[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3410 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 3410

To amend section 13 of the Federal Trade Commission Act to provide for 
               equitable relief, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 15, 2021

     Mr. Lee (for himself, Ms. Lummis, Mr. Tillis, and Mr. Hawley) 
introduced the following bill; which was read twice and referred to the 
           Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To amend section 13 of the Federal Trade Commission Act to provide for 
               equitable relief, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``The Consumer Protection and Due 
Process Act''.

SEC. 2. AMENDMENTS TO THE FEDERAL TRADE COMMISSION ACT.

    (a) Provision of Equitable Relief; Authority To Refer to the 
Attorney General.--
            (1) In general.--Section 13 of the Federal Trade Commission 
        Act (15 U.S.C. 53) is amended by adding at the end the 
        following:
    ``(e) Equitable Relief.--
            ``(1) Restitution; contract rescission and reformation; 
        refunds; return of property respecting unfair or deceptive acts 
        or practices.--
                    ``(A) In general.--Subject to paragraph (4), in a 
                suit brought under subsection (b)(2)(B), the Commission 
                may seek, and the court may order--
                            ``(i) restitution for consumer loss that 
                        the court has a sound basis to conclude 
                        resulted from such violation;
                            ``(ii) rescission or reformation of 
                        contracts; or
                            ``(iii) the refund of property.
                    ``(B) Limitations period.--In a suit brought under 
                subsection (b)(2)(B), the Commission may bring a claim 
                for relief under this paragraph not later than 3 years 
                after the date on which the violation that gives rise 
                to the suit in which the Commission seeks the claim 
                occurs.
            ``(2) Disgorgement respecting unfair or deceptive acts or 
        practices.--
                    ``(A) In general.--Subject to paragraph (4), in a 
                suit brought under subsection (b)(2)(B), the Commission 
                may seek, and the court may order, disgorgement of any 
                unjust enrichment the court has a sound basis to 
                conclude that a person, partnership, or corporation 
                obtained as a result of that violation.
                    ``(B) Calculation.--Any amount that a court orders 
                a person, partnership, or corporation to pay under 
                subparagraph (A) shall be offset by any amount a court 
                orders the person, partnership, or corporation to pay 
                or to return under paragraph (1)(A) and shall not 
                exceed the net profits directly related to the 
                violation by the person, partnership, or corporation.
                    ``(C) Limitations period.--In a suit brought under 
                subsection (b)(2)(B), the Commission may bring a claim 
                for disgorgement under this paragraph not later than 3 
                years after the date on which the violation that gives 
                rise to the suit in which the Commission seeks the 
                claim occurs.
            ``(3) Calculation of limitations periods.--For purposes of 
        calculating any limitations period under paragraph (1) or (2), 
        any time in which a person, partnership, or corporation against 
        which such equitable relief is sought is outside the United 
        States shall not be counted for purposes of calculating such 
        period.
            ``(4) Burden of proof; presumption.--
                    ``(A) Burden of proof.--The court may order 
                equitable relief under paragraph (1) or (2) only if the 
                Commission proves that--
                            ``(i) the act or practice which relates to 
                        the violation that gives rise to the suit in 
                        which the Commission seeks such relief is an 
                        act or practice that a reasonable individual 
                        would have known, under the circumstances, was 
                        unfair or deceptive within the meaning of 
                        section 5(a)(1); and
                            ``(ii) a reasonable individual--
                                    ``(I) materially relied on such act 
                                or practice; and
                                    ``(II) such act or practice 
                                proximately caused harm to the 
                                individual.
                    ``(B) No presumption of material reliance.--For 
                purposes of subparagraph (A)(ii)(I), the court may not 
                presume that an individual materially relied on any 
                unfair or deceptive acts or practices solely on the 
                basis of a finding that such individual was exposed to 
                such unfair or deceptive acts or practices.
