FTC v. Amg Capital Management, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FEDERAL TRADE COMMISSION, No. 16-17197
Plaintiff-Appellee,
D.C. No.
v. 2:12-cv-00536-
GMN-VCF
AMG CAPITAL MANAGEMENT, LLC;
BLACK CREEK CAPITAL
CORPORATION; BROADMOOR OPINION
CAPITAL PARTNERS, LLC; LEVEL 5
MOTORSPORTS, LLC; SCOTT A.
TUCKER; PARK 269 LLC; KIM C.
TUCKER,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding

Argued and Submitted August 15, 2018
San Francisco, California

Filed December 3, 2018
2 FTC V. AMG CAPITAL MGMT.

Before: Diarmuid F. O’Scannlain and Carlos T. Bea,
Circuit Judges, and Richard G. Stearns, * District Judge.

Opinion by Judge O’Scannlain;
Concurrence by Judge O’Scannlain;
Concurrence by Judge Bea

SUMMARY **

Federal Trade Commission

The panel affirmed the district court’s summary
judgment, and relief order, in favor of the Federal Trade
Commission (“FTC”) in the FTC’s action alleging that Scott
Tucker’s business practices violated § 5 of the FTC Act’s
prohibition against “unfair or deceptive acts or practices in
or affecting commerce.”

Tucker’s businesses offered high-interest, short-term
payday loans through various websites that directed
approved borrowers to hyperlinked documents that included
the “Loan Note” and the essential terms of the loan as
mandated by the Truth in Lending Act (“TILA”). The FTC
alleged that Tucker violated § 5 of the FTC Act because the
Loan Note was likely to mislead borrowers about the terms
of the loan.

*
The Honorable Richard G. Stearns, United States District Judge
for the District of Massachusetts, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FTC V. AMG CAPITAL MGMT. 3

The panel held that the Loan Note was deceptive because
it did not accurately disclose the loan’s terms. Specifically,
the panel held that the TILA box’s “total of payments” value
was deceptive, and the fine print’s oblique description of the
loan’s terms did not cure the misleading “net impression”
created by the TILA box. The panel concluded that the Loan
Note was likely to deceive a consumer acting reasonably
under the circumstances.

The panel held that the district court had the power to
order equitable monetary relief under § 13(b) of the FTC
Act. The panel held that the Supreme Court’s recent
decision in Kokesh v. SEC, 137 S. Ct. 1635 (2017), and this
court’s decision in FTC v. Commerce Planet, Inc., 815 F.3d
593, 598 (9th Cir. 2016) (holding that § 13 empowers district
court’s to grant any ancillary relief necessary), were not
clearly irreconcilable; and Commerce Planet remained good
law.

The panel held that the district court did not abuse its
discretion in calculating the $1.27 billion award. The panel
applied the burden-shifting framework of Commerce Planet,
and concluded that the district court did not abuse its
discretion when calculating the amount it ordered Tucker to
pay.

The panel held that the district court did not err in
permanently enjoining Tucker from engaging in consumer
lending.

Judge O’Scannlain, specially concurring, joined by
Judge Bea, wrote separately to suggest that the court rehear
the case en banc to reconsider Commerce Planet and its
predecessors, and the court’s interpretation of § 13(b) of the
FTC Act to empower district courts to compel defendants to
4 FTC V. AMG CAPITAL MGMT.

pay monetary judgments styled as “restitution.” He would
hold that this interpretation wrongly authorized a power that
the statute did not permit.

Judge Bea concurred in the opinion because precedent
compelled him to do so, but he wrote separately because he
believed that this court’s precedent was wrong in that it
allowed the panel to decide that the Loan Note was deceptive
as a matter of law. See FTC v. Cyberspace.com, LLC, 453
F.3d 1196, 1200 (9th Cir. 2006). Judge Bea would hold that
courts should reserve questions such as whether the Loan
Note was “likely to deceive” for the trier of fact.

COUNSEL

Paul C. Ray (argued), Paul C. Ray Chtd., North Las Vegas,
Nevada, for Defendants-Appellants.

Imad Dean Abyad (argued) and Theodore P. Metzler,
Attorneys; Joel Marcus, Deputy General Counsel; David C.
Shonka, Acting General Counsel; Federal Trade
Commission, Washington, D.C.; for Plaintiff-Appellee.
 FTC V. AMG CAPITAL MGMT. 5

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Federal Trade Commission
Act can support an order compelling a defendant to pay
$1.27 billion in equitable monetary relief.

I

A

Scott Tucker controlled a series of companies that
offered high-interest, short-term loans to cash-strapped
customers. He structured his businesses to offer these
payday loans exclusively through a number of proprietary
websites with names like “500FastCash,” “OneClickCash,”
and “Ameriloan.” Although these sites operated under
different names, each disclosed the same loan information in
an identical set of loan documents. Between 2008 and 2012,
Tucker’s businesses originated more than 5 million payday
loans, each generally disbursing between $150 and $800 at
a triple-digit interest rate.

The application process was simple. Potential borrowers
would navigate to one of Tucker’s websites and enter some
personal, employment, and financial information. Such
information included the applicant’s bank account and
routing numbers so that the lender could deposit the funds
and—when the bill came due—make automatic
withdrawals. Approved borrowers were directed to a web
page that disclosed the loan’s terms and conditions by
hyperlinking to seven documents. The most important of
these documents was the Loan Note and Disclosure (“Loan
6 FTC V. AMG CAPITAL MGMT.

Note”), 1 which provided the essential terms of the loan as
mandated by the Truth in Lending Act (“TILA”). See
15 U.S.C. § 1601 et seq. Borrowers could open the Loan
Note and read through its terms if they chose, but they could
also simply ignore the document, electronically sign their
names, and click a big green button that said: “I AGREE
Send Me My Cash!”

B

In April 2012, the Federal Trade Commission
(“Commission”) filed suit against Tucker and his businesses
in the District of Nevada. 2 The Commission’s amended
complaint alleged that Tucker’s business practices violated
§ 5 of the Federal Trade Commission Act’s (“FTC Act”)
prohibition against “unfair or deceptive acts or practices in
or affecting commerce.” 15 U.S.C. § 45(a)(1). 3 In particular,
the Commission alleged that Tucker violated § 5 because the
terms disclosed in the Loan Note did not reflect the terms
1
An example of the Loan Note is reproduced in the Appendix.

2
As is relevant on appeal, Tucker’s businesses include defendants-
appellants AMG Capital Management, LLC; Black Creek Capital
Corporation; Broadmoor Capital Partners, LLC; and Level 5
Motorsports, LLC. Tucker is the sole owner of these corporations, and
we refer to them collectively as “Tucker.” The Commission’s complaint
also alleged that defendants-appellants Kim Tucker (Scott Tucker’s
wife) and Park 269 (a limited liability corporation that Kim Tucker
owns) “received funds” that could be “traced directly to [Tucker’s]
unlawful acts or practices.”

3
The Commission also claimed that such practices violated TILA’s
“Regulation Z,” which requires disclosures to be made “clearly and
conspicuously.” 12 C.F.R. § 1026.17(a)(1). These formally independent
legal theories are largely duplicative, however, because TILA states that
a violation of its provisions “shall be deemed” a violation of the FTC
Act. 15 U.S.C. § 1607(c).
 FTC V. AMG CAPITAL MGMT. 7

that Tucker actually enforced. Thus, the Commission asked
the court permanently to enjoin Tucker from engaging in
consumer lending and to order him to disgorge “ill-gotten-
monies.”

