### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ Nos. 18-2847 & 18-3310

F EDERAL T RADE C OMMISSION , Plaintiff-Appellee

,

v.

C REDIT B UREAU C ENTER , LLC, and M ICHAEL B ROWN , 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

.

____________________

A RGUED A PRIL 17, 2019

— D ECIDED A UGUST 21, 2019

____________________

Before M ANION , S YKES , and B RENNAN , Circuit Judges

. S YKES , Circuit Judge . Michael Brown is the sole owner andoperator 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 webs ites 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 customer s 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 theywere automatically enrolled. Brown’s most successful contractor capitalized on the confusion by posting Craigslistadvertisements 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 thewebsites and referral system violated several consumerprotection statutes. The Co mmission sought a permanent injunction and restitution. Relevant here, the district judgefound 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 orde red 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 thererests 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 alsoNos. 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 “elaborateenforcement 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 theCommission 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 thatSupreme 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 circ uit 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 contracte d 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 consumer s that applying for the free offer also enrolled them in an unspecified “membership” subscription that cost $29.94 ea ch month. Customers later learned that this subscription was for credit monitoringwhen 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 advertisemen ts for nonexistent rental properties at bargain prices . Lloyd invited prospective tenants to email the landlord. Posing as the “landlord,” he then responded and instructed th em to obtain a credit report and score through one of Brow n’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’smost successful recruiter. Over the course of their relationship, Pierce referred more than 2.7 million customers toBrown, generating just over $6.8 million in revenue. Unsuspecting customers were understandably upset. They flooded Brown’s customer-service ope rators, questioning the monthly subscription charge. They complained that the Craigslist advertisements were scams. And many were blindsided by the fact that requesting a fr ee credit score automatically enrolled them in a costly cred it-monitoring service. Brown told his customer-service team to deny any involvement with Pierce’s operation. An d although Brown typically agreed to cancel future charges, he often refused to issue refunds. He also instructed his representatives to offerreduced 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 Commission6 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 injunc tion that imposed extensiveconditions on Brown’s continued involvement in the creditmonitoring industry and or dered 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 ordersNos. 18-2847 & 18-3310 7

and permanent injunctions to en join violations of federal trade law. § 53(b)(1). To impo se 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 direct ly 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 cont rived 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 against8 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 inte rpreted 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 Commi ssion 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 we re “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 thes e partial and obscure disclosures did not “clearly and conspicuously disclose[] allNos. 18-2847 & 18-3310 9

material terms of the transactio n” or ensure that customers gave “express informed consent.” § 8403(1)–(2).

Brown focuses on the conclusion that the disclosuresweren’t conspicuous. He parses font sizes, details his websites’ color schemes, and take s a microscope to the Commission’s affidavits in an effortto 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 asidewhether 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

, B LACK ’ S L AW D ICTIONARY (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 th ey were enrolling in a creditmonitoring service. Brown seek s refuge in the form letter that he delivered to new subscr ibers, 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 he ld personally liable. But it’s10 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 ou r 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 marksomitted). 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. C ONST . 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. 2 005) (“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 wi th 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 orderbecomes 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 become s 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 respondent12 Nos. 18-2847 & 18-3310

later violates the order, the Commission can sue for civilpenalties and any equitable relief “the court finds necessary.” Id. § 45( l ). If anyone else engages in the prohibited conduct after the order become s 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 othe r enforcement mechanisms at its disposal. First, it can promulgate rules that “definewith 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 Empirica l Study of Agencies and Industries , 36 Y ALE J. ON R EG . 165, 225–26 (2019). Once theCommission 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 prov ision, 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: Re stitution isn’t an injunction. “Injunction” is of course a broad term. See Injunction

, B LACK ’ S L AW D ICTIONARY (10th ed. 2014) (“A court order commanding or preventing an action.”). But statutoryauthorizations 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 deportatio n 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 FTCA14 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 Commissionhas 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 theCommission 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, andafter notice to the defendant, a temporary restraining order or a pre liminary 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 or der or preliminary injunction, the order or in junction 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 properproof, 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 C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 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 D AN

