ancillary provisions ... .”). 

The tensions we’ve just discussed dissipate if we read 

section 13(b) to mean what it says: The remedy is limited to 

injunctive relief. In fact, giving section 13(b) its plain meaning harmonizes the three enforcement mechanisms. The 

FTCA gives the Commission a pair of backward-facing 

methods to obtain monetary relief for past injury. Its cease-
Nos. 18-2847 & 18-3310 19 

and-desist power targets individual violations. See § 45(b). 

And its rule-enforcement authority under § 57b(a)(1) allows 

it to more efficiently address widespread unfair or deceptive 

practices. See Parrillo, supra, at 225–26. 

Section 13(b) serves a different, forward-facing role: enjoining ongoing and imminent future violations. This authority aligns with the predicate requirements it imposes—

notably, a reasonable belief that a violation is ongoing or 

imminent and that stopping the violation is in the public 

interest. § 53(b). It also explains the lack of procedural 

protections. As Congress reported when enacting section 

13(b), the Commission’s existing enforcement processes 

couldn’t quickly address ongoing or imminent violations. See 

§ 408(a)(1), 87 Stat. 576, 591 (finding that the Commission 

had “been restricted and hampered because of inadequate 

legal authority ... to seek preliminary injunctive relief to 

avoid unfair competitive practices”) (emphasis added). 

Section 13(b) corrected this problem, providing an expedited 

pathway to injunctive relief. See id. § 408(b) (noting that the 

“purpose of [the] act” was to give the Commission “the 

requisite authority to insure prompt enforcement of the laws 

[it] administers by granting statutory authority ... to seek 

preliminary injunctive relief”) (emphasis added). 

The Commission’s argument to the contrary rests almost 

entirely on the saving clause in § 57b(e): “Remedies provided in this section are in addition to, and not in lieu of, any 

other remedy or right of action provided by State or Federal 

law. Nothing in this section shall be construed to affect any 

authority of the Commission under any other provision of 

law.” According to the Commission, § 57b(e) explains away 
20 Nos. 18-2847 & 18-3310 

the tensions that its reading of section 13(b) otherwise 

creates. 

We disagree for two reasons. To start, the Commission’s 

understanding of the saving clause runs against more than a 

century of interpretive practice. The Supreme Court has long 

instructed that acts “cannot be held to destroy [themselves]” 

through saving clauses. Tex. & Pac. Ry. Co. v. Abilene Cotton 

Oil Co., 204 U.S. 426, 446 (1907); accord Adams Express Co. v. 

Croninger, 226 U.S. 491, 507 (1913); Nader v. Allegheny Airlines, 

Inc., 426 U.S. 290, 299 (1976); Am. Tel. & Tel. Co. v. Cent. Office 

Tel., Inc., 524 U.S. 214, 228 (1998). Put differently, we cannot 

read a saving clause to “allow specific provisions of the 

statute that contains it to be nullified.” PMC, Inc. v. SherwinWilliams Co., 151 F.3d 610, 618 (7th Cir. 1998). This principle 

extends to claims that a particular statutory provision implicitly authorizes new remedies. See Middlesex Cty. Sewerage 

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 15–16 (1981) (“It 

is doubtful that the phrase ‘any statute’ [in a saving clause] 

includes the very statute in which this statement was contained.”). As we’ve explained, the Commission’s reading of 

section 13(b) effectively nullifies § 57b. We cannot read 

§ 57b(e) to authorize that self-defeating effect. 

And even if the Commission’s reading of the saving 

clause were correct, we couldn’t infer a right to restitution in 

section 13(b). The saving clause preserves only those remedies that exist. It does not inform the question whether 

section 13(b) contains an implied power to award restitution. 

The Commission also suggests that Congress “ratified” 

an implied section 13(b) restitution remedy in its 1993 and 

2006 amendments to the FTCA. We disagree. The 1993 

amendment reworked section 13(b)’s venue and service-of-
Nos. 18-2847 & 18-3310 21 

process provisions but didn’t alter its remedial scope. The 

2006 amendment fares no better as a prop for the Commission’s argument. It simply empowered the Commission to 

use “[a]ll remedies available to [it] with respect to unfair and 

deceptive acts or practices ... , including restitution,” when 

prosecuting certain violations in foreign commerce. 

§ 45(a)(4)(B). The Commission contends that the use of 

“restitution” in this provision refers to an implied restitution 

remedy in section 13(b). But the FTCA expressly authorizes 

restitution through § 45(l) and § 57b(b). So the 2006 amendment says nothing about the Commission’s authority to seek 

that remedy under section 13(b). 

In short, nothing in the text or structure of the FTCA 

supports an implied right to restitution in section 13(b), 

which by its terms authorizes only injunctions. Unsurprisingly, the Commission wagers nearly all of its case on stare 

decisis rather than the plain meaning of section 13(b). So we 

turn to that question. 

2. The Road to Amy Travel 

The Commission correctly observes that we addressed a 

materially identical challenge to the scope of section 13(b) in 

Amy Travel, 875 F.2d 564. Brown in turn invites us to revisit 

that decision in light of intervening Supreme Court decisions. We of course can do so. “Although we must give 

considerable weight to our prior decisions, we are not bound 

by them absolutely and may overturn circuit precedent for 

compelling reasons.” Russ v. Watts, 414 F.3d 783, 788 (7th Cir. 

2005). An intervening Supreme Court decision that displaces 

the rationale of our precedent is one such reason. See Glaser 

v. Wound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 

2009).
22 Nos. 18-2847 & 18-3310 

Brown’s invitation implicates a line of Supreme Court 

precedents long predating Amy Travel. The prevailing interpretation of section 13(b) developed in the shadow of two 

decisions that took a capacious view of implied remedies: 

Porter v. Warner Holding Co., 328 U.S. 395 (1946), and Mitchell 

v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960). To understand Amy Travel, we must begin with them. 

Porter considered section 205(a) of the Emergency Price 

Control Act of 1942, which limited the rent that certain 

landlords could collect from their tenants. The act empowered district courts to issue a “permanent or temporary 

injunction, restraining order, or other order” against persons 

who collect rents above its limits. Porter, 328 U.S. at 397. The 

Court held that section 205(a) authorizes restitution, offering 

this reasoning: 

Unless otherwise provided by statute, all the 

inherent equitable powers of the District Court 

are available for the proper and complete exercise of [its equitable] jurisdiction. ... Unless a 

statute in so many words, or by a necessary 

and inescapable inference, restricts the court’s 

jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. The 

great principles of equity, securing complete 

justice, should not be yielded to light inferences, or doubtful construction. 

Id. at 398 (citations and quotation marks omitted). 

Porter later clarified that implied remedies must be “consistent with the statutory language and policy, the legislative 

background and the public interest.” Id. at 403; see also id. at 
Nos. 18-2847 & 18-3310 23 

400 (“In framing such remedies under § 205(a), courts must 

act primarily to effectuate the policy of the Emergency Price 

Control Act and to protect the public interest while giving 

necessary respect to the private interests involved.”). In 

short, Porter adopted a presumption in favor of implying 

equitable remedies that accord with statutory purpose. But it 

also recognized that an express statement or a “necessary 

and inescapable inference” to the contrary could rebut this 

presumption. Id. at 398. 

Returning to the Price Control Act, the Court held that 

restitution was a proper “other order” under section 205(a). 

Id. at 399. It offered two justifications. First, restitution could 

be an “equitable adjunct to an injunction.” Id. Second, restitution advanced the purpose of the statute. See id. at 400 

(“[T]he statutory policy of preventing inflation is plainly 

advanced if prices or rents which have been collected in the 

past are reduced to their legal maximums.”). Still, the Court 

found that an “inescapable inference” foreclosed one particular remedy. The statute’s separate right of action for damages “provide[d] an exclusive remedy relative to damages.” 

Id. at 401. But “save [this] one aspect,” the statute invoked 

“the broad equitable jurisdiction that inheres in courts.” Id.

at 403. 

In Mitchell the Court applied Porter to section 17 of the 

Fair Labor Standards Act (“FLSA”), which gave district 

courts the jurisdiction to “restrain violations” of the statutory prohibition on firing employees for reporting workplace 

violations. 361 U.S. at 289. After quoting Porter’s broad 

language about equitable remedies, Mitchell reiterated that 

implied remedies must fit with the statutory purpose: 

“When Congress entrusts to an equity court the enforcement 
24 Nos. 18-2847 & 18-3310 

of prohibitions contained in a regulatory enactment, it must 

be taken to have acted cognizant of the historic power of 

equity to provide complete relief in light of the statutory 

purposes.” Id. at 291–92. 

Applying Porter’s presumption, the Court drew on its 

understanding of the FLSA’s purpose, which was to achieve 

“minimum labor standards” by using worker complaints as 

a private enforcement mechanism. Id. at 292. The Court 

reasoned that restitution furthered that purpose. Without it, 

the “fear of economic retaliation” would stifle worker complaints. Id.

Mitchell then assessed whether anything in the FLSA precluded restitution as an implied remedy. The defendants 

pointed to the statute’s ban on awarding unpaid minimum 

wages and overtime compensation as one such provision, 

but the Court disagreed. It found “no indication in the 

language of the [ban], or in the legislative history, that 

Congress intended [it] to have a wider effect.” Id. at 294. 

Porter and Mitchell were typical of their era: The Court 

would resolve ambiguities by identifying a statute’s purpose 

and “deducing the result most consonant with that purpose.” William N. Eskridge Jr., Politics Without Romance: 

Implications of Public Choice Theory for Statutory Interpretation, 

74 VA. L. REV. 275, 282 (1988); see also John F. Manning, 

Foreword: The Means of Constitutional Power, 128 HARV. L. REV. 

