1. THE FEDERAL TRADE COMMISSION UNDER THE TRUMP ADMINISTRATION: PAST, PRESENT, AND FUTURE
February 15, 2017

2. PANELISTS
Joel Winston, Partner: Former Associate Director, Division of Financial Practices; Associate Director, Division of Privacy and Identity Protection; Deputy Assistant Director, Bureau of Consumer Protection; and Assistant Director, Division of Advertising Practices, FTC.
Jean Noonan, Partner: Former Associate Director, Division of Credit Practices, FTC
Lucy Morris, Partner: Former Assistant Director, Division of Financial Practices and Assistant Director, Bureau of Consumer Protection, FTC. Former Deputy Enforcement Director, Consumer Financial Protection Bureau
Rebecca Kuehn, Partner: Former Assistant Director, Division of Privacy and Identity Protection, FTC
Michael Goodman, Partner: Former staff attorney, Division of Marketing Practices, FTC

3. THE FEDERAL TRADE COMMISSION
History – created 1914
Commission Structure
Powers – enforcement, rulemaking, guidance, consumer education (but no supervision)
Jurisdiction: any entity “in or affecting commerce,” except
Banks/depository institutions
Non-profits
Common carrier activities (e.g., telecoms)
Business of insurance

4. LAWS AND RULES ENFORCED
FTC Act, Section 5 (unfair or deceptive acts or practices)
Consumer credit statutes (Truth in Lending Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Consumer Leasing Act, Fair Credit Billing Act)
Fair Debt Collection Practices Act
Privacy laws (Children’s Online Privacy Protection Act, Gramm-Leach-Bliley Act and Privacy and Safeguards Rules)
Telemarketing Sales Rule
CAN-SPAM Act and rules

5. RELATIONSHIP WITH CFPB
Areas of overlapping jurisdiction
Areas of distinct jurisdiction
Different structure
Different powers and remedies
MOU
UDAP vs. UDAAP

6. KEY POLICY STATEMENTS Policy Statement on Deception
Policy Statement on Unfairness
Policy Statement Regarding Advertising Substantiation
Enforcement Policy Statement on Deceptively Formatted Advertisements

7. ENFORCEMENT REMEDIES Cease and desist orders – “fencing in” relief
Disclosure requirements
Temporary restraining orders and preliminary injunctions
Civil penalties (in some cases)
Consumer restitution
Disgorgement of ill-gotten gains

9. DIVISION OF FINANCIAL PRACTICES
Ensures compliance with laws governing consumer financial products and services:
Debt collection
Debt relief services
Mortgage lending/servicing and consumer finance
Motor vehicle sales, financing and leasing
Financial technology (e.g., payment systems)

10. DIVISION OF PRIVACY AND IDENTITY PROTECTION
Oversees issues relating to consumer privacy, information security, and identity theft
Enforces privacy laws and rules (e.g., Gramm-Leach-Bliley Act and Privacy and Safeguards Rules)
Enforces Fair Credit Reporting Act against consumer reporting agencies, data furnishers, and consumer report users.
Operates Identity Theft Data Clearinghouse (federal government’s repository for consumer ID theft complaints) and call center for ID theft victims

11. DIVISION OF ADVERTISING PRACTICES
Monitors and enforces laws covering advertising of wide range of products and services (e.g., dietary supplements, health-related products, tobacco, alcohol and other consumer goods)
Monitors new advertising techniques and media (e.g., social media)
Applies Guides on Use of Endorsements and Testimonials in advertising
Oversees advertising to children, including marketing of violent movies, games, and music.

12. DIVISION OF MARKETING PRACTICES
Brings enforcement actions against various forms of consumer fraud, including internet and other high-tech scams, business opportunity schemes, and pyramid schemes
Enforces Telemarketing Sales Rule against telemarketers engaged in unfair or deceptive practices.
Oversees Do-No-Call registry and brings cases against violators
Enforces CAN-SPAM Act against illegal scams

13. DIVISION OF ENFORCEMENT
Monitors and enforces compliance with FTC administrative and federal court orders entered in consumer protection cases
Coordinates with criminal law enforcement agencies to encourage criminal prosecution of consumer fraud
Develops, reviews, and enforces variety of consumer protection rules (e.g., R-Value Rule, Green Guides, Mail or Telephone Order Merchandise Rule)
Provides guidance to other parts of the agency on bankruptcy issues

14. OTHER CONSUMER PROTECTION DIVISIONS
Division of Consumer & Business Education
Division of Consumer Response & Operations
Division of Litigation Technology & Analysis

15. THE TAXONOMY OF AN INVESTIGATION
Investigation opened
Discovery – Civil Investigative Demands (documents, answers to interrogatories, investigational hearings)
Wait … in some cases for a long time
Communication of findings – close or consent authority
Settlement negotiations
Consent order or Complaint filed
Litigation
Appeal rights within FTC
Similar to CFPB, except …

16. ILLUSTRATIVE RECENT CASES
Uber – deceptive advertising claims
Auto recall cases – deceptive omissions
Amazon, VIZIO – unfair privacy practices
LabMD, Wyndham – unfair and deceptive data security practices

17. PREDICTING THE FUTURE Appropriations – will there be cuts?
New personnel
New acting Chairman – Maureen Ohlhausen
Three new Commissioners to be appointed (and a fourth in September!)
Will be new senior staff, where much of the work of the agency takes place
Past changes in administrations
The Continuity Model
The Upheaval Model
CFPB Gaps

18. CONTACT INFORMATION
Michael Goodman
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006 
Rebecca E. Kuehn 
Lucy Morris
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006 
Joel Winston 
Jean Noonan
Hudson Cook, LLP
1909 K Street, NW 4th Floor
Washington, DC 20006 