Whether the Federal Trade Commission Has Authority

to Prosecute Actions for Criminal Contempt

The Federal Trade Commission lacks authority to prosecute actions for cnminal contempt, 

unless the Commission’s attorneys receive special appointments from the Attorney 

General and becom e subject to his direction.

September 25, 1989

M e m o r a n d u m O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l

C iv il D iv is io n

This memorandum responds to your request for the opinion of this 

Office as to whether the Federal Trade Commission (“FTC” or “Commission”) has authority to prosecute actions for criminal contempt. We 

conclude that the Commission lacks authority to prosecute such actions, 

unless the Commission’s attorneys receive special appointments from the 

Attorney General and become subject to his direction.

I.

A court of the United States has the power to “punish by fine or imprisonment ... such contempt of its authority, and none other, as ... [disobedience or resistance to its lawful writ, process, order, rule, decree, or 

command.” 18 U.S.C. § 401(3). Where an alleged criminal contempt arises 

from disobedience to a court order in a case that the Commission has 

brought or defended, the Commission asserts "the authority, upon 

appointment by the court, to prosecute the contempt. See Letter for 

Robert N. Ford, Deputy Assistant Attorney General, Civil Division, from 

Amanda B. Pederson, Deputy Director of Consumer Protection, Federal 

Trade Commission at 1 (June 24, 1985) (“Pederson Letter”). The Civil 

Division and the Criminal Division both take the view that the 

Commission is without authority to conduct such prosecutions. See

Letter for Amanda B. Pederson, from Robert N. Ford (June 10, 1985); 

Memorandum for Margaret Love, Attomey-Advisor, Office of Legal 

Counsel, from Lawrence Lippe, Chief, General Litigation and Legal 

Advice Section, Criminal Division (Oct. 28, 1985).

Under 28 U.S.C. § 516, the Attorney General, “[e]xcept as otherwise 

authorized by law,” has control over “the conduct of litigation in which

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the United States, an agency, or officer thereof is a party, or is interested.” 

See also 28 U.S.C. § 519.1 The principle that the Attorney General has plenary authority over such litigation applies with particular force in criminal cases. See United States v. Nixon, 418 U.S. 683, 694 (1974) (“Under 

the authority of Art. II, § 2, Congress has vested in the Attorney General 

the power to conduct the criminal litigation of the United States 

Government.”) (citing 28 U.S.C. § 516). Therefore, the Commission may 

not bring an action for criminal contempt unless clearly “authorized by 

law” to do so. Cf. United States v. International Union of Operating

Eng'rs, 638 F.2d 1161, 1162 (9th Cir. 1979), cert, denied, 444 U.S. 1077

(1980) (noting “a presumption against a congressional intention to limit 

the power of the Attorney General to prosecute offenses under the criminal laws of the United States,” in rejecting argument that United States 

must exhaust administrative remedies before bringing criminal case).

We do not believe that the Commission is authorized by the FTC Act, 

ch. 311, 38 Stat. 717 (codified as amended at 15 U.S.C. §§ 41-58), or any 

other statute to prosecute actions for criminal contempt. The 

Commission’s statutory authority to litigate on its own behalf is confined 

to civil proceedings. See 15 U.S.C. § 56(a)(1)(A) & (a)(2) (stating that the 

Commission may “commence, defend, or intervene in” various kinds of 

“civil action[s]”); see also 15 U.S.C. § 56(a)(3)(A) (referring to “any civil 

action in which the Commission represented itself’).2 The FTC Act, however, expressly assigns to the Attorney General the responsibility for

1 This Office has previously concluded

(A)bsent clear legislative directives to the contrary, the Attorney General has full plenary 

authority over all litigation, civil and criminal, to which the United States, its agencies, or 

departments, are parties. Such authonty is rooted historically in our common law and tradition, see Confiscation Cases, 74 U.S. (7 Wall) 454, 458-59 (1866) and, since 1870, has been 

given a statutory basis. See 5 U.S.C. § 3106, and 28 U S.C §§ 516, 519. The Attorney General’s 

plenary authonty is circumscribed only by the duty imposed on the President under Article 

II, § 3 o f the Constitution to “take Care that the Laws be faithfully executed "

Attorney General's Role as Chief Litigator for the United States, 6 Op OLC. 47, 48 (1982) (citation 

omitted).