. B. D OBBS , L AW OF R EMEDIES § 4.1(1), at 551 (2d ed. 1993) (“Restitution is a return orrestoration 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 inte rest 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 preliminar y 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 issu e 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 perman ent 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 langua ge in section 13(b) is conspicuous. “[W]here Congress includes particular language in one section of a statute but omit s it in another section of thesame Act, it is generally presumed that Congress acts intentionally and purposely in th e disparate inclusion or exclusion.” Nken , 556 U.S. at 430 (quotation marks omitted). Thisinstruction 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 sectio n 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. The18 Nos. 18-2847 & 18-3310

latter procedures also impose a detailed framework that the Commission must follow before obtaining a restitution order. This framework counte rbalances 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 enforcementprovisions 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 toinjunctive 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 author ity 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 differe nt, 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 th e 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 (fi nding 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 pr oblem, 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 addi tion 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 away20 Nos. 18-2847 & 18-3310

the tensions that its readin g 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). Pu t 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 principleextends 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 nu llifies § 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 no t inform the question whether section 13(b) contains an implie d 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. The2006 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 in tervening 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 capaci ous 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 certainlandlords 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) au thorizes restitution, offering this reasoning:
Unless otherwise provided by statute, all the inherent equitable powers of the District Courtare 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’sjurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. The great principles of equity, securing completejustice, 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. atNos. 18-2847 & 18-3310 23

400 (“In framing such remedies under § 205(a), courts must act primarily to effectuate th e 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 expr ess 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 pr eventing 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 infe rence” foreclosed one particular remedy. The statute’s sep arate 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 districtcourts 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 enforcement24 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 id entifying a statute’s purpose and “deducing the result mostconsonant with that purpose.” William N. Eskridge Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation

, 74 V A

. L. R EV . 275, 282 (1988); see also John F. Manning, Foreword: The Means of Constitutional Power , 128 H ARV

. L. R EV

. 1, 16–17 (2014) (“However clearly Congress framed its statutes, the Court could reworkthem to fit with the background policies that inspired them.”). Using this interpretive approach, the Court assumed th at the judiciary could freely craft remedies to fully enforc e whatever rights Congress had recognized. See Frank H. Easterbrook, Foreword: The CourtNos. 18-2847 & 18-3310 25

and the Economic System , 98 H ARV

. L. R EV . 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 prelim inary 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 freez es 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).
Singersparked a line of appella te 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 defendantpassingly 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 eventu al 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 di sposition of ... other issues.” Id. at 1026. Because it was dicta, ou r reasoning was understandably brief. We simply quoted language from Singer andnoted that we had “no reason to disagree with the conclusion of our colleagues of the Ninth and Eleventh Circuits that the authority to grant pe rmanent 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 disput e the issue, our analysis wasagain 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 intowhether 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 ho lding 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 appe al that nothing in section 13(b) authorized monetary reli ef. 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 “necessary28 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 br ief 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) implicitlyNos. 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 necess ary 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 (19 81) (“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 pass ages quoted in the chief judge’s dissent relate to that seco nd-order question. Moreover, Bronson rejected the view that the plain meaning of “i njunction” 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 enumerat ed 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 ofstatutory 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 addi tional 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 statut e 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. at15 (“In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congressprovided 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 wastewhich 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 contri butes 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 waswhether § 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 “conte mplates the award of past cleanup costs, whether these are denominated ‘damages’ or ‘equitable restitution.’” Id.

The Court reinforced its hold ing by comparing the RCRAto 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 th e 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 su e 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. TheRCRA also halts citizen suits when the EPA or a state pursues an enforcement action, and itrequires 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 demonstratethat 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 providedelaborate 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 implicatio n 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 th e enforcement scheme embodiedin [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 pr ovision 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 structur e and purpose”). Rather thanpresuming that Congress authorizes the judiciary to supplement express statutory remedies, the Court now recognizes that “the express provision of one method of enforcinga 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))); W ILLIAM N. E SKRIDGE J R ., I NTERPRETING L AW : A P RIMER ON H OW TO R EAD S TATUTES

AND THE C ONSTITUTION 81 (2016) (“We are all textualists. That means that a judge must relate all sources of and arguments about statutory interpre tation to a text the legislature has enacted.”). Indeed, the Court has “abandoned” its prior understanding that judges must “be alert to provideNos. 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 equitycan 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 C OLUM

