Plaintiff, the Federal Trade Commission (“FTC”), for its Complaint alleges:1. The FTC brings this action under Section 13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b), to obtain permanent injunctive relief, rescission, restitution, the refund of monies paid, disgorgement of ill-gotten monies, and other equitable relief for Defendant’s acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), in connection with Defendant’s false advertising that its “Clean Diesel” vehicles had low emissions, complied with state and federal emissions standards, were environmentally friendly, and retained a high resale value.JURISDICTION2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337(a), and 1345, and 15 U.S.C. § 45(a).VENUE AND INTRADISTRICT ASSIGNMENT3.

On May 11, 2021, the FTC filed a responsive letter, stating its intention to file an Amended Complaint replacing the prior requested 13(b) monetary relief with a new “claim and seek civil penalties for Defendants’ violations of Section 521 of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6821.” On May 14, 2021, the FTC filed a Motion for Leave to file the Amended Complaint.On June 10, 2021, the FTC filed an Amended Complaint where it sought to bring monetary penalties and a permanent injunction under Sections 5(a), 5(m)(1)(A), 13(b), 16(a), and 19 of the FTC Act, 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), 56(a), and 57b, and Section 522(a) of the Gramm-Leach-Bliley Act, 15 U.S.C. §6822(a).FTC v. Simple Health Plans LLC, No. 18-cv-62593 (S.D. Fla.)On April 22, 2021, one of the individual defendants filed an Emergency Motion to Dissolve the Preliminary Injunction, due to the Supreme Court’s ruling in AMG. That defendant submitted two notices of supplemental authority referencing other lower court cases dissolving preliminary injunctions following AMG.The FTC filed a response to the Motion on April 30, 2021, arguing that the Motion was not ripe and that the FTC still had Section 19 authority.On June 10, 2021, defendants filed a response to an order of supplemental briefing regarding AMG and their April 22 Motion to Dissolve.

The Court found that the FTC had sufficiently pleaded the so-called “sham exception” to Noerr-Pennington, in which the petition at issue is “a mere sham to cover what is actually nothing more than an attempt to interfere directly with business relationships of a competitor.” But the Court dismissed the FTC’s complaint anyway, based on a novel interpretation of the Federal Trade Commission Act (“FTC Act”); holding that the FTC had failed to plead the facts necessary to invoke its authority to sue for permanent injunction in federal court (FTC Act § 13(b) (15 U.S.C. § 53(b))) because it did not allege an ongoing or imminent violation of the FTC Act.The FTC’s primary statutory mechanisms for seeking injunctive and other relief from entities and individuals it believes have violated the FTC Act are (1) Section 5(b) of the FTC Act, which authorizes the FTC to file an administrative complaint seeking an administrative cease and desist order, and (2) Section 13(b) of the Act, which authorizes the FTC to bring suit in federal court seeking injunctive relief.

Section 7 of the Clayton Act prohibits acquisitions, including mergers, where in any line of commerce or in any activity affecting commerce in any section of the country, "the effect of such acquisition may be substantially to lessen competition, or tend to create a monopoly."It is the principal federal substantive antitrust law governing the formation of mergers, acquisitions and joint ventures.When the FTC believes an acquisition violates Section 7 and that enjoining an acquisition pending an investigation would be in the public interest, the Commission may ask a federal court to temporarily block the acquisition under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b).In June 2007, the FTC did exactly that.It issued an internal, administrative complaint alleging that the merger would violate Section 7 of the Clayton Act and at the same time, petitioned the district court for a preliminary injunction to prohibit the parties from closing the transaction pending completion of the administrative proceeding.In late July and early August, 2007, the district court held a hearing on whether to grant the temporary injunction.

n and U.S. Anesthesia Partners (USAP) filed separate motions to dismiss on Nov. 20, 2023, in a case challenging an alleged decade-long "roll-up" strategy to consolidate anesthesiology practices in Texas. After full briefing and a hearing, the court granted Welsh Carson's motion to dismiss, but denied USAP's motion to dismiss.Factual BackgroundIn a suit filed in September 2023, the FTC alleged that Welsh Carson, a private equity firm, founded USAP in 2012 "for the purpose of rolling up anesthesia practices in Texas" and consolidated and monopolized the Texas anesthesiology market through a three-part strategy. This alleged three-part strategy carried out by Welsh Carson and USAP included: 1) executing a roll-up acquisition scheme, 2) negotiating with payers jointly with competitors Welsh Carson and USAP did not own, and 3) reaching a market allocation agreement with a large rival anesthesiology provider.The FTC's complaint petitioned the court "pursuant to Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), for a permanent injunction and other equitable relief" against both USAP and Welsh Carson "to redress and prevent violations of Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a)."Analysis of Section 13(b) of the FTC Act, 15 U.S.C. Section 53(b)"Section 13(b) allows the FTC to 'bring suit in a district court of the United Sates to enjoin' allegedly unlawful conduct only where it has 'reason to believe … that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the [FTC].'" The court held that "Section 13(b) is not a catch-all statute. Rather, Section 13(b) 'addresses a specific problem, namely, that of stopping seemingly unfair practices from taking place while the [FTC] determines their lawfulness [through its own administrative proceedings].'" Therefore, the court held that "Section 13(b) [ ] 'does not permit the FTC to bring a claim based on long-past conduct without some eviden

