[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1076 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 1076
To amend section 13 of the Federal Trade Commission Act to provide for
equitable relief, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 30, 2023
Mr. Lee (for himself, Mr. Cruz, Mr. Hawley, and Mrs. Blackburn)
introduced the following bill; which was read twice and referred to the
Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To amend section 13 of the Federal Trade Commission Act to provide for
equitable relief, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``The Consumer Protection and Due
Process Act''.
SEC. 2. AMENDMENTS TO THE FEDERAL TRADE COMMISSION ACT.
(a) Provision of Equitable Relief; Authority To Refer to the
Attorney General.--
(1) In general.--Section 13 of the Federal Trade Commission
Act (15 U.S.C. 53) is amended by adding at the end the
following:
``(e) Equitable Relief.--
``(1) Restitution; contract rescission and reformation;
refunds; return of property respecting unfair or deceptive acts
or practices.--
``(A) In general.--Subject to paragraph (4), in a
suit brought under subsection (b)(2)(B), the Commission
may seek, and the court may order--
``(i) restitution for consumer loss that
the court has a sound basis to conclude
resulted from such violation;
``(ii) rescission or reformation of
contracts; or
``(iii) the refund of property.
``(B) Limitations period.--In a suit brought under
subsection (b)(2)(B), the Commission may bring a claim
for relief under this paragraph not later than 3 years
after the date on which the violation that gives rise
to the suit in which the Commission seeks the claim
occurs.
``(2) Disgorgement respecting unfair or deceptive acts or
practices.--
``(A) In general.--Subject to paragraph (4), in a
suit brought under subsection (b)(2)(B), the Commission
may seek, and the court may order, disgorgement of any
unjust enrichment the court has a sound basis to
conclude that a person, partnership, or corporation
obtained as a result of that violation.
``(B) Calculation.--Any amount that a court orders
a person, partnership, or corporation to pay under
subparagraph (A) shall be offset by any amount a court
orders the person, partnership, or corporation to pay
or to return under paragraph (1)(A) and shall not
exceed the net profits directly related to the
violation by the person, partnership, or corporation.
``(C) Limitations period.--In a suit brought under
subsection (b)(2)(B), the Commission may bring a claim
for disgorgement under this paragraph not later than 3
years after the date on which the violation that gives
rise to the suit in which the Commission seeks the
claim occurs.
``(3) Calculation of limitations periods.--For purposes of
calculating any limitations period under paragraph (1) or (2),
any time in which a person, partnership, or corporation against
which such equitable relief is sought is outside the United
States shall not be counted for purposes of calculating such
period.
``(4) Burden of proof; presumption.--
``(A) Burden of proof.--The court may order
equitable relief under paragraph (1) or (2) only if the
Commission proves that--
``(i) the act or practice which relates to
the violation that gives rise to the suit in
which the Commission seeks such relief is an
act or practice that a reasonable individual
would have known, under the circumstances, was
unfair or deceptive within the meaning of
section 5(a)(1); and
``(ii) a reasonable individual--
``(I) materially relied on such act
or practice; and
``(II) such act or practice
proximately caused harm to the
individual.
``(B) No presumption of material reliance.--For
purposes of subparagraph (A)(ii)(I), the court may not
presume that an individual materially relied on any
unfair or deceptive acts or practices solely on the
basis of a finding that such individual was exposed to
such unfair or deceptive acts or practices.
``(f) Referral by the Commission.--In any action brought by the
Commission under this section involving an unfair method of competition
in which the court rules in favor of the Commission, the Commission may
refer the action to the Attorney General to collect actual damages
under section 4A(b) of the Clayton Act.''.
(2) Conforming amendments.--Section 13 of the Federal Trade
Commission Act (15 U.S.C. 53) is amended by striking subsection
(b) and inserting the following:
``(b) Temporary Restraining Orders; Preliminary and Permanent
Injunctions; Other Relief.--Whenever the Commission has reason to
believe--
``(1) that any person, partnership, or corporation has
violated, is violating, or is about to violate any provision of
law enforced by the Federal Trade Commission; and
``(2) that either--
``(A) the enjoining thereof pending the issuance of
a complaint by the Commission and until such complaint
is dismissed by the Commission or set aside by the
court on review, or until the order of the Commission
made thereon has become final, would be in the interest
of the public; or
``(B) the permanent enjoining thereof or the
ordering of equitable relief under subsection (e) would
be in the interest of the public,
the Commission by any of its attorneys designated by it for such
purpose may bring suit in a district court of the United States to
obtain such injunction or relief. In a case brought under paragraph
(2)(A), upon a proper showing that, weighing the equities and
considering the Commission's likelihood of ultimate success, a
temporary restraining order or preliminary injunction would be in the
public interest, and after notice to the defendant, a temporary
restraining order or a preliminary injunction may be granted: Provided,
however, That if a complaint is not filed within such period (not
exceeding 20 days) as may be specified by the court after issuance of
the temporary restraining order or preliminary injunction, the order or
injunction shall be dissolved by the court and be of no further force
and effect: Provided further, That in a case brought under paragraph
(2)(B), after proper proof, the court may issue a permanent injunction,
equitable relief under subsection (e), or any other relief as the court
determines to be just and proper, including temporary or preliminary
equitable relief. Any suit under paragraph (2) may be brought where
such person, partnership, or corporation resides or transacts business,
or wherever venue is proper under section 1391 of title 28, United
States Code. In addition, the court may, if the court determines that
the interests of justice require that any other person, partnership, or
corporation should be a party in such suit, cause such other person,
partnership, or corporation to be added as a party without regard to
whether venue is otherwise proper in the district in which the suit is
brought. In any such suit, process may be served on any person,
partnership, or corporation wherever it may be found.''.
(b) Amendments to Authority To Commence or Defend Litigation.--
(1) In general.--Section 16(a)(2) of the Federal Trade
Commission Act (15 U.S.C. 56(a)(2)) is amended--
(A) in subparagraph (A), by striking ``(relating to
injunctive relief)''; and
(B) in subparagraph (B), by striking ``(relating to
consumer redress)''.
(2) Technical amendment.--Section 16(a)(2)(D) of the
Federal Trade Commission Act (15 U.S.C. 56(a)(2)(D)) is amended
by striking ``subpena'' and inserting ``subpoena''.
(c) Applicability.--The amendments made by subsections (a) and (b)
shall apply with respect to any action or proceeding that is commenced
on or after the date of enactment of this Act.
SEC. 3. ACTIONS BY THE ATTORNEY GENERAL.
(a) In General.--Section 4A of the Clayton Act (15 U.S.C. 15a) is
amended--
(1) by striking ``Whenever'' and inserting ``(a)
Whenever''; and
(2) by adding at the end the following:
``(b)(1) The Attorney General may bring a civil action in the name
of the United States, as parens patriae on behalf of natural persons
residing in the United States who shall be injured in his or her
business or property by reason of anything forbidden in the antitrust
laws, in any district court of the United States in the district in
which the defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall recover the damages
sustained by him or her, and the cost of the suit, including a
reasonable attorney's fee.
``(2) No damages or costs may be recovered for the same injury that
was the basis for the action under that paragraph in addition to any
damages or costs awarded in such action.''.
(b) Applicability.--The amendments made by subsection (a) shall
apply with respect to any action or proceeding that is commenced on or
after the date of enactment of this Act.
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