PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 14-3514 

FEDERAL TRADE COMMISSION 

v. 

WYNDHAM WORLDWIDE CORPORATION, 

a Delaware Corporation

WYNDHAM HOTEL GROUP, LLC, 

a Delaware limited liability company; 

WYNDHAM HOTELS AND RESORTS, LLC, 

a Delaware limited liability company;

WYNDHAM HOTEL MANAGEMENT INCORPORATED, 

a Delaware Corporation 

 Wyndham Hotels and Resorts, LLC, 

 Appellant

 ________________

On Appeal from the United States District Court

for the District of New Jersey 

(D.C. Civil Action No. 2-13-cv-01887) 

District Judge: Honorable Esther Salas

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Argued March 3, 2015

Before: AMBRO, SCIRICA, and ROTH, Circuit Judges

(Opinion filed: August 24, 2015)

Kenneth W. Allen, Esquire

Eugene F. Assaf, Esquire (Argued)

Christopher Landau, Esquire

Susan M. Davies, Esquire

Michael W. McConnell, Esquire

Kirkland & Ellis

655 15th Street, N.W., Suite 1200

Washington, DC 20005

David T. Cohen, Esquire

Ropes & Gray

1211 Avenue of the Americas

New York, NY 10036

Douglas H. Meal, Esquire

Ropes & Gray

800 Boylston Street, Prudential Tower

Boston, MA 02199

Jennifer A. Hradil, Esquire

Justin T. Quinn, Esquire

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Appellants

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Jonathan E. Nuechterlein

 General Counsel

David C. Shonka, Sr.

 Principal Deputy General Counsel

Joel R. Marcus, Esquire (Argued)

David L. Sieradzki, Esquire

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, DC 20580

Counsel for Appellee

Sean M. Marotta, Esquire

Catherine E. Stetson, Esquire

Harriet P. Pearson, Esquire

Bret S. Cohen, Esquire

Adam A. Cooke, Esquire

Hogan Lovells US LLP

555 Thirteenth Street, N.W.

Columbia Square

Washington, DC 20004

Kate Comerford Todd, Esquire

Steven P. Lehotsky, Esquire

Sheldon Gilbert, Esquire

U.S. Chamber Litigation Center, Inc.

1615 H Street, N.W.

Washington, DC 20062

Banks Brown, Esquire

McDermott Will & Emery LLP

340 Madison Ave.

New York, NY 10713

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Karen R. Harned, Esquire

National Federation of Independent Business

 Small Business Legal Center

1201 F Street, N.W., Suite 200

Washington, DC 20004

Counsel for Amicus Appellants

Chamber of Commerce of the USA;

American Hotel & Lodging Association;

National Federation of Independent Business.

Cory L. Andrews, Esquire

Richard A. Samp, Esquire

Washington Legal Foundation

2009 Massachusetts Avenue, N.W.

Washington, DC 20036

John F. Cooney, Esquire

Jeffrey D. Knowles, Esquire

Mitchell Y. Mirviss, Esquire

Leonard L. Gordon, Esquire

Randall K. Miller, Esquire

Venable LLC

575 7th Street, N.W.

Washington, DC 20004

Counsel for Amicus Appellants

Electronic Transactions Association,

Washington Legal Foundation

Scott M. Michelman, Esquire

Jehan A. Patterson, Esquire

Public Citizen Litigation Group

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1600 20th Street, N.W.

Washington, DC 20009

Counsel for Amicus Appellees

Public Citizen Inc.; Consumer Action;

Center for Digital Democracy.

Marc Rotenberg, Esquire

Alan Butler, Esquire

Julia Horwitz, Esquire

John Tran, Esquire

Electronic Privacy Information Center

1718 Connecticut Avenue, N.W., Suite 200

Washington, DC 20009

Catherine N. Crump, Esquire

American Civil Liberties Union

125 Broad Street, 18th Floor

New York, NY 10004

Chris Jay Hoofnagle, Esquire

Samuelson Law, Technology & Public Policy Clinic

U.C. Berkeley School of Law

Berkeley, CA 94720

Justin Brookman, Esquire

G.S. Hans, Esquire

Center for Democracy & Technology

1634 I Street N.W. Suite 1100

Washington, DC 20006

Lee Tien, Esquire

Electronic Frontier Foundation

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815 Eddy Street 

San Francisco, CA 94109 

 Counsel for Amicus Appellees 

Electronic Privacy Information Center,

 American Civil Liberties Union, 

 Samuelson Law, Technology & Public Policy Clinic, 

 Center for Democracy & Technology, 

Electronic Frontier Foundation

OPINION OF THE COURT

AMBRO, Circuit Judge 

The Federal Trade Commission Act prohibits “unfair 

or deceptive acts or practices in or affecting commerce.” 15 

U.S.C. § 45(a). In 2005 the Federal Trade Commission began 

bringing administrative actions under this provision against 

companies with allegedly deficient cybersecurity that failed to 

protect consumer data against hackers. The vast majority of 

these cases have ended in settlement.

 On three occasions in 2008 and 2009 hackers 

successfully accessed Wyndham Worldwide Corporation’s 

computer systems. In total, they stole personal and financial 

information for hundreds of thousands of consumers leading 

to over $10.6 million dollars in fraudulent charges. The FTC 

filed suit in federal District Court, alleging that Wyndham’s 

conduct was an unfair practice and that its privacy policy was 

deceptive. The District Court denied Wyndham’s motion to 

dismiss, and we granted interlocutory appeal on two issues: 

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whether the FTC has authority to regulate cybersecurity under 

the unfairness prong of § 45(a); and, if so, whether Wyndham 

had fair notice its specific cybersecurity practices could fall 

short of that provision.1 We affirm the District Court.

I. Background

A. Wyndham’s Cybersecurity

Wyndham Worldwide is a hospitality company that 

franchises and manages hotels and sells timeshares through 

three subsidiaries.2 Wyndham licensed its brand name to 

approximately 90 independently owned hotels. Each 

Wyndham-branded hotel has a property management system 

that processes consumer information that includes names, 

home addresses, email addresses, telephone numbers, 

payment card account numbers, expiration dates, and security 

codes. Wyndham “manage[s]” these systems and requires the 

hotels to “purchase and configure” them to its own 

specifications. Compl. at ¶ 15, 17. It also operates a 

computer network in Phoenix, Arizona, that connects its data 

center with the property management systems of each of the 

Wyndham-branded hotels.

 

1 On appeal, Wyndham also argues that the FTC fails the 

pleading requirements of an unfairness claim. As Wyndham 

did not request and we did not grant interlocutory appeal on 

this issue, we decline to address it.

2

In addition to Wyndham Worldwide, the defendant entities 

are Wyndham Hotel Group, LLC, Wyndham Hotels and 

Resorts, LCC, and Wyndham Hotel Management, Inc. For 

convenience, we refer to all defendants jointly as Wyndham.

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The FTC alleges that, at least since April 2008, 

Wyndham engaged in unfair cybersecurity practices that, 

“taken together, unreasonably and unnecessarily exposed 

consumers’ personal data to unauthorized access and theft.” 

Id. at ¶ 24. This claim is fleshed out as follows.

1. The company allowed Wyndham-branded hotels to 

store payment card information in clear readable text.

2. Wyndham allowed the use of easily guessed 

passwords to access the property management systems. For 

example, to gain “remote access to at least one hotel’s 

system,” which was developed by Micros Systems, Inc., the 

user ID and password were both “micros.” Id. at ¶ 24(f).

3. Wyndham failed to use “readily available security 

measures”—such as firewalls—to “limit access between [the] 

hotels’ property management systems, . . . corporate network, 

and the Internet.” Id. at ¶ 24(a).

4. Wyndham allowed hotel property management 

systems to connect to its network without taking appropriate 

cybersecurity precautions. It did not ensure that the hotels 

implemented “adequate information security policies and 

procedures.” Id. at ¶ 24(c). Also, it knowingly allowed at 

least one hotel to connect to the Wyndham network with an 

out-of-date operating system that had not received a security 

update in over three years. It allowed hotel servers to connect 

to Wyndham’s network even though “default user IDs and 

passwords were enabled . . . , which were easily available to 

hackers through simple Internet searches.” Id. And, because 

it failed to maintain an “adequate[] inventory [of] computers 

connected to [Wyndham’s] network [to] manage the devices,” 

it was unable to identify the source of at least one of the 

cybersecurity attacks. Id. at ¶ 24(g).

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5. Wyndham failed to “adequately restrict” the access 

of third-party vendors to its network and the servers of 

Wyndham-branded hotels. Id. at ¶ 24(j). For example, it did 

not “restrict[] connections to specified IP addresses or grant[] 

temporary, limited access, as necessary.” Id.

6. It failed to employ “reasonable measures to detect 

and prevent unauthorized access” to its computer network or 

to “conduct security investigations.” Id. at ¶ 24(h).

7. It did not follow “proper incident response 

procedures.” Id. at ¶ 24(i). The hackers used similar methods 

in each attack, and yet Wyndham failed to monitor its 

network for malware used in the previous intrusions.