1, 16–17 (2014) (“However clearly Congress framed its 

statutes, the Court could rework them to fit with the background policies that inspired them.”). Using this interpretive 

approach, the Court assumed that the judiciary could freely 

craft remedies to fully enforce whatever rights Congress had 

recognized. See Frank H. Easterbrook, Foreword: The Court 
Nos. 18-2847 & 18-3310 25 

and the Economic System, 98 HARV. L. REV. 4, 45–51 (1983). As 

the Court would proclaim four years after Mitchell, “it is the 

duty of the courts to be alert to provide such remedies as are 

necessary to make effective the congressional purpose.” 

J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964). 

* * * 

Lower-court interpretations of section 13(b) built on 

Porter and Mitchell. The trail starts with FTC v. H. N. Singer, 

Inc., 668 F.2d 1108 (9th Cir. 1982). There the Ninth Circuit 

held that section 13(b)’s permanent-injunction provision 

implicitly authorizes preliminary injunctions and asset 

freezes.2 Id. at 1113. While its analysis was cursory, Singer

channeled Porter and Mitchell. The court held that preliminary injunctions and asset freezes advanced section 13(b)’s 

purpose by ensuring that assets were available at the end of 

the enforcement process. Singer also rejected the defendant’s 

claim that the express equitable remedies in § 57b foreclosed 

implied remedies in section 13(b), pointing to the saving 

clause in § 57b(e). 

Singer sparked a line of appellate cases holding that section 13(b) is a broad grant of equitable authority. The Elev-

 

2 Shortly before Singer, the Fifth Circuit held that section 13(b)’s 

preliminary-injunction provision implicitly authorizes asset freezes. See 

FTC v. Sw. Sunsites, Inc., 665 F.2d 711, 718 (5th Cir. 1982). But its holding 

appeared to preclude the possibility of restitution in section 13(b), 

pointing instead to § 57b for monetary remedies. Id. at 719 (“[T]he 

exhortation in [Mitchell] to preserve the possibility of complete relief ... 

makes it appropriate to consider that the final, complete relief in this case 

may entail consumer redress through a [§ 57b] proceeding.”). Predictably, no circuit has materially relied on Southwest Sunsites to support an 

implied restitution award. 
26 Nos. 18-2847 & 18-3310 

enth Circuit followed Singer’s lead two years later. After 

quoting Porter’s language on implied remedies, the court 

concluded that it “agree[d] with Singer’s interpretation of 

[section] 13(b)” and without further discussion held that 

section 13(b) authorizes asset freezes. FTC v. U.S. Oil & Gas 

Corp., 748 F.2d 1431, 1434 (11th Cir. 1984) (per curiam). 

Our decision in FTC v. World Travel Vacation Brokers, Inc., 

861 F.2d 1020 (7th Cir. 1988), was next. There, the defendant 

passingly suggested that section 13(b)’s permanentinjunction provision does not implicitly authorize preliminary injunctions. (Recall that the statute’s express authorization for temporary restraining orders and preliminary 

injunctions is tied to the eventual initiation of an administrative proceeding.) We held that the defendant waived the 

argument, but we discussed the issue anyway “in order to 

satisfactorily explain our disposition of ... other issues.” Id.

at 1026. Because it was dicta, our reasoning was understandably brief. We simply quoted language from Singer and 

noted that we had “no reason to disagree with the conclusion of our colleagues of the Ninth and Eleventh Circuits 

that the authority to grant permanent injunctive relief also 

includes the authority to grant interlocutory relief.” Id. Other 

than distinguishing a prior decision, we did not discuss the 

matter further. 

Two months after World Travel, we concluded in Elders 

Grain that section 13(b)’s preliminary-injunction provision 

implicitly authorizes rescission. 868 F.2d at 907. Perhaps 

because the parties didn’t dispute the issue, our analysis was 

again cursory. But it was highly consequential. We articulated a new standard for inferring equitable remedies: “[T]he 

statutory grant of the power to issue a preliminary injunc-
Nos. 18-2847 & 18-3310 27 

tion carries with it the power to issue whatever ancillary 

equitable relief is necessary to the effective exercise of the 

granted power.” Id. Notably absent was any inquiry into 

whether an implied remedy was compatible with the statutory text and structure or whether Congress precluded the 

implied remedy. We instead would permit whatever implied 

remedies furthered the exercise of the express remedy. 

The effect of this reasoning was evident in our justification for inferring the power to order rescission. We simply 

restated the facts of the case, which involved a transaction 

timed to avoid the Commission’s review, and observed that 

“[t]o reward these tactics by holding that a district court has 

no power under section 13(b) to rescind a consummated 

transaction would go far toward rendering the statute a dead 

letter.” Id.

We extended Elders Grain to the permanent-injunction 

provision three months later in Amy Travel. The district court 

had ordered the defendants to pay more than $6 million in 

restitution to the Commission. Amy Travel, 875 F.2d at 570. 

The defendants argued on appeal that nothing in section 

13(b) authorized monetary relief. We disagreed, explaining 

that our then-recent decisions in World Travel and Elders 

Grain “thwarted” the defendants’ arguments. Id. at 571. In 

particular, we said that the reasoning in Elders Grain applied 

“with equal force” to the permanent-injunction provision. 

We adopted that expansive formulation, holding that section 

13(b)’s “statutory grant of authority to the district court to 

issue permanent injunctions includes the power to order any 

ancillary equitable relief necessary to effectuate the exercise 

of the granted powers.” Id. at 572. But unlike Elders Grain, we 

never addressed how an award of restitution was “necessary 
28 Nos. 18-2847 & 18-3310 

to effectuate the exercise” of the power to issue an injunction. We simply noted that restitution was a “proper form[] 

of ancillary relief.” Id. at 571. 

Our approach in Amy Travel became the standard. Some 

circuits held, on a similarly brief analysis, that section 13(b) 

categorically authorizes the court’s “full equitable powers,” 

including restitution. See FTC v. Gem Merch. Corp., 87 F.3d 

466, 470 (11th Cir. 1996) (emphasis added); FTC v. Sec. Rare 

Coin & Bullion Corp., 931 F.2d 1312, 1314–15 (8th Cir. 1991).

Others simply cited Amy Travel or other decisions to reach 

the same conclusion. See FTC v. Bronson Partners, LLC, 

654 F.3d 359, 365 (2d Cir. 2011); FTC v. Freecom Commc’ns, 

Inc., 401 F.3d 1192, 1203 (10th Cir. 2005); FTC v. Pantron I. 

Corp., 33 F.3d 1088, 1102 (9th Cir. 1994); see also FTC v. Ross, 

743 F.3d 886, 891 (4th Cir. 2014) (conceding that “arguments 

about how the structure, history, and purpose of the [FTCA] 

weigh against the conclusion that district courts have the 

authority to award consumer redress ... are not entirely 

unpersuasive” but allowing restitution because of Porter, 

Mitchell, and uniform circuit practice). 

To be sure, these decisions have attracted some judicial 

skepticism. See Shire ViroPharma, 917 F.3d at 156, 161 n.19 

(declining to decide whether section 13(b) authorizes monetary relief but concluding that it wasn’t “meant to duplicate 

[§ 45(b)], which already prohibits past conduct”); FTC v. 

AMG Capital Mgmt., LLC, 910 F.3d 417, 429 (9th Cir. 2018) 

(O’Scannlain, J., concurring) (disagreeing with the prevailing 

interpretation). But the view that section 13(b) implicitly 
Nos. 18-2847 & 18-3310 29 

authorizes restitution has largely escaped critical examination.3

We have affirmed restitution awards under section 13(b) 

three times since Amy Travel. See United States v. Tankersley, 

96 F. App’x 419, 422 (7th Cir. 2004); FTC v. Think Achievement 

Corp., 312 F.3d 259, 262 (7th Cir. 2002); FTC v. Febre, 128 F.3d 

530, 534 (7th Cir. 1997). But Brown is the first litigant to 

question our precedent. 

3. Modern Implied-Remedies Jurisprudence

The Supreme Court’s understanding of implied remedies 

evolved after Porter and Mitchell. Though the Court continued to presume that courts could “use any available remedy 

to afford full relief” when a party had a general statutory 

cause of action, over time it began to emphasize that this 

presumption “yields where necessary to carry out the intent 

of Congress or to avoid frustrating the purposes of the 

statute involved.” Gebser v. Lago Vista Indep. Sch. Dist., 

524 U.S. 274, 284 (1998) (quoting Guardians Ass'n v. Civil Serv. 

Comm'n, 463 U.S. 582, 595 (1983) (White, J., op.)); see also 

California v. Sierra Club, 451 U.S. 287, 297 (1981) (“The federal 

 

3 Chief Judge Wood’s dissent from the denial of rehearing en banc relies 

heavily on FTC v. Bronson Partners, LLC, 654 F.3d 359 (2d Cir. 2011), but 

there the Second Circuit summarily followed the lead of other circuits in 

reading section 13(b) to include an implied power to order restitution. Id.

at 365. The court quickly moved on to, and thoroughly considered, a 

wholly different question: whether the implied restitution remedy is 

equitable or legal. The lengthy passages quoted in the chief judge’s 

dissent relate to that second-order question. Moreover, Bronson rejected 

the view that the plain meaning of “injunction” encompasses restitution. 

