Trump’s government shutdown has wreaked havoc on scheduling for active FTC lawsuits.

One such lawsuit is FTC vs. MOBE, in which a Judge has bizarrely ordered the FTC to continue trying without lawyers.

Owing to Trump’s shutdown, on December 31st the FTC filed a motion requesting a stay in the MOBE case.

At the end of the day on December 21, 2018, appropriations for the FTC expired.

The FTC had sufficient carryover funds to continue operating through December 28.

After that, the agency lacks appropriated funding, and does not
know when funding will be restored.

Prior to filing their motion the FTC obtained consensus from the MOBE defendants, none of whom objected.

The FTC’s motion was granted on January 2nd, staying all deadlines and ordering a status report filed every 30 days from January 18th.

On January 9th, Judge Dalton Jr. issued a new order, vacating his previous January 2nd order.

The reason for the reversal?

The Court, as a practice, does not get involved in disputes or uncertainties between lawyers and their clients regarding the payment of their fees.

Lawyers appear for clients as officers of the Court and are obligated to discharge their responsibilities unless and until relieved of those obligations by Court order.

That the Congress of the United States has failed to discharge its constitutional obligation to provide the funding necessary for its lawyers to be paid does not warrant subjecting these Defendants to an indeterminable holding period and lack of finality to these proceedings.

Neither does it somehow require or warrant the Court abdicate its own constitutional obligation to exercise the judicial power of the United States pursuant to Article III of the Constitution.

These affected consumers are no less in need of consumer protection (nor less entitled to it) simply because the Government does not have the will to pay its lawyers.

Basically the court has ruled the government not paying the FTC is not its problem.

So back to work despite the government shutdown and off we go then, right?

Not quite. As per Title 31 of the US Code,

FTC attorneys are prohibited from working, even on a voluntary basis, “except for emergencies involving the safety of human life or the protection of property.”

In order to continue trying the case, FTC attorneys will have to break the law.

Despite being briefed on this in the FTC’s original stay motion, this doesn’t appear to have concerned Judge Dalton Jr.

That the FTC now lacks appropriated funds does not constitute good cause to stay the action.

Defendants are entitled to finality and the Court is not constrained by the recalcitrance of the Legislative or Executive branches in funding government operations.

Further, the FTC’s reliance on 31 U.S.C. § 1342 is wholly unavailing.

The FTC alleged that injunctive relief was necessary in order to protect “ill-gotten monies”—i.e. property. (Doc. 1, ¶ 1); see also 31 U.S.C. § 1342.

So the Motion is due to be denied.

If I’m understanding correctly the court has ruled the entire MOBE case to be an emergency, despite an injunction having already been granted.

On one hand I get why not being able to pay lawyers isn’t a justifiable reason for a stay on proceedings. It’s wide open to abuse from defendants, who could use it to delay cases.

On the other hand surely there’s a difference between the US government not paying FTC attorneys, who by law are otherwise unable to work the cases they were engaged in prior to the shutdown?

Totally bizarre decision from the Florida District Court and I have no idea how the MOBE case is going to proceed.

Stay tuned…