Winding down the 67th Antitrust Law Spring Meeting last week, Andrew Smith, the Director of the FTC’s Bureau of Consumer Protection (the “Bureau”), provided an overview of the FTC’s consumer protection priorities. Director Smith reiterated that Chairman Simons’ focus on law enforcement applies across the Bureau’s five major areas: marketing, finance, advertising, privacy, and enforcement. In deciding who to sue, the FTC plans to look beyond just alleged “fraudsters and scammers,” and will also focus enforcement on the individuals who promote frauds. Director Smith gave as an example how the FTC recently went after an individual who created a robocall software that scammers used, even when that software was also being used for legitimate robocalls. He also noted the FTC went after a Belizean bank that was involved with the Sanctuary Belize scam. In short, Director Smith made it clear that the FTC will go after those the FTC believes are perpetrating fraud and those who facilitate it. Not surprisingly, Smith did not address that the FTC lacks aiding and abetting authority except under the Telemarketing Sales Rule.

Director Smith also addressed recent hearings on data security and consumer protection. He expressed his view that there exists a market failure regarding companies’ investments in data security due to a lack of incentive to invest. According to Smith, giving the FTC the authority to impose civil penalties may provide the incentive companies need to rectify this failure. Director Smith also noted that if the FTC had the authority to promulgate new regulations requiring companies to disclose more on their data use and security, consumers would be able to comparison shop based on those factors.

Next, Director Smith addressed the Shire case. Director Smith and Director Hoffman—of the Bureau of Competition—explained that the outcome in Shire is inconsistent with other courts’ interpretations of the FTC Act. Although the Shire case will not affect the types of cases the FTC brings, they acknowledged it will cause the FTC to bring these cases more quickly to avoid the issue of likelihood of reoccurrence when the conduct happened years prior. According to Smith, the Shire decision may also affect forum selection, and cause the FTC to bring more cases administratively when the conduct has ceased.

Whether the FTC gets the enhanced authority it plans to seek from Congress and how the Shire case and its progeny play out in the courts remains to be seen.