In December 2012, the parties agreed to bifurcate the
proceedings in the district court into a “liability phase” and
a “relief phase.” During the liability phase, the Commission
moved for summary judgment on the FTC Act claim, which
the district court granted. In the relief phase, the court
enjoined Tucker from assisting “any consumer in receiving
or applying for any loan or other extension of Consumer
Credit,” and ordered Tucker to pay approximately
$1.27 billion in equitable monetary relief to the
Commission. The district court instructed the Commission
to direct as much money as practicable to “direct redress to
consumers,” then to “other equitable relief . . . reasonably
related to the Defendants’ practices alleged in the
complaint,” and then to “the U.S. Treasury as
disgorgement.” Tucker timely appeals and challenges both
the entry of summary judgment and the relief order.

II

Tucker first argues that the district court wrongly granted
the Commission’s motion for summary judgment finding
Tucker liable for violating § 5 of the FTC Act.

A

Section 5 of the FTC Act prohibits “deceptive acts or
practices in or affecting commerce.” 15 U.S.C. § 45(a)(1).
To prevail, the Commission must show that a representation,
omission, or practice is “likely to mislead consumers acting
reasonably under the circumstances.” FTC v. Stefanchik,
559 F.3d 924, 928 (9th Cir. 2009) (internal quotation marks
8 FTC V. AMG CAPITAL MGMT.

omitted). This consumer-friendly standard does not require
the Commission to provide “[p]roof of actual deception.”
Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 214 (9th
Cir. 1979). Instead, it must show only that the “net
impression” of the representation would be likely to
mislead—even if such impression “also contains truthful
disclosures.” FTC v. Cyberspace.com LLC, 453 F.3d 1196,
1200 (9th Cir. 2006).

1

In this case, the Commission argues that Tucker violated
§ 5 because the Loan Note was likely to mislead borrowers
about the terms of the loan. The top third of such Loan Note
contained the so-called TILA box, which disclosed the
“amount financed,” the “finance charge,” the “total of
payments,” and the “annual percentage rate.” The “amount
financed” portion of the box was the amount borrowed, and
the “finance charge” was equal to 30 percent of the borrowed
amount. The final two figures were calculated by summing
the principal and the finance charge (“total of payments”)
and then determining the “annual percentage rate.” By way
of illustration, suppose that a customer wanted to borrow
$300. The Loan Note’s TILA box would state that the
“amount financed” was $300, that the “finance charge” was
$90, and that the “total of payments” was $390. The “annual
percentage rate” would vary based on the date the first
payment was due.

But the fine print below the TILA box was essential to
understanding the loan’s terms. This densely packed text set
out two alternative payment scenarios: (1) the “decline-to-
renew” option and (2) the “renewal” option. Beneath the
TILA box, the Loan Note stated: “Your Payment Schedule
will be: 1 payment of [the ‘total of payments’ number] . . . if
you decline* the option of renewing your loan.” The asterisk
 FTC V. AMG CAPITAL MGMT. 9

directed the reader to text five lines further down the page,
which read: “To decline this option of renewal, you must
select your payment options using the Account Summary
link sent to your email at least three business days before
your loan is due.” Tucker would send this “Account
Summary link” three days after the funds were disbursed.
With this email, borrowers hoping to exercise the decline-to-
renew option had to navigate through an online customer-
service portal, affirmatively choose to “change the
Scheduled” payment, and agree to “Pay Total Balance.” All
of this had to be done “at least three business days” before
the next scheduled payment. Thus, the borrower had to take
affirmative action within a specified time frame if he hoped
to pay only the amount listed in the TILA box as the “total
of payments.”

By contrast, the “renewal” option would end up costing
a borrower significantly more. Importantly, renewing the
loan did not require the borrower to take any affirmative
action at all; it was the default payment schedule. On the
third line below the TILA box, the Loan Note read: “If
renewal is accepted you will pay the finance charge . . .
only.” And with each “renewal,” the borrower would
“accrue new finance charges”—that is, an additional
30-percent premium. After the fourth renewal, Tucker would
begin to withdraw the “finance charge plus $50,” and he
would withdraw another such payment each subsequent
period until the loan was paid in full.

To illustrate, consider again the example of the customer
who wanted to borrow $300. The Loan Note’s TILA box
would indicate that his “total of payments” would be $390,
equaling $300 in principal plus a $90 finance charge. But he
would be required to pay much more than that, unless he
took the affirmative steps to “decline” to renew the loan.
10 FTC V. AMG CAPITAL MGMT.

Once again, these steps required him to wait three days after
getting the cash, follow a link in a separate email, and agree
at least three days before the due date to pay the full balance.
If he failed to perform this routine, then he would owe yet
another finance change (equaling another 30 percent of the
borrower’s remaining balance) at the next due date. And if
he simply let Tucker automatically withdraw the payments
for the course of the loan, he would owe the $300 principal,
plus ten separate finance charges, each equaling 30 percent
of the borrower’s remaining balance. Altogether, a borrower
following the default plan would pay $975 instead of $390.

2

We agree with the Commission that the Loan Note was
deceptive because it did not accurately disclose the loan’s
terms. Most prominently, the TILA box suggested that the
value reported as the “total of payments”—described further
as the “amount you will have paid after you have made the
scheduled payment”—would equal the full cost of the loan.
In reliance on this information, a reasonable consumer might
expect to pay only that amount. But as we have described,
under the default terms of the loan, a consumer would be
required to pay much more. Indeed, under the terms that
Tucker actually enforced, borrowers had to perform a series
of affirmative actions in order to decline to renew the loan
and thus pay only the amount reported in the TILA box.

The Loan Note’s fine print does not reasonably clarify
these terms because it is riddled with still more misleading
statements. First, the explanation of the process of declining
to renew the loan is buried several lines below where the
option to decline is first introduced. Second, nothing in the
fine print explicitly states that the loan’s “renewal” would be
the automatic consequence of inaction. Instead, it
misleadingly says that such renewal must be “accepted,”
 FTC V. AMG CAPITAL MGMT. 11

which seems to require the borrower to perform some
affirmative action. Third, between the sentence that
introduces the decline-to-renew option and the sentences
that explain the costly consequences of renewal, there is a
long and irrelevant sentence about what happens if a pay date
falls on a weekend or holiday. Thus, the fine print’s oblique
description of the loan’s terms fails to cure the misleading
“net impression” created by the TILA box.

3

Tucker suggests, however, that the Loan Note is not
deceptive because it is “technically correct.” But the FTC
Act’s consumer-friendly standard does not require only
technical accuracy. In Cyberspace, we held that a solicitation
was deceptive even though “the fine print notices . . . on the
reverse side of the” solicitation contained “truthful
disclosures.” 453 F.3d at 1200. Indeed, Cyberspace held that
it was irrelevant that “most consumers [could] understand
the fine print on the back of the solicitation when that
language [was] specifically brought to their attention.” Id. at
1201. Just as in Cyberspace, consumers acting reasonably
under the circumstances—here, by looking to the terms of
the Loan Note to understand their obligations—likely could
be deceived by the representations made there. Therefore,
we agree with the Commission that the Loan Note was
deceptive.

