S-4311-119
Read twice and referred to the Committee on Commerce, Science, and Transportation.
Sponsored by Maria Cantwell (D-WA)
What it does
This bill would amend Section 13(b) of the Federal Trade Commission Act to explicitly authorize federal courts to order restitution, contract rescission, refunds, and disgorgement of profits when the FTC sues companies for consumer protection violations. It would extend the FTC's ability to pursue past violations (not just ongoing or imminent ones) and set a 10-year lookback window for both restitution and disgorgement claims. Time spent by a defendant outside the United States would not count toward that 10-year limit.
Who benefits
Consumers who were harmed by deceptive or unfair business practices and could receive refunds or restitution. The FTC as an agency, which would regain enforcement tools it lost after the Supreme Court's 2021 AMG Capital decision. State attorneys general and consumer advocacy organizations that rely on FTC enforcement. Competing businesses that did not engage in deceptive practices and were undercut by those that did.
Who is hurt
Companies and individuals found liable for past FTC violations who could now face disgorgement of profits earned up to 10 years prior. Businesses operating in industries subject to active FTC scrutiny, such as financial services, health products, and technology, which may face greater litigation exposure. Defendants who structured their affairs in reliance on the post-AMG Capital legal landscape, where monetary relief was unavailable under Section 13(b). Shareholders of publicly traded companies that may face large disgorgement orders.
Supporters argue
Supporters argue that the Supreme Court's 2021 AMG Capital Management v. FTC decision stripped the agency of its most effective tool for making consumers whole, allowing companies that defraud millions of people to keep their ill-gotten profits. They contend that Congress originally intended Section 13(b) to permit monetary relief, and that this bill simply restores the enforcement posture that existed for decades before AMG Capital — a posture under which the FTC returned billions of dollars to defrauded consumers annually. Without disgorgement and restitution authority, they argue, the FTC can only stop ongoing misconduct but cannot deter future violations or compensate victims.
Opponents argue
Opponents argue that the 10-year retroactive lookback period creates serious due process concerns, exposing businesses to massive monetary liability for conduct that occurred when no such remedy was legally available — effectively changing the rules after the fact. They contend that disgorgement is a punitive remedy that, under the Supreme Court's Jarkesy (2024) decision, may trigger Seventh Amendment jury trial rights that the bill does not provide for. Critics also argue that broad disgorgement authority with a decade-long window gives the FTC unchecked power to pursue large settlements as leverage, chilling legitimate business activity and raising nondelegation concerns in a post-Loper Bright environment.
Constitutional context
The Commerce Clause (Art. I, §8, cl. 3) provides the foundation for FTC consumer protection authority over interstate commerce. More acutely, the bill raises questions under the Due Process Clause (5th Amendment) regarding retroactive liability, and under SEC v. Jarkesy (2024), which held that civil penalties resembling punitive remedies may trigger Seventh Amendment jury trial rights — a question directly relevant to whether disgorgement orders here require jury adjudication. Post-Loper Bright, courts will independently assess whether the bill's statutory language clearly authorizes the specific remedies the FTC seeks in any given case.
Checks and balances
The FTC (executive branch) gains significant new enforcement and monetary remedy authority; checks include federal court oversight of all disgorgement and restitution orders, the 10-year statutory cap on lookback periods, the public interest standard required for permanent relief, and judicial review under post-Loper Bright independent statutory interpretation.
Historical precedent
Prior to AMG Capital Management v. FTC (2021), courts routinely allowed the FTC to seek monetary relief under Section 13(b) for decades; the FTC returned approximately $11.2 billion to consumers between 2016 and 2020 using that authority before the Supreme Court unanimously eliminated it.