Id. at 367 (approving restitution because “section 13(b) does not limit the 

district court to awarding only injunctions”) (emphasis added). 
30 Nos. 18-2847 & 18-3310 

judiciary will not engraft a remedy on a statute, no matter 

how salutary, that Congress did not intend to provide.”). In 

particular, the Court now recognizes the importance of 

Congress’s choice to specify forms of relief. See, e.g., Franklin 

v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 69 n.6 (1992) (noting 

that the presumption in favor of relief doesn’t apply “under 

a statute that expressly enumerated the remedies available to 

plaintiffs”); see also Karahalios v. Nat’l Fed’n of Fed. Emps., 

489 U.S. 527, 533 (1989) (“It is ... an elemental canon of 

statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.”) (quotation marks omitted). 

A prominent example is ERISA. Because Congress has 

established a comprehensive remedial scheme for plaintiffs 

to enforce their rights under an employee-benefits plan, the 

Court has refused to infer additional extracontractual damages remedies. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 

134, 146 (1985) (“The presumption that a remedy was deliberately omitted from a statute is strongest when Congress 

has enacted a comprehensive legislative scheme including 

an integrated system of procedures for enforcement.”) 

(quotation marks omitted). And where two environmentalprotection statutes provide private rights of action for injunctive relief but require plaintiffs to notify defendants 60 

days before suing, the Court has refused to infer a damages 

remedy or allow plaintiffs to obtain an injunction without 

the requisite notice. See Nat’l Sea Clammers Ass’n, 453 U.S. at 

15 (“In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress 

provided precisely the remedies it considered appropriate.”). 
Nos. 18-2847 & 18-3310 31 

These decisions collided with Porter and Mitchell in 

Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996). Because 

Brown’s challenge centers on Meghrig, it warrants close 

review. There the Court addressed the Resource Conservation and Recovery Act of 1976 (“RCRA”), which permits 

private parties to sue handlers of “solid or hazardous waste 

which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. 

§ 6972(a)(1)(B). The statute authorizes district courts “to 

restrain” any person who contributes to handling the waste, 

“to order such person to take such other action as may be 

necessary, or both.” § 6972(a). The question in Meghrig was 

whether § 6972(a) also allowed plaintiffs to recover wastecleanup costs as restitution. 

The Supreme Court refused to find an implied restitutionary remedy. “Under a plain reading of this remedial 

scheme,” the Court explained, plaintiffs could receive “a 

mandatory injunction, i.e., one that orders a responsible 

party to ‘take action’ by attending to the cleanup and proper 

disposal of toxic waste, or a prohibitory injunction, i.e., one 

that ‘restrains’ a responsible party from further violating 

[the] RCRA.” Meghrig, 516 U.S. at 484. But neither of these 

forward-facing remedies “contemplates the award of past 

cleanup costs, whether these are denominated ‘damages’ or 

‘equitable restitution.’” Id. 

The Court reinforced its holding by comparing the RCRA 

to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. 

§§ 9601 et seq., which addresses similar toxic-waste issues. 

Meghrig, 516 U.S. at 485. Unlike the RCRA, CERCLA expressly authorizes monetary relief. 42 U.S.C. § 9607(a)(4). “Con-
32 Nos. 18-2847 & 18-3310 

gress thus demonstrated in CERCLA that it knew how to 

provide for the recovery of cleanup costs[] and that the 

language used to define the remedies under [the] RCRA 

does not provide that remedy.” Meghrig, 516 U.S. at 485. 

The Court also pointed to the statute’s threshold requirement that a party can sue only when the waste “may 

present an imminent and substantial endangerment to 

health or the environment.” § 6972(a)(1)(B). “The meaning of 

this timing restriction [was] plain” to the Court: 

“[S]ection 6972(a) was designed to provide a remedy that 

ameliorates present or obviates the risk of future ‘imminent’ 

harms, not a remedy that compensates for past cleanup 

efforts.” Meghrig, 516 U.S. at 485–86. 

Finally, the Court looked to “[o]ther aspects of [the] 

RCRA’s enforcement scheme.” Id. at 486. Unlike CERCLA, 

the RCRA’s citizen-suit provision lacks a statute of limitations or a requirement that any recovered costs must be 

reasonable. The Court reasoned that “[i]f Congress had 

intended § 6972(a) to function as a cost-recovery mechanism, 

the absence of these provisions would be striking.” Id. The 

RCRA also halts citizen suits when the EPA or a state pursues an enforcement action, and it requires plaintiffs to give 

90-days’ notice to potential defendants before suing. See id.

These two requirements made § 6972(a) a “wholly irrational 

mechanism” for remedying past harms. Id. 

 The Court then acknowledged the “line of cases holding 

that district courts retain inherent authority to award any 

equitable remedy that is not expressly taken away from 

them by Congress.” Id. at 487 (citing Porter, 328 U.S. 395). But 

these cases couldn’t support an implied restitution remedy. 

As the Court put it: 
Nos. 18-2847 & 18-3310 33 

[T]he limited remedies described in § 6972(a), 

along with the stark differences between the 

language of that section and the cost-recovery 

provisions of CERCLA, amply demonstrate 

that Congress did not intend for a private citizen to be able to undertake a cleanup and then 

proceed to recover its costs under [the] 

RCRA. ... [W]here Congress has provided 

elaborate enforcement provisions for remedying the violation of a federal statute, as Congress has done with [the] RCRA and CERCLA, 

it cannot be assumed that Congress intended to 

authorize by implication additional judicial 

remedies for private citizens suing under the 

statute. It is an elemental canon of statutory 

construction that where a statute expressly 

provides a particular remedy or remedies, a 

court must be chary of reading others into it. 

Id. at 487–88 (quotation marks omitted). Notwithstanding 

Porter, the Court held that § 6972(a) does not “contemplate 

the award of past cleanup costs.” Id. at 488. 

Since Meghrig, the Court has adhered to this more limited 

understanding of judicially implied remedies. See, e.g., GreatWest, 534 U.S. at 209 (“We have therefore been especially 

reluctant to tamper with the enforcement scheme embodied 

in [ERISA] by extending remedies not specifically authorized by its text.”) (quotation marks and alteration omitted); 

Miller v. French, 530 U.S. 327, 340 (2000) (concluding that the 

plain meaning of a provision expressed the congressional 

intent to displace equitable authority); see also Armstrong v. 

Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1385 (2015) (hold-
34 Nos. 18-2847 & 18-3310 

ing that the Medicaid Act’s provision of a specific remedy 

and the judicially unadministrable nature of the relevant 

statutory provision “preclude[d] the availability of equitable 

relief” in section 30(A) of the statute); Gebser, 524 U.S. at 284 

(holding that courts cannot enlarge the “scope of available 

remedies” under an implied right of action “in a manner at 

odds with the statutory structure and purpose”). Rather than 

presuming that Congress authorizes the judiciary to supplement express statutory remedies, the Court now recognizes that “the express provision of one method of enforcing 

a substantive rule suggests that Congress intended to preclude others.” Armstrong, 135 S. Ct. at 1385. 

4. Revisiting Amy Travel 

As this perhaps drawn-out discussion shows, an exploration of statutory purpose is no longer the Supreme Court’s 

polestar in cases raising interpretive questions about the 

scope of statutory remedies, and that shift has unsettled 

Porter’s and Mitchell’s instruction to “provide complete relief 

in light of the statutory purposes.” Mitchell, 361 U.S. at 292; 

see also Singer, 668 F.2d at 1113 (grounding its reading of 

section 13(b) on this premise). See generally Manning, supra, 

at 23 (“[W]here ‘the statutory language is clear,’ the Court 

has disclaimed the need even ‘to reach arguments based on 

statutory purpose[] [or] legislative history.’” (quoting Boyle v. 

United States, 556 U.S. 938, 950 (2009))); WILLIAM N. ESKRIDGE 

JR., INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES 

AND THE CONSTITUTION 81 (2016) (“We are all textualists. 

That means that a judge must relate all sources of and 

arguments about statutory interpretation to a text the legislature has enacted.”). Indeed, the Court has “abandoned” its 

prior understanding that judges must “be alert to provide 
Nos. 18-2847 & 18-3310 35 

such remedies as are necessary to make effective the congressional purpose expressed by a statute.” Alexander v. 

Sandoval, 532 U.S. 275, 287 (2001) (quotation marks omitted); 

accord Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). It is now 

well settled that Congress, not the judiciary, controls the 

scope of remedial relief when a statute provides a cause of 

action. See Armstrong, 135 S. Ct. at 1385 (“Courts of equity 

can no more disregard statutory and constitutional requirements and provisions than can courts of law.”) (quotation 

marks omitted); Thomas W. Merrill, The Disposing Power of 

the Legislature, 110 COLUM. L. REV. 452, 465–66 (2010). 

Whatever strength Porter and Mitchell retain, Meghrig

clarifies that they cannot be used as Amy Travel saw them—a 

license to categorically recognize all ancillary forms of 

equitable relief without a close analysis of statutory text and 

structure. To be sure, the Court still presumes that courts 

retain their “traditional equitable authority.” Miller, 530 U.S. 

at 340. But even under Porter and Mitchell, this authority 

comes with an important qualifier: “unless otherwise provided by statute.” Porter, 328 U.S. at 398; Mitchell, 361 U.S. at 

291. Unsurprisingly, every appellate court to consider the 

relationship between Meghrig, Porter, and Mitchell recognizes 

that Meghrig reinforced and clarified this qualifier. 

Some circuits have concluded that a statute displaces equitable authority when it specifies a particular remedy. See 

Owner-Operator Indep. Drivers Ass’n, Inc. v. Swift Transp. Co., 

632 F.3d 1111, 1121 (9th Cir. 2011) (finding that a statutory 

provision allowing a person to seek “injunctive relief” acted 

“to the exclusion of other equitable remedies”); Landstar Sys., 

622 F.3d at 1324 (noting that the statute at issue authorized 

only injunctions and concluding that if it “allowed for 
36 Nos. 18-2847 & 18-3310 

restitution or disgorgement, it would have so stated”). 