B

Tucker further contends that the district court erred
because its narrow focus on the Loan Note fails to capture
the “net impression” on consumers. The district court found
that “any facts other than the terms of the Loan Note . . . and
their presentation in the document are immaterial to a
summary judgment determination.” But according to
12 FTC V. AMG CAPITAL MGMT.

Tucker, the court should have considered all of his loan
disclosures and all of his communications regarding those
disclosures.

Tucker’s argument wrongly assumes that non-deceptive
business practices can somehow cure the deceptive nature of
the Loan Note. The Act prohibits deceptive “acts or
practices,” 15 U.S.C. § 45(a)(1) (emphasis added), so it
gives the Commission flexibility to bring suit either for
particular misleading representations, or for generally
deceptive business practices. Cf. FTC v. Sperry &
Hutchinson Co., 405 U.S. 233, 243 (1972) (“Congress [did
not intend] to confine the forbidden methods to fixed and
unyielding categories.” (citation omitted)). In this case, the
Commission must show only that a specific “representation”
was “likely to mislead.” Stefanchik, 559 F.3d at 928; see also
Cyberspace, 453 F.3d at 1200–01 (basing liability on
deceptive solicitations without resorting to defendant’s other
practices); Removatron Int’l Corp. v. FTC, 884 F.2d 1489,
1496–97 (1st Cir. 1989) (“Each advertisement must stand on
its own merits; even if other advertisements contain
accurate, non-deceptive claims, a violation may occur with
respect to the deceptive ads.”). Under this standard, the
district court’s focus on the Loan Note—that is, on this
particular deceptive “representation”—was perfectly
permissible.

C

Tucker next argues that summary judgment was also
inappropriate because he demonstrated a genuine issue of
material fact by presenting affirmative evidence from which
a jury could find in his favor. Tucker cites a host of evidence
in support of this point, but only two of his arguments merit
our attention.
 FTC V. AMG CAPITAL MGMT. 13

First, Tucker claims that the Commission introduced
evidence that “contradicted” its theory of deception because
four deposed consumers “had not read the loan disclosures”
and “understood the disclosures upon reading them at their
depositions.” Thus, Tucker argues that there is some
evidence that consumers may not have regularly read the
supposedly deceptive Loan Note. And if customers were not
likely to read the Loan Note in the first place, the argument
goes, then it cannot be likely to deceive them.

But Tucker once again misunderstands the consumer-
friendly standards of § 5 of the FTC Act. We have held that
“[p]roof of actual deception is unnecessary to establish a
violation,” and thus Tucker can be liable if the Loan Note
itself “possess[es] a tendency to deceive.” Trans World
Accounts, Inc., 594 F.2d at 214. Thus, we held in Cyberspace
that the terms of a solicitation alone were deceptive such that
“no reasonable factfinder could conclude that the solicitation
was not likely to deceive consumers acting reasonably under
the circumstances.” 453 F.3d at 1201. True enough, we also
stated in Cyberspace that proof of actual deception is “highly
probative,” but we did so only to “bolster[]” our conclusion
that the solicitation itself “created [a] deceptive impression.”
Id. at 1200–01. In this case, however, Tucker points to no
evidence that consumers who did read the Loan Note
understood its terms. Tucker therefore fails to show that a
genuine issue of material fact exists.

Second, Tucker claims that the expert testimony offered
by Dr. David Scheffman demonstrated an “absence of
confusion or deception.” Tucker’s counsel retained Dr.
Scheffman, who earned his doctorate in economics at the
Massachusetts Institute of Technology, to “opine on whether
the economic evidence regarding borrower behavior” was
consistent with the Commission’s theory of liability. He
14 FTC V. AMG CAPITAL MGMT.

designed his analysis “to test for any material difference in
the behavior of inexperienced consumers that would indicate
their understanding of the loan terms was different from
highly experienced consumers.” In other words, he wanted
to determine whether first-time borrowers behaved like
those who took out multiple loans. If first-time borrowers
behaved just like the repeat borrowers, Dr. Scheffman
reasoned, then the first-time borrowers could not have been
misled about the loan terms. Because there was a “near-
perfect . . . correlation between payoff behavior” among
borrowers, Dr. Scheffman concluded that the data were
“inconsistent with the allegation that borrowers were
misled.”

But Dr. Scheffman’s reasoning begs the question.
Consistent payoff patterns among classes of consumers
show, at best, that the consumers were similarly aware of
their obligations. While Dr. Scheffman concludes that first-
time borrowers were just as well informed as the repeat ones,
it is equally plausible that the repeat borrowers were just as
confused as those taking out their first loans. As the district
court noted, the expert’s analysis simply assumed that repeat
borrowers “plainly understood the loan terms.” He did not,
however, offer any evidence “that repeat borrowers across
loan portfolios knew they were dealing with the same
enterprise.” To survive summary judgment, Tucker must
identify some specific factual disagreement that could lead a
fact-finder to conclude that the Loan Note was not likely to
deceive. See Stefanchik, 559 F.3d at 929. Dr. Scheffman’s
testimony offers only speculative analysis that could cut
either way. See McIndoe v. Huntington Ingalls Inc., 817 F.3d
1170, 1173 (9th Cir. 2016) (“Arguments based on
conjuncture or speculation are insufficient . . . .” (internal
 FTC V. AMG CAPITAL MGMT. 15

quotation marks omitted)). Therefore, Dr. Scheffman’s
testimony does not raise a genuine issue of material fact. 4

D

We conclude that the Loan Note was likely to deceive a
consumer acting reasonably under the circumstances. We
are therefore satisfied that the district court did not err in
entering summary judgment against Tucker as to the liability
phase.

III

Tucker next challenges the relief phase determination
that he must pay the Commission $1.27 billion. He urges that
the district court did not have the power to order equitable
monetary relief under § 13(b) of the FTC Act. Alternatively,
he argues that the order to pay $1.27 billion overstates his
unjust gains.

A

Tucker contends that the Commission “improperly
use[d] Section 13(b) to pursue penal monetary relief under
the guise of equitable authority.” After all, he points out,
§ 13(b) provides only that district courts may enter

4
We need not address Tucker’s objections that the admission of the
Commission’s consumer complaint database violated Federal Rule of
Evidence 807 and Federal Rule of Civil Procedure 37. Such evidence
was irrelevant to the district court’s determination that the Loan Note
itself was deceptive. Even if Tucker were correct, any error is harmless.
See Dowdy v. Metro. Life Ins. Co., 890 F.3d 802, 807 (9th Cir. 2018).
Likewise, we need not address the Commission’s alternative theory that
Tucker is liable because he “independently violated the Truth in Lending
Act.” The finding of liability under § 5 of the FTC Act is independently
sufficient to affirm the judgment against Tucker.
16 FTC V. AMG CAPITAL MGMT.

“injunction[s].” 15 U.S.C. § 53(b). According to Tucker, an
order to pay “equitable monetary relief” is not an injunction,
so he concludes that the statute does not authorize the court’s
order.

Tucker’s argument has some force, but it is foreclosed
by our precedent. We have repeatedly held that § 13
“empowers district courts to grant any ancillary relief
necessary to accomplish complete justice, including
restitution.” FTC v. Commerce Planet, Inc., 815 F.3d 593,
598 (9th Cir. 2016) (internal quotation marks omitted); see
also FTC v. Pantron I Corp., 33 F.3d 1088, 1102 (9th Cir.
1994) (“[T]he authority granted by section 13(b) . . .
includes the power to order restitution.”). Our precedent thus
squarely forecloses Tucker’s argument.

