THE FEDERAL TRADE COMMISSION UNDER THE TRUMP ADMINISTRATION: PAST, PRESENT, AND FUTURE February 15, 2017

PANELISTS Joel Winston, Partner: Former Associate Director, Division of Financial Practices; Associate Director, Division of Privacy and Identity Protection; Deputy Assistant Director, Bureau of Consumer Protection; and Assistant Director, Division of Advertising Practices, FTC. Jean Noonan, Partner: Former Associate Director, Division of Credit Practices, FTC Lucy Morris, Partner: Former Assistant Director, Division of Financial Practices and Assistant Director, Bureau of Consumer Protection, FTC. Former Deputy Enforcement Director, Consumer Financial Protection Bureau Rebecca Kuehn, Partner: Former Assistant Director, Division of Privacy and Identity Protection, FTC Michael Goodman, Partner: Former staff attorney, Division of Marketing Practices, FTC

THE FEDERAL TRADE COMMISSION History – created 1914 Commission Structure Powers – enforcement, rulemaking, guidance, consumer education (but no supervision) Jurisdiction: any entity “in or affecting commerce,” except Banks/depository institutions Non-profits Common carrier activities (e.g., telecoms) Business of insurance

LAWS AND RULES ENFORCED FTC Act, Section 5 (unfair or deceptive acts or practices) Consumer credit statutes (Truth in Lending Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Consumer Leasing Act, Fair Credit Billing Act) Fair Debt Collection Practices Act Privacy laws (Children’s Online Privacy Protection Act, Gramm-Leach-Bliley Act and Privacy and Safeguards Rules) Telemarketing Sales Rule CAN-SPAM Act and rules

RELATIONSHIP WITH CFPB Areas of overlapping jurisdiction Areas of distinct jurisdiction Different structure Different powers and remedies MOU UDAP vs. UDAAP

KEY POLICY STATEMENTS Policy Statement on Deception Policy Statement on Unfairness Policy Statement Regarding Advertising Substantiation Enforcement Policy Statement on Deceptively Formatted Advertisements

ENFORCEMENT REMEDIES Cease and desist orders – “fencing in” relief Disclosure requirements Temporary restraining orders and preliminary injunctions Civil penalties (in some cases) Consumer restitution Disgorgement of ill-gotten gains

DIVISION OF FINANCIAL PRACTICES Ensures compliance with laws governing consumer financial products and services: Debt collection Debt relief services Mortgage lending/servicing and consumer finance Motor vehicle sales, financing and leasing Financial technology (e.g., payment systems)

DIVISION OF PRIVACY AND IDENTITY PROTECTION Oversees issues relating to consumer privacy, information security, and identity theft Enforces privacy laws and rules (e.g., Gramm-Leach-Bliley Act and Privacy and Safeguards Rules) Enforces Fair Credit Reporting Act against consumer reporting agencies, data furnishers, and consumer report users. Operates Identity Theft Data Clearinghouse (federal government’s repository for consumer ID theft complaints) and call center for ID theft victims

DIVISION OF ADVERTISING PRACTICES Monitors and enforces laws covering advertising of wide range of products and services (e.g., dietary supplements, health-related products, tobacco, alcohol and other consumer goods) Monitors new advertising techniques and media (e.g., social media) Applies Guides on Use of Endorsements and Testimonials in advertising Oversees advertising to children, including marketing of violent movies, games, and music.

DIVISION OF MARKETING PRACTICES Brings enforcement actions against various forms of consumer fraud, including internet and other high-tech scams, business opportunity schemes, and pyramid schemes Enforces Telemarketing Sales Rule against telemarketers engaged in unfair or deceptive practices. Oversees Do-No-Call registry and brings cases against violators Enforces CAN-SPAM Act against illegal email scams

DIVISION OF ENFORCEMENT Monitors and enforces compliance with FTC administrative and federal court orders entered in consumer protection cases Coordinates with criminal law enforcement agencies to encourage criminal prosecution of consumer fraud Develops, reviews, and enforces variety of consumer protection rules (e.g., R-Value Rule, Green Guides, Mail or Telephone Order Merchandise Rule) Provides guidance to other parts of the agency on bankruptcy issues

OTHER CONSUMER PROTECTION DIVISIONS Division of Consumer & Business Education Division of Consumer Response & Operations Division of Litigation Technology & Analysis

THE TAXONOMY OF AN INVESTIGATION Investigation opened Discovery – Civil Investigative Demands (documents, answers to interrogatories, investigational hearings) Wait … in some cases for a long time Communication of findings – close or consent authority Settlement negotiations Consent order or Complaint filed Litigation Appeal rights within FTC Similar to CFPB, except …

ILLUSTRATIVE RECENT CASES Uber – deceptive advertising claims Auto recall cases – deceptive omissions Amazon, VIZIO – unfair privacy practices LabMD, Wyndham – unfair and deceptive data security practices

PREDICTING THE FUTURE Appropriations – will there be cuts? New personnel New acting Chairman – Maureen Ohlhausen Three new Commissioners to be appointed (and a fourth in September!) Will be new senior staff, where much of the work of the agency takes place Past changes in administrations The Continuity Model The Upheaval Model CFPB Gaps

CONTACT INFORMATION Michael Goodman Hudson Cook, LLP 1909 K Street, NW 4th Floor Washington, DC 20006 202-327-9704  mgoodman@hudco.com Rebecca E. Kuehn 202-715-2008  rkuehn@hudco.com Lucy Morris Hudson Cook, LLP 1909 K Street, NW 4th Floor Washington, DC 20006 202-327-9710  lmorris@hudco.com Joel Winston 202-327-9716  jwinston@hudco.com Jean Noonan Hudson Cook, LLP 1909 K Street, NW 4th Floor Washington, DC 20006 202-327-9705  jnoonan@hudco.com