Others more narrowly construe Meghrig as a command that 

“courts must consider a statute’s remedial scheme” when 

determining whether a statute displaces equitable authority. 

See United States v. Lane Labs-USA Inc., 427 F.3d 219, 235 (3d 

Cir. 2005); see also United States v. Rx Depot, Inc., 438 F.3d 

1052, 1057 (10th Cir. 2006) (reading Meghrig as showing that 

“a statute’s particular characteristics” can displace equitable 

authority). 

The D.C. Circuit thoroughly examined the effect of 

Meghrig in United States v. Philip Morris USA, Inc., 396 F.3d 

1190 (D.C. Cir. 2005). Harmonizing Meghrig and Porter, it 

held that a statute’s “comprehensive and reticulated scheme, 

along with the plain meaning of the words themselves, 

serves to raise a necessary and inescapable inference, sufficient under Porter, that Congress intended to limit relief.” Id.

at 1200 (quotation marks and citation omitted). 

We don’t need to plant ourselves firmly along this doctrinal spectrum to decide this case. It’s inescapable that Meghrig

not only displaced Amy Travel’s categorical approach to 

judicially implied remedies but also its interpretation of 

section 13(b). Every one of Meghrig’s reasons for refusing to 

find restitutionary authority in the RCRA applies with equal 

force to section 13(b). 

Like the RCRA, section 13(b)’s plain text doesn’t contemplate an award of restitution. See Meghrig, 516 U.S. at 484. It 

authorizes only temporary restraining orders and injunctions. And like the relationship between the RCRA and 

CERCLA, the relationship between section 13(b), § 45(l), and 

§ 57b(b) “is telling.” Id. at 485. Both § 45(l) and § 57b(b) 

expressly authorize additional equitable remedies. § 45(l) 
Nos. 18-2847 & 18-3310 37 

(“mandatory injunctions and such other and further equitable relief as [courts] deem appropriate”); § 57b(b) (“such 

relief as the court finds necessary ... , [including] the refund 

of money or return of property”). Section 13(b) lacks comparable language. 

Meghrig also instructs us to interpret remedial language 

with reference to “the harm at which it is directed.” 516 U.S. 

at 485. While the FTCA’s express restitution provisions 

authorize the Commission to sue for past conduct, to proceed under section 13(b), the Commission must reasonably 

believe that a person “is violating” or “about to violate” the 

law. § 53(b)(1); cf. § 45(b) (empowering the Commission to 

bring a cease-and-desist action when it reasonably believes 

someone “has been or is” violating the act). As with the 

RCRA, “[t]he meaning of this timing restriction is plain.” 

Meghrig, 516 U.S. at 485. Section 13(b) “was designed to 

provide a remedy that ameliorates present or obviates the 

risk of future ‘imminent’ harms, not a remedy that compensates” for past violations. Id. at 486. 

Further, as we’ve explained, section 13(b) is procedurally 

incompatible with restitution. For example, before invoking 

section 13(b), the Commission must reasonably believe that 

stopping an ongoing or imminent violation is in the public 

interest. § 53(b)(2). And the statute dissolves a preliminary 

injunction if the Commission doesn’t begin an administrative 

proceeding before a court-set deadline. § 53(b). But the 

Commission would have no need for an administrative 

proceeding if it can get complete restitutionary relief 

through section 13(b)’s permanent-injunction provision. In 

short, section 13(b)’s prerequisites, like those in the RCRA, 
38 Nos. 18-2847 & 18-3310 

make it a “wholly irrational mechanism” for remedying past 

harms. Meghrig, 516 U.S. at 486. 

Relatedly, unlike § 57b(b), section 13(b) has no statute of 

limitations. The absence of a limitations period in the RCRA 

was “striking” to the Meghrig Court and provided strong 

evidence that the RCRA’s injunction provision did not 

implicitly authorize restitution. Id. The same is true here. 

Section 13(b) also lacks a central feature of the FTCA provisions that expressly permit monetary relief: a notice requirement. When the Commission brings an administrative 

cease-and-desist action, it can secure restitution only by 

proving that the violation occurred after its order became 

final or that “a reasonable man” would have known that the 

conduct was fraudulent. §§ 45(l); 57b(a)(2). And notice is also 

baked into the Commission’s power to promulgate and 

enforce rules. The Commission must follow detailed procedures before promulgating a final rule. See id. § 57a(b)(1) 

(requiring publication of notice and an informal hearing for 

rulemaking). Moreover, final rules must “define with specificity” the prohibited acts. § 57a(a)(1)(B). 

The Supreme Court has held that similar provisions are 

crucial to determining the remedial scope of implied rights 

of action, a closely related context: “It would be unsound ... 

for a statute’s express system of enforcement to require notice 

to the recipient and an opportunity to come into voluntary 

compliance while a judicially implied system of enforcement 

permits substantial liability without regard to the recipient’s 

knowledge or its corrective actions upon receiving notice.” 

Gebser, 524 U.S. at 289. We face the same unsound result 

here: Reading an implied restitution remedy into section 
Nos. 18-2847 & 18-3310 39 

13(b) allows the Commission to circumvent the FTCA’s 

detailed notice requirements.

Finally, we note that the difference in plaintiffs—private 

citizens in Meghrig and a federal agency here—isn’t material. 

To be sure, when “the public interest is involved in a proceeding,” a court’s “equitable powers assume an even 

broader and more flexible character than when only a private controversy is at stake.” Porter, 328 U.S. at 398; accord 

Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015). But the public 

interest doesn’t turn on the identity of the parties involved. 

Virginian Railway Co. v. System Federation No. 40, 300 U.S. 

515, 552 (1937), the authority Porter cited to invoke the 

“public interest,” is instructive on this point. Even though 

the suit was between a railroad company and a union, the 

Court determined that “[m]ore [was] involved than the 

settlement of a private controversy.” Id. “The peaceable 

settlement of labor controversies ... is a matter of public 

concern.” Id.; see also id. (“The fact that Congress has indicated its purpose to make negotiation obligatory is in itself a 

declaration of public interest and policy ... .”). Presaging 

Porter, the Court observed that “[c]ourts of equity may, and 

frequently do, go much farther both to give and withhold 

relief in furtherance of the public interest than they are 

accustomed to go when only private interests are involved.” 

Id.; cf. Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 

& n.8 (1980) (“When the EEOC acts, albeit at the behest of 

and for the benefit of specific individuals, it acts also to 

vindicate the public interest in preventing employment 

discrimination.” (citing Porter, 328 U.S. at 397–98)). 

Under Virginian Railway Co., both Meghrig and this case 

implicate the public interest. Both involve enforcing federal 
40 Nos. 18-2847 & 18-3310 

statutory obligations, and both involve matters of “public 

concern”—environmental cleanup and consumer protection. 

Even so, Meghrig did not find an implied right to restitution 

in the RCRA. So the fact that the government is the plaintiff 

here does not affect the analysis. Consider United States v. 

Apex Oil Co., in which we examined Meghrig’s impact on 

42 U.S.C. § 6973(a), the RCRA’s government-suit provision. 

579 F.3d 734 (7th Cir. 2009). We did not draw a distinction 

between the RCRA’s government and citizen-suit provisions. 

Observing that the provisions use “identical language,” we 

concluded that the RCRA “entitles the government only to 

require the defendant to clean up the contaminated site at 

the defendant’s expense.” Id. at 737. We then announced that 

our “[e]arlier cases, ... which allowed an award of clean-up 

costs on the basis of general equitable principles set forth in 

such cases as Mitchell v. Robert De Mario Jewelry, Inc., and 

Porter v. Warner Holding Co., are dead after Meghrig.” Id.

(citations omitted). 

Although section 13(b) doesn’t use identical language as 

the RCRA’s citizen-suit provision, Meghrig remains materially indistinguishable. So we must pay close attention to its 

bottom line: “[W]here Congress has provided elaborate 

enforcement provisions for remedying the violation of a 

federal statute, ... it cannot be assumed that Congress intended to authorize by implication additional judicial remedies ... .” Meghrig, 516 U.S. at 487–88 (emphasis added) 

(quotation marks omitted); see also Gebser, 524 U.S. at 290 

(“Where a statute’s express enforcement scheme hinges its 

most severe sanction on notice and unsuccessful efforts to 

obtain compliance, we cannot attribute to Congress the 

intention to have implied an enforcement scheme that allows 
Nos. 18-2847 & 18-3310 41 

imposition of greater liability without comparable conditions.”) (emphasis added). 

 Our limited analysis in Amy Travel doesn’t offer a way to 

distinguish Meghrig. It instead requires us to ignore section 

13(b)’s text and disregard the FTCA’s “elaborate enforcement 

provisions.” In light of the Court’s commands in Meghrig, 

our holding in Amy Travel is no longer viable. Conversely, 

reading section 13(b) as authorizing only injunctive relief—

that is, reading it to mean what it plainly says—harmonizes 

Meghrig with Porter and Mitchell, which also called for a 

statute-specific and remedy-specific inquiry before authorizing an implied form of relief. See, e.g., Porter, 328 U.S. at 403 

(holding that a separate cause of action for damages was 

enough to preclude courts from inferring that remedy 

elsewhere). 

We recognize that this conclusion departs from the consensus view of our sister circuits. But when deciding whether we should overturn precedent, “[w]e are not merely to 

count noses. The parties are entitled to our independent 

judgment.” United States v. Hill, 48 F.3d 228, 232 (7th Cir. 

