Over on phiprivacy.net, I had noted that Commissioner Julie Brill had recused herself from the LabMD case after they moved to disqualify her over public statements she made.
Somehow I missed a development in the Wyndam case, even though Law360 had first reported it on January 2. Now Stacey Brandenburg of Zwillgen reports that
Judge Salas agreed to delay her ruling to consider the import of comments that Commissioner Joshua D. Wright made during a Congressional subcommittee hearing in December 2013. Although the hearing had focused on the FTC’s competition-related activity, subcommittee chairman Rep. Lee Terry and Commissioner Wright noted potential vagueness in the “unfairness” prong of the FTC’s Section 5 authority. As the FTC is currently litigating this issue in Wyndham, the hotel company offered the Commissioner’s statements in support of their case. Judge Salas ordered the parties to submit a joint letter-brief on this issue by January 21, 2014.
I went back through the archive of the December 3 hearing. In his opening statement – which differed from his submitted written testimony – Commissioner Wright discusses the modernization of the FTC and its review of its tools, including the application of the unfair methods prong as a standalone tool. In that context, he refers to the gap between the promise of the FTC Act and its application by the FTC, which he attributes, in part, to the “persistent absence of any meaningful guidance articulating what constitutes an unfair method of competition.” And there’s more. I can see why Wyndham would want the court to consider his statement. Commissioner Wright’s opening statement begins at 32:28 on the tape.
Thanks to Woodrow Hartzog who alerted me to this development.
Update: I’ve uploaded Wyndham’s submission of December 13 citing the hearing as a supplemental authority, here (exhibits not uploaded). I’ve also uploaded the FTC’s response of December 19, arguing selective excerpting by Wyndham and lack of relevance, here. The court subsequently issued an order on December 27, “that the parties shall submit a supplemental, joint letter-brief to the Court of no more than 10 pages (5 pages each) by January 21, 2014, as discussed during the December 23, 2013 conference; that, for administrative purposes, the two motions, (D.E. Nos. 91 & 92), will be held in abeyance pending the Court’s review of the parties’ supplemental letter-brief.”