Andrew Lustigman, Chair of the firm's Advertising, Marketing and Promotion's Group and Co-Chair of Brand Management & Protection Group, was quoted in Law360 (subscription required).
FTC trying to recover the right to seek disgorgement of unjust enrichment in federal court
Court allows FTC to withdraw disgorgement claims with eye towards possible reinstatement.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in Law360 on major upcoming U.S. Supreme Court fights concerning consumer protection, namely, the Federal Trade Commission’s (FTC) ability to seek monetary restitution for bad marketplace behavior under Section 13(b) of the Federal Trade Commission Act. Specifically, the Court’s arguments scheduled for January 13 in AMG Capital Management LLC et al. v. FTC challenge allegations that payday loan companies engaged in predatory loan practices. Mr. Lustigman described disgorgement as an “enormous hammer” for the FTC, as a monetary fine equal to sales of a targeted product neglects to take into account a company's other expenses, like taxes and advertising. "There's no setoff," he explained. "They're saying you have to give up everything you took in."
The FTC has increasingly relied on equitable monetary remedies (such as disgorgement based on gross revenues less returns) to avoid the applicability of an analogous statute of limitations defense. The Supreme Court’s recent decision in Kokesh v. SEC may change that practice.