1995). And we must break from our colleagues. As noted, 

most circuits adopted their position by uncritically accepting 

our holding in Amy Travel, which expanded on Elders Grain, 

which expanded on Singer, which expanded on Porter and 

Mitchell. No circuit has examined whether reading a restitution remedy into section 13(b) comports with the FTCA’s text 

and structure. Nor has anyone determined whether § 45 

forecloses this remedy. And although some have briefly 

discussed § 57b, they have done so only to find refuge in the 

saving clause in § 57b(e). Perhaps most importantly, no 
42 Nos. 18-2847 & 18-3310 

circuit has ever considered the effect of Meghrig in a section 

13(b) case. 

We are well aware that we need a compelling reason to 

overturn circuit precedent. “However, important as stare

decisis is, it is equally important for us to respect the statutes 

that Congress has passed and to correct any problems we see 

in our prior interpretations of those statutes.” Ahng v. Allsteel, 96 F.3d 1033, 1037 (7th Cir. 1996); see also S. Ill. Power 

Coop. v. EPA, 863 F.3d 666, 673 (7th Cir. 2017) (noting that 

statutory stare decisis “is not without limits”). Even in the 

realm of statutory interpretation, a Supreme Court decision 

“on an analogous issue that compels us to reconsider our 

position” counts as a compelling reason to overturn precedent. Glaser, 570 F.3d at 915. We cannot favor our own 

decisions over those of the Supreme Court. 

Stare decisis alone cannot overcome Amy Travel’s clear 

incompatibilities with the FTCA’s text and structure, 

Meghrig, and the Supreme Court’s broader refinement of its 

implied remedies jurisprudence. We therefore hold that 

section 13(b)’s permanent-injunction provision does not 

authorize monetary relief.4

 

4 Because we hold that section 13(b) doesn’t authorize monetary relief, 

we have no need to consider Brown’s alternative arguments that the 

Commission can’t pursue penalties or legal—as distinct from equitable—

restitution under section 13(b). See FTC v. AMG Capital Mgmt., LLC, 

910 F.3d 417, 429 (9th Cir. 2018) (O’Scannlain, J., concurring) (discussing 

these arguments). We also don’t need to consider the district court’s 

asset-freeze determinations. 
Nos. 18-2847 & 18-3310 43 

III. Conclusion 

For the foregoing reasons, we VACATE the restitution 

award. In all other respects, we AFFIRM the judgment. 
44 Nos. 18-2847 & 18-3310 

WOOD, Chief Judge, with whom ROVNER and HAMILTON, 

Circuit Judges, join, dissenting from the denial of rehearing en 

banc. For decades, this court has successfully used a local rule, 

Circuit Rule 40(e), for two important purposes: to highlight a 

decision to create a conflict in the circuits, and to clean up earlier decisions whose soundness has been undermined by later 

legislation, Supreme Court activity, or a consensus among our 

sister circuits. Yet we have taken care not to use Rule 40(e) in 

a way that defeats our profound commitment to oral argument—a commitment that sets us apart from most of the other 

circuits, and one that consistently improves the quality of our 

decisionmaking. The opportunity to ask questions of counsel, 

to hear the questions of fellow judges, and to have a full debate after argument regularly reveals aspects of a case that 

even the most thorough reading of the briefs on one judge’s 

part cannot provide. 

The majority, however, has chosen to use Rule 40(e) in the 

case now before us. It is a singularly inappropriate case for 

that treatment: it overrules not only a long-standing decision 

from this court, FTC v. Amy Travel Serv., Inc., 875 F.2d 564 (7th 

Cir. 1989), but it also pays no heed to the fact that eight other 

circuits agree with the Amy Travel approach. See Brief of the 

Federal Trade Commission at 28 n. 12. Perhaps if a recent Supreme Court decision demanded that sea change, the majority’s opinion would be defensible. But there is no such decision. Instead, the majority extrapolates from the line of cases 

addressing whether a private party has an implied right of action to the issue presented here: whether a government 

agency, the Federal Trade Commission, which enjoys an express right of action under a statute for injunctive relief, is entitled to a restitutionary remedy that is ancillary to, or part of, 

the injunction. 
Nos. 18-2847 & 18-3310 45

To my knowledge, no court has ever tied the hands of a 

government agency in the way that the majority has done 

here, and the majority cites none. It has taken this step without the careful consideration that plenary en banc review 

would have provided. I am reminded of the words spoken by 

Gaius Julius Caesar in 49 B.C.E., as he approached the Rubicon river at the head of his army. He knew that the Roman 

Senate forbade any armed force to enter Rome. But he decided 

to flout that command, and as he marched with his troops 

across the river, he is said to have proclaimed “alea iacta est” 

– the die is cast. And indeed it was. Caesar’s act led to civil 

war and eventually the end of the Roman Republic; he became dictator for life and inaugurated the Roman Empire. 

See, e.g., Meaning Behind the Phrase to Cross the Rubicon, 

https://www.thoughtco.com/meaning-cross-the-rubicon117548. I devoutly hope that the majority here has not cast the 

die in a way that will transform Rule 40(e) from an efficiencypromoting rule for relatively routine updates to our circuit 

law into something that erodes our commitment to plenary 

consideration, along with oral argument, of every fully counseled case. Time will tell. But the Rule is surely being misused 

in this case. Perhaps that would not matter if no reasonable 

person could question the correctness of the majority’s reasoning. Regrettably, that is not the case. From the materials 

now before us, I believe that the court is making a mistake, 

and it is doing so in a procedurally inappropriate way. 

The central issue in the case relates to the proper interpretation of section 13(b) of the FTC Act, 15 U.S.C. § 53(b), which 

authorizes the Commission to sue for injunctive relief. Injunctions come in all shapes and sizes: some are prohibitory, some 

are mandatory, some include submission to an equitable master, some include reporting requirements, and many include 
46 Nos. 18-2847 & 18-3310 

ancillary measures that are designed to ensure that the injunction is effective. At least since our decision in Amy Travel, the 

Federal Trade Commission has understood that its authority 

to seek an injunction from the court includes the authority to 

seek a measure commanding the defendant to disgorge unlawfully acquired money or property. In other words, the injunction may include an order from the court for the disgorgement type of restitution. 

Obviously the restitution itself is not an “injunction,” any 

more than the master is an “injunction,” or the reporting requirements are an “injunction.” The injunction is the order 

from the court either to do something or to refrain from doing 

something. Black’s Law Dictionary lists 25 different types of 

injunctions under that general heading. See entry for “injunction,” Black’s Law Dictionary at 904–05 (10th ed. 2014). The 

term “injunction” itself is defined simply as “A court order 

commanding or preventing an action.” Id. A “mandatory injunction” is one “that orders an affirmative act or mandates a 

specified course of conduct.” Id. Nothing whatever in section 

13(b) deletes from the list of possible affirmative acts that an 

injunction may include an order requiring the enjoined party 

to return ill-gotten gains, or to pay money into a court escrow 

account, or otherwise to turn over property. That should be 

enough by itself to show the error in the path the majority has 

taken. 

The majority rejects this straightforward reading of the 

statute and argues to the contrary that “the textual case in the 

FTCA against implying restitution in section 13(b) is overwhelming.” But more than rhetoric is needed to establish that 

point. From my standpoint, if the text is overwhelming at all, 

I find it overwhelmingly to support the power of the FTC to 
Nos. 18-2847 & 18-3310 47

use any of the tools that Congress gave it, including the one it 

used here, which entitles it to seek injunctive relief from a 

court. 

The Supreme Court supported the approach I would take 

in California v. American Stores Co., 495 U.S. 271 (1990). There 

the question was whether “divestiture is a form of injunctive 

relief within the meaning of” section 16 of the Clayton Act, 15 

U.S.C. § 26. 495 U.S. at 275. After the FTC had decided not to 

challenge a merger of certain grocery stores in California, the 

merger was consummated. The next day, however, the State 

of California filed an action in federal court alleging that the 

merger violated section 1 of the Sherman Act, 15 U.S.C. § 1, 

and seeking “an injunction requiring American to divest itself 

of all of [the acquired firm’s] assets and businesses in the State 

of California.” 495 U.S. at 276. The district court had granted 

a preliminary injunction along those lines, but the Ninth Circuit reversed on the ground that the injunctive relief authorized by the statute did not include divestiture. The Supreme 

Court reversed the court of appeals, finding that “the statutory language [of section 16] indicates Congress’ intention 

that traditional principles of equity govern the grant of injunctive relief.” Id. at 281. An order of divestiture is almost identical to an order requiring equitable restitution: both require the 

wrongdoer to turn over property that was unlawfully obtained. Similarly, the language of section 16 of the Clayton Act 

is not materially different from the language of section 13(b) 

of the FTC Act. In my view, the majority’s approach conflicts 

with the most closely applicable Supreme Court decision. 

This is especially troubling because the majority has not 

pointed to any case in which the Supreme Court has said that 

a federal agency must avoid one type of remedial authority it 
48 Nos. 18-2847 & 18-3310 

holds and instead use a different type. That, effectively, is 

what the majority has done here, in its discussion of the various tools the FTC Act provides for enforcement of the prohibition against unfair or deceptive trade practices. Ante at 11. 

The Commission may use its “cease and desist” power in an 

administrative proceeding, see FTC Act § 5(b), 15 U.S.C. 

