II 

117TH CONGRESS 

1ST SESSION S. 3410 

To amend section 13 of the Federal Trade Commission Act to provide for 

equitable relief, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 15, 2021 

Mr. LEE (for himself, Ms. LUMMIS, Mr. TILLIS, and Mr. HAWLEY) introduced 

the following bill; which was read twice and referred to the Committee 

on Commerce, Science, and Transportation 

A BILL 

To amend section 13 of the Federal Trade Commission Act 

to provide for equitable relief, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘The Consumer Protec5 tion and Due Process Act’’. 

6 SEC. 2. AMENDMENTS TO THE FEDERAL TRADE COMMIS7 SION ACT. 

8 (a) PROVISION OF EQUITABLE RELIEF; AUTHORITY

9 TO REFER TO THE ATTORNEY GENERAL.— 


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1 (1) IN GENERAL.—Section 13 of the Federal 

2 Trade Commission Act (15 U.S.C. 53) is amended 

3 by adding at the end the following: 

4 ‘‘(e) EQUITABLE RELIEF.— 

5 ‘‘(1) RESTITUTION; CONTRACT RESCISSION AND

6 REFORMATION; REFUNDS; RETURN OF PROPERTY

7 RESPECTING UNFAIR OR DECEPTIVE ACTS OR PRAC8 TICES.— 

9 ‘‘(A) IN GENERAL.—Subject to paragraph 

10 (4), in a suit brought under subsection 

11 (b)(2)(B), the Commission may seek, and the 

12 court may order— 

13 ‘‘(i) restitution for consumer loss that 

14 the court has a sound basis to conclude re15 sulted from such violation; 

16 ‘‘(ii) rescission or reformation of con17 tracts; or 

18 ‘‘(iii) the refund of property. 

19 ‘‘(B) LIMITATIONS PERIOD.—In a suit 

20 brought under subsection (b)(2)(B), the Com21 mission may bring a claim for relief under this 

22 paragraph not later than 3 years after the date 

23 on which the violation that gives rise to the suit 

24 in which the Commission seeks the claim oc25 curs. 


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1 ‘‘(2) DISGORGEMENT RESPECTING UNFAIR OR

2 DECEPTIVE ACTS OR PRACTICES.— 

3 ‘‘(A) IN GENERAL.—Subject to paragraph 

4 (4), in a suit brought under subsection 

5 (b)(2)(B), the Commission may seek, and the 

6 court may order, disgorgement of any unjust 

7 enrichment the court has a sound basis to con8 clude that a person, partnership, or corporation 

9 obtained as a result of that violation. 

10 ‘‘(B) CALCULATION.—Any amount that a 

11 court orders a person, partnership, or corpora12 tion to pay under subparagraph (A) shall be 

13 offset by any amount a court orders the person, 

14 partnership, or corporation to pay or to return 

15 under paragraph (1)(A) and shall not exceed 

16 the net profits directly related to the violation 

17 by the person, partnership, or corporation. 

18 ‘‘(C) LIMITATIONS PERIOD.—In a suit 

19 brought under subsection (b)(2)(B), the Com20 mission may bring a claim for disgorgement 

21 under this paragraph not later than 3 years 

22 after the date on which the violation that gives 

23 rise to the suit in which the Commission seeks 

24 the claim occurs. 


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1 ‘‘(3) CALCULATION OF LIMITATIONS PERI2 ODS.—For purposes of calculating any limitations 

3 period under paragraph (1) or (2), any time in 

4 which a person, partnership, or corporation against 

5 which such equitable relief is sought is outside the 

6 United States shall not be counted for purposes of 

7 calculating such period. 

8 ‘‘(4) BURDEN OF PROOF; PRESUMPTION.— 

9 ‘‘(A) BURDEN OF PROOF.—The court may 

10 order equitable relief under paragraph (1) or 

11 (2) only if the Commission proves that— 

12 ‘‘(i) the act or practice which relates 

13 to the violation that gives rise to the suit 

14 in which the Commission seeks such relief 

15 is an act or practice that a reasonable indi16 vidual would have known, under the cir17 cumstances, was unfair or deceptive within 

18 the meaning of section 5(a)(1); and 

19 ‘‘(ii) a reasonable individual— 

20 ‘‘(I) materially relied on such act 

21 or practice; and 

22 ‘‘(II) such act or practice proxi23 mately caused harm to the individual. 

24 ‘‘(B) NO PRESUMPTION OF MATERIAL RE25 LIANCE.—For purposes of subparagraph 


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1 (A)(ii)(I), the court may not presume that an 

2 individual materially relied on any unfair or de3 ceptive acts or practices solely on the basis of 

4 a finding that such individual was exposed to 

5 such unfair or deceptive acts or practices. 

6 ‘‘(f) REFERRAL BY THE COMMISSION.—In any action 

7 brought by the Commission under this section involving 

8 an unfair method of competition in which the court rules 

9 in favor of the Commission, the Commission may refer the 

10 action to the Attorney General to collect actual damages 

11 under section 4A(b) of the Clayton Act.’’. 