2 15 U.S.C. § 56(a) reads, in relevant part:

(1) Except as otherwise provided in paragraph (2) or (3), if —

(A) before commencing, defending, or intervening in, any civil action involving [sections 41 to 46 and 47 to 58 o f this title] (including an action to collect a civil penalty) 

which the Commission, or the Attorney General on behalf o f the Commission, is authorized to commence, defend, or intervene in, the Commission gives written notification 

and undertakes to consult with the Attorney General with respect to such action, and

(B) The Attorney General fails within 45 days after the receipt of such notification to 

commence, defend, or intervene in, such action;

the Commission may commence, defend, or intervene in, and supervise the litigation or, such 

action and any appeal o f such action in its own name by any o f its attorneys designated by it 

for such purpose.

(2) Except as otherwise provided in paragraph (3), in any civil action—

the Commission shall have exclusive authonty to commence or defend, and supervise the 

litigation of, such action and any appeal of such action in its own name by any o f its attorneys

Continued

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bringing any criminal cases arising from violations of the laws administered by the Commission:

Whenever the Commission has reason to believe that any 

person, partnership, or corporation is liable for a criminal 

penalty under [sections 41 to 46 and 47 to 58 of this title], 

the Commission shall certify the facts to the Attorney 

General, whose duty it shall be to cause appropriate criminal proceedings to be brought.

15 U.S.C. § 56(b).3

Indeed, in enacting amendments to 15 U.S.C. § 56 and related provisions in 1973, Congress took special care not to create ambiguities in the 

statute that might lead to the Commission’s assuming a criminal jurisdiction. When the bill came from the Conference Committee, it included one 

provision (15 U.S.C. § 45(m)) that the parliamentarian of the House interpreted as allowing criminal prosecutions by the Commission. See 119 

Cong. Rec. 36,813 (1973) (remarks of Sen. Stevens). To clarify the provision, the Senate returned to the version that it had originally passed, 

which plainly “applie[d] only to civil actions.” Id,.4

Nevertheless, the Commission argues that it has authority to bring 

actions for criminal contempt. The Commission does not claim any 

express statutory basis for this supposed authority. Instead, it contends 

that “the authority of [its] attorneys to prosecute the criminal contempt 

(if appointed by the court to do so) is an inherent part of their authority 

to prosecute the underlying action from which the contempt arises.” 

Pederson Letter at 1. The Commission also relies on the Supreme Court’s 

opinion in FTC v. Dean Foods Co., 384 U.S. 597 (1966). In that case, the 

Court held that the Commission, despite an absence of explicit statutory 

authority, could seek preliminary relief from the Court of Appeals pending the outcome of Commission proceedings in a merger case because 

“[s]uch ancillary powers have always been treated as essential to the

2 (.. continued)

designated by it for such purpose, unless the Commission authorizes the Attorney General to 

do so The Commission shall inform the Attorney General o f the exercise of such authority and 

such exercise shall not preclude the Attorney General from intervening on behalf o f the United 

States in such action and any appeal of such action as may be otherwise provided by law 

15 U.S.C. § 56(a) 15 U S C. § 56(a)(3), to which these sections refer, deals with representation in civil 

actions before the Supreme Court

3 As explained below, the Commission asserts that its power to prosecute contempts is incidental to its 

statutory power under the sections o f the United States Code referred to in 15 U.S.C. § 56(b) Therefore, 

the Commission could not escape from the provision of 15 U.S C § 56(b) about certification to the 

Attorney General by arguing that liability for contempt is not “under [sections 41 to 46 and 47 to 58]” of 

title 15, as referred to in that provision.

4 Although Congress substituted a new version of 15 U.S.C § 45(m) in 1975, the amended provision 

expressly applies only to civil actions and thus does not enlarge the scope o f the section in that respect. 