. L. R EV . 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 Co urt still presumes that courts retain their “traditional equitable authority.” Miller, 530 U.S. at 340. But even under Porter and Mitchell

, this authoritycomes 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 A ss’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 for36 Nos. 18-2847 & 18-3310

restitution or disgorgement, it would have so stated”). Others more narrowly construe Meghrigas a command that “courts must consider a statute’s remedial scheme” when determining whether a statute di splaces 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 Meghrigas 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. Itauthorizes only temporary restraining orders and injunctions. And like the relation ship 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 ap propriate”); § 57b(b) (“such relief as the court finds necessa ry ... , [including] the refundof 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 provisionsauthorize 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 therisk 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 st atute dissolves a preliminary injunction if the Commission doesn’t begin an administrative proceeding before a court-se t 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 permanen t-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 Commissionbrings an administrative cease-and-desist action, it ca n secure restitution only by proving that the violation o ccurred 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 forrulemaking). 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 reme dial 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 opport unity 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 sectionNos. 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 chara cter 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 controvers ies ... is a matter of public
concern.” Id. ; see also id. (“The fact that Congress has indicated its purpose to make negotiat ion 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 pr ivate 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 ac ts, 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 federal40 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 en forcement scheme hinges its
most severe sanction on noti ce and unsuccessful efforts to obtain compliance, we cannot attribute to Congress the intention to have implied an enforcement scheme that allowsNos. 18-2847 & 18-3310 41

imposition of greater liab ility 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 wh at it plainly says—harmonizes Meghrig with Porter and Mitchell , which also called for astatute-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 posi tion 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). Pe rhaps most importantly, no42 Nos. 18-2847 & 18-3310

circuit has ever considered the effect of Meghrigin 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 compellin g 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 V ACATE the restitution award. In all other respects, we A FFIRM the judgment.44 Nos. 18-2847 & 18-3310

W OOD , Chief Judge , with whom R OVNER and H AMILTON , 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 con fl ict in the circuits, and to clean up earlier decisions whose soundness ha s 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) ina way that defeats our profound commitment to oral argument—a commitment that sets us apart from most of the other circuits, and one that consistent ly 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 re veals 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 extrap olates from the line of casesaddressing whether a private party has an implied right of action to the issue presented here: whether a government agency, the Federal Trade Comm ission, 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 donehere, 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 fl out 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 ofthe Roman Republic; he became dictator for life and inaugurated the Roman Empire. See, e.g. , Meaning Behind the Phrase to Cross the Rubicon,
h tt ps://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 e ffi ciencypromoting rule for relatively routine updates to our circuit law into something that erodes our commitment to plenaryconsideration, along with oral argument, of every fully counseled case. Time will tell. But th e Rule is surely being misused in this case. Perhaps that would not ma tt er if no reasonableperson could question the correctness of the majority’s reasoning. Regre tt ably, 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), whichauthorizes the Commission to sue for injunctive relief. Injunctions come in all shapes and size s: some are prohibitory, some are mandatory, some include su bmission to an equitable master, some include reporting requirements, and many include46 Nos. 18-2847 & 18-3310

ancillary measures that are designed to ensure that the injunction is e ff ective. 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 th e 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 “i njunction,” or the reporting requirements are an “injunction .” The injunction is the order from the court either to do some thing or to refrain from doing something. Black’s Law Dictionary lists 25 di ff erent types ofinjunctions under that general heading. See entry for “injunction,” Black’s Law Dictionary at 904–05 (10th ed. 2014). The term “injunction” itself is de fi ned simply as “A court order commanding or preventing an action.” Id. A “mandatory injunction” is one “that orders an a ffi rmative act or mandates a speci fi ed course of conduct.” Id. Nothing whatever in section 13(b) deletes from the list of possible a ffi rmative acts that an injunction may include an orde r requiring the enjoined party to return ill-go tt en 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 e rror 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 theFTCA against implying restitution in section 13(b) is overwhelming.” But more than rhetoric is needed to establish that point. From my standpoint, if th e text is overwhelming at all, I fi nd it overwhelmingly to supp ort the power of the FTC toNos. 18-2847 & 18-3310 47

