Should Section 5 of the FTC Act be Amended to Add a Private Right of Action?

Consumer Finance Monitor

Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, does not include a private right of action. Our special guest, Professor Myriam E. Gilles of Cardozo Law School, has written a law review article in which she makes the case for adding a private right of action to Section 5. We begin with a discussion of the origins of federal consumer protection law, including the connection to the rise of private antitrust enforcement, the legislative debate regarding the creation of a private right of action in connection with the FTC Act’s enactment and later addition of a UDAP prohibition to Section 5, and the FTC’s role in the enactment of state UDAP laws. We then discuss the arguments advanced by Prof. Giles in support of private enforcement of the FTC Act, including the need to counter efforts to limit state UDAP laws and the effects of political polarization on government enforcement, and issues relating to class actions that legislators would need to address in creating a private right of action.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.