Last Friday, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in litigation between the American Bar Association (ABA) and the Federal Trade Commission (FTC) over the scope of the FTC’s Red Flags rule.  The Court held the ABA’s claims moot in light of recently-enacted legislation.   

The Red Flags rule requires covered entities to design and implement identity theft prevention programs.  In August 2009, the ABA challenged the FTC’s authority to enforce the rule with respect to attorneys.  In December 2010, Congress passed the Red Flag Program Clarification Act, which amended the definition of “creditor” in the underlying statute to limit the scope of the FTC’s rule.  We covered in previous blog posts the Act as well as supplemental briefs (here and here) filed by both parties arguing over the Act’s impact on the litigation.  The Court held that the ABA’s claims were now moot because the Act caused there to no longer be a case or controversy. 

The ABA’s claims for injunctive relief were premised on the original definition of “creditor” prior to passage of the Act.  The Court stated that “the policy, rule, and statute that gave rise to [the] suit are no longer in the same posture.”  The Court acknowledged that the FTC could promulgate new regulations seeking to subject attorneys to the Red Flags rule but dismissed it as a mere “hypothetical possibility” not giving rise to a live dispute. 

FTC Chairman Jon Leibowitz applauded the Court’s decision for vindicating the FTC’s contention that the case should be dismissed.