§ 45(b); it may, after providing notice to the Attorney General 

under section 16 of the FTC Act, 15 U.S.C. § 56, sue someone 

who violates a cease-and-desist order, see FTC Act § 5(l)–(m), 

15 U.S.C. § 45(l)–(m); it may promulgate rules that define unfair or deceptive practices, FTC Act § 18, 15 U.S.C. § 57a; or it 

may (as it did here) file a suit in federal court for an injunction, 

FTC Act § 13(b), 15 U.S.C. § 53(b). 

The Supreme Court recognizes that agencies have broad 

discretion in their choice of which of several authorized procedural tools they wish to use as they carry out their mission. 

The best-known example of this practice comes from the field 

of labor law. The National Labor Relations Board has both 

rulemaking power, see 29 U.S.C. § 156, and adjudicatory powers, see 29 U.S.C. § 160. The Board does not, however, follow 

the practice of using its rulemaking powers when it announces new rules; it prefers to proceed on a case-by-case basis through the adjudicative process. See, e.g., Mark H. 

Grunewald, The NLRB’s First Rulemaking: An Exercise in Pragmatism, 41 DUKE L.J. 273 (1991). Over the years people have 

challenged this choice on the ground that the Board is evading 

the detailed protections for rulemaking that Congress has 

provided in the Administrative Procedure Act, 5 U.S.C. § 553, 

but the Supreme Court has always rejected those arguments. 

See, e.g., NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 

267 (1974), confirming the rule from NLRB v. Wyman-Gordon 

Co., 394 U.S. 759 (1969), to this effect. As the Bell Aerospace 
Nos. 18-2847 & 18-3310 49

opinion put it, “[t]he views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from 

announcing new principles in an adjudicative proceeding and 

that the choice between rulemaking and adjudication lies in 

the first instance within the Board’s discretion. Although 

there may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation 

of the Act, nothing in the present case would justify such a 

conclusion.” 416 U.S. at 294. 

I can think of no principled reason why the Labor Board 

should have that discretion, but the FTC should not. The majority argues to the contrary from a line of cases that is inapposite. It conflates decisions about which plaintiffs are authorized to bring a suit (the implied-right-of-action line) with the 

distinct question about what remedies are available to a party 

that is expressly authorized by statute to sue, as the FTC 

surely is here. The cases on which the panel relies all involve 

private enforcement, where the Court has warned us to ensure that we should not permit a facile work-around to a complex enforcement system. See, e.g., Middlesex Cnty. Sewerage 

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 14 (1981). A case 

involving public enforcement is quite different. If the agency 

believes that Path A has certain advantages and downsides, 

while Path B has different plusses and minuses, neither approach should be read out of the statute. Both are available to 

the agency, and each one will serve its intended functions, 

constrained by its safeguards. 

The majority thinks that it would be “wholly irrational” 

for Congress to write a statute that provides for restitution as 

part of a 13(b) temporary restraining order, preliminary injunction, or permanent injunction, while also spelling out 
50 Nos. 18-2847 & 18-3310 

less-streamlined options for the Commission to pursue. But 

this ignores real differences among its options. Perhaps, because of the risk of dissipation of ill-gotten gains, the Commission might want restitution to begin right away while the 

case is pending, e.g., through payment into a court-operated 

escrow account; in order to do that, it can seek a preliminary 

injunction for the turn-over of funds. In another case, the 

Commission might prefer to use the cease-and-desist route 

and develop the factual record through its own administrative processes—ensuring judicial deference to its fact-finding 

down the road—rather than operate under the thumb of a 

court. 

Branding such a scheme as “wholly irrational” is unwarranted without a more focused examination of why the Commission might choose one route or another—a choice, I reiterate, that we usually allow agencies to make. Cf. Bell Aerospace, 

416 U.S. at 294–95 (concluding that agency has power to 

choose adjudication or rulemaking as a means to announce 

new principles while examining agency’s legitimate reasons 

for pursuing one or the other method of proceeding). Such an 

inquiry requires a deferential look at why Congress gave the 

agency a menu of options. That is just what Congress did in 

the FTC Act. The statute gives the Commission the ability to 

move unilaterally when it uses its rulemaking or cease-anddesist powers, and to act as a party before the court if it wants 

a preliminary or permanent injunction. It is not up to us to 

take away that which Congress gave. 

Another inapposite line of cases on which the majority relies addresses implied private rights of action—a problem we 

surely do not have here. See, e.g., Alexander v. Sandoval, 532 

U.S. 275 (2001). Rather than a private party, we have a 
Nos. 18-2847 & 18-3310 51

government agency, and rather than an implied right of action, we have an express statutory provision authorizing the 

agency to seek injunctive relief. That makes a difference. Indeed, in a number of areas—antitrust, securities regulation, 

RICO—the Supreme Court has begun drawing a distinction 

between the breadth of a private right of action and the 

greater breadth appropriate for public enforcement. Thus, in 

RJR Nabisco Inc. v. European Community, 136 S. Ct. 2090 (2016), 

the Court found that private parties (including for this purpose the European Community, which had no special governmental status under the applicable law) cannot enforce RICO 

extraterritorially, but that the U.S. government stands in a different position. The Court made the same point in F. HoffmanLa Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004): 

In all three cases [on which the Empagran plaintiffs relied], however, the plaintiff was the Government of the United States. A Government 

plaintiff, unlike a private plaintiff, must seek to 

obtain the relief necessary to protect the public 

from further anticompetitive conduct and to redress anticompetitive harm. And a Government 

plaintiff has legal authority broad enough to allow it to carry out this mission. 15 U.S.C. § 25 ... 

. Private plaintiffs, by way of contrast, are far 

less likely to be able to secure broad relief. 

See California v. American Stores Co., 495 U.S. 

271, 295 (1990) (“Our conclusion that a district 

court has the power to order divestiture in appropriate cases brought [by private plaintiffs] 

does not, of course, mean that such power 

should be exercised in every situation in which 

the Government would be entitled to such 
52 Nos. 18-2847 & 18-3310 

relief... .”); 2 P. Areeda, Hovenkamp & R. Blair, 

Antitrust Law ¶¶ 303d–303e, pp. 40–45 (2d ed. 

2000) (distinguishing between private and government suits in terms of availability, public interest motives, and remedial scope) ... . This difference means that the Government’s ability, in 

these three cases, to obtain relief helpful to those 

injured abroad tells us little or nothing about 

whether this Court would have awarded similar 

relief at the request of private plaintiffs. 

Id. at 170–71. 

The panel’s effort to explain why injunctive relief cannot 

include an order to disgorge money by reference to Wal-Mart 

Stores, Inc. v. Dukes, 564 U.S. 338 (2011), is no more successful. 

Wal-Mart was a class action case, through and through. Most 

of it deals with the inappropriateness of a money-damages action under Federal Rule of Civil Procedure 23(b)(3) for the 

sprawling and unmanageable class that the plaintiffs had proposed. But the Court also addressed the plaintiffs’ back-up 

position, which was their effort to certify a class for backpay 

claims under Rule 23(b)(2). Subpart (b)(2) of the rule allows a 

class if “the party opposing the class has acted or refused to 

act on grounds that apply generally to the class, so that final 

injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Note the emphasis in 

this language on general grounds, and relief that works for the 

class as a whole. As the Court pointed out, that unity of interests is especially critical in a (b)(2) class, because the unnamed 

class members have no right to notice and the chance to opt 

out of such a class, yet they would be bound by the outcome 
Nos. 18-2847 & 18-3310 53

of the lawsuit. Those concerns are miles away from what we 

have in this case. 

What the Court said in Wal-Mart is that claims for monetary relief cannot be certified “at least where (as here) the 

monetary relief is not incidental to the injunctive or declaratory relief.” 564 U.S. at 360. It went on to explain itself as follows: 

One possible reading of [Rule 23(b)(2)] is that it 

applies only to requests for such injunctive or 

declaratory relief and does not authorize the 

class certification of monetary claims at all. We 

need not reach that broader question in this 

case, because we think that, at a minimum, 

claims for individualized relief (like the backpay 

at issue here) do not satisfy the Rule. The key to 

the (b)(2) class is “the indivisible nature of the 

injunctive or declaratory remedy warranted—

the notion that the conduct is such that it can be 

enjoined or declared unlawful only as to all of 

the class members or as to none of them.” Nagareda, 84 N.Y.U.L.Rev., at 132. In other 

words, Rule 23(b)(2) applies only when a single 

injunction or declaratory judgment would provide relief to each member of the class. It does 

not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment 

against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized 

award of monetary damages. ... 
54 Nos. 18-2847 & 18-3310 

Given that structure, we think it clear that individualized monetary claims belong in Rule 

23(b)(3). The procedural protections attending 

the (b)(3) class—predominance, superiority, 

mandatory notice, and the right to opt out—are 

missing from (b)(2) not because the Rule considers them unnecessary, but because it considers 

them unnecessary to a (b)(2) class. When a class 

seeks an indivisible injunction benefitting all its 

members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a 

superior method of adjudicating the dispute. 

Predominance and superiority are self-evident. 

But with respect to each class member’s individualized claim for money, that is not so—which 

is precisely why (b)(3) requires the judge to 

make findings about predominance and superiority before allowing the class.” 

Id. at 360–63. 

One cannot read this excerpt—lengthy in order to ensure 

that the full context comes through—without seeing that the 

Court was concerned solely about which type of class action 

should be used where money is concerned. No such problem 

is possible in the case before us. First, since there is only one 

plaintiff—the Commission—we have no unnamed class 

members to worry about. Second, the court in our case does 

not need to worry about individualized relief. The FTC is itself entitled to seek relief on behalf of those injured by Credit 

Bureau’s misdeeds. Cf. EEOC v. Bd. of Regents of the Univ. of 

Wis. Sys., 288 F.3d 296, 300 (7th Cir. 2002) (EEOC may pursue 
Nos. 18-2847 & 18-3310 55

age-discrimination case against a state entity on behalf of individual employees, even though individual cases would be 

barred by the state’s sovereign immunity). 

