VICARIOUS LIABILITY IN FTC PRACTICE

1. Hilary B. Miller November 1, 2012 VICARIOUS LIABILITY IN FTC PRACTICE

2. Why does it matter? • FTC and CFPB have concurrent enforcement authority over financial practices • FTCA § 5 and D-F § 1031 are in pari materia

3. FTC Has Various Theories For Holding Actors Vicariously Liable • “Enterprise” liability • “Control person” liability • “Relief” defendants

4. “Common Enterprise” liability • Defendants that operate in a common enterprise may be held liable for one another's deceptive acts and practices. • FTC v. Think Achievement Corp., 144 F.Supp.2d 993, 1011 (N.D. Ind. 2000) • Defendants found to be a common enterprise are held jointly and severally liable for their violations. • FTC v. J.K. Publications, Inc., 99 F. Supp.2d 1176, 1202 (C.D. Cal. 2000).

5. Factors considered • common control • sharing of office space and officers • business is transacted through "a maze of interrelated companies” • commingling of corporate funds and failure to maintain separation of companies • unified advertising • any other evidence of no real distinction between the corporate defendants.

6. Enterprise Liability • A “common enterprise” exists when an enterprise transacts business through “a maze of interrelated companies,”i.e., when, as a whole, “the pattern or framework” of an enterprise indicates that the several companies are actually transacting the same or similar business. • Delaware Watch v. FTC, 332 F.2d 745, 746 (2d Cir. 1964).

7. Broad catch-all • Inasmuch as no one factor is controlling, courts must consider "the pattern and frame-work of the whole enterprise . . . .” • Delaware Watch Co., 332 F.2d at 746.

8. “Control” liability • A corporate officer or other employee can be held individually liable for company malfeasance • Once corporate liability is established, the FTC must then generally demonstrate that “the individual defendants participated directly in the practices or acts or had the authority to control them.” • FTC v. Amy Travel Svc., Inc., 875 F.2d at 573-574; FTC v. Transnet Wireless Corp., 506 F.Supp.2d 1247, 1270-71 (2007).

9. “Control” factors • Active involvement in business affairs and the making (direction, formulation, control, etc.) of corporate policy, including assuming the duties of a corporate officer. • Not limited to respondeat superior • Importantly, in a small closely-held corporation, an individual’s status as a corporate officer gives rise to a presumption of ability to control. • FTC Operating Manual, Chapter Four

10. Standard of liability • The FTC is not required to prove that an individual defendant intended to deceive consumers. • The individual must have “knowledge” of the unlawful conduct, but the “knowledge” may be satisfied by showing reckless indifference, or an awareness of a high probability of wrongfulness. • FTC v. Amy Travel Svc., Inc., 875 F.2d at 574.

11. Extent of liability • Individual liability is truly joint and several – i.e., not limited to disgorgement of the benefit received by the individual • FTC v. Windward Marketing, Ltd., 1997 WL 33642380, at 15 (September 30, 1997)

12. “Relief” defendants • Federal courts may order equitable relief against a ‘nominal’ or ‘relief’ defendant, an individual who is not accused of wrongdoing, where that person has: • received ill-gotten funds; and • does not have a legitimate claim to those funds. • Targets: usually wives, but also lawyers, etc. • FTC v. Transnet Wireless Corp., 506 F. Supp.2d at 1273

13. Summary • Federal common law permits the imposition of vicarious liability on corporate officers, owners, control persons, affiliates and alter egos. • Liability is joint and several, and not limited to disgorgement of benefits received • Third parties may be “relieved” of ill-gotten gains, even if blameless • CFPB will likely follow FTC precedent

14. The End