Brief of Remedies, Restitution, Antitrust, and Intellectual Property Law Scholars as Amici Curiae in Support of Respondent Federal Trade Commission

Abstract

An injunction is an equitable remedy with a long history in the courts of equity. The injunctive power historically and necessarily includes the attendant power for a court also to order restitutionary disgorgement of a defendant’s ill-gotten gains, among other forms of equitable monetary relief. That has been a long-standing and steadfast rule in equity jurisprudence for nearly two hundred years. It has also been a consistent holding in this Court’s cases. And this Court has required statutes to be clear and unambiguous in disclaiming traditional equity powers. The FTC Act does not do so. Amici are 43 professors and scholars of remedies, restitution, antitrust, and intellectual property law throughout the United States. Amici include editors of major casebooks and books on Remedies, Antitrust, and Intellectual Property, and one of the amici is the new editor of the leading treatise on Remedies. Many of the amici also have served as Advisers and Members of the Consultative Group to the Restatement (Third) of Restitution and Unjust Enrichment (Am. Law Inst. 2011). Two are the Reporters, and several serve as Advisers, for the Restatement (Third) of Torts: Remedies (in progress). One is President Emeritus of the American Law Institute. All amici have taught at major law schools and regularly publish articles in the areas of remedies, restitution, antitrust, and intellectual property. Amici seek to clarify the history and source of power for equitable remedies incident to injunctions such as disgorgement of a wrongdoer’s profits.