See Pub. L No 93-637, tit. II, §§ 204(b), 205(a), 88 Stat. 2193, 2199, 2200-01 (1975).

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effective discharge of the Commission’s responsibilities.” Id. at 607. 

Finally, the Commission contends that its authority may be justified by its 

consistent exercise of this authority in the past.

II.

The Commission’s arguments do not establish its statutory authority to 

bring actions for criminal contempt.

A. The Commission has no authority to prosecute a criminal contempt 

as “an inherent part of [its] authority to prosecute the underlying action 

from which the contempt arises.” Pederson Letter at 1. An action for 

criminal contempt is separate from the underlying civil litigation. As the 

Supreme Court explained in Young v. United States ex rel. Vuitton, 481 

U.S. 787 (1987), the “criminal contempt proceedings arising out of civil 

litigation ‘are between the public and the defendant, and are not a part of 

the original cause.’” Id. at 804 (quoting Gompers v. Bucks Stove & Range

Co., 221 U.S. 418, 445 (1911)); see Bray v. United States, 423 U.S 73, 75 

(1975).5 Because the underlying civil action that Congress authorized the 

Commission to pursue is distinct from the criminal contempt action, 

there is no reason to infer that Congress intended the Commission’s litigation authority to reach criminal contempt cases.

This conclusion is no mere matter of form but follows from the essentially different interests at stake in the underlying civil litigation and the 

subsequent criminal prosecution. Civil actions for injunctions vindicate 

the goals of the Federal Trade Commission Act or the Clayton Act; 

Congress explicitly entrusted the Commission with the duty of seeking 

those goals through litigation. An action for criminal contempt, however, 

is aimed at “vindicating the authority of the court” and “presenting] 

respect for the judicial system itself.” Vuitton, 481 U.S. at 800.® 

Prosecution of the criminal contempt, therefore, serves purposes different 

from those Congress directed the Commission to pursue in civil litigation.7

5 A prosecution for cnminal contempt, for example, is not “affected by any settlement which the parties to the [underlying] equity cause made in their pnvate litigation,” but continues as a separate action. 

Gompers v Bucks Stove & Range Co , 221 U.S at 451

6The Supreme Court accordingly held in Vuitton that attorneys “appointed to prosecute a cnminal contempt action represent the United States, not the party that is the beneficiary of the court order allegedly violated." 481 U.S. at 804, see United States v. Providence Journal Co , 485 U S. 693, 700 (1988) (“The 

action was initiated in vindication of the ‘judicial Power of the United States' U S. Const, Art. Ill, § 1 

(emphasis added), and it is that interest, unique to the sovereign, that continues now to be litigated in 

this Court.”).

7 To be sure, a prosecution for cnminal contempt, in some measure, will indirectly promote the statutory policies at stake m the underlying litigation. Future violations of orders requinng obedience to the 

statute administered by the Commission may be deterred by the prospect of punishment for contempt. 

But this indirect promotion o f the statutory policies does not detract from the primary purpose o f vindicatingjudicial authonty in cnminal contempt cases. It is the vindication o f judicial authonty (and not the 

Commission’s authonty) that justifies appointment of a prosecutor by the court in the first place. See

Vuitton, 481 U.S. at 800-01, Cheff v Schnackenberg, 384 U S. 373, 378 (1966) (plurality opinion) (“Cheff 

was found in contempt of the Court of Appeals, not o f the Commission.”).

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The Commission’s argument, moreover, could lead to a widening circle 

of “incidental” criminal prosecutions by the Commission. Charges of perjury, bribery, or obstruction of justice, too, could grow out of civil proceedings brought by the Commission. To our knowledge, however, the 

Commission has never asserted authority to prosecute such crimes, and 

exercise of such authority would be clearly contrary to the requirement 

of the FTC Act that criminal charges be referred to the Attorney General.

Actions for criminal contempt, therefore, are separate from the underlying civil actions in which the orders alleged to be violated are issued. 

The Commission’s authority to litigate the civil actions does not entail 

any “inherent” authority to bring actions for criminal contempt.