Tucker responds that we should revisit Commerce Planet
in light of the Supreme Court’s recent decision in Kokesh v.
SEC, 137 S. Ct. 1635 (2017). In Kokesh, the Court
determined that a claim for “disgorgement imposed as a
sanction for violating a federal securities law” was a
“penalty” within the meaning of the federal catch-all statute
of limitations. 137 S. Ct. at 1639. Much like the equitable
monetary relief at issue in this case, disgorgement in the
securities-enforcement context is “a form of restitution
measured by the defendant’s wrongful gain.” Id. at 1640
(citing Restatement (Third) of Restitution and Unjust
Enrichment § 51 cmt. A, at 204 (2010)); see also Commerce
Planet, 815 F.3d at 599 (describing restitution under § 13(b)
as the power to “deprive defendants of their unjust gains”).
The Court held that disgorgement orders are penalties
because they “go beyond compensation, are intended to
punish, and label defendants wrongdoers as a consequence
of violating public laws.” Id. at 1645 (internal quotation
marks omitted).
 FTC V. AMG CAPITAL MGMT. 17

Tucker suggests that Kokesh severs the line of reasoning
that links “injunctions” to “equitable monetary relief.” We
said in Commerce Planet, for instance, that by “authorizing
the issuance of injunctive relief,” the statute “invoked the
court’s equity jurisdiction.” 815 F.3d at 598 (citing Porter v.
Warner Holding Co., 328 U.S. 395 (1946)). Therefore, we
concluded, § 13(b) “carries with it the inherent power to
deprive defendants of their unjust gains from past violations,
unless the Act restricts that authority.” Id. at 599. Tucker
contends, however, that Kokesh’s reasoning compels the
conclusion that restitution under § 13(b) is in effect a
penalty—not a form of equitable relief.

A three-judge panel may not overturn prior circuit
authority unless it is “clearly irreconcilable with the
reasoning or theory of intervening higher authority,” Miller
v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), and
such threshold is not met here. First, Kokesh itself expressly
limits the implications of the decision: “Nothing in this
opinion should be interpreted as an opinion on whether
courts possess authority to order disgorgement in SEC
enforcement proceedings.” Kokesh, 137 S. Ct. at 1642 n.3.
Second, Commerce Planet expressly rejected the argument
that § 13(b) limits district courts to traditional forms of
equitable relief, holding instead that the statute allows courts
“to award complete relief even though the decree includes
that which might be conferred by a court of law.” Commerce
Planet, 815 F.3d at 602 (internal quotation marks omitted).
Because Kokesh and Commerce Planet are not clearly
irreconcilable, we remain bound by our prior interpretation
of § 13(b).

B

Tucker next argues that the district court abused its
discretion in calculating the amount of the award. Under our
18 FTC V. AMG CAPITAL MGMT.

case law, we apply a burden-shifting framework. See
Commerce Planet, 815 F.3d at 603–04. The Commission
“bears the burden of proving that the amount it seeks in
restitution reasonably approximates the defendant’s unjust
gain,” which is measured by “the defendant’s net revenues
. . . , not by the defendant’s net profits.” Id. at 603. If the
Commission makes such showing, the defendant must show
that the Commission’s approximation “overstate[s] the
amount of the defendant’s unjust gains.” Id. at 604. Any
“risk of uncertainty at this second step falls on the
wrongdoer.” Id. (internal quotation marks omitted).

Tucker argues that the $1.27 billion judgment overstates
his unjust gains. The court arrived at such figure based on
the calculations of one of the Commission’s analysts. The
analyst relied on data from Tucker’s loan management
software to determine how much money Tucker received
from consumers in excess of the principal disbursed plus the
initial 30-percent finance charge. This surplus represented
the amount of money that Tucker had received over-and-
above the amount disclosed in the TILA box, which the
Commission argued represented Tucker’s ill-gotten gains.
The district court agreed, so the final sum it ordered Tucker
to pay was calculated as follows: the sum of each consumer’s
payments to Tucker, minus the sum of each consumer’s
“total of payments” as disclosed in the TILA box, and minus
certain other payments already made or to be made by other
defendants.

Tucker responds that the district court erred because it
ignored evidence of non-deception that should have reduced
the award. Once again, Tucker reiterates the argument that
repeat customers could not have been misled by the loan’s
terms. Therefore, he concludes, these customers should have
been excluded from the calculation. As we said above,
 FTC V. AMG CAPITAL MGMT. 19

however, Tucker has not pointed to specific evidence that
indicates one way or another whether repeat customers were
actually deceived. See supra Part II.C. Further, Tucker has
not offered “a reliable method of quantifying what portion
of the consumers who purchased [the product] did so free
from deception.” Commerce Planet, 815 F.3d at 604.
Therefore, the district court did not abuse its discretion when
calculating the amount it ordered Tucker to pay. 5

IV

Finally, Tucker challenges the district court’s decision to
enjoin him from engaging in consumer lending. The text of
§ 13(b) limits injunctive relief to “proper cases,” 15 U.S.C.
§ 53(b), and Tucker argues that the “proper case” language
confines district courts to cases of “routine fraud.” But we
rejected this very argument in FTC v. Evans Products Co.,
775 F.2d 1084, 1086–87 (9th Cir. 1985). We thus cannot find
fault with the district court’s decision to enter a permanent
injunction.

5
The district court’s relief order also required Kim Tucker and Park
269 to disgorge more than $27 million because Tucker had “diverted
millions of dollars” from himself to them. Kim Tucker and Park 269
challenge this order. We have held that the FTC Act gives district courts
the power to reach fraudulently obtained property “in the hands of any
subsequent holder,” unless “the transferee purchases ill-gotten assets for
value, in good faith, and without actual or constructive notice of the
wrongdoing.” FTC v. Network Servs. Depot, Inc., 617 F.3d 1127, 1141–
42 (9th Cir. 2010) (internal quotation marks omitted). Here, the district
court found that Kim Tucker and Park 269 did not provide any
consideration for their money transfers from Tucker. They do not dispute
this core finding, and therefore we hold that the district court did not err
when it ordered Kim Tucker and Park 269 to disgorge ill-gotten gains.
20 FTC V. AMG CAPITAL MGMT.

V

The judgment of the district court is AFFIRMED.
 FTC V. AMG CAPITAL MGMT. 21

APPENDIX

The following is an example of the Loan Note:
22 FTC V. AMG CAPITAL MGMT.

O’SCANNLAIN, Circuit Judge, specially concurring,
joined by BEA, Circuit Judge:

I write separately to call attention to our circuit’s
unfortunate interpretation of the Federal Trade Commission
Act. We have construed § 13(b)’s authorization of
“injunction[s]” to empower district courts to compel
defendants to pay monetary judgments styled as
“restitution.” See FTC v. Commerce Planet, Inc., 815 F.3d
593, 598 (9th Cir. 2016); FTC v. Pantron I Corp., 33 F.3d
1088, 1102 (9th Cir. 1994); FTC v. H.N. Singer, Inc.,
668 F.2d 1107, 1113 (9th Cir. 1982).

I respectfully suggest that such interpretation is no longer
tenable.