12 (2) CONFORMING AMENDMENTS.—Section 13 of 

13 the Federal Trade Commission Act (15 U.S.C. 53) 

14 is amended by striking subsection (b) and inserting 

15 the following: 

16 ‘‘(b) TEMPORARY RESTRAINING ORDERS; PRELIMI17 NARY AND PERMANENT INJUNCTIONS; OTHER RELIEF.— 

18 Whenever the Commission has reason to believe— 

19 ‘‘(1) that any person, partnership, or corpora20 tion has violated, is violating, or is about to violate 

21 any provision of law enforced by the Federal Trade 

22 Commission; and 

23 ‘‘(2) that either— 

24 ‘‘(A) the enjoining thereof pending the 

25 issuance of a complaint by the Commission and 


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1 until such complaint is dismissed by the Com2 mission or set aside by the court on review, or 

3 until the order of the Commission made thereon 

4 has become final, would be in the interest of the 

5 public; or 

6 ‘‘(B) the permanent enjoining thereof or 

7 the ordering of equitable relief under subsection 

8 (e) would be in the interest of the public, 

9 the Commission by any of its attorneys designated by it 

10 for such purpose may bring suit in a district court of the 

11 United States to obtain such injunction or relief. In a case 

12 brought under paragraph (2)(A), upon a proper showing 

13 that, weighing the equities and considering the Commis14 sion’s likelihood of ultimate success, a temporary restrain15 ing order or preliminary injunction would be in the public 

16 interest, and after notice to the defendant, a temporary 

17 restraining order or a preliminary injunction may be 

18 granted: Provided, however, That if a complaint is not filed 

19 within such period (not exceeding 20 days) as may be 

20 specified by the court after issuance of the temporary re21 straining order or preliminary injunction, the order or in22 junction shall be dissolved by the court and be of no fur23 ther force and effect: Provided further, That in a case 

24 brought under paragraph (2)(B), after proper proof, the 

25 court may issue a permanent injunction, equitable relief 


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1 under subsection (e), or any other relief as the court deter2 mines to be just and proper, including temporary or pre3 liminary equitable relief. Any suit under paragraph (2) 

4 may be brought where such person, partnership, or cor5 poration resides or transacts business, or wherever venue 

6 is proper under section 1391 of title 28, United States 

7 Code. In addition, the court may, if the court determines 

8 that the interests of justice require that any other person, 

9 partnership, or corporation should be a party in such suit, 

10 cause such other person, partnership, or corporation to be 

11 added as a party without regard to whether venue is other12 wise proper in the district in which the suit is brought. 

13 In any such suit, process may be served on any person, 

14 partnership, or corporation wherever it may be found.’’. 

15 (b) AMENDMENTS TO AUTHORITY TO COMMENCE OR

16 DEFEND LITIGATION.— 

17 (1) IN GENERAL.—Section 16(a)(2) of the Fed18 eral Trade Commission Act (15 U.S.C. 56(a)(2)) is 

19 amended— 

20 (A) in subparagraph (A), by striking ‘‘(re21 lating to injunctive relief)’’; and 

22 (B) in subparagraph (B), by striking ‘‘(re23 lating to consumer redress)’’. 

24 (2) TECHNICAL AMENDMENT.—Section 

25 16(a)(2)(D) of the Federal Trade Commission Act 


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1 (15 U.S.C. 56(a)(2)(D)) is amended by striking 

2 ‘‘subpena’’ and inserting ‘‘subpoena’’. 

3 (c) APPLICABILITY.—The amendments made by sub4 sections (a) and (b) shall apply with respect to any action 

5 or proceeding that is commenced on or after the date of 

6 enactment of this Act. 

7 SEC. 3. ACTIONS BY THE ATTORNEY GENERAL. 

8 (a) IN GENERAL.—Section 4A of the Clayton Act (15 

9 U.S.C. 15a) is amended— 

10 (1) by striking ‘‘Whenever’’ and inserting ‘‘(a) 

11 Whenever’’; and 

12 (2) by adding at the end the following: 

13 ‘‘(b)(1) The Attorney General may bring a civil action 

14 in the name of the United States, as parens patriae on 

15 behalf of natural persons residing in the United States 

16 who shall be injured in his or her business or property 

17 by reason of anything forbidden in the antitrust laws, in 

18 any district court of the United States in the district in 

19 which the defendant resides or is found or has an agent, 

20 without respect to the amount in controversy, and shall 

21 recover the damages sustained by him or her, and the cost 

22 of the suit, including a reasonable attorney’s fee. 

23 ‘‘(2) No damages or costs may be recovered for the 

24 same injury that was the basis for the action under that 


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1 paragraph in addition to any damages or costs awarded 

2 in such action.’’. 

3 (b) APPLICABILITY.—The amendments made by sub4 section (a) shall apply with respect to any action or pro5 ceeding that is commenced on or after the date of enact6 ment of this Act. 

Æ 


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