Although not before us on appeal, the complaint also 

raises a deception claim, alleging that since 2008 Wyndham 

has published a privacy policy on its website that overstates 

the company’s cybersecurity. 

We safeguard our Customers’ personally 

identifiable information by using industry 

standard practices. Although “guaranteed 

security” does not exist either on or off the 

Internet, we make commercially reasonable 

efforts to make our collection of such 

[i]nformation consistent with all applicable laws 

and regulations. Currently, our Web sites 

utilize a variety of different security measures 

designed to protect personally identifiable 

information from unauthorized access by users 

both inside and outside of our company, 

including the use of 128-bit encryption based on 

a Class 3 Digital Certificate issued by Verisign 

Inc. This allows for utilization of Secure 

Sockets Layer, which is a method for 

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encrypting data. This protects confidential 

information—such as credit card numbers, 

online forms, and financial data—from loss, 

misuse, interception and hacking. We take 

commercially reasonable efforts to create and 

maintain “fire walls” and other appropriate 

safeguards . . . .

Id. at ¶ 21. The FTC alleges that, contrary to this policy, 

Wyndham did not use encryption, firewalls, and other 

commercially reasonable methods for protecting consumer 

data.

B. The Three Cybersecurity Attacks

As noted, on three occasions in 2008 and 2009 hackers 

accessed Wyndham’s network and the property management 

systems of Wyndham-branded hotels. In April 2008, hackers 

first broke into the local network of a hotel in Phoenix, 

Arizona, which was connected to Wyndham’s network and 

the Internet. They then used the brute-force method—

repeatedly guessing users’ login IDs and passwords—to 

access an administrator account on Wyndham’s network. 

This enabled them to obtain consumer data on computers 

throughout the network. In total, the hackers obtained 

unencrypted information for over 500,000 accounts, which 

they sent to a domain in Russia.

In March 2009, hackers attacked again, this time by 

accessing Wyndham’s network through an administrative 

account. The FTC claims that Wyndham was unaware of the 

attack for two months until consumers filed complaints about 

fraudulent charges. Wyndham then discovered “memoryscraping malware” used in the previous attack on more than 

thirty hotels’ computer systems. Id. at ¶ 34. The FTC asserts 

that, due to Wyndham’s “failure to monitor [the network] for 

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the malware used in the previous attack, hackers had 

unauthorized access to [its] network for approximately two 

months.” Id. In this second attack, the hackers obtained 

unencrypted payment card information for approximately 

50,000 consumers from the property management systems of 

39 hotels.

Hackers in late 2009 breached Wyndham’s 

cybersecurity a third time by accessing an administrator 

account on one of its networks. Because Wyndham “had still 

not adequately limited access between . . . the Wyndhambranded hotels’ property management systems, [Wyndham’s 

network], and the Internet,” the hackers had access to the 

property management servers of multiple hotels. Id. at ¶ 37. 

Wyndham only learned of the intrusion in January 2010 when 

a credit card company received complaints from cardholders. 

In this third attack, hackers obtained payment card 

information for approximately 69,000 customers from the 

property management systems of 28 hotels.

The FTC alleges that, in total, the hackers obtained 

payment card information from over 619,000 consumers, 

which (as noted) resulted in at least $10.6 million in fraud 

loss. It further states that consumers suffered financial injury 

through “unreimbursed fraudulent charges, increased costs, 

and lost access to funds or credit,” Id. at ¶ 40, and that they 

“expended time and money resolving fraudulent charges and 

mitigating subsequent harm.” Id.

C. Procedural History

The FTC filed suit in the U.S. District Court for the 

District of Arizona in June 2012 claiming that Wyndham 

engaged in “unfair” and “deceptive” practices in violation of 

§ 45(a). At Wyndham’s request, the Court transferred the 

case to the U.S. District Court for the District of New Jersey. 

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Wyndham then filed a Rule 12(b)(6) motion to dismiss both 

the unfair practice and deceptive practice claims. The District 

Court denied the motion but certified its decision on the 

unfairness claim for interlocutory appeal. We granted 

Wyndham’s application for appeal.

II. Jurisdiction and Standards of Review

The District Court has subject-matter jurisdiction 

under 28 U.S.C. §§ 1331, 1337(a), and 1345. We have 

jurisdiction under 28 U.S.C. § 1292(b). 

We have plenary review of a district court’s ruling on 

a motion to dismiss for failure to state a claim under Rule 

12(b)(6). Farber v. City of Paterson, 440 F.3d 131, 134 (3d 

Cir. 2006). In this review, “we accept all factual allegations 

as true, construe the complaint in the light most favorable to 

the plaintiff, and determine whether, under any reasonable 

reading of the complaint, the plaintiff may be entitled to 

relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 

(3d Cir. 2002).

III. FTC’s Regulatory Authority Under § 45(a) 

A. Legal Background

The Federal Trade Commission Act of 1914 prohibited 

“unfair methods of competition in commerce.” Pub. L. No. 

63-203, § 5, 38 Stat. 717, 719 (codified as amended at 15 

U.S.C. § 45(a)). Congress “explicitly considered, and 

rejected, the notion that it reduce the ambiguity of the phrase 

‘unfair methods of competition’ . . . by enumerating the 

particular practices to which it was intended to apply.” FTC 

v. Sperry & Hutchinson Co., 405 U.S. 233, 239–40 (1972) 

(citing S. Rep. No. 63-597, at 13 (1914)); see also S. Rep. No. 

63-597, at 13 (“The committee gave careful consideration to 

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the question as to whether it would attempt to define the 

many and variable unfair practices which prevail in 

commerce . . . . It concluded that . . . there were too many 

unfair practices to define, and after writing 20 of them into 

the law it would be quite possible to invent others.” (emphasis 

added)). The takeaway is that Congress designed the term as

a “flexible concept with evolving content,” FTC v. Bunte 

Bros., 312 U.S. 349, 353 (1941), and “intentionally left [its] 

development . . . to the Commission,” Atl. Ref. Co. v. FTC, 

381 U.S. 357, 367 (1965). 

After several early cases limited “unfair methods of 

competition” to practices harming competitors and not 

consumers, see, e.g., FTC v. Raladam Co., 283 U.S. 643 

(1931), Congress inserted an additional prohibition in § 45(a) 

against “unfair or deceptive acts or practices in or affecting 

commerce,” Wheeler-Lea Act, Pub. L. No. 75-447, § 5, 52 

Stat. 111, 111 (1938).

For the next few decades, the FTC interpreted the 

unfair-practices prong primarily through agency adjudication. 

But in 1964 it issued a “Statement of Basis and Purpose” for 

unfair or deceptive advertising and labeling of cigarettes, 29 

Fed. Reg. 8324, 8355 (July 2, 1964), which explained that the 

following three factors governed unfairness determinations: 

(1) whether the practice, without necessarily 

having been previously considered unlawful, 

offends public policy as it has been established 

by statutes, the common law, or otherwise—

whether, in other words, it is within at least the 

penumbra of some common-law, statutory or 

other established concept of unfairness; (2) 

whether it is immoral, unethical, oppressive, or 

unscrupulous; [and] (3) whether it causes 

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substantial injury to consumers (or competitors 

or other businessmen).

Id. Almost a decade later, the Supreme Court implicitly 

approved these factors, apparently acknowledging their 

applicability to contexts other than cigarette advertising and 

labeling. Sperry, 405 U.S. at 244 n.5. The Court also held 

that, under the policy statement, the FTC could deem a 

practice unfair based on the third prong—substantial 

consumer injury—without finding that at least one of the 

other two prongs was also satisfied. Id.

During the 1970s, the FTC embarked on a 

controversial campaign to regulate children’s advertising 

through the unfair-practices prong of § 45(a). At the request 

of Congress, the FTC issued a second policy statement in 

1980 that clarified the three factors. FTC Unfairness Policy 

Statement, Letter from the FTC to Hon. Wendell Ford and 

Hon. John Danforth, Senate Comm. on Commerce, Sci., and 

Transp. (Dec. 17, 1980), appended to Int’l Harvester Co., 104 

F.T.C. 949, 1070 (1984) [hereinafter 1980 Policy Statement]. 

It explained that public policy considerations are relevant in 

determining whether a particular practice causes substantial 

consumer injury. Id. at 1074–76. Next, it “abandoned” the 

“theory of immoral or unscrupulous conduct . . . altogether” 

as an “independent” basis for an unfairness claim. Int’l 

Harvester Co., 104 F.T.C. at 1061 n.43; 1980 Policy 

Statement, supra at 1076 (“The Commission has . . . never 

relied on [this factor] as an independent basis for a finding of 

unfairness, and it will act in the future only on the basis of the 

[other] two.”). And finally, the Commission explained that 

“[u]njustified consumer injury is the primary focus of the 

FTC Act” and that such an injury “[b]y itself . . . can be 

sufficient to warrant a finding of unfairness.” 1980 Policy 

Statement, supra at 1073. This “does not mean that every 

consumer injury is legally ‘unfair.’” Id. Indeed, 

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[t]o justify a finding of unfairness the injury 

must satisfy three tests. [1] It must be 

substantial; [2] it must not be outweighed by 

any countervailing benefits to consumers or 

competition that the practice produces; and [3] 

it must be an injury that consumers themselves 

could not reasonably have avoided.