Because the text and structure of the statute
unambiguously foreclose such monetary relief, our
invention of this power wrests from Congress its authority to
create rights and remedies. And the Supreme Court’s recent
decision in Kokesh v. SEC, 137 S. Ct. 1635 (2017),
undermines a premise in our reasoning: that restitution under
§ 13(b) is an “equitable” remedy at all. Because our
interpretation wrongly authorizes a power that the statute
does not permit, we should rehear this case en banc to
relinquish what Congress withheld.

I

A

I would begin (and end) with the statute’s text. Section
13(b) states that “the Commission may seek, and after proper
proof, the court may issue, a permanent injunction.”
15 U.S.C. § 53(b) (emphasis added). An injunction is “a
judicial process whereby a party is required to do a particular
 FTC V. AMG CAPITAL MGMT. 23

thing, or to refrain from doing a particular thing.” 2 J. Story,
Commentaries on Equity Jurisprudence § 1181, at 549 (14th
rev. ed. 1918); see also 1 D. Dobbs, Law of Remedies § 1.1,
at 7 (2d ed. 1993) (similar). Injunctions might either
“prevent violation of rights,” or compel the defendant to
“restore the plaintiff to rights that have already been
violated.” 1 Dobbs, § 2.9(2), at 227. But an order to pay
money “as reparation for injury resulting from breach of
legal duty” is essentially a damages remedy—not a form of
“specific relief” like an injunction. Bowen v. Massachusetts,
487 U.S. 879, 913–14 (1988) (Scalia, J., dissenting). Indeed,
any other interpretation would be absurd: if “injunction”
included court orders to pay monetary judgments, then “a
statutory limitation to injunctive relief would be
meaningless, since any claim for legal relief can, with
lawyerly inventiveness, be phrased in terms of an
injunction.” Great-West Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204, 211 n.1 (2002).

If such text were not plain enough, the rest of § 13(b)
reaffirms that “injunction” means only “injunction.” The
statute states, for example, that the Commission must believe
that a person “is violating” or “is about to violate” the Act in
order to request injunctive relief. 15 U.S.C. § 53(b)(1). Thus,
§ 13(b) anticipates that a court may award relief to prevent
an ongoing or imminent harm—but not to deprive a
defendant of “unjust gains from past violations.” Commerce
Planet, 815 F.3d at 599 (emphasis added). Indeed, § 13(b)
expressly instructs courts to consider the traditional
prerequisites for preliminary injunctive relief. The court
must “weigh[] the equities,” consider the Commission’s
“likelihood of ultimate success,” and determine whether the
preliminary injunction is “in the public interest.” 15 U.S.C.
§ 53(b); see also Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008) (listing these requirements along with
24 FTC V. AMG CAPITAL MGMT.

“irreparable harm”). Further, the statute expressly dispenses
with the normal rule that a plaintiff must post a bond as
security before the district court will grant preliminary relief.
Compare 15 U.S.C. § 53(b) (“[A] preliminary injunction
may be granted without bond . . . .”), with Fed. R. Civ. P.
65(c) (requiring plaintiffs seeking preliminary injunctions to
give “security”). Section 13(b) thus not only provides for
injunctions, but it also references the constellation of legal
rules that make sense only with reference to such relief.

Further, “injunction” cannot reasonably be interpreted to
authorize other forms of equitable relief, because Congress
would have said so if it did. For example, the Employee
Retirement Income Security Act (ERISA) authorizes
litigants to seek both “to enjoin any act or practice” and
“other appropriate equitable relief.” 29 U.S.C. § 1132(a)(3).
Indeed, in the Dodd-Frank Act, Congress felt compelled to
amend the Commodity Exchange Act to allow courts to
impose “equitable remedies including . . . restitution . . .
[and] disgorgement of gains”—even though the statute
already allowed it to impose “a permanent or temporary
injunction.” Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. No. 111-203, § 744, 124 Stat. 1376,
1735 (2010) (codified at 7 U.S.C. § 13a-1). Similar
examples abound, as a brief glance through the Statutes at
Large shows. See Helping Families Save Their Homes Act
of 2009, Pub. L. No. 111-22, § 201, 123 Stat. 1632, 1639
(codified at 15 U.S.C. § 1639a) (stating that certain persons
“shall not be subject to any injunction, stay, or other
equitable relief”); Veterans’ Benefits Improvement Act of
2008, Pub. L. No. 110-389, § 315, 122 Stat. 4145, 4167
(codified at 38 U.S.C. § 4323(e)) (“The court shall use . . .
its full equity powers, including temporary or permanent
injunctions, temporary restraining orders, and contempt
orders”); Class Action Fairness Act of 2005, Pub. L. No.
 FTC V. AMG CAPITAL MGMT. 25

109-2, § 3(a), 119 Stat. 4, 6 (codified at 28 U.S.C. § 1712)
(“equitable relief, including injunctive relief”).

If Congress could have used a broader phrase but “chose
instead to enact more restrictive language,” then “we are
bound by that restriction.” W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 99 (1991). Interpreting § 13(b)’s
authorization of “injunctions” to empower courts to award
so-called equitable monetary relief is, to say the least,
strained.

B

1

Such sensible interpretation—that “injunction” means
only “injunction”—makes good sense in the context of the
“overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480,
2490 (2015) (internal quotation marks omitted). While
§ 13(b) empowers the Commission to stop imminent or
ongoing violations, an entirely different provision of the
FTC Act allows the Commission to collect monetary
judgments for past misconduct. In particular, § 19 authorizes
the Commission to seek “such relief as the court finds
necessary to redress injury to consumers,” which “may
include, but shall not be limited to, rescission or reformation
of contracts, the refund of money or return of property, the
payment of damages, and public notification respecting . . .
[such] unfair or deceptive act or practice.” 15 U.S.C.
§ 57b(b) (emphasis added).

Read together, §§ 13(b) and 19 give the Commission two
complementary tools—one forward-looking and preventive,
the other backward-looking and remedial—to satisfy its
statutory mandate. Injunctive relief in § 13(b) therefore
functions as a simple stop-gap measure that allows the
26 FTC V. AMG CAPITAL MGMT.

Commission to act quickly to prevent harm. Indeed, the
congressional findings regarding § 13(b) state that the
“purpose of th[e] Act” is to “[e]nsure prompt enforcement of
[the FTC Act] by granting statutory authority . . . to seek
preliminary injunctive relief.” Trans-Alaska Pipeline
Authorization Act, § 408(b), Pub. L. No. 93-153, 87 Stat.
576, 591 (1973). Buttressing § 13(b)’s preventive relief,
§ 19 allows the Commission later to seek retrospective relief
to punish or to remediate past violations. 15 U.S.C. § 57b;
see FTC v. Figgie Int’l, Inc., 994 F.2d 595, 603 (1993) (“The
redress remedy [in § 19] relates to past conduct . . . .”). Our
misguided interpretation of § 13(b), therefore,
fundamentally misunderstands § 13(b)’s function within the
FTC Act’s “overall statutory scheme.” Burwell, 135 S. Ct. at
2490.

