The Atlantic Legal Foundation—a champion of free enterprise, property rights, and limited and responsible government—filed three amicus briefs supporting the courageous efforts of Axon Enterprise, Inc. to mount a federal district court constitutional challenge to the structure of civil administrative enforcement proceedings pursued by the Federal Trade Commission in its own in-house “court.” ALF filed an amicus brief in support of Axon’s petition for rehearing en banc in the Ninth Circuit, an amicus brief in support of Axon’s petition for a writ of certiorari, and after the Supreme Court granted review, an amicus brief in support of Axon’s appeal.
On April 14, 2023, the Supreme Court issued a unanimous, favorable opinion, agreeing with Axon and ALF that federal district courts have subject-matter jurisdiction to consider structural constitutional challenges to in-house adjudications pursued by either the Federal Trade Commission or the Securities and Exchange Commission. See Supreme Court Victory In FTC & SEC Challenges (discussing Axon Enterprise, Inc. v. FTC, 143 S. Ct. 890 (2023)).
Axon is a global public safety technology company that innovates and markets products such as body-worn cameras used by police. The FTC had filed an administrative complaint challenging, on antitrust grounds, Axon’s acquisition of a failing body-worn camera competitor. Axon refused to agree to an outrageous FTC consent order that would have required the company to undo its acquisition, create a “clone” competitor, finance this competitor with millions of dollars, and provide its proprietary intellectual property to the competitor. Instead, Axon filed a federal district court suit against the FTC raising constitutional challenges to the structure of FTC in-house adjudications. Axon appealed to the Supreme Court after the Ninth Circuit ruled that district courts lack subject-matter jurisdiction over such challenges, and that instead, an FTC civil enforcement target must endure the burdens, costs, and harms of an FTC in-house proceeding before obtaining judicial review, albeit in a federal court of appeals.
ALF argued in its amicus briefs that justice delayed is justice denied.
On October 6, 2023 the FTC unilaterally and unconditionally dismissed its complaint against Axon. See Axon Press Release. Thus, although the Supreme Court’s decision was jurisdictional, the FTC’s dismissal of its complaint affords Axon a complete victory.
Pam Petersen, Axon’s VP Litigation / National Appellate Counsel, who led the company’s challenge to the FTC, lauded ALF’s amicus support:
“It’s not often the U.S. Supreme Court issues a unanimous decision and even more rare that the FTC abandons an enforcement action without consent decree or condition. But Axon did not achieve these remarkable results alone. I want to thank ALF for its unwavering support in filing not one, not two, but three amicus briefs supporting Axon’s constitutional claims at both the 9th Circuit and SCOTUS. These non-party briefs are critically important in protecting broader rights and detailing potentially dire consequences of unchecked government action, and we are grateful for ALF’s partnership in this endeavor.“
Each of ALF’s amicus briefs was authored by ALF Executive Vice President & General Counsel Lawrence S. Ebner.