use any of the tools that Congre ss 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. Afte r the FTC had decided not to challenge a merger of certain gr ocery stores in California, the merger was consummated. The next day, however, the State of California fi led 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 fi rm’s] assets and businesses in the State of California.” 495 U.S. at 276. The district court had granteda preliminary injunction along those lines, but the Ninth Circuit reversed on the ground th at the injunctive relief authorized by the statute did not in clude divestiture. The Supreme Court reversed the court of appeals, fi nding that “the statutory language [of section 16] indicates Congress’ intention that traditional principles of eq uity govern the grant of injunctive relief.” Id. at 281. An order of divestiture is almost identical to an order requiring equitable restitution: both require thewrongdoer to turn over property that was unlawfully obtained. Similarly, the language of section 16 of the Clayton Act is not materially di ff erent from the language of section 13(b) of the FTC Act. In my view, the majority’s approach con fl icts with the most closely applicable Supreme Court decision.
This is especially troubling because the majority has not pointed to any case in which th e Supreme Court has said that a federal agency must avoid one type of remedial authority it48 Nos. 18-2847 & 18-3310

holds and instead use a di ff erent type. That, e ff ectively, iswhat 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 A tt orney General under section 16 of the FTC Act, 15 U.S.C. § 56, sue someone who violates a cease-and-de sist order, see FTC Act § 5( l )–(m), 15 U.S.C. § 45( l )–(m); it may promulgate rules that de fi ne unfair or deceptive practices, FTC Act § 18, 15 U.S.C. § 57a; or it may (as it did here) fi le 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 wh ich of several authorized procedural tools they wish to use as they carry out their mission. The best-known example of th is practice comes from the fi eld of labor law. The National La bor Relations Board has bothrulemaking power, see 29 U.S.C. § 156, and adjudicatory powers, see 29 U.S.C. § 160

. The Board does not, however, followthe 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 Rulemaki ng: An Exercise in Pragmatism , 41 D UKE L.J. 273 (1991). Over the years people have challenged this choice on the gr ound 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), con fi rming the rule from NLRB v. Wyman-Gordon
Co ., 394 U.S. 759 (1969), to this e ff ect. As the Bell AerospaceNos. 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 fi rst instance within the Board’s discretion. Althoughthere may be situations where the Board’s reliance on adjudication would amount to an abus e of discretion or a violation of the Act, nothing in the pres ent case would justify such a conclusion.” 416 U.S. at 294.
I can think of no principled reason why the Labor Boardshould have that discretion, but the FTC should not. The majority argues to the contrary from a line of cases that is inapposite. It con fl ates decisions about which plainti ff

s are authorized to bring a suit (the implie d-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 di ff erent. If the agency believes that Path A has certain advantages and downsides, while Path B has di ff erent 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 rest raining order, preliminary injunction, or permanent injunction, while also spelling out50 Nos. 18-2847 & 18-3310

less-streamlined options for th e Commission to pursue. But this ignores real di ff erences among its options. Perhaps, because of the risk of dissipation of ill-go tt en 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 us e the cease-and-desist routeand develop the factual record through its own administrative processes—ensuring judicial deference to its fact- fi nding down the road—rather than op erate 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 th at 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 give s the Commission the ability tomove 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 injunc tion. 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 ri ghts 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 aNos. 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 di ff erence. Indeed, in a number of areas—anti trust, 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 RICOextraterritorially, but that the U.S. government stands in a different position. The Court made the same point in F. Ho ff

manLa Roche Ltd. v. Empagran S.A. , 542 U.S. 155 (2004):
In all three cases [on which the Empagran plainti ff s relied], however, the plainti ffwas the Government of the United States. A Government plainti ff , unlike a private plainti ff , must seek to obtain the relief necessary to protect the publicfrom further anticompetitive conduct and to redress anticompetitive harm. And a Government plainti ffhas legal authority broad enough to allow it to carry out this mission. 15 U.S.C. § 25 ... . Private plainti ff s, 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 districtcourt has the power to order divestiture in appropriate cases brought [by private plainti ff s] does not, of course, mean that such power should be exercised in every situation in which the Government would be entitled to such52 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 li tt le or nothing about whether this Court would have awarded similar relief at the request of private plainti ff s.