Worse still, awarding monetary relief under § 13(b)
circumvents § 19’s procedural protections. Before the
Commission can collect ill-gotten gains under § 19, it must
surmount one of two procedural hurdles. First, it may prove
to the district court that the defendant “violate[d] any rule”
promulgated through the Commission’s rulemaking
procedures. 15 U.S.C. § 57b(a)(1); see also id. § 57a
(granting the Commission’s rulemaking authority). If the
Commission has not promulgated such a rule, however, it
must first pursue an administrative adjudication, issue a
“final cease and desist order,” and then prove to the district
court that the defendant’s conduct was such that a
“reasonable man” would know it was “dishonest or
fraudulent.” Id. § 57b(a)(2); see also id. § 45 (granting the
Commission authority to issue cease and desist orders).
Thus, before the Commission can make someone pay, it
must have already resorted to the FTC Act’s administrative
processes.
 FTC V. AMG CAPITAL MGMT. 27

Doubtless, Congress included § 19’s procedural rules
with good reason. “No statute yet known pursues its stated
purpose at all costs,” Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1725 (2017) (alterations and internal
quotation marks omitted), and § 19 prevents the
Commission from imposing significant monetary burdens
simply by bringing a lawsuit in federal court. Instead, § 19
requires the Commission either to promulgate rules that
define unlawful practices ex ante, or first to prosecute a
wrongdoer in an administrative adjudication that culminates
in a cease and desist order. Indeed, the very same statute that
included § 19 significantly expanded both the Commission’s
rulemaking authority and its authority to seek civil penalties
through § 5’s cease-and-desist procedures. See Magnuson-
Moss Warranty—Federal Trade Commission Improvement
Act, tit. II, §§ 202, 205, Pub. L. No. 93-637, 88 Stat. 2183,
2193, 2200 (1975) (codified as amended 15 U.S.C. §§ 45,
57a). Our circuit’s flawed interpretation of § 13(b) in
Commerce Planet therefore wrongly allows the Commission
to avoid the administrative processes that Congress directed
it to follow.

2

Commerce Planet’s attempt to reconcile its
interpretation of § 13(b) with § 19 is entirely unpersuasive.
The decision suggests that § 19 “precludes a court from
awarding damages” under § 13(b), but “does not eliminate
the court’s inherent equitable power to order payment of
restitution.” 815 F.3d at 599 (emphasis added). But
Commerce Planet’s interpretation of § 13(b) fails to give
unique effect to the series of remedies besides damages that
§ 19 authorizes. Specifically, § 19 expressly allows federal
courts to impose certain equitable remedies like “refund of
money or return of property” and the “rescission or
28 FTC V. AMG CAPITAL MGMT.

reformation of contracts.” 15 U.S.C. § 57b(b); see 1 D.
Dobbs, § 4.3(1), at 587 (characterizing “rescission in equity”
and “reformation of instruments” as “important equitable
remedies”); Samuel L. Bray, The System of Equitable
Remedies, 63 UCLA L. Rev. 530, 555–58 (2016) (same).
According to Commerce Planet, however, these very same
remedies were already available under § 13(b) when
Congress subsequently enacted § 19. 1 Because Commerce
Planet’s interpretation renders § 19 almost entirely
redundant, it violates the “cardinal rule that, if possible,
effect shall be given to every clause and part [of] a statute.”
D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208
(1932).

II

I would end the inquiry here, for “[w]hen the words of a
statute are unambiguous,” the “judicial inquiry is complete.”
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)
(internal quotation marks omitted). But even assuming
arguendo that the word “injunction” authorizes “equitable
relief,” that still does not answer the question.

The Supreme Court has held that statutes authorizing
equitable relief limit federal courts only “to those categories

1
Congress passed § 13(b) in 1973 and § 19 in 1975. See Trans-
Alaska Pipeline Authorization Act, § 408(F), Pub. L. No. 93-153, 87
Stat. 576, 592 (1973) (codified as amended 15 U.S.C. § 53(b));
Magnuson-Moss Warranty—Federal Trade Commission Improvement
Act, tit. II, § 206, Pub. L. No. 93-637, 88 Stat. 2183, 2193 (1975)
(codified as amended 15 U.S.C. § 57b); see also Peter C. Ward,
Restitution for Consumers Under the Federal Trade Commission Act:
Good Intentions or Congressional Intentions, 41 Am. U. L. Rev. 1139
(1992) (reviewing the legislative history of §§ 13(b) and 19).
 FTC V. AMG CAPITAL MGMT. 29

of relief that were typically available in equity during the
days of the divided bench.” Montanile v. Bd. of Trs. of Nat’l
Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 657
(2016) (internal quotation marks omitted). 2 And as the
Supreme Court has noted, “not all relief falling under the
rubric of restitution is available in equity.” Great-West,
534 U.S. at 212; see also Restatement (Third) of Restitution
and Unjust Enrichment § 4, cmt. a (2011) (“The most
widespread error is the assertion that a claim in restitution or
unjust enrichment is by its nature equitable rather than
legal.”). In this case, because restitution under § 13(b) is not
a form of equitable relief, I would conclude that we lack the
authority to impose it.

A

Under the Supreme Court’s decision in Kokesh v. SEC,
137 S. Ct. 1635 (2017), restitution under § 13(b) would
appear to be a penalty—not a form of equitable relief. In
Kokesh, the Court held that SEC disgorgement, which it
described as “a form of restitution measured by the
defendant’s wrongful gain,” is a penalty. Id. at 1640 (quoting
Restatement (Third) of Restitution and Unjust Enrichment
§ 51, cmt. a, at 204 (2011)). The Court described three
characteristics that render disgorgement a penalty. First, it
“is imposed by the courts as a consequence for violating . . .

2
These cases have arisen because the Court must interpret ERISA’s
authorization of “other appropriate equitable relief.” 29 U.S.C.
§ 1132(a)(3). See generally Samuel L. Bray, The Supreme Court and the
New Equity, 68 Vand. L. Rev. 997, 1014–23 (2015) (discussing the
Court’s use of history to demarcate equitable and legal remedies). But
“statutes addressing the same subject matter” should be construed in pari
materia, Wachovia Bank v. Schmidt, 546 U.S. 303, 315 (2006), so the
Court’s analysis in these ERISA cases should apply whenever we must
determine which equitable remedies a statute authorizes.
30 FTC V. AMG CAPITAL MGMT.

public laws.” Id. at 1643. Second, disgorgement is
“punitive” rather than “remedial.” Id. at 1644. With respect
to this second characteristic, the Court elaborated that it is
“ordered without consideration of a defendant’s expenses
that reduced the amount of illegal profit,” so it “does not
simply restore the status quo [but] leaves the defendant
worse off.” Id. at 1644–45. Third, disgorgement is “not
compensatory” because some “funds are dispersed [sic] to
the United States Treasury.” Id. at 1644.