Credit Bureau must merely turn over to the FTC a single 

lump sum representing the total restitution due. This is the 

end of the court’s involvement with the equitable relief in this 

case. As the district court wrote, “[j]udgment in the amount 

of Five Million, Two Hundred Sixty Thousand, Six Hundred 

Seventy-One and Thirty-Six Cents (“5,260,671.36”) is entered 

in favor of the Commission against Defendants, jointly and 

severally, as equitable monetary relief. Defendants are ordered to pay to the Commission [$5,260,671.36]. Such payment 

must be made within 7 days of entry of this Order ...” Final 

Judgment and Order for Permanent Injunction and Other Equitable Relief Against Defendants Credit Bureau Center, LLC 

and Michael Brown (Kennelly, J.) (June 26, 2018) (emphasis 

added). It then falls to the Commission to craft a plan to return 

the ill-gotten gains to each person who was harmed, where 

possible, and then turn over the remaining money to the 

Treasury. See FTC Office of Claims and Refunds Annual Report 2017, https://www.ftc.gov/system/files/documents/reports/bureau-consumer-protection-office-claims-refunds-annual-report-2017-consumer-refunds-effectedjuly/redressreportformatedforweb122117.pdf. There is no risk that an unnamed class member’s claim would be lost through the operation of the law of preclusion. There is no risk, as in Wal-Mart, 

that the court would need to “reevaluate the roster of class 

members continually,” id. at 364. Nor, in contrast to Wal-Mart, 

does this case present the problem of internal conflict within 

a class. Id. at 365. Instead, the restitution issue can be resolved 

in “one stroke.” Id. at 350. In sum, nothing in Wal-Mart says 

that an injunction to turn over wrongfully acquired property 
56 Nos. 18-2847 & 18-3310 

(here, in the form of money) to a government agency is in any 

way objectionable. 

I next turn to the Supreme Court’s decision in Meghrig v. 

KFC Western, Inc., 516 U.S. 479 (1996), on which the majority 

relies so heavily. The issue in Meghrig was “whether § 7002 of 

the Resource Conservation and Recovery Act of 1976 (RCRA), 

42 U.S.C. § 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, 

at the time of suit, continue to pose an endangerment to health 

or the environment.” 516 U.S. at 481. In order to answer that 

question, the Court had to construe the citizen-suit provision 

of RCRA, 42 U.S.C. § 6972(a). It held that two requirements of 

section 6972 defeated plaintiff KFC’s suit: first, the citizen-suit 

provision reaches only imminent and substantial harms, not 

past problems that have been addressed; and second, the remedial language focuses only on the restraint of ongoing 

clean-up and disposal problems, not on past clean-up costs 

(“whether [those] are denominated ‘damages’ or ‘equitable 

restitution’”). 516 U.S. at 484. 

This was a pure question of statutory interpretation. The 

relevant part of RCRA authorized a citizen suit “against any 

person ... who has contributed or who is contributing to the 

past or present handling, storage, treatment, transportation, 

or disposal of any solid or hazardous waste which may present 

an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B) (emphasis added). The 

Court gave that provision its natural reading—that is, as 

something that did not include a remedy for past cleanup 

costs. Id. at 485. It emphasized in that connection the importance of the imminence requirement, which entirely ruled 

out any form of relief, however labeled, for a fixed sum 
Nos. 18-2847 & 18-3310 57

representing past expenditures. Only in that context did the 

Court reject the argument that a plaintiff “could seek equitable restitution of money previously spent on cleanup efforts.” 

Id. at 487. General rules about equitable powers were of no 

importance for a statute that drew the temporal line at problems that are “imminent and substantial.” Id. Interestingly, 

the Court declined to rule on the question “whether a private 

party could seek to obtain an injunction requiring another 

party to pay cleanup costs which arise after a RCRA citizen 

suit has been properly commenced ... .” Id. at 488. That reservation proves that the Court was not ruling out equitable 

turn-over of funds, period. It was simply saying that past expenditures were not covered by the statute in front of it. 

So even Meghrig itself, a case involving private plaintiffs, 

did not purport categorically to exclude from injunctive relief 

an order to make payments. It is thus all the more remarkable 

that the majority interprets Meghrig to impose such a limitation on the relief that a government plaintiff can seek. As the 

majority acknowledges, “when ‘the public interest is involved 

in a proceeding,’ a court’s ‘equitable powers assume an even 

broader and more flexible character than when only a private 

controversy is at stake,’” ante at 38, quoting Porter v. Warner 

Holding Co., 328 U.S. 395, 398 (1946). But it then goes on to 

postulate that “the public interest doesn’t turn on the identity 

of the parties involved.” Id. That is not accurate. One factor 

informing the public interest is whether it is the government 

that is seeking relief. See, e.g., Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7 (2008) (attaching great weight to Navy’s interest in realistic training of sailors). The FTC’s assessment of 

the public interest here informs the scope of any injunctive relief it is seeking. 
58 Nos. 18-2847 & 18-3310 

The presence of the government as a litigant is especially 

important to the public-interest component of the analysis 

when the government seeks remedies that (1) lie uniquely 

within its toolbox and (2) are aimed squarely at undoing public harms and preventing future ones through deterrence. As 

the Second Circuit has noted in a section 13(b) case of its own 

(discussed in further detail below), this is precisely what the 

Commission seeks here by way of an injunction ordering equitable restitution in the form of disgorgement. “[D]isgorgement is a distinctly public-regarding remedy, available only 

to government entities seeking to enforce explicit statutory 

provisions.” FTC v. Bronson Partners, LLC, 654 F.3d 359, 372 

(2d Cir. 2011) (affirming an injunction ordering “restitution” 

under 13(b) authority and discussing the theory underlying 

what the court understood to be equitable disgorgement). 

 The Supreme Court has explicitly recognized this feature 

of disgorgement in the SEC context. “SEC disgorgement is imposed by the courts as a consequence for violating what we 

described in Meeker as public laws. The violation for which 

the remedy is sought is committed against the United States 

rather than an aggrieved individual—this is why, for example, a securities-enforcement action may proceed even if victims do not support or are not parties to the prosecution.” 

Kokesh v. SEC, 137 S. Ct. 1635 (2017). As the Court acknowledged in Kokesh, this understanding of disgorgement permeates the case law of our sister circuits as well. See SEC v. Teo, 

746 F.3d 90, 102 (3d Cir. 2014) (“[T]he SEC pursues [disgorgement] independent of the claims of individual investors in order to promot[e] economic and social policies”) (cleaned up); 

SEC v. Rind, 991 F.2d 1486, 1491 (9th Cir. 1993) (“[D]isgorgement actions further the Commission’s public policy mission 

of protecting investors and safeguarding the integrity of the 
Nos. 18-2847 & 18-3310 59

markets”). Here, the FTC is seeking to vindicate the public interest through a public-facing remedy aimed at an ongoing 

harm. That was not the case in Meghrig, which was certainly 

about “environmental cleanup” but which rejected a backward-looking remedy that in economic substance sought 

damages. 

The majority also asserts that cases decided since Meghrig 

demonstrate that it represented a sweeping rejection of implied remedies. Ante at 33. It cites Great-West Life & Annuity 

Ins. Co. v. Knudson, 534 U.S. 204 (2002); Miller v. French, 530 

U.S. 327 (2000); Armstrong v. Exceptional Child Ctr., Inc., 135 S. 

Ct. 1378 (2015), and Gebser v. Lago Vista Ind. Schl. Dist., 524 U.S. 

274 (1998), for this proposition. None of those cases, however, 

addresses the situation before us: a governmental plaintiff

with an express right of action, and an agency that seeks an 

injunction (also expressly authorized) ordering a wrongdoer 

to disgorge ill-gotten gains. 

Great-West was brought by a private party under the Employment Retirement Income Security Act (ERISA) to compel 

a plan beneficiary to pay over money recovered from a thirdparty tortfeasor to the plan. The Supreme Court held that the 

petitioners essentially wanted “to impose personal liability on 

respondents for a contractual obligation to pay money—relief 

that was not typically available in equity.” Id. at 210. That took 

their request beyond the bounds of equitable relief; as the 

Court put it, “an injunction to compel the payment of money 

past due under a contract was not typically available in equity.” Id. There is not a hint of contract law in our case, and so 

Great-West is not applicable. Miller is equally beside the point. 

There, Congress had acted explicitly to limit the equitable 

power of the district courts to enjoin the automatic stay 
60 Nos. 18-2847 & 18-3310 

provided by the Prison Litigation Reform Act. 530 U.S. at 331. 

The Supreme Court held that the statute did not permit district courts to override that provision with a “stay of the stay,” 

which is what the private litigants sought. No such effort to 

undo a congressional prohibition exists in our case. Armstrong 

and Gebser are even further afield. Armstrong holds only that 

neither the Supremacy Clause (Art. VI, cl. 2 of the Constitution) nor the Medicaid Act confers a private right of action on 

providers of rehabilitation services, whether for injunctive relief or anything else. Gebser actually does recognize a limited 

implied private right of action for sexual harassment of 

schoolchildren. In short, nothing in Meghrig, and nothing in 

the cases following Meghrig, comes close to holding that a 

government agency acting pursuant to express authority to 

seek injunctive relief cannot ask for a mandatory injunction 

requiring turn-over of money. 