Id.

In 1994, Congress codified the 1980 Policy Statement 

at 15 U.S.C. § 45(n):

The Commission shall have no authority under 

this section . . . to declare unlawful an act or 

practice on the grounds that such act or practice 

is unfair unless the act or practice causes or is 

likely to cause substantial injury to consumers 

which is not reasonably avoidable by consumers 

themselves and not outweighed by 

countervailing benefits to consumers or to 

competition. In determining whether an act or 

practice is unfair, the Commission may consider 

established public policies as evidence to be 

considered with all other evidence. Such public 

policy considerations may not serve as a 

primary basis for such determination.

FTC Act Amendments of 1994, Pub. L. No. 103-312, § 9, 108 

Stat. 1691, 1695. Like the 1980 Policy Statement, § 45(n) 

requires substantial injury that is not reasonably avoidable by 

consumers and that is not outweighed by the benefits to 

consumers or competition. It also acknowledges the potential 

significance of public policy and does not expressly require 

that an unfair practice be immoral, unethical, unscrupulous, or 

oppressive.

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B. Plain Meaning of Unfairness

Wyndham argues (for the first time on appeal) that the 

three requirements of 15 U.S.C. § 45(n) are necessary but 

insufficient conditions of an unfair practice and that the plain 

meaning of the word “unfair” imposes independent 

requirements that are not met here. Arguably, § 45(n) may 

not identify all of the requirements for an unfairness claim. 

(While the provision forbids the FTC from declaring an act 

unfair “unless” the act satisfies the three specified 

requirements, it does not answer whether these are the only 

requirements for a finding of unfairness.) Even if so, some of 

Wyndham’s proposed requirements are unpersuasive, and the 

rest are satisfied by the allegations in the FTC’s complaint. 

First, citing FTC v. R.F. Keppel & Brother, Inc., 291 

U.S. 304 (1934), Wyndham argues that conduct is only unfair 

when it injures consumers “through unscrupulous or unethical 

behavior.” Wyndham Br. at 20–21. But Keppel nowhere 

says that unfair conduct must be unscrupulous or unethical. 

Moreover, in Sperry the Supreme Court rejected the view that 

the FTC’s 1964 policy statement required unfair conduct to 

be “unscrupulous” or “unethical.” 405 U.S. at 244 n.5.3 

 

3

Id. (“[Petitioner] argues that . . . [the 1964 statement] 

commits the FTC to the view that misconduct in respect of 

the third of these criteria is not subject to constraint as 

‘unfair’ absent a concomitant showing of misconduct 

according to the first or second of these criteria. But all the 

FTC said in the [1964] statement . . . was that ‘[t]he wide 

variety of decisions interpreting the elusive concept of 

unfairness at least makes clear that a method of selling 

violates Section 5 if it is exploitive or inequitable and if, in 

addition to being morally objectionable, it is seriously 

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Wyndham points to no subsequent FTC policy statements, 

adjudications, judicial opinions, or statutes that would suggest 

any change since Sperry.

Next, citing one dictionary, Wyndham argues that a 

practice is only “unfair” if it is “not equitable” or is “marked 

by injustice, partiality, or deception.” Wyndham Br. at 18–19 

(citing Webster’s Ninth New Collegiate Dictionary (1988)). 

Whether these are requirements of an unfairness claim makes 

little difference here. A company does not act equitably when 

it publishes a privacy policy to attract customers who are 

concerned about data privacy, fails to make good on that 

promise by investing inadequate resources in cybersecurity, 

exposes its unsuspecting customers to substantial financial 

injury, and retains the profits of their business.

We recognize this analysis of unfairness encompasses 

some facts relevant to the FTC’s deceptive practices claim. 

But facts relevant to unfairness and deception claims 

frequently overlap. See, e.g., Am. Fin. Servs. Ass’n v. FTC,

767 F.2d 957, 980 n.27 (D.C. Cir. 1985) (“The FTC has 

determined that . . . making unsubstantiated advertising 

claims may be both an unfair and a deceptive practice.”); 

Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1367 (11th 

Cir. 1988) (“[A] practice may be both deceptive and 

unfair . . . .”).

4

 We cannot completely disentangle the two 

 

detrimental to consumers or others.’” (emphasis and some 

alterations in original, citation omitted)).

4 The FTC has on occasion described deception as a subset of 

unfairness. See Int’l Harvester Co., 104 F.T.C. at 1060 (“The 

Commission’s unfairness jurisdiction provides a more general 

basis for action against acts or practices which cause 

significant consumer injury. This part of our jurisdiction is 

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theories here. The FTC argued in the District Court that 

consumers could not reasonably avoid injury by booking with 

another hotel chain because Wyndham had published a 

 

broader than that involving deception, and the standards for 

its exercise are correspondingly more stringent . . . . 

[U]nfairness is the set of general principles of which 

deception is a particularly well-established and streamlined 

subset.”); Figgie Int’l, 107 F.T.C. 313, 373 n.5 (1986) 

(“[U]nfair practices are not always deceptive but deceptive 

practices are always unfair.”); Orkin Exterminating Co., 108 

F.T.C. 263, 363 n.78 (1986). So have several FTC staff 

members. See, e.g., J. Howard Beales, Director of the Bureau 

of Consumer Protection, FTC, Marketing and Public Policy 

Conference, The FTC’s Use of Unfairness Authority: Its Rise, 

Fall, and Resurrection (May 30, 2003) (“Although, in the 

past, they have sometimes been viewed as mutually exclusive 

legal theories, Commission precedent incorporated in the 

statutory codification makes clear that deception is properly 

viewed as a subset of unfairness.”); Neil W. Averitt, The 

Meaning of “Unfair Acts or Practices” in Section 5 of the 

Federal Trade Commission Act, 70 Geo. L.J. 225, 265–66 

(1981) (“Although deception is generally regarded as a 

separate aspect of section 5, in its underlying rationale it is 

really just one specific form of unfair consumer practice . . . .

[For example, the] Commission has held that it is deceptive 

for a merchant to make an advertising claim for which he 

lacks a reasonable basis, regardless of whether the claim is 

eventually proven true or false . . . . Precisely because 

unsubstantiated ads are deceptive in this manner, . . . they also 

affect the exercise of consumer sovereignty and thus 

constitute an unfair act or practice.”).

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misleading privacy policy that overstated its cybersecurity. 

Plaintiff’s Response in Opposition to the Motion to Dismiss 

by Defendant at 5, FTC v. Wyndham Worldwide Corp., 10 F. 

Supp. 3d 602 (D.N.J. 2014) (No. 13-1887) (“Consumers 

could not take steps to avoid Wyndham’s unreasonable data 

security [before providing their personal information] because 

Wyndham falsely told consumers that it followed ‘industry 

standard practices.’”); see JA 203 (“On the reasonabl[y] 

avoidable part, . . . consumers certainly would not have 

known that Wyndham had unreasonable data security 

practices in this case . . . . We also allege that in 

[Wyndham’s] privacy policy they deceive consumers by 

saying we do have reasonable security data practices. That is 

one way consumers couldn’t possibly have avoided providing 

a credit card to a company.”). Wyndham did not challenge 

this argument in the District Court nor does it do so now. If 

Wyndham’s conduct satisfies the reasonably avoidable 

requirement at least partially because of its privacy policy—

an inference we find plausible at this stage of the litigation—

then the policy is directly relevant to whether Wyndham’s 

conduct was unfair.5

Continuing on, Wyndham asserts that a business “does 

not treat its customers in an ‘unfair’ manner when the 

business itself is victimized by criminals.” Wyndham Br. at 

 

5 No doubt there is an argument that consumers could not 

reasonably avoid injury even absent the misleading privacy 

policy. See, e.g., James P. Nehf, Shopping for Privacy 

Online: Consumer Decision-Making Strategies and the 

Emerging Market for Information Privacy, 2005 U. Ill. J.L. 

Tech. & Pol’y. 1 (arguing that consumers may care about data 

privacy, but be unable to consider it when making credit card 

purchases). We have no occasion to reach this question, as 

the parties have not raised it.

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21 (emphasis in original). It offers no reasoning or authority 

for this principle, and we can think of none ourselves. 

Although unfairness claims “usually involve actual and 

completed harms,” Int’l Harvester, 104 F.T.C. at 1061, “they 

may also be brought on the basis of likely rather than actual 

injury,” id. at 1061 n.45. And the FTC Act expressly 

contemplates the possibility that conduct can be unfair before 

actual injury occurs. 15 U.S.C. § 45(n) (“[An unfair act or 

practice] causes or is likely to cause substantial injury” 

(emphasis added)). More importantly, that a company’s 

conduct was not the most proximate cause of an injury 

generally does not immunize liability from foreseeable harms. 