Id. at 170–71.
The panel’s e ff ort 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 inappropri ateness of a money-damages action under Federal Rule of Civil Procedure 23(b)(3) for the sprawling and unmanageable class that the plainti ff s had proposed. But the Court also addressed the plainti ff s’ back-up position, which was their e ff ort 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 fi nalinjunctive 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 outcomeNos. 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 certi fi ed “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 [Rul e 23(b)(2)] is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certi fi cation 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 in divisible 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 ofthe class members or as to none of them.” Nagareda, 84 N.Y.U.L.Rev., at 132. In other words, Rule 23(b)(2) applie s only when a singleinjunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certi fi cation when each individual class member wo uld be entitled to a different injunction or declaratory judgmentagainst the defendant. Similarly, it does not authorize class certi fi cation 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 a tt ending the (b)(3) class—predominance, superiority, mandatory notice, and the right to opt out—aremissing 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 bene fi tt ing all itsmembers at once, there is no reason to undertake a case-speci fi c 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 fi ndings 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 thro ugh—without seeing that the Court was concerned solely abou t 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 plainti ff —the Commission—we have no unnamed class members to worry about. Second, the court in our case doesnot need to worry about individualized relief. The FTC is itself entitled to seek relief on be half 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 pursueNos. 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 tu rn 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 wrot e, “[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 ag ainst Defendants, jointly andseverally, 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 ...” FinalJudgment 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 Commi ssion to craft a plan to return the ill-go tt en gains to each person who was harmed, where possible, and then turn over the remaining money to the Treasury. See FTC O ffi ce of Claims and Refunds Annual Report 2017, h tt ps://www.ftc.gov/system/ fi les/documents/reports/bureau-consumer-protection-o ffi ce-claims-refunds-annual-report-2017-consumer-refunds-e ff ectedjuly/redressreportformatedforweb122117.pdf. Ther e 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 con fl ict 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 property56 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 Supr eme 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 an d 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. at481. 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 plainti ff KFC’s suit: fi rst, the citizen-suit provision reaches only imminent and substantial harms, notpast 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 endang erment 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 requ irement, which entirely ruled out any form of relief, however labeled, for a fi xed sumNos. 18-2847 & 18-3310 57

representing past expenditures. Only in that context did the Court reject the argument that a plainti ff“could seek equitable restitution of money previously spent on cleanup e ff orts.” Id. at 487. General rules about equitable powers were of noimportance 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 whic h 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 plainti ff s, 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 plainti ff can seek. As the majority acknowledges, “when ‘the public interest is involved in a proceeding,’ a court’s ‘equit able powers assume an even broader and more fl exible 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) (a tt aching great weight to Navy’s interest in realistic training of sailors). The FTC’s assessment ofthe 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-interes t component of the analysis when the government seeks reme dies 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 theCommission 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) (a ffi rming an injunction ordering “restitution” under 13(b) authority and discu ssing the theory underlying what the court understood to be equitable disgorgement).
The Supreme Court has explicitly recognized this feature of disgorgement in the SEC cont ext. “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 commi tt ed against the United Statesrather 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 so cial policies”) (cleaned up); SEC v. Rind , 991 F.2d 1486, 1491 (9th Ci r. 1993) (“[D]isgorgement actions further the Commission’s public policy mission of protecting investors and safeguarding the integrity of theNos. 18-2847 & 18-3310 59

markets”). Here, the FTC is seek ing 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 Meghrigdemonstrate 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 plainti ff with an express right of action, and an agency that seeks an injunction (also expressly authorized) ordering a wrongdoer to disgorge ill-go tt en gains.