B. The Supreme Court’s decision in FTC v. Dean Foods Co., 384 U.S. 

597 (1966), does not support the authority claimed by the Commission to 

initiate actions for criminal contempt. Dean Foods merely held that the 

Commission could ask the court of appeals for a preliminary iryunction 

against a merger, pending the outcome of administrative proceedings. 

Although the Commission had no explicit statutory power to seek this 

preliminary relief, the Court ruled that such power could be inferred:

[T]he Commission is a governmental agency to which 

Congress has entrusted, inter alia, the enforcement of the 

Clayton Act, granting it the power to order divestiture in 

appropriate cases. At the same time, Congress has given the 

courts of appeals jurisdiction to review final Commission 

action. It would stultify congressional purpose to say that 

the Commission did not have the incidental power to ask 

the courts of appeals to exercise their authority derived 

from the All Writs Act.

Id. at 606 (footnote omitted). This rationale does not justify the Commission’s prosecution of actions for criminal contempt. An action for 

criminal contempt does not vindicate the laws whose enforcement 

“Congress has entrusted” to the Commission; it vindicates the authority 

of the court, in a proceeding separate from the underlying civil action. 

Moreover, without authority to seek a preliminary ii\junction, the 

Commission would be powerless to prevent illegal mergers. Thus, injunctive authority is necessary to accomplish the mission Congress has set for 

the FTC. On the other hand even without criminal contempt authority, 

the FTC can fully vindicate its decrees through its civil authority. 

Accordingly, the authority to prosecute criminal contempts cannot be 

fairly inferred from the FTC’s general statutory authority.

Nor do we believe that the Dean Foods Court’s observation, in dictum, 

that it had never been “asserted that the Commission could not bring contempt actions in the appropriate court of appeals when the court’s 

enforcement orders were violated, though it has no statutory authority in

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this respect,” 384 U.S. at 607, suggests that the Commission er\joys the 

power to bring criminal contempt cases. The Court followed this observation by declaring that “[s]uch ancillary powers have always been treated as 

essential to the effective discharge of the Commission’s responsibilities.” 

Id. Thus, this dictum can most sensibly be read as referring to civil contempt, since the other instances of the Commission’s implied powers discussed by the Court — the power to seek preliminary relief from an 

appellate court and the power to defend Commission orders in judicial 

review proceedings — concern civil actions in which the Commission’s 

authority and the policies o f the statutes administered by the 

Commission would be vindicated. See id. at 606-07. Criminal contempt 

cases, as explained above, vindicate instead the authority of the court, in 

proceedings separate from the underlying civil actions.

Furthermore, the Eighth Circuit has reached the conclusion that Dean

Foods “did not directly or indirectly concern itself with the possible conflict between the Commission and the Attorney General over which 

agency was the proper one to seek the exercise” of the appellate court’s 

power to issue a preliminary injunction. FTC v. Guignon, 390 F.2d 323, 

327 (8th Cir. 1968). The issue in Guignon was whether the Commission, 

on its own behalf, could seek to enforce discovery subpoenas or needed 

the “aid or consent” of the Attorney General. Id. at 324. The court decided that the Commission could not seek, on its own behalf, to enforce its 

discovery subpoenas but depended on the Attorney General to do so. 

Whether or not the court in Guignon was correct in making this ruling,8 

or in interpreting Dean Foods as not involving possible conflicts between 

the Commission and the Attorney General, Guignon demonstrates that 

Dean Foods should not be read as a general warrant for the Commission 

to assert implied powers that conflict with the Attorney General’s statutory authority.

C. The Commission also argues that its authority to prosecute criminal 

contempts “is supported both by long and consistent usage and by the 

only decision of which [the Commission is] aware in which the issue [of 

agency authority] was expressly contested and resolved.” Pederson 

Letter at 1. As an initial matter, we do not believe that usage alone can 

justify a practice unsupported in law — nor can a single district court 

decision. In any event, we do not believe that the usage or the case provides support for the Commission’s claim of authority to bring criminal 

contempt actions.

