This morning, in a quick line order, the Supreme Court docket vacated its prior grant of the Federal Commerce Fee’s petition for certiorari in Federal Commerce Fee v. Credit score Bureau Heart, LLC (“Credit score Bureau”). Justice Barrett didn’t participate within the resolution to vacate the grant of certiorari. Not one of the remaining Justices dissented from the order.
As we defined in a previous put up, in Credit score Bureau, the Seventh Circuit reversed its prior precedent, concluding that Part 13(b) of the FTC Act doesn’t authorize the FTC to acquire financial restitution. In doing so, the Credit score Bureau court docket admonished that Part 13(b) have to be taken by itself phrases. “By its phrases, part 13(b) authorizes solely restraining orders and injunctions,” not restitution. 937 F.3d 764, 767.
The Supreme Court docket’s motion is not going to stop this situation from being litigated on the Excessive Court docket. Credit score Bureau had been consolidated with one other case, AMG Capital Administration, LLC v. Federal Commerce Fee (“AMG”). AMG is in some ways a parallel case to Credit score Bureau, with comparable information resulting in an reverse final result. In AMG, a Ninth Circuit panel disapproved of the broad and atextual studying of Part 13(b) permitting for financial restitution, however concluded that it “stay[ed] certain by” the ample Ninth Circuit precedent broadly construing Part 13(b). 910 F.3d 417, 427. AMG stays earlier than the Supreme Court docket, and oral arguments will likely be heard someday within the first half of 2021.
Whereas the Supreme Court docket’s trip of the grant of certiorari in Credit score Bureau can’t be considered as a definitive endorsement of the Seventh Circuit’s place, it actually comes shut. Whereas not an outright affirmance on the deserves, the holiday indicators that the Supreme Court docket is comfy with the Seventh Circuit’s Credit score Bureau holding. When the Supreme Court docket vacates grants of certiorari, it can usually accomplish that with the temporary rationalization that the unique grant of certiorari was “improvidently granted,” that means that the Supreme Court docket now not believes the case deserves evaluation. The Supreme Court docket didn’t do this right here. As an alternative, the Excessive Court docket merely vacated the grant. This, together with the continued presence of AMG on the Supreme Court docket’s docket, indicators that the Supreme Court docket does suppose the problems in Credit score Bureau advantage evaluation, however the Court docket now not believes Credit score Bureau is the perfect car to evaluation the problem of financial restitution below Part 13(b).
Whereas the Supreme Court docket’s line order doesn’t specify why the Court docket vacated the grant of certiorari, we imagine there’s one possible cause. Justice Barrett (who didn’t take part within the trip of the grant of cert) was a member of the Seventh Circuit when Credit score Bureau was determined. Whereas then Choose Barrett was not on the Credit score Bureau panel, the panel’s resolution was reviewed by the whole Seventh Circuit as a result of it overturned prior Seventh Circuit precedent. Whereas some members of the Seventh Circuit dissented from the panel’s Credit score Bureau resolution, Choose Barrett didn’t. Choose Barrett’s resolution to permit Credit score Bureau to face whereas she was on the Seventh Circuit actually qualifies as participation in a decrease court docket’s case earlier than it made its approach to the Supreme Court docket. Many imagine that it will have been an moral battle for Justice Barrett to take part once more in a evaluation of Credit score Bureau—successfully reviewing her personal resolution.
The Supreme Court docket’s resolution to vacate the grant of certiorari in Credit score Bureau thereby permits Justice Barrett to take part within the AMG case on the deserves whereas avoiding any moral points. The eight members of the Court docket who selected to vacate the grant of certiorari Credit score Bureau are signaling that they need Justice Barrett to take part within the proceedings.
This, in flip, looks like a powerful sign that the Supreme Court docket could reverse the Ninth Circuit’s resolution in AMG, concluding that Part 13(b) doesn’t permit for the FTC to acquire financial restitution. If the Excessive Court docket agrees with the Seventh Circuit’s Credit score Bureau resolution and reverses the Ninth Circuit’s opposite AMG resolution, there isn’t any actual must evaluation the Seventh Circuit’s resolution on the deserves. The Supreme Court docket’s reversal of the Ninth Circuit’s AMG resolution will, in fact, be precedential nationwide. And, the Supreme Court docket will thereby successfully affirm Credit score Bureau, permitting Justice Barrett to take part in its AMG resolution whereas bypassing any moral quagmires.