No one in law school ever mentioned that social media was required professional reading. (Well, let’s be honest. There wasn’t social media when we were in law school). However, perhaps inspired by our President, Twitter has become quite interesting lately when it comes to the FTC. One of the more interesting tweet storms started as a result of the FTC’s recent action modifying a consent agreement reached with Speedway. The Speedway modification is itself a fascinating tale. In brief, fifteen years ago, Speedway agreed to refund $1 million to consumers as a result of allegedly deceptive statements about a fuel additive. Speedway was supposed to redistribute funds from checks that ultimately went uncashed but failed to distribute about $80,000 of the million that went uncashed. Fifteen years later, Speedway self-reported the violation and proposed sending the money to the U.S. Treasury in lieu of sending an additional $1 or so to each of the initial recipients. This practice, as the majority notes, also conforms to more recent Commission practice which allows for the remittance of uncashed funds to the Treasury. Four Commissioners approved this modification, noting, among other things, the cost of forcing Speedway to comply with the order as written and that had Speedway not self-reported the violation, it would have never been detected. Commissioner Chopra dissented, noting that allowing Speedway to now simply send a check to the U.S. Treasury saved it the expense of finding and sending checks to individual consumers and that Speedway should not profit from its order non‑compliance. As a side note, Commissioner Chopra also called for clearer guidance when it comes to any benefits associated with self-reporting a suggestion which the majority called “worth consideration.” (Currently, as a matter of enforcement discretion, the Commission will sometimes close investigations when a company corrects a violation prior to the initiation of a Commission investigation, which is, in a manner of speaking, a variation of self-reporting).
At least part of the Twitter-verse jumped on the Commissioner Chopra bandwagon which prompted a lengthy seventeen-tweet response from Commissioner Slaughter which sheds a bit of light on how the sausage is made and also something about the priorities of at least the two democratic Commissioners and perhaps the Commission as a whole. First, the Commissioner’s tweets make it clear that, in the negotiations, Speedway made it clear that it would litigate rather than comply with the order as written, and suggests that the success by the Commission in litigation was by no means a sure thing given Speedway’s ninety-two percent compliance rate and self-reporting of the violation. Commissioner Slaughter goes on to say that this was essentially a decision regarding the wise allocation of resources. Was it really worth spending money to potentially get tougher sanctions and that she and three other Commissioners thought no. Lest companies think all they have to do is threaten to litigate and the Commission will back down, the Commissioner also adds that some things are worth fighting for, even if the chances of success are slight and the costs are high where there is a real benefit to consumers.
But the tweets didn’t stop there. Having argued that the Commission reached the best result it could with the hand it had been dealt, Commissioner Slaughter then goes on to ask for better cards. Specifically, she notes that having more resources would mean being able to bring more marginal cases when it comes to consumer benefit. In addition, she suggests that giving the Commission the ability to fine entities that break the law, rather than simply require disgorgement would give the Commission greater leverage and greater clout, (although ironically, since the Speedway case involved an alleged order violation rather than simply a violation of Section 5, the Commission did have “fining” authority in that matter). And while they disagreed on the outcome in this specific case, Commissioners Chopra and Slaughter definitely agree with respect to these two asks. On the other side of the aisle, Chairman Simons was recently quoted as stating that he favored “vigorous enforcement” in the consumer protection space. Whether that might include asking Congress for more tools in the enforcement tool box and a bigger box remains to be seen but certainly has potentially significant ramifications for anyone who might find themselves before the Commission. Keep an eye on Twitter.