On June 7, the Federal Trade Commission (FTC) announced a request for information (RFI) to gain additional insight into how it can optimize joint enforcement with state attorneys general (state AGs) to protect consumers from fraud. The announcement signals a growing trend of cooperation between the FTC and state AGs, which we have also seen between the Consumer Financial Protection Bureau (CFPB) and the state regulators.
The FTC’s Request for Information
Recognizing the FTC’s and state AGs’ overlapping roles in consumer protection, the RFI seeks information regarding: (1) the parties’ “respective roles and responsibilities” as they relate to consumer protection; (2) how resources should be allocated to advance collaboration and consumer protection; and (3) what “accountability mechanisms” (e.g., performance indicators or reporting requirements) should be implemented to promote collaboration.
The RFI comes at the direction of the FTC Collaboration Act of 2021. The act requires the FTC to “conduct a study on facilitating and refining existing efforts with [state AGs] to prevent, publicize, and penalize frauds and scams.” The results of the study will inform a report containing (1) recommended best practices to enhance collaboration efforts; (2) metrics to measure enhanced collaboration; and (3) legislative recommendations to enhance collaboration.
The RFI welcomes comments from state AGs; law enforcement and regulatory agencies; public interest organizations; and several other interested parties. The comment period will close 60 days after the RFI is published in the Federal Register.
Increased Cooperation Between the FTC and State AGs
Increased collaboration between the FTC and state AGs is already occurring, and the RFI is consistent with the FTC’s and state AGs’ actions and public statements to date. For example, in 2022, the FTC and 18 states brought a joint enforcement action against Harris Jewelry, alleging the company engaged in deceptive business practices related to its consumer finance practices. The parties settled in July 2022, and the settlement required Harris Jewelry, amongst other relief measures, to cease collections on millions of dollars in debt and provide $10.9 million in refunds to consumers.
Moreover, the FTC has publicly acknowledged its commitment to continued collaboration with state AGs on several occasions. Indeed, in a release announcing an administrative complaint, Bureau of Consumer Protection Director Samuel Levine stated that “[t]he FTC will not stop working with our partners in the states to crack down on deceptive [business practices] and ensure firms that break the rules pay a price.” Similarly, during a panel organized by the National Association of Attorneys General, FTC Chair Lisa Khan reiterated that the FTC needs to work closely with the states.
Increased cooperation also arises, in part, from the Supreme Court’s 2021 decision in AMG Capital Management, LLC v. FTC (AMG). The decision, according to the director of the FTC’s Bureau of Consumer Protection, “stripped [the FTC of its] ability to recover redress for consumers through Section 13(b) of the FTC Act,” a tool it used to collect $11 billion in consumer redress from enforcement targets in just four years. The decision dealt a “monumental” blow to the FTC, because it forced the agency down the “slower and more challenging” path of conducting an administrative proceeding prior to recovering restitution or disgorgement of profits. As explained further below, collaboration with state AGs solves this problem because it allows state AGs to assert claims and obtain relief against federal enforcement targets under state law.
How Collaborative Enforcement Changes the Regulatory Environment
Collaboration offers advantages to both the FTC and state AGs, and increases both the likelihood and magnitude of enforcement activity against industry actors.
For the FTC, collaboration with state AGs not only offers the opportunity to sidestep the AMG problem by allowing recovery of redress for consumers under state law, but it also allows the FTC to increase its bandwidth by feeding cases to state AGs that the FTC would otherwise not pursue alone.
Likewise, state AGs benefit from collaborative enforcement because partnership with the FTC provides access to the extensive federal enforcement resources and to the information and analytics generated by the federal agencies (including not only the FTC, but also the CFPB).
Conclusion
The increase in joint enforcement actions, the FTC Collaboration Act of 2021, and most recently, the RFI all indicate that cooperative enforcement will continue to increase. As the relationship between the FTC and state AGs continues to develop, these regulators will become increasingly adept at leveraging their complementary skillsets to target businesses perceived to be harming consumers. What this means for the industry is that anticipating, avoiding, and dealing with the combined federal-state regulatory threats requires a unified strategy informed by knowledge of both the federal and state regulators’ priorities and practices.