As to the usage, the Commission cites seven reported cases in which it

8 Two district court cases decided at approximately the same time as Guignon held that the 

Commission could seek to enforce its subpoenas without the consent and assistance of the Attorney 

General FTC v. Kujawski, 298 F. Supp. 1288, 1289 (N D. G a 1969); FTC v. Continental Can Co , 267 F. 

Supp. 713 (S.D.N.Y. 1967) Through later legislation, Congress made clear the Commission’s statutory 

authonty to bring actions to enforce subpoenas. See 15 U S.C § 56(a)(2)(D), Pub L. No. 93-153, tit. IV, § 

408(g), 87 Stat 576, 592 (1973); Pub. L. No. 93-637, tit. II, § 204(a), 88 Stat. 2183, 2199 (1975).

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prosecuted criminal contempts.9 As the Commission concedes, Pederson 

Letter at 2-3, the courts in these cases did not address the Commission’s 

authority to bring the actions. Nor did the Ninth Circuit consider the 

issue of statutory authority in a more recent case in which it sustained a 

finding of contempt and rejected the argument that, under Vuitton, the 

Commission was disqualified from prosecuting the contempt because it 

was an interested party.10 See FTC v. American Nat’l Cellular, 868 F.2d 

315 (9th Cir. 1989). Because these cases do not discuss the issue of statutory authority, they do not illuminate whether Congress intended the 

Commission to prosecute criminal contempts. See United States v.

Morton Salt Co., 338 U.S. 632, 647 (1950) (Nonexistent powers cannot “be 

prescripted by an unchallenged exercise.”).

Nor has the usage in this area been consistent. In one instance of which 

we have been made aware, the Commission’s lawyers received appointments as Special Assistant United States Attorneys, when a grand jury was 

conducting an investigation bearing on possible charges of criminal contempt. See Memorandum for D. Lowell Jensen, Deputy Attorney General, 

from Richard K. Willard, Acting Assistant Attorney General, Civil Division, 

at 1-2 (July 30, 1985); Memorandum for Richard K. Willard, Acting 

Assistant Attorney General, Civil Division, from John R. Fleder, Assistant 

Director, Office of Consumer Litigation (May 30,1985); Pederson Letter at 

3 n.3, 6; 28 U.S.C. § 515. The Commission suggests that this involvement 

by the Department of Justice does not destroy the consistency of the 

Commission’s practice of representing itself because the Commission’s 

attorneys “might properly prosecute the particular matter themselves.” 

Pederson Letter at 3 n.3. That argument, however, is circular; it assumes 

that the Commission’s lawyers could have brought an action. Absent the 

assumption that the Commission may prosecute a criminal contempt 

action, the involvement of the Department of Justice undermines the consistency of the very usage on which the Commission relies.

The Commission also argues that one case, SEC v. Murphy, Fed. Sec. L. 

Rep. (CCH) 99,688 (C.D. Cal. 1983), explicitly considered and upheld the 

authority of the Securities and Exchange Commission to bring criminal 

contempt actions under a statute similar to 15 U.S.C. § 56. The Court in 

Murphy did not discuss the different interests to be vindicated in criminal 

contempt action and the underlying civil case. Instead, the court based its 

holding on the absence of an explicit statutory prohibition against the

9 FTC v. Hoboken White Lead & Color Works, 67 F.2d 551 (2d Cir. 1933); FTC v. Pacific States Paper

Trade Ass’n, 88 F.2d 1009 (9th Cir 1937), In re Dolan Co7p., 247 F2d 524 (D C. Cir. 1956), cert denied,

353 U.S. 988 (1957), In re P. LoriUard Co , 1959 Trade Cas (CCH) H 69,272 (4th Cir 1959); In re

Floersheim, 316 F.2d 423 (9th Cir. 1963), In re Holland Furnace Co., 341 F.2d 548 (7th Cir. 1965), affd

sub nom Cheff v Schnackenberg, 384 U S. 373 (1966); In re Whitney & Co., 273 F.2d 211 (9th Cir 1959).