Restitution under § 13(b) shares each of these three
characteristics with SEC disgorgement. First, in Commerce
Planet, we noted that the Commission sought “to enforce a
regulatory statute like § 13(b),” rather than to resolve a
“private controversy.” 815 F.3d at 602 (internal quotation
marks omitted). And like suits for disgorgement in Kokesh,
suits under § 13(b) “may proceed even if victims do not
support or are not parties to the prosecution.” Kokesh, 137
S. Ct. at 1643. Second, restitution under § 13(b) is “punitive”
rather than “remedial.” Id. at 1643–44. Commerce Planet
holds that the wrongdoer’s unjust gains must be measured
by “net revenues” rather than “net profits.” 815 F.3d at 603.
Thus, restitution under § 13(b)—just like SEC
disgorgement—“does not simply restore the status quo [but]
leaves the defendant worse off.” Kokesh, 137 S. Ct. at 1645.
Third, it is not compensatory. Funds can be paid to victims,
but they need not be. See FTC v. Pantron I Corp., 33 F.3d
1088, 1103 n.34 (1994). In this case, for instance, the
Commission was instructed to give refunds to consumers,
then to use any remaining money in a way “reasonably
related to the Defendants’ practices alleged in the
complaint,” then to deposit the balance in “the U.S. Treasury
as disgorgement.”
 FTC V. AMG CAPITAL MGMT. 31

Restitution under § 13(b) therefore “bears all the
hallmarks of a penalty.” Kokesh, 137 S. Ct. at 1644. As the
Supreme Court has already stated, “[a] civil penalty was a
type of remedy at common law that could only be enforced
in courts of law.” Tull v. United States, 481 U.S. 412, 422
(1987). Because penalties were not “available in equity
during the days of the divided bench,” Montanile, 136 S. Ct.
at 657 (internal quotation marks omitted), we should not be
able to impose such penalty here—even if we (wrongly)
assume that § 13(b)’s use of “injunction” authorizes
“equitable relief.”

B

Nor does restitution under § 13(b) have much
resemblance to equitable forms of restitution. Historically,
courts sitting in equity could impose a series of distinct
restitutionary remedies, including the “constructive trust,”
the “equitable lien,” “subrogation,” “accounting for profits,”
“rescission in equity,” and “reformation of instruments.” 1
Dobbs, § 4.3(1), at 587; see also Samuel L. Bray, The System
of Equitable Remedies, 63 UCLA L. Rev. 530, 553–57
(2016) (similar). The general thread connecting these
remedies was that they did not “impose personal liability on
the defendant, but . . . restore[d] to the plaintiff particular
funds or property in the defendant’s possession.” Great-
West, 534 U.S. at 214 (emphasis added). The constructive
trust, for instance, is “only used when the defendant has a
legally recognized right in a particular asset”—e.g., a
“trademark” or a “fund of money like a bank account.” 1
Dobbs, § 4.3(2), at 591. But if such property is “dissipated,”
then a plaintiff may not “enforce a constructive trust of or an
equitable lien upon other property of the defendant.” Great-
West, 534 U.S. 213–14 (quoting Restatement of Restitution
§ 215, cmt. a, at 867 (1937)) (brackets omitted).
32 FTC V. AMG CAPITAL MGMT.

Commerce Planet, however, refused to limit restitution
under § 13(b) to the recovery of “identifiable assets in the
defendant’s possession.” 815 F.3d at 601. But without such
a tracing requirement, the remedy authorized by Commerce
Planet loses its resemblance to the traditional forms of
equitable restitution. In this case, for instance, the
Commission’s complaint makes no effort to identify a
specific fund that the defendant wrongfully obtained.
Therefore, the requested relief is indistinguishable from a
request “to obtain a judgment imposing a merely personal
liability upon the defendant to pay a sum of money”—
essentially an “action[] at law.” Great-West, 534 U.S. at 213
(quoting Restatement of Restitution § 160, cmt. a, at 641–42
(1937)).

The only traditional equitable remedy to which
restitution under § 13(b) is plausibly analogous is the
“accounting for profits.” Such remedy “order[s] an inquiry
into the defendant’s handling of money or property, usually
to ascertain the defendant’s gains so they may be paid to . . .
the plaintiff.” Bray, The System of Equitable Remedies,
supra, at 553; see also Great-West, 534 U.S. at 214 n.2
(discussing accounting for profits). An accounting for profits
also dispenses with the requirement that the plaintiff “seek a
particular res or fund of money.” 1 Dobbs, § 4.3(1), at 588.
Nevertheless, restitution under § 13(b) is still inapposite.
Generally, a suit for an accounting was proper only if
(1) “the legal remedy was inadequate because of the
complexity of the accounts” or (2) “there was a pre-existing
equitable duty to account” because of some fiduciary
relationship. 1 Dobbs, § 4.3(5), at 609; see also 4 S. Symons,
Pomeroy’s Equity Jurisprudence § 1421, at 1077–78 (5th
ed. 1941). Neither is true here: the borrowers defrauded by
Tucker could establish precisely how much they lost simply
by producing bank statements, and the defendant was not in
 FTC V. AMG CAPITAL MGMT. 33

a “fiduciary relationship” with such borrowers. More
fundamentally, however, the Commission cannot possibly
claim that it seeks to recover “monies owed by the fiduciary
or other wrongdoer . . . which in equity and good conscience
belong[] to the plaintiff”—here, the Commission. 1 Dobbs,
§ 4.3(b), at 608 (emphasis added). In sum, restitution under
§ 13(b) bears little resemblance to historically available
forms of equitable relief, and therefore we should lack the
authority to impose it.

C

Commerce Planet wholly avoided the historical analysis
required by cases like Great-West and Montanile. Relying
on the Supreme Court’s decision in Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946), we reasoned that
§ 13(b)’s use of the word “injunction” invoked the “the
court’s equity jurisdiction.” 815 F.3d at 598. Such equity
jurisdiction, we continued, brought with it “all the inherent
equitable powers of the District Court” to afford “complete
rather than truncated justice.” Id. at 598–99 (internal
quotation marks omitted). According to Commerce Planet,
then, § 13(b) granted a broader set of powers than what is
authorized in statutes (like ERISA) that use the phrase “other
appropriate equitable relief.” Id. at 602. Thus, we concluded
that the “interpretive constraints” that guided the Supreme
Court in cases like Great-West and Montanile did not control
our construction of § 13(b). Id.

But such reasoning conflicts with the Supreme Court’s
repeated admonitions that the equitable powers of federal
courts must be hemmed in by tradition. For instance, in
Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc.,
the Court interpreted the scope of the equitable jurisdiction
of the federal courts under the Judiciary Act of 1789.
527 U.S. 308 (1999). There, the Supreme Court squarely
34 FTC V. AMG CAPITAL MGMT.

rejected the dissenting Justices’ argument that the “grand
aims of equity” allowed “federal courts [to] rely on their
flexible jurisdiction in equity to protect all rights and do
justice to all concerned.” Id. at 342 (Ginsburg, J., dissenting)
(internal quotation marks omitted). In “the federal system,”
the majority reasoned, “that flexibility is confined within the
broad boundaries of traditional equitable relief.” Id. at 322.
Indeed, the Court has reiterated similar concerns in other
recent cases. E.g., North Carolina v. Covington, 137 S. Ct.
1624, 1625 (2017) (“Relief in redistricting cases is fashioned
in the light of well-known principles of equity.” (internal
quotation marks omitted)); eBay Inc. v. MercExchange,
LLC, 547 U.S. 388, 394 (2006) (“[Equitable] discretion must
be exercised consistent with traditional principles of equity,
in patent disputes no less than in other cases governed by
such standards.”). Such cases show that we may not simply
incant “equity” and thereby conjure the boundless power to
afford “complete rather than truncated justice.”