See Restatement (Second) of Torts § 449 (1965) (“If the 

likelihood that a third person may act in a particular manner is 

the hazard or one of the hazards which makes the actor 

negligent, such an act[,] whether innocent, negligent, 

intentionally tortious, or criminal[,] does not prevent the actor 

from being liable for harm caused thereby.”); Westfarm 

Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 

688 (4th Cir. 1995) (“Proximate cause may be found even 

where the conduct of the third party is . . . criminal, so long as 

the conduct was facilitated by the first party and reasonably 

foreseeable, and some ultimate harm was reasonably 

foreseeable.”). For good reason, Wyndham does not argue 

that the cybersecurity intrusions were unforeseeable. That 

would be particularly implausible as to the second and third 

attacks. 

Finally, Wyndham posits a reductio ad absurdum, 

arguing that if the FTC’s unfairness authority extends to 

Wyndham’s conduct, then the FTC also has the authority to 

“regulate the locks on hotel room doors, . . . to require every 

store in the land to post an armed guard at the door,” 

Wyndham Br. at 23, and to sue supermarkets that are “sloppy 

about sweeping up banana peels,” Wyndham Reply Br. at 6. 

The argument is alarmist to say the least. And it invites the 

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21

tart retort that, were Wyndham a supermarket, leaving so 

many banana peels all over the place that 619,000 customers 

fall hardly suggests it should be immune from liability under 

§ 45(a).

We are therefore not persuaded by Wyndham’s 

arguments that the alleged conduct falls outside the plain 

meaning of “unfair.”

C. Subsequent Congressional Action

Wyndham next argues that, even if cybersecurity were 

covered by § 45(a) as initially enacted, three legislative acts 

since the subsection was amended in 1938 have reshaped the 

provision’s meaning to exclude cybersecurity. A recent 

amendment to the Fair Credit Reporting Act directed the FTC 

and other agencies to develop regulations for the proper 

disposal of consumer data. See Pub. L. No. 108-159, 

§ 216(a), 117 Stat. 1952, 1985–86 (2003) (codified as 

amended at 15 U.S.C. § 1681w). The Gramm-Leach-Bliley 

Act required the FTC to establish standards for financial 

institutions to protect consumers’ personal information. See

Pub. L. No. 106-102, § 501(b), 113 Stat. 1338, 1436–37 

(1999) (codified as amended at 15 U.S.C. § 6801(b)). And 

the Children’s Online Privacy Protection Act ordered the FTC 

to promulgate regulations requiring children’s websites, 

among other things, to provide notice of “what information is 

collected from children . . . , how the operator uses such 

information, and the operator’s disclosure practices for such 

information.” Pub. L. No. 105-277, § 1303, 112 Stat. 2681, 

2681-730–732 (1998) (codified as amended at 15 U.S.C. 

§ 6502).6 Wyndham contends these “tailored grants of 

 

6 Wyndham also points to a variety of cybersecurity bills that 

Congress has considered and not passed. “[S]ubsequent 

legislative history . . . is particularly dangerous ground on 

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substantive authority to the FTC in the cybersecurity field 

would be inexplicable if the Commission already had general 

substantive authority over this field.” Wyndham Br. at 25. 

Citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 143 (2000), Wyndham concludes that Congress excluded 

cybersecurity from the FTC’s unfairness authority by 

enacting these measures.

We are not persuaded. The inference to congressional 

intent based on post-enactment legislative activity in Brown 

& Williamson was far stronger. There, the Food and Drug 

Administration had repeatedly disclaimed regulatory 

authority over tobacco products for decades. Id. at 144. 

During that period, Congress enacted six statutes regulating 

tobacco. Id. at 143–44. The FDA later shifted its position, 

claiming authority over tobacco products. The Supreme 

Court held that Congress excluded tobacco-related products 

from the FDA’s authority in enacting the statutes. As tobacco 

products would necessarily be banned if subject to the FDA’s 

regulatory authority, any interpretation to the contrary would 

contradict congressional intent to regulate rather than ban 

tobacco products outright. Id. 137–39; Massachusetts v. 

EPA, 549 U.S. 497, 530–31 (2007). Wyndham does not argue 

that recent privacy laws contradict reading corporate 

cybersecurity into § 45(a). Instead, it merely asserts that 

Congress had no reason to enact them if the FTC could 

already regulate cybersecurity through that provision. 

Wyndham Br. at 25–26.

We disagree that Congress lacked reason to pass the 

recent legislation if the FTC already had regulatory authority 

over some cybersecurity issues. The Fair Credit Reporting 

 

which to rest an interpretation of a prior statute when it 

concerns . . . a proposal that does not become law.” Pension 

Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990).

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Act requires (rather than authorizes) the FTC to issue 

regulations, 15 U.S.C. § 1681w (“The Federal Trade 

Commission . . . shall issue final regulations requiring . . . .” 

(emphasis added)); id. § 1681m(e)(1)(B) (“The [FTC and 

other agencies] shall jointly . . . prescribe regulations 

requiring each financial institution . . . .” (emphasis added)), 

and expands the scope of the FTC’s authority, id.

§ 1681s(a)(1) (“[A] violation of any requirement or 

prohibition imposed under this subchapter shall constitute an 

unfair or deceptive act or practice in commerce . . . and shall 

be subject to enforcement by the [FTC] . . . irrespective of 

whether that person is engaged in commerce or meets any 

other jurisdictional tests under the [FTC] Act.”). The 

Gramm-Leach-Bliley Act similarly requires the FTC to 

promulgate regulations, id. § 6801(b) (“[The FTC] shall 

establish appropriate standards for the financial institutions 

subject to [its] jurisdiction . . . .”), and relieves some of the 

burdensome § 45(n) requirements for declaring acts unfair, id.

§ 6801(b) (“[The FTC] shall establish appropriate standards . 

. . to protect against unauthorized access to or use of . . . 

records . . . which could result in substantial harm or 

inconvenience to any customer.” (emphasis added)). And the 

Children’s Online Privacy Protection Act required the FTC to 

issue regulations and empowered it to do so under the 

procedures of the Administrative Procedure Act, id. § 6502(b) 

(citing 5 U.S.C. § 553), rather than the more burdensome 

Magnuson-Moss procedures under which the FTC must 

usually issue regulations, 15 U.S.C. § 57a. Thus none of the 

recent privacy legislation was “inexplicable” if the FTC 

already had some authority to regulate corporate 

cybersecurity through § 45(a).

Next, Wyndham claims that the FTC’s interpretation 

of § 45(a) is “inconsistent with its repeated efforts to obtain 

from Congress the very authority it purports to wield here.” 

Wyndham Br. at 28. Yet again we disagree. In two of the 

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statements cited by Wyndham, the FTC clearly said that some 

cybersecurity practices are “unfair” under the statute. See

Consumer Data Protection: Hearing Before the Subcomm. on 

Commerce, Mfg. & Trade of the H. Comm. on Energy & 

Commerce, 2011 WL 2358081, at *6 (June 15, 2011) 

(statement of Edith Ramirez, Comm’r, FTC) (“[T]he 

Commission enforces the FTC Act’s proscription against 

unfair . . . acts . . . in cases where a business[’s] . . . failure to 

employ reasonable security measures causes or is likely to 

cause substantial consumer injury.”); Data Theft Issues: 

Hearing Before the Subcomm. on Commerce, Mfg. & Trade 

of the H. Comm. on Energy & Commerce, 2011 WL 1971214, 

at *7 (May 4, 2011) (statement of David C. Vladeck, 

Director, FTC Bureau of Consumer Protection) (same).

In the two other cited statements, given in 1998 and 

2000, the FTC only acknowledged that it cannot require 

companies to adopt “fair information practice policies.” See

FTC, Privacy Online: Fair Information Practices in the 

Electronic Marketplace—A Report to Congress 34 (2000) 

[hereinafter Privacy Online]; Privacy in Cyberspace: Hearing 

Before the Subcomm. on Telecomms., Trade & Consumer 

Prot. of the H. Comm. on Commerce, 1998 WL 546441 (July 

21, 1998) (statement of Robert Pitofsky, Chairman, FTC). 

These policies would protect consumers from far more than 

the kind of “substantial injury” typically covered by § 45(a). 

In addition to imposing some cybersecurity requirements, 

they would require companies to give notice about what data 

they collect from consumers, to permit those consumers to

decide how the data is used, and to permit them to review and 

correct inaccuracies. Privacy Online, supra at 36–37. As the 

FTC explained in the District Court, the primary concern 

driving the adoption of these policies in the late 1990s was 

that “companies . . . were capable of collecting enormous 

amounts of information about consumers, and people were 

suddenly realizing this.” JA 106 (emphasis added). The FTC 

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25

thus could not require companies to adopt broad fair 

information practice policies because they were “just 

collecting th[e] information, and consumers [were not] 

injured.” Id.; see also Order Denying Respondent LabMD’s 

Motion to Dismiss, No. 9357, slip op. at 7 (Jan. 16, 2014) 

[hereinafter LabMD Order or LabMD] (“[T]he sentences 

from the 1998 and 2000 reports . . . simply recognize that the 

Commission’s existing authority may not be sufficient to 

effectively protect consumers with regard to all data privacy 

issues of potential concern (such as aspects of children’s 

online privacy) . . . .” (emphasis in original)). Our conclusion 

is this: that the FTC later brought unfairness actions against 

companies whose inadequate cybersecurity resulted in 

consumer harm is not inconsistent with the agency’s earlier 

position.

