SEATTLE—Today, in the U.S. District Court for the Western District of Washington, the Federal Trade Commission (FTC) filed a motion to silence opposing briefs from NetChoice and several other organizations in its lawsuit against Amazon. The FTC is showing its true colors and running roughshod over democratic and judicial norms and processes.
“The FTC is steamrolling legal and democratic norms to intimidate and silence us. Its opposition to any criticism just underscores how weak this case really is. This agency, under Biden’s leadership, only seems to care about one thing: advancing its progressive agenda, no matter what the facts, consumers and opponents say,” said Carl Szabo, NetChoice Vice President & General Counsel. “These efforts by the Biden FTC to intimidate and silence us will not stop NetChoice from fighting every day to make the internet safe for free enterprise and free expression.”
Last month, the FTC filed a lawsuit against Amazon, alleging it uses “unfair methods” for subscriptions and cancellations. Yet in doing so, the FTC is asking the court to hold Amazon liable for conduct that does not actually violate any law.
In response, NetChoice, along with several other organizations, filed amicus briefs asking the Court to dismiss the FTC’s false allegations. These briefs include: (1) CCIA, NetChoice, and Chamber of Progress; (2) the Interactive Advertising Bureau; (3) the Association of Corporate Counsel; and (4) the Chamber of Commerce.
The FTC received no briefs in support of its case. Now, it is trying to prevent the court from seeing the information in our briefs.
To hold it accountable and ensure the court is able to read all relevant information as it considers the case, the court should deny the FTC’s motion to exclude these important briefs. NetChoice additionally calls on Congress to continue its oversight of the agency and why it is wasting resources to intimidate and silence its opposition.
You can find the FTC’s filing here and NetChoice’s amicus brief with CCIA and Chamber of Progress here.
Please contact Krista Chavez at press@netchoice.org with inquiries.
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Here are some of the FTC’s specific points from its filing and refutations to those points from NetChoice:
The FTC claims: “First, CCIA’s brief duplicates Defendants’ arguments in an obvious attempt to “extend the length” of the Motions to Dismiss. This alignment is hardly surprising, as Amazon is a member of both CCIA and NetChoice, and a “corporate Case partner” of Chamber of Progress.”
- The only reason why the FTC is opposing any arguments against their case is because their case is built on a foundation of sand. Because our brief is rooted in actual law, it sounds similar to Amazon’s briefing materials—as would be expected, given that our brief is in support of Amazon’s legal arguments.
- Not only is it common for industry groups to weigh in on cases affecting industry, it’s expected. Indeed, the U.S. Chamber of Commerce has the highest success rate of any litigant or amici in the U.S. Supreme Court outside the federal government. Amicus briefs, especially those from industry, help courts understand the potential ramifications of their rulings for that industry and give important context for courts to consider.
The FTC claims: “Second, CCIA argues the FTC is attempting to “punish” Defendants for “efforts to study and enhance the customer experience.” This mischaracterizes the pleadings—in fact, the FTC alleges Defendants studied the problems, confirmed they existed, and then chose not to fix them because the violations generated too much revenue. However, Defendants again already make this infirm argument.”
- The FTC mischaracterizes the law; our pointing that out doesn’t render the mischaracterization ours. This lawsuit isn’t about protecting consumers; it’s about substituting the FTC’s preferred business practices for those of one of the most innovative, consumer-friendly businesses in history.
The FTC claims: CCIA’s unsupported assertion that the lawsuit “creat[es] an unfortunate precedent that could deter companies from cooperating with regulators and delivering better customer service” and may “erode confidence in the nation’s executive agencies” is similarly incorrect and unsupported (enforcing the law is hardly an unfortunate precedent), but, more importantly, irrelevant to whether the Complaint plausibly states claims for relief.
- NetChoice has been on the record for years as decrying the FTC’s descent into lawlessness under Chair Khan’s command. When agencies exceed their statutory bounds and harass private businesses with meritless litigation, they do in fact erode public confidence in them.
- The FTC should practice what it preaches and enforce actual laws, which focus on consumer welfare. It assumes that merely because it’s a law enforcement agency its actions always constitute “enforcing” the law. But that’s simply wrong. What the law says matters, and the FTC’s lawsuit isn’t rooted in the law.