United States Court of Appeals for the Seventh Circuit ____________________ No. 21-2945 FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. CREDIT BUREAU CENTER, LLC, and MICHAEL BROWN, Defendants-Appellants. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-194 — Matthew F. Kennelly, Judge. ____________________

ARGUED JUNE 3, 2022 — DECIDED AUGUST 30, 2023 ____________________

Before SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit Judges. SYKES, Chief Judge. This appeal is the latest chapter in a complicated case that has had a long and winding journey through the federal courts, including a trip to the Supreme Court and back. Michael Brown owns and operates Credit Bureau Center, a credit-monitoring business. His company used an online marketing device known as a “negative 2 No. 21-2945 option feature” on its websites. The websites offered visitors a free credit report but automatically enrolled them in a $29.94 monthly membership subscription when they applied for the free report; the information about the monthly mem- bership was scant and buried in much smaller text. FTC v. Credit Bureau Ctr., 937 F.3d 764, 766 (7th Cir. 2019). Brown’s contractors ginned up website traffic by posting Craigslist advertisements for fake rental properties and directing applicants to the company’s websites for a “free” credit score. Id. This activity soon attracted the attention of the Federal Trade Commission, which sued Brown and Credit Bureau Center (collectively “Brown”) alleging violations of several consumer-protection statutes. The litigation centered on section 13(b) of the Federal Trade Commission Act (“FTCA” or “the Act”), which authorizes the Commission to seek restraining orders and permanent injunctions to enjoin conduct that violates the Act’s prohibition of unfair or deceptive trade practices. On its face, section 13(b) authoriz- es only injunctive relief. But the Commission had long interpreted it to also permit restitution awards—an interpre- tation adopted in this circuit, see FTC v. Amy Travel Service, Inc., 875 F.2d 564, 571 (7th Cir. 1989), and in others as well. The district court entered a permanent injunction and or- dered Brown to pay more than $5 million in restitution. We affirmed the judgment in all respects but one: we held that section 13(b) does not authorize restitution awards. We therefore overruled Amy Travel and broke with the consen- sus in other circuits adopting the Commission’s reading of section 13(b). No. 21-2945 3

To resolve the circuit split, the Supreme Court granted certiorari in this case and one from the Ninth Circuit, FTC v. AMG Capital Management, LLC, 910 F.3d 417 (9th Cir. 2018). Ruling in the Ninth Circuit’s case, the Court held that section 13(b) does not authorize equitable monetary relief such as restitution and disgorgement. AMG Capital Manage- ment, LLC v. FTC, 141 S. Ct. 1341, 1344 (2021). Having endorsed our interpretation of the statute in AMG Capital, the Court returned this case to us, and we sent it back to the district court. The Commission immediately moved to amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure, arguing that the Court’s decision in AMG Capital (and ours in this case) had signifi- cantly changed the law. The Commission asked the judge to reimpose the restitution award under the Restore Online Shoppers’ Confidence Act (“ROSCA”) and section 19 of the FTCA. The judge granted the motion and reinstated the $5 million restitution award. Brown now attacks the amended judgment on multiple groun