Having rejected Wyndham’s arguments that its 

conduct cannot be unfair, we assume for the remainder of this 

opinion that it was.

IV. Fair Notice

A conviction or punishment violates the Due Process 

Clause of our Constitution if the statute or regulation under 

which it is obtained “fails to provide a person of ordinary 

intelligence fair notice of what is prohibited, or is so 

standardless that it authorizes or encourages seriously 

discriminatory enforcement.” FCC v. Fox Television 

Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (internal 

quotation marks omitted). Wyndham claims that, 

notwithstanding whether its conduct was unfair under § 45(a), 

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the FTC failed to give fair notice of the specific cybersecurity 

standards the company was required to follow.7

A. Legal Standard

The level of required notice for a person to be subject 

to liability varies by circumstance. In Bouie v. City of 

Columbia, the Supreme Court held that a “judicial 

construction of a criminal statute” violates due process if it is 

“unexpected and indefensible by reference to the law which 

had been expressed prior to the conduct in issue.” 378 U.S. 

347, 354 (1964) (internal quotation marks omitted); see also

Rogers v. Tennessee, 532 U.S. 451, 457 (2001); In re Surrick, 

338 F.3d 224, 233–34 (3d Cir. 2003). The precise meaning of 

“unexpected and indefensible” is not entirely clear, United 

States v. Lata, 415 F.3d 107, 111 (1st Cir. 2005), but we and 

our sister circuits frequently use language implying that a 

conviction violates due process if the defendant could not 

reasonably foresee that a court might adopt the new 

interpretation of the statute.8

 

7 We do not read Wyndham’s briefing as raising a meaningful 

argument under the “discriminatory enforcement” prong. A 

few sentences in a reply brief are not enough. See Wyndham 

Reply Br. at 26 (“To provide the notice required by due 

process, a statement must in some sense declare what conduct 

the law proscribes and thereby constrain enforcement 

discretion . . . . Here, the consent decrees at issue . . . do not 

limit the Commission’s enforcement authority in any way.” 

(citation omitted)).

8 See Ortiz v. N.Y.S. Parole, 586 F.3d 149, 159 (2d Cir. 2009) 

(holding that the “unexpected and indefensible” standard 

“requires only that the law . . . not lull the potential defendant 

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The fair notice doctrine extends to civil cases, 

particularly where a penalty is imposed. See Fox Television 

Stations, Inc., 132 S. Ct. at 2317–20; Boutilier v. INS, 387 

U.S. 118, 123 (1967). “Lesser degrees of specificity” are 

allowed in civil cases because the consequences are smaller 

than in the criminal context. San Filippo v. Bongiovanni, 961 

F.2d 1125, 1135 (3d Cir. 1992). The standards are especially 

lax for civil statutes that regulate economic activities. For 

those statutes, a party lacks fair notice when the relevant 

standard is “so vague as to be no rule or standard at all.” 

 

into a false sense of security, giving him no reason even to 

suspect that his conduct might be within its scope.” 

(emphases added)); In re Surrick, 338 F.3d at 234 (“[We] 

reject [the] contention that . . . nothing in the history of [the 

relevant provision] had stated or even foreshadowed that 

reckless conduct could violate it. Indeed, in view of the 

foregoing, the [state court’s] decision . . . was neither 

‘unexpected’ nor ‘indefensible’ by reference to the law which 

had been expressed prior to the conduct in issue.” (emphases 

added)); Warner v. Zent, 997 F.2d 116, 125 (6th Cir. 1993) 

(“‘The underlying principle is that no man shall be held 

criminally responsible for conduct which he could not 

reasonably understand to be proscribed.’” (emphasis added) 

(quoting United States v. Harriss, 347 U.S. 612, 617 (1954)); 

id. at 127 (“It was by no means unforeseeable . . . that the 

[court] would [construe the statute as it did].” (emphasis 

added)); see also Lata, 415 F.3d at 112 (“[S]omeone in [the 

defendant’s] position could not reasonably be surprised by 

the sentence he eventually received . . . . We reserve for the 

future the case . . . in which a sentence is imposed . . . that is 

higher than any that might realistically have been imagined at 

the time of the crime . . . .” (emphases added)).

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CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 631–32 (3d 

Cir. 2013) (internal quotation marks omitted).9

A different set of considerations is implicated when 

agencies are involved in statutory or regulatory interpretation. 

Broadly speaking, agencies interpret in at least three 

contexts. One is where an agency administers a statute 

without any special authority to create new rights or 

obligations. When disputes arise under this kind of agency 

interpretation, the courts give respect to the agency’s view to 

the extent it is persuasive, but they retain the primary 

responsibility for construing the statute.10 As such, the 

 

9 See also Bongiovanni, 961 F.2d at 1138; Boutilier, 387 U.S. 

at 123; Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558

F.3d 1301, 1310 (11th Cir. 2009); Ford Motor Co. v. Tex. 

Dep’t of Transp., 264 F.3d 493, 507 (5th Cir. 2001); 

Columbia Nat’l Res., Inc. v. Tatum, 58 F.3d 1101, 1108 (6th 

Cir. 1995).

10 See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) 

(“[The agency interpretation is] not controlling upon the 

courts by reason of [its] authority [but is a] body of 

experience and informed judgment to which courts . . . may 

properly resort for guidance.”); Christenson v. Harris Cnty., 

529 U.S. 576, 587 (2000) (“[Agency interpretations are] 

entitled to respect under [Skidmore], but only to the extent 

that [they] have the power to persuade.” (internal quotation 

marks omitted)); see also Peter L. Strauss, “Deference” is 

Too Confusing—Let’s Call Them “Chevron Space” and 

“Skidmore Weight”, 112 Colum. L. Rev. 1143, 1147 (2012) 

(“Skidmore . . . is grounded in a construct of the agency as 

responsible expert, arguably possessing special knowledge of 

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standard of notice afforded to litigants about the meaning of 

the statute is not dissimilar to the standard of notice for civil 

statutes generally because the court, not the agency, is the 

ultimate arbiter of the statute’s meaning.

The second context is where an agency exercises its 

authority to fill gaps in a statutory scheme. There the agency 

is primarily responsible for interpreting the statute because 

the courts must defer to any reasonable construction it adopts. 

See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984). Courts appear to apply a more stringent 

standard of notice to civil regulations than civil statutes: 

parties are entitled to have “ascertainable certainty” of what 

conduct is legally required by the regulation. See Chem. 

Waste Mgmt., Inc. v. EPA, 976 F.2d 2, 29 (D.C. Cir. 1992) 

(per curiam) (denying petitioners’ challenge that a recently 

promulgated EPA regulation fails fair notice principles); Nat’l 

Oilseed Processors Ass’n. v. OSHA, 769 F.3d 1173, 1183–84 

(D.C. Cir. 2014) (denying petitioners’ challenge that a 

recently promulgated OSHA regulation fails fair notice 

principles).

The third context is where an agency interprets the 

meaning of its own regulation. Here also courts typically 

must defer to the agency’s reasonable interpretation.11 We 

 

the statutory meaning a court should consider in reaching its 

own judgment.” (emphasis added)).

11 See Auer v. Robbins, 519 U.S. 452, 461 (1997) (“Because 

the salary-basis test is a creature of the Secretary’s own 

regulations, his interpretation of it is . . . controlling unless 

plainly erroneous or inconsistent with the regulation.” 

(internal quotation marks omitted)); Decker v. Nw. Envtl. Def. 

Ctr., 133 S. Ct. 1326, 1337 (2013) (“When an agency 

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30

and several of our sister circuits have stated that private 

parties are entitled to know with “ascertainable certainty” an 

agency’s interpretation of its regulation. Sec’y of Labor v. 

Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir. 

2008); Dravo Corp. v. Occupational Safety & Health Rev. 

Comm’n, 613 F.2d 1227, 1232–33 (3d Cir. 1980).12 Indeed, 

 

interprets its own regulation, the Court, as a general rule, 

defers to it unless that interpretation is plainly erroneous or 

inconsistent with the regulation.” (internal quotation marks 

omitted)); Martin v. Occupational Safety & Health Rev. 

Comm’n, 499 U.S. 144, 150–51 (1991) (“In situations in 

which the meaning of [regulatory] language is not free from 

doubt, the reviewing court should give effect to the agency’s 

interpretation so long as it is reasonable.” (alterations in 

original, internal quotations omitted)); Columbia Gas 

Transp., LLC v. 1.01 Acres, More or Less in Penn Twp., 768 

F.3d 300, 313 (3d Cir. 2014) (“[A]s an agency interpretation 

of its own regulation, it is deserving of deference.” (citing 

Decker)).

12 See also Wis. Res. Prot. Council v. Flambeau Mining Co., 

727 F.3d 700, 708 (7th Cir. 2013); AJP Const., Inc. v. Sec’y 

of Labor, 357 F.3d 70, 75–76 (D.C. Cir. 2004) (quoting Gen. 

Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995)); Tex. 

Mun. Power Agency v. EPA, 89 F.3d 858, 872 (D.C. Cir. 

1996); Ga. Pac. Corp. v. Occupational Safety & Health Rev. 

Comm’n, 25 F.3d 999, 1005 (11th Cir. 1994); Diamond 

Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 

528 F.2d 645, 649 (5th Cir. 1976). In fact, the Supreme Court 

applied Skidmore to an interpretation by an agency of a 

regulation it adopted instead of deferring to that interpretation 

because the latter would have “seriously undermine[d] the 

principle that agencies should provide regulated parties fair 

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“the due process clause prevents . . . deference from 

validating the application of a regulation that fails to give fair 

warning of the conduct it prohibits or requires.” AJP Const., 

Inc., 357 F.3d at 75 (internal quotation marks omitted).

A higher standard of fair notice applies in the second 

and third contexts than in the typical civil statutory 

interpretation case because agencies engage in interpretation 

differently than courts. See Frank H. Easterbook, Judicial 

Discretion in Statutory Interpretation, 57 Okla. L. Rev. 1, 3 

(2004) (“A judge who announces deference is approving a 

shift in interpretive method, not just a shift in the identity of 

the decider, as if a suit were being transferred to a court in a 

different venue.”). In resolving ambiguity in statutes or 

regulations, courts generally adopt the best or most 

reasonable interpretation. But, as the agency is often free to 

adopt any reasonable construction, it may impose higher 

legal obligations than required by the best interpretation.13 

 

warning of the conduct [a regulation] prohibits or requires.” 

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 

2167 & n.15 (2012) (second alteration in original, internal 

quotation marks omitted) (citing Dravo, 613 F.2d at 1232–33 

and the “ascertainable certainty” standard).

13 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 980 (2005) (“If a statute is ambiguous, 

and if the implementing agency’s construction is reasonable, 

Chevron requires a federal court to accept the agency’s 

construction of the statute, even if the agency’s reading 

differs from what the court believes is the best statutory 

interpretation.”); Decker, 133 S. Ct. at 1337 (“It is well 

established that an agency’s interpretation need not be the 

only possible reading of a regulation—or even the best one—

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Furthermore, courts generally resolve statutory 

ambiguity by applying traditional methods of construction. 

Private parties can reliably predict the court’s interpretation 

by applying the same methods. In contrast, an agency may 

also rely on technical expertise and political values.14 It is 

harder to predict how an agency will construe a statute or 

regulation at some unspecified point in the future, particularly 

when that interpretation will depend on the “political views of 

 

to prevail. When an agency interprets its own regulation, the 

Court, as a general rule, defers to it unless that interpretation 

is plainly erroneous or inconsistent with the regulation.” 

(internal quotation marks omitted)); Auer, 519 U.S. at 462–63 

(“[The rule that Fair Labor Standards Act] exemptions are to 

be narrowly construed against . . . employers . . . is a rule 

governing judicial interpretation of statutes and regulations, 

not a limitation on the Secretary’s power to resolve 

ambiguities in his own regulations. A rule requiring the 

Secretary to construe his own regulations narrowly would 

make little sense, since he is free to write the regulations as 

broadly as he wishes, subject only to the limits imposed by 

the statute.” (internal quotation marks omitted)).

14 See Garfias-Rodriguez v. Holder, 702 F.3d 504, 518 (9th 

Cir. 2012) (rejecting the applicability of the judicial 

retroactivity test to a new Board of Immigration Appeals’ 

interpretation because the “decision fill[ed] a statutory gap 

and [was] an exercise [of the agency’s] policymaking 

function”); Easterbrook, supra at 3 (“Judges in their own 

work forswear the methods that agencies employ” to interpret 

statutes, which include relying on “political pressure, the 

President’s view of happy outcomes, cost-benefit studies . . . 

and the other tools of policy wonks . . . .”). 

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the President in office at [that] time.” Strauss, supra at 

1147.15

Wyndham argues it was entitled to “ascertainable 

certainty” of the FTC’s interpretation of what specific 

cybersecurity practices are required by § 45(a). Yet it has 

contended repeatedly—no less than seven separate occasions 

in this case—that there is no FTC rule or adjudication about 

cybersecurity that merits deference here. The necessary 

implication, one that Wyndham itself has explicitly drawn on 

two occasions noted below, is that federal courts are to 

interpret § 45(a) in the first instance to decide whether 

Wyndham’s conduct was unfair.

Wyndham’s argument has focused on the FTC’s 

motion to dismiss order in LabMD, an administrative case in 

which the agency is pursuing an unfairness claim based on 

allegedly inadequate cybersecurity. LabMD Order, supra. 

Wyndham first argued in the District Court that the LabMD

Order does not merit Chevron deference because “selfserving, litigation-driven decisions . . . are entitled to no 

deference at all” and because the opinion adopted an 

impermissible construction of the statute. Wyndham’s 

 

15 See also Brand X Internet Servs., 545 U.S. at 981 (“[T]he 

agency . . . must consider varying interpretations and the 

wisdom of its policy on a continuing basis . . . in response 

to . . . a change in administrations.” (internal quotation marks 

omitted, first omission in original)); Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29, 59 (1983) (Rehnquist, J., dissenting in part) (“A change in 

administration brought about by the people casting their votes 

is a perfectly reasonable basis for an executive agency’s 

reappraisal of the costs and benefits of its . . . regulations.”).

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January 29, 2014 Letter at 1–2, FTC v. Wyndham Worldwide 

Corp., 10 F. Supp. 3d 602 (D.N.J. 2014) (No. 13-1887). 

Second, Wyndham switched gears in its opening brief 

on appeal to us, arguing that LabMD does not merit Chevron

deference because courts owe no deference to an agency’s 

interpretation of the “boundaries of Congress’ statutory 

delegation of authority to the agency.” Wyndham Br. at 19–

20. 

Third, in its reply brief it argued again that LabMD

does not merit Chevron deference because it adopted an 

impermissible construction of the statute. Wyndham Reply 

Br. at 14. 

Fourth, Wyndham switched gears once more in a Rule 

28(j) letter, arguing that LabMD does not merit Chevron

deference because the decision was nonfinal. Wyndham’s 

February 6, 2015 Letter (citing LabMD, Inc. v. FTC, 776 F.3d 

1275 (11th Cir. 2015)). 

Fifth, at oral argument we asked Wyndham whether 

the FTC has decided that cybersecurity practices are unfair. 

Counsel answered: “No. I don’t think consent decrees count, 

I don’t think the 2007 brochure counts, and I don’t think 

Chevron deference applies. So are . . . they asking this 

federal court in the first instance . . . [?] I think the answer to 

that question is yes . . . .” Oral Arg. Tr. at 19. 

Sixth, due to our continuing confusion about the 

parties’ positions on a number of issues in the case, we asked 

for supplemental briefing on certain questions, including 

whether the FTC had declared that cybersecurity practices 

can be unfair. In response, Wyndham asserted that “the FTC 

has not declared unreasonable cybersecurity practices 

‘unfair.’” Wyndham’s Supp. Memo. at 3. Wyndham 

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35

explained further: “It follows from [our] answer to [that] 

question that the FTC is asking the federal courts to 

determine in the first instance that unreasonable cybersecurity 

practices qualify as ‘unfair’ trade practices under the FTC 

Act.” Id. at 4.

Seventh, and most recently, Wyndham submitted a 

Rule 28(j) letter arguing that LabMD does not merit Chevron

deference because it decided a question of “deep economic 

and political significance.” Wyndham’s June 30, 2015 Letter 

(quoting King v. Burwell, 135 S. Ct. 2480 (2015)).

Wyndham’s position is unmistakable: the FTC has not 

yet declared that cybersecurity practices can be unfair; there 

is no relevant FTC rule, adjudication or document that merits 

deference; and the FTC is asking the federal courts to 

interpret § 45(a) in the first instance to decide whether it 

prohibits the alleged conduct here. The implication of this 

position is similarly clear: if the federal courts are to decide 

whether Wyndham’s conduct was unfair in the first instance 

under the statute without deferring to any FTC interpretation, 

then this case involves ordinary judicial interpretation of a 

civil statute, and the ascertainable certainty standard does not 

apply. The relevant question is not whether Wyndham had 

fair notice of the FTC’s interpretation of the statute, but 

whether Wyndham had fair notice of what the statute itself

requires.

Indeed, at oral argument we asked Wyndham whether 

the cases cited in its brief that apply the “ascertainable 

certainty” standard—all of which involve a court reviewing 

an agency adjudication16 or at least a court being asked to 

 

16 See Fox Television Stations, Inc., 132 S. Ct. 2307 (vacating 

an FCC adjudication for lack of fair notice of an agency 

interpretation); PMD Produce Brokerage Corp. v. USDA, 234 

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36

defer to an agency interpretation17—apply where the court is 

to decide the meaning of the statute in the first instance.18 

Wyndham’s counsel responded, “I think it would, your 

Honor. I think if you go to Ford Motor [Co. v. FTC, 673 F.2d 

1008 (9th Cir. 1981)], I think that’s what was happening 

there.” Oral Arg. Tr. at 61. But Ford Motor is readily 

distinguishable. Unlike Wyndham, the petitioners there did 

not bring a fair notice claim under the Due Process Clause. 