Given our decision to cast off a precedent that has guided 

both this court and other courts of appeals for decades, I add 

a word about our now-abandoned decision in Amy Travel, 

which held that the FTC is authorized to obtain restitution as 

part of the injunctive relief covered by section 13(b). I already 

have explained why I believe that ruling to be correct. My 

comments here address the majority’s effort to trivialize the 

fact that eight of our sister circuits agree with Amy Travel’s 

holding. They brush off this consensus with the accusation 

that these courts have done so unthinkingly. 

I find that charge quite unwarranted. In the interest of 

space, I focus on only one of those other cases: the Second Circuit’s opinion in Bronson, 654 F.3d 359 (Lynch, J.). There, the 

FTC brought suit for an injunction against Bronson for engaging in deceptive advertising of weight-loss products. The 
Nos. 18-2847 & 18-3310 61

district court “entered a permanent injunction against Bronson and ordered it to pay $1,942,325 in monetary equitable relief plus statutory interest.” Id. at 362. Bronson argued, just as 

Brown and Credit Bureau have here, that section 13(b) did not 

permit a court to order monetary relief. The Second Circuit 

rejected that argument, along with the narrower point that 

traceability of the ill-gotten gains was essential. But it did so 

only after a thorough and thoughtful consideration of Bronson’s argument. 

After first noting that section 13(b) of the FTC Act permits 

the FTC to seek permanent injunctive relief, the Second Circuit noted that “courts have consistently held that ‘the unqualified grant of statutory authority to issue an injunction 

under [S]ection 13(b) carries with it the full range of equitable 

remedies, including the power to grant consumer redress and 

compel disgorgement of profits.’” 654 F.3d at 365. The Second 

Circuit explicitly joined that consensus, holding that section 

13(b) of the FTC Act permits courts to grant ancillary equitable relief, including equitable monetary relief. Id. 

The court then turned to the argument that any kind of 

monetary award would be “an impermissible legal, rather 

than equitable, award, because the [district] court failed to 

identify particular funds in the defendants’ hands that were 

specifically traceable to the fraudulently marketed products.” 

Id. at 369. After a lengthy and scholarly discussion of the law 

of restitution, the Second Circuit concluded that the disgorgement ordered in the case before it was a permissible adjunct 

to the injunctive relief authorized by section 13(b). This was 

so because “the district court’s award satisfies the requirements of equitable disgorgement ... .” Id. at 370. 
62 Nos. 18-2847 & 18-3310 

The court went on to confirm that “disgorgement is a wellestablished remedy in the Second Circuit,” often used in actions under section 21(e) of the Securities Exchange Act of 

1934. That statute, which “authorizes an action to enjoin violations of the securities laws, also permits the district court to 

award disgorgement as an equitable adjunct to its injunctive 

decree.” Id. at 372. Importantly, “disgorgement—at least 

when sought by public agencies such as the SEC and the 

FTC—has several features that make it distinct from the remedies available to private litigants seeking to press common 

law claims.” Id. That is because “disgorgement is a distinctly 

public-regarding remedy, available only to government entities seeking to enforce explicit statutory provisions.” Id. That 

feature also plays a significant role in the case before us. 

The Second Circuit also took note of another distinction 

that I, too have stressed: “public entities [are not] required to 

make any particular effort to compensate the victims that they 

can identify,” because the victim is the government, not the 

individual persons. Id. at 373. It added, “While agencies may, 

as a matter of grace, attempt to return as much of the disgorgement proceeds as possible, the remedy is not, strictly 

speaking, restitutionary at all, in that the award runs in favor 

of the Treasury, not of the victims.” Id. In my view, this point 

underscores why the restitutionary payment bears no resemblance to individual money damages to the injured parties. 

Whatever else one might want to say about the Second Circuit’s analysis in Bronson, it is surely impossible to characterize it as a drive-by ruling or one that was not carefully considered and thoroughly explained. I find it quite persuasive. It 

demonstrates to me why both we and our sister circuits up 
Nos. 18-2847 & 18-3310 63

until this time have understood that the injunctions authorized by section 13(b) can include a restitutionary component. 

Finally, I want to emphasize that even if we were interpreting this statute on a blank slate, rather than upending decades 

of precedent and creating a split with eight other circuits, the 

majority’s reading of section 13(b) is still not persuasive. The 

majority grounds its argument in the contrast between the injunctive relief explicitly authorized in section 13(b) and the 

remedies available to the agency if it opts to use its cease-anddesist powers under section 5 of the FTC Act or to punish violators of promulgated rules under section 19. (Section 5 of 

the Act is codified at 15 U.S.C. § 45, while section 19 is codified 

at 15 U.S.C. § 57b. The majority uses the U.S. Code cites for 

sections other than 13(b); my analysis below uses the same 

scheme for ease of cross-reference with the majority’s opinion.) 

 As the majority sees things, we must read 13(b)’s grant of 

injunctive authority extremely narrowly given that section 

57b(b) specifically mentions “the refund of money or return 

of property” as a form of relief the court can order, and 45(l) 

allows courts to “grant mandatory injunctions and such other 

and further equitable relief as they deem appropriate.” I do 

not quibble with the overarching principle that “it is generally 

presumed that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion [of words in different sections of the same Act].” Nken v. Holder, 556 U.S. 418, 430 (2009) 

(quotation marks omitted). But a close look at the two contrasting sections reveals that this is not a straightforward case 

of a list comprised of “A, B, and C” and another consisting of 

only “A and B.” 
64 Nos. 18-2847 & 18-3310 

I begin with section 57b(b), which lays out remedies for 

violations of final rules. Our first clue that this subsection 

should not be read to limit the scope of injunctive relief in a 

13(b) action is that courts are directed in 57b(b) to “grant such 

relief as the court finds necessary to redress injury to consumers or other persons, partnerships, and corporations...” (emphasis added). These are largely backward-facing remedies. 

As discussed above, courts have long recognized that disgorgement of ill-gotten gains—the sort of equitable restitution 

at issue here—is a forward-looking remedy aimed at deterrence. Making consumers whole is a possible, but not inevitable, consequence of a disgorgement order. “[T]he primary 

purpose of disgorgement orders is to deter violations of the [] 

laws by depriving violators of their ill-gotten gains.” Bronson, 

654 F.3d at 737, quoting SEC v. Fishbach Corp., 133 F.3d 170, 

175 (2d Cir. 1997). (Notably, section 57b(b) actually prohibits

courts from imposing “any exemplary or punitive damages.”) 

Second, while section 57b(b) lists some more forward-looking 

remedies, such as “public notification respecting the rule violation or the unfair or deceptive act or practice,” this language 

only highlights how strained it is to read section 57b(b) as a 

limitation on courts’ 13(b) injunctive authority. Would a court 

issuing a 13(b) injunction be powerless to order a violator to 

post “public notification respecting the ... unfair or deceptive 

act or practice,” simply because this remedy is listed in another subsection? Surely not. 

It is also important to recall that the list in 57b(b) is merely 

illustrative: courts are authorized to order relief that “may include, but shall not be limited to,” the listed remedies. This 

subsection is thus a poor candidate (at best) for the expressio 

unius canon. (Compare “Visitors may bring pets into the park 

on weekdays” with “Animals that visitors are permitted to 
Nos. 18-2847 & 18-3310 65

bring into the park on weekends may include, but shall not be 

limited to, dogs, cats, snakes, monkeys, and alligators.” Could 

weekday visitors not bring dogs?) The savings clause in the 

same section is the coup de grâce for the majority’s reasoning.

It cautions that “Remedies provided in this section are in addition to, and not in lieu of, any other remedy or right of action 

provided by State or Federal law. Nothing in this section shall be 

construed to affect any authority of the Commission under any other 

provision of law.” Id. § 57b(e) (emphasis added). That says it all: 

the non-exhaustive examples of relief Congress chose to mention in one section do not limit what a court may or may not 

include pursuant to another section—for instance, a 13(b) injunction. 

The list of remedies available to the FTC in a cease-anddesist action, spelled out in section 45(l), also provides little 

help for the majority. True, this section authorizes the FTC to 

“grant mandatory injunctions and such other and further equitable relief as they deem appropriate ...” But so what? Some 

forms of equitable relief make sense as standalone remedies, 

injunction or no injunction. In contrast, equitable remedies are 

available under 13(b) only if (1) a plaintiff satisfies the demanding burden of demonstrating why an injunction should 

issue, see eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); 

and (2) the court is able to justify the relief it is ordering as a 

proper adjunct to the injunctive decree. By allowing courts to 

issue “such other and further equitable relief,” section 45(l) 

clarifies that courts have a wide range of equitable relief available to them, no matter whether plaintiffs managed to obtain 

an injunction or, if an injunction has issued, whether the remedies are appropriate means of enforcing the decree. Under 

45(l), a court could order an accounting or some sort of 
66 Nos. 18-2847 & 18-3310 

specific performance whether or not the requirements for a 

mandatory injunction had been satisfied. 

There are further weaknesses in the majority’s reading of 

the statute, but I have said enough to show that its approach 

is far from the most straightforward even if we did not have 

decades of precedent, eight other circuits, and American Stores

on the other side. The FTC Act spells out a finely crafted system of enforcement powers and remedies. The majority’s interpretation upends what the agency and Congress have understood to be the status quo for thirty years, and in so doing 

grants a needless measure of impunity to brazen scammers 

like the defendant in this case. 

I end where I began: This is an important case, and it deserves plenary consideration, not the truncated process that 

Rule 40(e) provides for appropriate cases. The court’s refusal 

to rehear this case en banc has, I fear, led us into error. I therefore dissent from the decision not to give this case plenary en 

banc consideration.