10 Vuitton held, under the Court’s supervisory power, that counsel for an interested party in civil litigation underlying a contempt action should not be appointed to prosecute the contempt. See 481 U.S. at 

802-09.

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SEC’s bringing the action and on the argument that “the SEC — not the 

United States Attorney, the Attorney General, or anyone else — is in the 

best position to know the specific prohibitions of the injunction and the 

particular circumstances which allegedly constitute the contempt of the 

injunction.” Id. at 97,765. In Vuitton, however, the Court rejected the argument that an attorney’s expertise justifies giving him control of a prosecution for criminal appointment. The Court held that, despite expert knowledge, counsel for an interested private party should not be allowed to 

prosecute a criminal contempt: “That familiarity may be put to use in 

assisting a disinterested prosecutor in pursuant to the contempt action, 

but cannot justify permitting counsel for the private party to be in control 

of the prosecution.” Vuitton, 481 U.S. at 806 n.17. Similarly, the 

Commission’s knowledge of the underlying action cannot justify abandoning the principle that the Attorney General is to control the litigation of 

criminal cases on behalf of the United States. See United States v. Nixon,

418 U.S. at 694; 28 U.S.C. § 516. The single district court case addressing 

this issue — decided before Vuitton — is, therefore, unpersuasive.

In sum, the cases and practices on which the Commission relies do not 

establish that the Commission has implied authority to bring actions for 

criminal contempt. The cases involving the Commission itself do not 

touch on the issue at all; the usage in this area is not consistent; and the 

single district court case that might lead to an argument by analogy has 

been undercut by the later opinion of the Supreme Court in Vuitton.

III.

Finally, we address two arguments not advanced in the Pederson 

Letter. First, although the Pederson Letter cites Fed. R. Crim. P. criminal 

contempt actions, the Commission does not rely on Rule 42(b) as “authoriz[ing] by law” the Commission’s initiation of actions for criminal contempt. Since the Pederson Letter, Vuitton has established that Rule 42(b) 

“does not provide authorization for the appointment of a private attorney” but “speaks only to the procedure for providing notice of criminal 

contempt.” Vuitton, 481 U.S. at 793, 794 (emphasis omitted). Rule 42(b) 

thus offers no authority for the Commission to prosecute contempts.

Second, it might be argued that even if the Commission lacks statutory 

authority to bring actions for criminal contempt, a court, through the 

exercise of its authority to appoint prosecutors, could empower the 

Commission to prosecute a criminal contempt case. Any such argument 

would be groundless. In addition to the issue of the court’s authority to 

appoint prosecutors, there is a separate question about whether the 

government attorneys have authority to accept appointment. The Commission is a creation of statute and thus must abide by the statutory limitations on the authority. See Civil Aeronautics Bd. v. Delta Air Lines,

367 U.S. 316, 322 (1961); Oceanair of Florida v. United States Dep’t of

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Transp., 876 F.2d 1560, 1565 (11th Cir. 1989). Prosecution o f criminal 

contempts by Commission attorneys at the behest of a court would 

circumvent the Congressional determination to limit the Commission’s 

authority to civil actions.11

IV.

We conclude that the Commission has no authority to bring actions for 

criminal contempt. Commission lawyers, however, may be appointed 

special attorneys subject to the Attorney General’s direction, 28 U.S.C. § 

515, and in that capacity could conduct prosecutions for criminal contempt in cases where the court had appointed the United States Attorney 

to prosecute.

WILLIAM P. BARR

Assistant Attorney General

Office of Legal Counsel

11 We do not believe that the judiciary would have the constitutional authonty to assign governmental 

attorneys to prosecute cnminal contempts in contravention o f limits on their statutory authonty Vuitton

sustained the appointment of pnvate attorneys to prosecute cnminal contempts, because a court’s power 

to “punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a 

means to vindicate its own authonty without complete dependence on other Branches ” Vuitton, 481 

U S at 796 Although the power o f courts to vindicate their own authority, under the circumstances in 

Vuitton, arguably may be grounded in the Constitution, appointment of Commission attorneys hardly 

promotes judicial freedom from “complete dependence on other Branches.”

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