Instead, they argued that, per NLRB v. Bell Aerospace Co., 

416 U.S. 267 (1974), the FTC abused its discretion by 

proceeding through agency adjudication rather than 

 

F.3d 48 (D.C. Cir. 2000) (vacating the dismissal of an 

administrative appeal issued by a Judicial Officer in the 

Department of Agriculture because the agency’s Rules of 

Practice failed to give fair notice of the deadline for filing an 

appeal); Gen. Elec. Co., 53 F.3d 1324 (vacating an EPA 

adjudication for lack of fair notice of the agency’s 

interpretation of a regulation); FTC v. Colgate-Palmolive Co., 

380 U.S. 374 (1965) (reviewing an FTC adjudication that 

found liability).

17 See In re Metro-East Mfg. Co., 655 F.2d 805, 810–12 (7th 

Cir. 1981) (declining to defer to an agency’s interpretation of 

its own regulation because the defendant could not have 

known with ascertainable certainty the agency’s 

interpretation).

18 We asked, “All of your cases on fair notice pertain to an 

agency’s interpretation of its own regulation or the statute 

that governs that agency. Does this fair notice doctrine apply 

where it is a court announcing an interpretation of a statute in 

the first instance?” Oral Arg. Tr. at 60 (emphases added).

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rulemaking.19 More importantly, the Ninth Circuit was 

reviewing an agency adjudication; it was not interpreting the 

meaning of the FTC Act in the first instance. 

In addition, our understanding of Wyndham’s position 

is consistent with the District Court’s opinion, which 

concluded that the FTC has stated a claim under § 45(a) based 

on the Court’s interpretation of the statute and without any 

reference to LabMD or any other agency adjudication or 

 

19 To the extent Wyndham could have raised this argument, 

we do not read its briefs to do so. Indeed, its opening brief 

appears to repudiate the theory. Wyndham Br. at 38–39 

(“The district court below framed the fair notice issue here as 

whether ‘the FTC must formally promulgate regulations 

before bringing its unfairness claim.’ With all respect, that 

characterization of Wyndham’s position is a straw man. 

Wyndham has never disputed the general principle that 

administrative agencies have discretion to regulate through 

either rulemaking or adjudication. See, e.g., [Bell Aerospace 

Co., 416 U.S. at 290–95]. Rather, Wyndham’s point is only 

that, however an agency chooses to proceed, it must provide 

regulated entities with constitutionally requisite fair notice.” 

(internal citations omitted)). Moreover, the Supreme Court 

has explained that where “it is doubtful [that] any generalized 

standard could be framed which would have more than 

marginal utility[, the agency] has reason to . . . develop[] its 

standards in a case-by-case manner.” Bell Aerospace Co., 

416 U.S. at 294. An agency’s “judgment that adjudication 

best serves this purpose is entitled to great weight.” Id. 

Wyndham’s opening brief acknowledges that the FTC has 

given this rationale for proceeding by adjudication, Wyndham 

Br. at 37–38, but, the company offers no ground to challenge 

it.

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regulation. See FTC v. Wyndham Worldwide Corp., 10 F. 

Supp. 3d 602, 621–26 (D.N.J. 2014). 

We thus conclude that Wyndham was not entitled to 

know with ascertainable certainty the FTC’s interpretation of 

what cybersecurity practices are required by § 45(a). Instead, 

the relevant question in this appeal is whether Wyndham had 

fair notice that its conduct could fall within the meaning of 

the statute. If later proceedings in this case develop such that 

the proper resolution is to defer to an agency interpretation 

that gives rise to Wyndham’s liability, we leave to that time a 

fuller exploration of the level of notice required. For now, 

however, it is enough to say that we accept Wyndham’s 

forceful contention that we are interpreting the FTC Act (as 

the District Court did). As a necessary consequence, 

Wyndham is only entitled to notice of the meaning of the 

statute and not to the agency’s interpretation of the statute.

B. Did Wyndham Have Fair Notice of the Meaning of 

§ 45(a)?

Having decided that Wyndham is entitled to notice of 

the meaning of the statute, we next consider whether the case 

should be dismissed based on fair notice principles. We do 

not read Wyndham’s briefs as arguing the company lacked 

fair notice that cybersecurity practices can, as a general 

matter, form the basis of an unfair practice under § 45(a). 

Wyndham argues instead it lacked notice of what specific

cybersecurity practices are necessary to avoid liability. We 

have little trouble rejecting this claim. 

To begin with, Wyndham’s briefing focuses on the 

FTC’s failure to give notice of its interpretation of the statute 

and does not meaningfully argue that the statute itself fails 

fair notice principles. We think it imprudent to hold a 100-

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39

year-old statute unconstitutional as applied to the facts of this 

case when we have not expressly been asked to do so. 

Moreover, Wyndham is entitled to a relatively low 

level of statutory notice for several reasons. Subsection 45(a) 

does not implicate any constitutional rights here. Vill. of 

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 

489, 499 (1982). It is a civil rather than criminal statute.20 Id.

at 498–99. And statutes regulating economic activity receive 

a “less strict” test because their “subject matter is often more 

narrow, and because businesses, which face economic 

demands to plan behavior carefully, can be expected to 

consult relevant legislation in advance of action.” Id. at 498.

In this context, the relevant legal rule is not “so vague 

as to be ‘no rule or standard at all.’” CMR D.N. Corp., 703 

F.3d at 632 (quoting Boutilier, 387 U.S. at 123). Subsection 

45(n) asks whether “the act or practice causes or is likely to 

cause substantial injury to consumers which is not reasonably 

avoidable by consumers themselves and not outweighed by 

countervailing benefits to consumers or to competition.” 

While far from precise, this standard informs parties that the 

relevant inquiry here is a cost-benefit analysis, Pa. Funeral 

Dirs. Ass’n v. FTC, 41 F.3d 81, 89–92 (3d Cir. 1992); Am. 

Fin. Servs. Ass’n, 767 F.2d at 975, that considers a number of

relevant factors, including the probability and expected size 

of reasonably unavoidable harms to consumers given a 

certain level of cybersecurity and the costs to consumers that 

 

20 While civil statutes containing “quasi-criminal penalties 

may be subject to the more stringent review afforded criminal 

statutes,” Ford Motor Co., 264 F.3d at 508, we do not know

what remedy, if any, the District Court will impose. And 

Wyndham’s briefing does not indicate what kinds of remedies 

it is exposed to in this proceeding.

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would arise from investment in stronger cybersecurity. We 

acknowledge there will be borderline cases where it is unclear 

if a particular company’s conduct falls below the requisite 

legal threshold. But under a due process analysis a company 

is not entitled to such precision as would eliminate all close 

calls. Cf. Nash v. United States, 229 U.S. 373, 377 (1913) 

(“[T]he law is full of instances where a man’s fate depends on 

his estimating rightly, that is, as the jury subsequently 

estimates it, some matter of degree.”). Fair notice is satisfied 

here as long as the company can reasonably foresee that a 

court could construe its conduct as falling within the meaning 

of the statute.

What appears to us is that Wyndham’s fair notice 

claim must be reviewed as an as-applied challenge. See

United States v. Mazurie, 419 U.S. 544, 550 (1975); San 

Filippo, 961 F.2d at 1136. Yet Wyndham does not argue that 

its cybersecurity practices survive a reasonable interpretation 

of the cost-benefit analysis required by § 45(n). One sentence 

in Wyndham’s reply brief says that its “view of what datasecurity practices are unreasonable . . . is not necessarily the 

same as the FTC’s.” Wyndham Reply Br. at 23. Too little 

and too late.

Wyndham’s as-applied challenge falls well short given 

the allegations in the FTC’s complaint. As the FTC points 

out in its brief, the complaint does not allege that Wyndham 

used weak firewalls, IP address restrictions, encryption 

software, and passwords. Rather, it alleges that Wyndham 

failed to use any firewall at critical network points, Compl. at 

¶ 24(a), did not restrict specific IP addresses at all, id. at 

¶ 24(j), did not use any encryption for certain customer files, 

id. at ¶ 24(b), and did not require some users to change their 

default or factory-setting passwords at all, id. at ¶ 24(f). 

Wyndham did not respond to this argument in its reply brief.

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Wyndham’s as-applied challenge is even weaker given 

it was hacked not one or two, but three, times. At least after 

the second attack, it should have been painfully clear to 

Wyndham that a court could find its conduct failed the costbenefit analysis. That said, we leave for another day whether 

Wyndham’s alleged cybersecurity practices do in fact fail, an 

issue the parties did not brief. We merely note that certainly 

after the second time Wyndham was hacked, it was on notice 

of the possibility that a court could find that its practices fail 

the cost-benefit analysis.