III

I acknowledge that several other federal courts have
agreed with our circuit’s interpretation of § 13(b), but their
numbers do not persuade me that they are correct on the law,
especially in light of Kokesh. The only decisions that engage
with the issue at any length rely on the same faulty reasoning
as Commerce Planet. See FTC v. Ross, 743 F.3d 886, 890–
92 (4th Cir. 2014); FTC v. Gem Merch. Corp., 87 F.3d 466,
468–70 (11th Cir. 1996); FTC v. Security Rare Coin &
Bullion Corp., 931 F.2d 1312, 1314–15 (8th Cir. 1991); FTC
v. Amy Travel Serv., Inc., 875 F.2d 564, 571–72 (7th Cir.
1989). 3 But none of these decisions cogently explains how

3
The remaining decisions uncritically adopt the analysis of the other
federal courts. See FTC v. Bronson Partners, LLC, 654 F.3d 359, 365
 FTC V. AMG CAPITAL MGMT. 35

restitution under § 13(b) fits with § 19. None undertakes the
historical analysis that Montanile and Great-West seem to
require. And in any event, the Court’s decision in Kokesh—
which casts serious doubt on restitution’s equitable
pedigree—postdates every single one of them. These past
errors, even if common, do not justify our continued
disregard of the statute’s text and the Supreme Court’s
related precedent.

IV

Just last year, Justice Kennedy explained in Ziglar v.
Abbasi that the Supreme Court once “followed a different
approach to recognizing implied causes of action than it
follows now.” 137 S. Ct. 1843, 1855 (2017). Under this
“ancien regime,” the Court described, it was assumed “to be
a proper judicial function to provide such remedies as [were]
necessary to make effective a statute’s purpose.” Id. (internal
quotation marks omitted). Since those days, however, the
Court has “adopted a far more cautious course before finding
implied causes of action.” Id. at 1855. Under Ziglar, if “a
party seeks to assert an implied cause of action under the
Constitution itself” or “under a federal statute, separation-of-
powers principles are or should be central to the analysis.”

(2d Cir. 2011); FTC v. Magazine Sols., LLC, 432 F. App’x 155, 158 n.2
(3d Cir. 2011) (unpublished); FTC v. Direct Mktg. Concepts, Inc.,
624 F.3d 1, 15 (1st Cir. 2010); FTC v. Freecom Commc’ns, Inc.,
401 F.3d 1192, 1202 n.6 (10th Cir. 2005). And though the Fifth Circuit
reasoned that § 13(b) invoked the district court’s “inherent equitable
jurisdiction,” the actual remedy in the case was an order to place assets
into an escrow account “to preserve the status quo” and “assure the
possibility of complete relief following administrative adjudication.”
FTC v. Sw. Sunsites, Inc., 665 F.2d 711, 716–21 (5th Cir. 1982). Such
an order is quite unlike the order to pay a sum of money as restitution,
so it says little about the question here.
36 FTC V. AMG CAPITAL MGMT.

Id. at 1857. So too here, the principle that must guide our
analysis is that Congress—not the courts—should dictate
rights and remedies in our federal system. See id. (“The
question is ‘who should decide’ whether to provide for a
damages remedy, Congress or the courts? The answer most
often will be Congress.” (internal quotation marks and
citation omitted)); Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378, 1385 (2015) (“The power of federal courts
of equity to enjoin unlawful executive action is subject to
express and implied statutory limitations.”); Alexander v.
Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to
interpret the statute Congress has passed to determine
whether it displays an intent to create . . . a private
remedy.”).

Heedless of such instruction, we have implausibly
construed the word “injunction” in § 13(b) to authorize the
extensive power to order defendants to repay ill-gotten
gains—never mind that such interpretation makes nonsense
out of § 19, and never mind that it ignores the Court’s
statements that our equitable powers must be hemmed in by
tradition. I submit that our interpretation of § 13(b) is thus
an impermissible exercise of judicial creativity, and it
contravenes the basic separation-of-powers principle that
leaves to Congress the power to authorize (or to withhold)
rights and remedies. Our decision in Commerce Planet is
therefore a relic of that ancien regime that the Court over the
last few decades has expressly and repeatedly repudiated.

We should rehear this case en banc to revisit Commerce
Planet and its predecessors.
 FTC V. AMG CAPITAL MGMT. 37

BEA, Circuit Judge, specially concurring:

I concur in the opinion because our precedent 1 compels
me to, but I write separately to acknowledge that the
question whether something is “likely to deceive” is
inherently factual and should not be decided at the summary
judgment stage.

Summary judgment is proper only when there exists no
genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). A dispute of a material fact
is “genuine” if the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248.
In other words, in this case, to affirm the district court’s grant
of summary judgment, we must conclude from the proofs
presented that no reasonable juror could find other than that
a reasonable consumer would likely be deceived by the Loan
Note. This is difficult to do when the whole of the Loan
Note is read. It is undisputed that a careful reading of the
Loan Note and its fine print reveals the automatic renewal
feature, whereby borrowers’ loans would be automatically
renewed unless they navigated to a link sent to their email
and chose to pay their total balance. Because the Loan Note
includes truthful disclosures, we can say it is “likely to
deceive” as a matter of law only by positing two scenarios:
(1) it is unreasonable as a matter of law to expect the average
consumer to read all the words of the Loan Note, including
the fine print, or (2) as a matter of law, it is unreasonable to
expect the average consumer to understand all the words of
the Loan Note in the manner in which they are displayed.

1
See FTC v. Cyberspace.com LLC, 453 F.3d 1196, 1200 (9th Cir.
2006).
38 FTC V. AMG CAPITAL MGMT.

As to the first point, I know of no authority that says
consumers need not read the fine print of their contracts;
such a holding would certainly imperil the validity of many
insurance contracts. And as to the second point, to say it is
unreasonable to expect the average consumer to understand
the words of the Loan Note in the manner in which they are
displayed, we would have to recognize either that the three
judges of this panel are better text readers than is the average
consumer or that judges are not average consumers. I don’t
know of any authority for recognizing either assertion.

Indeed, we, a panel of three judges, have read and
understood the terms of the Loan Note. We have not been
deceived. Yet, we hold that the Loan Note is likely to
deceive the average consumer as a matter of law.

Under this court’s precedent, I accept that we may decide
that the Loan Note is deceptive as a matter of law under § 5
of the FTC Act. See FTC v. Cyberspace.com LLC, 453 F.3d
1196, 1200 (9th Cir. 2006). What is determinative under
Cyberspace is whether the “net impression” of the
questioned text is likely to deceive. Id. This rule seems to
require a judge consciously to blur his eyes as to the actual
print to gain an “impression,” or perhaps to see the print as
French impressionist masters of the late Nineteenth Century
saw objects. But whether we are guided by impressions
from words or words themselves, Cyberspace defies logic
when the words are actually understood by the judge to state
something other than the “net impression” that is claimed
“likely to deceive.”

If something is “likely to deceive,” it means it will more
probably than not deceive. To predict what is “likely” to
happen is to predict an event. An event is a fact, yet to occur.
It did not occur when we read the Loan Note. I am at a loss
to understand how we can find it would ineluctably occur in
 FTC V. AMG CAPITAL MGMT. 39

the case of an average reasonable consumer. It seems the
event may occur or may not occur. If so, whether it occurs
in every case can be disputed. Disputed factual questions are
reserved for juries, not for district judges acting alone nor for
a panel of appellate judges. Thus, while our precedent
obliges me to concur in this case, I think our precedent is
wrong. Courts should reserve questions such as whether the
Loan Note is “likely to deceive” for the trier of fact.