The FTC’s response argues that the action is still appropriate because, the FTC asserts, Section 13(b) still empowers the FTC to seek a permanent injunction.” Of course, the statutory text only speaks of preliminary injunctive relief.·FTC v. FleetCor Technologies, Inc., No. 19-cv-05727 (N.D. Ga.)· On May 17, 2021, defendants filed a partial motion for summary judgment, asserting that, following AMG, “the FTC is not entitled to relief on its claim for equitable monetary relief, and [] the FTC is not entitled to relief on its claim for prospective injunctive relief.”·FTC v. Golden Sunrise Nutraceutical, Inc., No. 20-cv-01060 (E.D. Cal.)Despite AMG, on June 6, 2021 the parties entered a stipulation and proposed order, granting the FTC a permanent injunction and monetary remedies, pursuant to Sections 13(b) of the FTC Act and 15 U.S.C. § 53(b). On June 11, 2021, the district court entered the stipulated order.FTC v. Hornbeam Special Situations, LLC, No. 17-cv-03094 (N.D. Ga.)· On April 22, 2021, the FTC filed a Notice with the Court of the AMG decision.

In the reply, the FTC does not seek monetary relief, only injunctive relief.On July 12, 2021, Defendants filed their reply brief, arguing that the FTC is not entitled to injunctive relief that that the FTC lacks authority to enjoin past conduct. No order has been issued.FTC v. Golden Sunrise Nutraceutical, Inc., No. 20-cv-01060 (E.D. Cal.)Despite AMG, on June 6, 2021 the parties entered a stipulation and proposed order, granting the FTC a permanent injunction and monetary remedies, pursuant to Sections 13(b) of the FTC Act and 15 U.S.C. § 53(b). On June 11, 2021, the district court entered the stipulated order.FTC v. Hornbeam Special Situations, LLC, No. 17-cv-03094 (N.D. Ga.)On April 22, 2021, the FTC filed a Notice with the Court of the AMG decision.On June 21, 2021, the court terminated without prejudice the motions for summary judgment.

The FTC’s response argues that the action is still appropriate because, the FTC asserts, Section 13(b) still empowers the FTC to seek a permanent injunction.” Of course, the statutory text only speaks of preliminary injunctive relief.FTC v. FleetCor Technologies, Inc., No. 19-cv-05727 (N.D. Ga.)On May 17, 2021, defendants filed a partial motion for summary judgment, asserting that, following AMG, “the FTC is not entitled to relief on its claim for equitable monetary relief, and [] the FTC is not entitled to relief on its claim for prospective injunctive relief.”FTC v. Golden Sunrise Nutraceutical, Inc., No. 20-cv-01060 (E.D. Cal.)Despite AMG, on June 6, 2021 the parties entered a stipulation and proposed order, granting the FTC a permanent injunction and monetary remedies, pursuant to Sections 13(b) of the FTC Act and 15 U.S.C. § 53(b). On June 11, 2021, the district court entered the stipulated order.FTC v. Hornbeam Special Situations, LLC, No. 17-cv-03094 (N.D. Ga.)On April 22, 2021, the FTC filed a Notice with the Court of the AMG decision.

The case involved an individual whose companies allegedly used intentionally confusing and long contracts to make high-interest loans to customers. The FTC brought criminal and civil actions against the individual and his companies, and—citing its right to seek “permanent injuncti[ve]” relief—the FTC sought civil restitution from AMG. 15 U.S.C. § 53(b). This request was consistent with prior caselaw in the Ninth Circuit (where the case against AMG was brought), which affirmed the FTC’s ability to seek monetary equitable remedies.The Supreme Court reversed.

15 U.S.C. § ‎‎45(a), 52. However, on April 22, 2021, the U.S. Supreme Court unanimously ruled that the FTC ‎does not have statutory authority to seek monetary relief in a court action under Section 13(b) of ‎the FTC Act, 15 U.S.C. § 53(b). AMG Capital Management, LLC v. FTC, No. 19-508, 2021 WL ‎‎1566607 (Apr. 22, 2021).