Several other considerations reinforce our conclusion 

that Wyndham’s fair notice challenge fails. In 2007 the FTC 

issued a guidebook, Protecting Personal Information: A 

Guide for Business, FTC Response Br. Attachment 1 

[hereinafter FTC Guidebook], which describes a “checklist[]” 

of practices that form a “sound data security plan.” Id. at 3. 

The guidebook does not state that any particular practice is 

required by § 45(a),21 but it does counsel against many of the 

specific practices alleged here. For instance, it recommends 

that companies “consider encrypting sensitive information 

that is stored on [a] computer network . . . [, c]heck . . . 

software vendors’ websites regularly for alerts about new 

vulnerabilities, and implement policies for installing vendorapproved patches.” Id. at 10. It recommends using “a 

firewall to protect [a] computer from hacker attacks while it is 

connected to the Internet,” deciding “whether [to] install a 

‘border’ firewall where [a] network connects to the Internet,” 

and setting access controls that “determine who gets through 

 

21 For this reason, we agree with Wyndham that the 

guidebook could not, on its own, provide “ascertainable 

certainty” of the FTC’s interpretation of what specific 

cybersecurity practices fail § 45(n). But as we have already 

explained, this is not the relevant question.

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the firewall and what they will be allowed to see . . . to allow 

only trusted employees with a legitimate business need to 

access the network.” Id. at 14. It recommends “requiring that 

employees use ‘strong’ passwords” and cautions that 

“[h]ackers will first try words like . . . the software’s default 

password[] and other easy-to-guess choices.” Id. at 12. And 

it recommends implementing a “breach response plan,” id. at 

16, which includes “[i]nvestigat[ing] security incidents 

immediately and tak[ing] steps to close off existing 

vulnerabilities or threats to personal information,” id. at 23.

As the agency responsible for administering the 

statute, the FTC’s expert views about the characteristics of a 

“sound data security plan” could certainly have helped 

Wyndham determine in advance that its conduct might not 

survive the cost-benefit analysis.

Before the attacks, the FTC also filed complaints and 

entered into consent decrees in administrative cases raising 

unfairness claims based on inadequate corporate 

cybersecurity. FTC Br. at 47 n.16. The agency published 

these materials on its website and provided notice of proposed 

consent orders in the Federal Register. Wyndham responds 

that the complaints cannot satisfy fair notice principles 

because they are not “adjudications on the merits.”22 

Wyndham Br. at 41. But even where the “ascertainable 

certainty” standard applies to fair notice claims, courts 

regularly consider materials that are neither regulations nor 

“adjudications on the merits.” See, e.g., United States v. 

 

22 We agree with Wyndham that the consent orders, which 

admit no liability and which focus on prospective 

requirements on the defendant, were of little use to it in trying 

to understand the specific requirements imposed by § 45(a).

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Lachman, 387 F.3d 42, 57 (1st Cir. 2004) (noting that fair 

notice principles can be satisfied even where a regulation is 

vague if the agency “provide[d] a sufficient, publicly 

accessible statement” of the agency’s interpretation of the 

regulation); Beverly Healthcare-Hillview, 541 F.3d at 202 

(citing Lachman and treating an OSHA opinion letter as a

“sufficient, publicly accessible statement”); Gen. Elec. Co., 

53 F.3d at 1329. That the FTC commissioners—who must 

vote on whether to issue a complaint, 16 C.F.R. § 3.11(a); 

ABA Section of Antitrust Law, FTC Practice and Procedure 

Manual 160–61 (2007)—believe that alleged cybersecurity 

practices fail the cost-benefit analysis of § 45(n) certainly 

helps companies with similar practices apprehend the 

possibility that their cybersecurity could fail as well.23

 

23 We recognize it may be unfair to expect private parties 

back in 2008 to have examined FTC complaints or consent 

decrees. Indeed, these may not be the kinds of legal 

documents they typically consulted. At oral argument we 

asked how private parties in 2008 would have known to 

consult them. The FTC’s only answer was that “if you’re a 

careful general counsel you do pay attention to what the FTC 

is doing, and you do look at these things.” Oral Arg. Tr. at 

51. We also asked whether the FTC has “informed the public 

that it needs to look at complaints and consent decrees for 

guidance,” and the Commission could offer no examples. Id.

at 52. But Wyndham does not appear to argue it was unaware 

of the consent decrees and complaints; it claims only that they 

did not give notice of what the law requires. Wyndham 

Reply Br. at 25 (“The fact that the FTC publishes these 

materials on its website and provides notice in the Federal 

Register, moreover, is immaterial—the problem is not that 

Wyndham lacked notice of the consent decrees [which 

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Wyndham next contends that the individual allegations 

in the complaints are too vague to be relevant to the fair 

notice analysis. Wyndham Br. at 41–42. It does not, 

however, identify any specific examples. And as the Table 

below reveals, the individual allegations were specific and 

similar to those here in at least one of the four or five24

cybersecurity-related unfair-practice complaints that issued 

prior to the first attack. 

Wyndham also argues that, even if the individual 

allegations are not vague, the complaints “fail to spell out 

what specific cybersecurity practices . . . actually triggered 

the alleged violation, . . . provid[ing] only a . . . description of 

certain alleged problems that, ‘taken together,’” fail the costbenefit analysis. Wyndham Br. at 42 (emphasis in original).

We part with it on two fronts. First, even if the complaints do 

not specify which allegations, in the Commission’s view, 

form the necessary and sufficient conditions of the alleged 

violation, they can still help companies apprehend the 

possibility of liability under the statute. Second, as the Table 

below shows, Wyndham cannot argue that the complaints fail 

to give notice of the necessary and sufficient conditions of an 

 

reference the complaints] but that consent decrees [and 

presumably complaints] by their nature do not give notice of 

what Section 5 requires.” (emphases in original, citations and 

internal quotations omitted)).

24 The FTC asserts that five such complaints issued prior to 

the first attack in April 2008. See FTC Br. at 47–48 n.16. 

There is some ambiguity, however, about whether one of 

them issued several months later. See Complaint, TJX Co., 

No. C-4227 (FTC 2008) (stating that the complaint was 

issued on July 29, 2008). We note that this complaint also 

shares significant parallels with the allegations here. 

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45

alleged § 45(a) violation when all of the allegations in at least 

one of the relevant four or five complaints have close 

corollaries here. See Complaint, CardSystems Solutions, Inc., 

No. C-4168 (FTC 2006) [hereinafter CCS].

Table: Comparing CSS and Wyndham Complaints

CSS Wyndham

1 Created unnecessary risks to 

personal information by storing 

it in a vulnerable format for up 

to 30 days, CSS at ¶ 6(1).

Allowed software at hotels to 

store payment card information 

in clear readable text, Compl. at 

¶ 24(b).

2 Did not adequately assess the 

vulnerability of its web 

application and computer 

network to commonly known or 

reasonably foreseeable attacks; 

did not implement simple, lowcost and readily available 

defenses to such attacks, CSS at 

¶ 6(2)–(3).

Failed to monitor network for 

the malware used in a previous 

intrusion, Compl. at ¶ 24(i), 

which was then reused by 

hackers later to access the 

system again, id. at ¶ 34.

3 Failed to use strong passwords 

to prevent a hacker from gaining 

control over computers on its 

computer network and access to 

personal information stored on 

the network, CSS at ¶ 6(4).

Did not employ common 

methods to require user IDs and 

passwords that are difficult for 

hackers to guess. E.g., allowed 

remote access to a hotel’s 

property management system 

that used default/factory setting 

passwords, Compl. at ¶ 24(f).

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4 Did not use readily available 

security measures to limit access 

between computers on its 

network and between those 

computers and the Internet, CSS 

at ¶ 6(5).

Did not use readily available 

security measures, such as 

firewalls, to limit access 

between and among hotels’ 

property management systems, 

the Wyndham network, and the 

Internet, Compl. at ¶ 24(a).

5 Failed to employ sufficient 

measures to detect unauthorized 

access to personal information or 

to conduct security 

investigations, CSS at ¶ 6(6).

Failed to employ reasonable 

measures to detect and prevent 

unauthorized access to computer 

network or to conduct security 

investigations, Compl. at 

¶ 24(h).

In sum, we have little trouble rejecting Wyndham’s 

fair notice claim.

V. Conclusion

The three requirements in § 45(n) may be necessary

rather than sufficient conditions of an unfair practice, but we 

are not persuaded that any other requirements proposed by 

Wyndham pose a serious challenge to the FTC’s claim here. 

Furthermore, Wyndham repeatedly argued there is no FTC 

interpretation of § 45(a) or (n) to which the federal courts 

must defer in this case, and, as a result, the courts must 

interpret the meaning of the statute as it applies to 

Wyndham’s conduct in the first instance. Thus, Wyndham 

cannot argue it was entitled to know with ascertainable 

certainty the cybersecurity standards by which the FTC 

expected it to conform. Instead, the company can only claim 

that it lacked fair notice of the meaning of the statute itself—a 

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47

theory it did not meaningfully raise and that we strongly 

suspect would be unpersuasive under the facts of this case.

We thus affirm the District Court’s decision.

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