Jarkesy Jumps to the FTC

Less than two years after the Supreme Court's decision in SEC v. Jarkesy, the Fifth Circuit has applied the same constitutional logic to the FTC — and the implications are far bigger than one agency.In Intuit v. FTC, the court vacated a cease-and-desist order against TurboTax's "free" advertising, holding that the FTC's in-house adjudication of deceptive advertising claims violates the separation of powers. The agency that Congress deliberately designed in 1914 to adjudicate cases in-house — with bipartisan structure, Senate-debated architecture, and over a century of practice — just had that design declared unconstitutional in the Fifth Circuit.In this episode, Gwen and Marc break down:Why deceptive advertising under Section 5 shares enough of a "common core" with common law fraud to require an Article III courtThe Fifth Circuit's significant extension of Jarkesy: the private rights analysis follows the claim, not the remedy — meaning even cease-and-desist orders (equitable relief) can trigger the Article III requirementWhy the FTC's 110-year history of in-house adjudication didn't save itThe deception/unfairness distinction — and why how the FTC frames a complaint may now be the constitutional questionThe real-world tradeoff: more process for regulated parties means slower, costlier, and fewer enforcement actions for consumersThis decision is binding only in the Fifth Circuit, but it's grounded in Supreme Court precedent — giving any respondent in an FTC administrative proceeding nationwide a roadmap to challenge in-house adjudication of deception claims.Jarkesy was never just an SEC case. The next domino could be the CFPB, the FDA, or any agency whose enforcement authority traces back to common law wrongs.Released the day before Tax Day — which, for the record, hasn't actually fallen on April 15th since 2021.