Great-West was brought by a private party under the Employment Retirement Income Se curity Act (ERISA) to compel a plan bene fi ciary to pay over money recovered from a thirdparty tortfeasor to the plan. Th e Supreme Court held that the petitioners essentially wanted “t o 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 moneypast due under a contract was not typically available in equity.” Id. There is not a hint of cont ract 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 stay60 Nos. 18-2847 & 18-3310

provided by the Prison Litigation Reform Act. 530 U.S. at 331. The Supreme Court held that th e statute did not permit district courts to override that pr ovision with a “stay of the stay,” which is what the private litigants sought. No such e ff ort to undo a congressional prohibition exists in our case. Armstrong and Gebser are even further a fi eld. Armstrong holds only that neither the Supremacy Clause (A rt. VI, cl. 2 of the Constitution) nor the Medicaid Act confers a private right of action onproviders of rehabilitation services, whether for injunctive relief or anything else. Gebser actually does recognize a limited implied private right of acti on 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 o ff 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 author ized 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 e ff ort to trivialize the fact that eight of our sister circuits agree with Amy Travel ’s holding. They brush o ff this consensus with the accusation that these courts have done so unthinkingly.

I fi nd that charge quite unwarran ted. In the interest of space, I focus on only one of th ose other cases: the Second Circuit’s opinion in Bronson , 654 F.3d 359 (Lynch, J.). There, theFTC brought suit for an injunction against Bronson for engaging in deceptive advertising of weight-loss products. TheNos. 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-go tt en gains was essential. But it did soonly after a thorough and thoughtful consideration of Bronson’s argument.

After fi rst noting that section 13( b) of the FTC Act permits the FTC to seek permanent inju nctive relief, the Second Circuit noted that “courts have co nsistently held that ‘the unquali fi ed 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 pro fi ts.’” 654 F.3d at 365. The Second Circuit explicitly joined that consensus, holding that section13(b) of the FTC Act permits courts to grant ancillary equitable relief, including equitable monetary relief. Id.

The court then turned to th e 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 th e defendants’ hands that were speci fi cally traceable to the fraudulently marketed products.” Id. at 369. After a lengthy and scholarly discussion of the lawof 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 satis fi es the requirements of equitable disgorgement ... .” Id. at 370.62 Nos. 18-2847 & 18-3310

The court went on to con fi rm that “disgorgement is a wellestablished remedy in the Second Circuit,” often used in actions under section 21(e) of th e Securities Exchange Act of 1934. That statute, which “authoriz es 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 agenci es such as the SEC and theFTC—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 distinctlypublic-regarding remedy, available only to government entities seeking to enforce explicit statutory provisions.” Id. That feature also plays a signi fi cant 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 e ff ort 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 ma tt er of grace, a tt empt 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 restitutio nary 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 fi nd it quite persuasive. It demonstrates to me why both we and our sister circuits upNos. 18-2847 & 18-3310 63

until this time have understood that the injunctions authorized by section 13(b) can includ e a restitutionary component. Finally, I want to emphasize thateven if we were interpreting this statute on a blank slat e, 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. Themajority grounds its argument in the contrast between the injunctive relief explicitly auth orized 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 codi fi ed at 15 U.S.C. § 45, while section 19 is codi fi ed 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 samescheme 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) speci fi cally 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 mandat ory 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 di ff erent sections of the same Act].” Nken v. Holder, 556 U.S. 418, 430 (2009) (quotation marks omi tt ed). 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 fi nal rules. Our fi rst 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 fi nds necessary to redress injury to consumers or other persons, partnerships, and corporations...” (emphasis added). These are largely backward-facing remedies. As discussed above, courts ha ve long recognized that disgorgement of ill-go tt en gains—the sort of equitable restitutionat 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-go tt en 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 noti fi cation 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) injunc tive authority. Would a court issuing a 13(b) injunction be powerless to order a violator to post “public noti fi cation 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 ma y bring pets into the park on weekdays” with “Animals that visitors are permi tt ed toNos. 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 ot her remedy or right of action provided by State or Federal law. Nothing in this section shall be construed to a ff

ect 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 limi t what a court may or may not include pursuant to another se ction—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 li tt le 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 plainti ff satis fi es the demanding burden of demonstratin g 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 ) clari fi es that courts have a wide range of equitable relief available to them, no ma tt er whether plainti ff s managed to obtain an injunction or, if an injunc tion has issued, whether the remedies are appropriate means of enforcing the decree. Under 45( l ), a court could order an a ccounting or some sort of66 Nos. 18-2847 & 18-3310

speci fi c performance whether or not the requirements for a mandatory injunction had been satis fi ed.
There are further weaknesses in the majority’s reading of the statute, but I have said enou gh 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 fi nely 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 appropri ate 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.