    ``(f) Referral by the Commission.--In any action brought by the 
Commission under this section involving an unfair method of competition 
in which the court rules in favor of the Commission, the Commission may 
refer the action to the Attorney General to collect actual damages 
under section 4A(b) of the Clayton Act.''.
            (2) Conforming amendments.--Section 13 of the Federal Trade 
        Commission Act (15 U.S.C. 53) is amended by striking subsection 
        (b) and inserting the following:
    ``(b) Temporary Restraining Orders; Preliminary and Permanent 
Injunctions; Other Relief.--Whenever the Commission has reason to 
believe--
            ``(1) that any person, partnership, or corporation has 
        violated, is violating, or is about to violate any provision of 
        law enforced by the Federal Trade Commission; and
            ``(2) that either--
                    ``(A) the enjoining thereof pending the issuance of 
                a complaint by the Commission and until such complaint 
                is dismissed by the Commission or set aside by the 
                court on review, or until the order of the Commission 
                made thereon has become final, would be in the interest 
                of the public; or
                    ``(B) the permanent enjoining thereof or the 
                ordering of equitable relief under subsection (e) would 
                be in the interest of the public,
the Commission by any of its attorneys designated by it for such 
purpose may bring suit in a district court of the United States to 
obtain such injunction or relief. In a case brought under paragraph 
(2)(A), upon a proper showing that, weighing the equities and 
considering the Commission's likelihood of ultimate success, a 
temporary restraining order or preliminary injunction would be in the 
public interest, and after notice to the defendant, a temporary 
restraining order or a preliminary injunction may be granted: Provided, 
however, That if a complaint is not filed within such period (not 
exceeding 20 days) as may be specified by the court after issuance of 
the temporary restraining order or preliminary injunction, the order or 
injunction shall be dissolved by the court and be of no further force 
and effect: Provided further, That in a case brought under paragraph 
(2)(B), after proper proof, the court may issue a permanent injunction, 
equitable relief under subsection (e), or any other relief as the court 
determines to be just and proper, including temporary or preliminary 
equitable relief. Any suit under paragraph (2) may be brought where 
such person, partnership, or corporation resides or transacts business, 
or wherever venue is proper under section 1391 of title 28, United 
States Code. In addition, the court may, if the court determines that 
the interests of justice require that any other person, partnership, or 
corporation should be a party in such suit, cause such other person, 
partnership, or corporation to be added as a party without regard to 
whether venue is otherwise proper in the district in which the suit is 
brought. In any such suit, process may be served on any person, 
partnership, or corporation wherever it may be found.''.
    (b) Amendments to Authority To Commence or Defend Litigation.--
            (1) In general.--Section 16(a)(2) of the Federal Trade 
        Commission Act (15 U.S.C. 56(a)(2)) is amended--
                    (A) in subparagraph (A), by striking ``(relating to 
                injunctive relief)''; and
                    (B) in subparagraph (B), by striking ``(relating to 
                consumer redress)''.
            (2) Technical amendment.--Section 16(a)(2)(D) of the 
        Federal Trade Commission Act (15 U.S.C. 56(a)(2)(D)) is amended 
        by striking ``subpena'' and inserting ``subpoena''.
    (c) Applicability.--The amendments made by subsections (a) and (b) 
shall apply with respect to any action or proceeding that is commenced 
on or after the date of enactment of this Act.

SEC. 3. ACTIONS BY THE ATTORNEY GENERAL.

    (a) In General.--Section 4A of the Clayton Act (15 U.S.C. 15a) is 
amended--
            (1) by striking ``Whenever'' and inserting ``(a) 
        Whenever''; and
            (2) by adding at the end the following:
    ``(b)(1) The Attorney General may bring a civil action in the name 
of the United States, as parens patriae on behalf of natural persons 
residing in the United States who shall be injured in his or her 
business or property by reason of anything forbidden in the antitrust 
laws, in any district court of the United States in the district in 
which the defendant resides or is found or has an agent, without 
respect to the amount in controversy, and shall recover the damages 
sustained by him or her, and the cost of the suit, including a 
reasonable attorney's fee.
    ``(2) No damages or costs may be recovered for the same injury that 
was the basis for the action under that paragraph in addition to any 
damages or costs awarded in such action.''.
    (b) Applicability.--The amendments made by subsection (a) shall 
apply with respect to any action or proceeding that is commenced on or 
after the date of enactment of this Act.
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