A US Federal Trade Commission lawyer told a Washington federal judge today that disruption at the agency may force schedule delays in the case challenging Amazon's alleged use of “dark patterns,” but the FTC's chairman denied that assertion, and the lawyer withdrew his guidance, telling the court "I was wrong."
A US Federal Trade Commission lawyer told a Washington federal judge today that disruption at the agency may force schedule delays in the case challenging Amazon's alleged use of “dark patterns,” but the FTC's chairman denied that assertion, and the lawyer withdrew his guidance, telling the court "I was wrong.""Following today's telephonic status conference," FTC lawyer Jonathan Cohen wrote in a letter to the court (see here), "I write to clarify comments I made today: I was wrong. The Commission does not have resource constraints and we are fully prepared to litigate this case. Please be assured that the FTC will meet whatever schedule and deadlines the court sets."
FTC Chair Andrew Ferguson likewise told MLex in an email after the hearing that the agency's lawyers would get the resources they need in legal battles against "Big Tech."
— Disruptions, delays —
The trial over whether Amazon used “dark patterns,” or deceptive designs, is due to begin this September, ahead of a separate antitrust case the FTC filed against Amazon that is due to go to trial in October 2026. Cohen delivered a list of reasons today to US District Judge John Chun, explaining why that schedule may have to be delayed due to disruptions caused by Elon Musk’s Department of Government Efficiency that have affected the FTC’s pre-trial preparations.
Members of the FTC trial team have “taken the fork” offered in a government email, resigning as the administration moves to cut the federal workforce, Cohen told the judge. Travel cards that FTC staff use to pay for trips to interview witnesses or other travel have been slashed to a $1 authorization, forcing the FTC staff to do a time-consuming bureaucratic workaround to authorize necessary travel.
“There are procedures that we can do to try to change that on a case-by-case basis, but that takes time. It's not certain. Sometimes we can travel; sometimes we cannot, but there's significant travel restrictions,” Cohen said.
A planned move of FTC staff in April from Constitution Center in Washington DC to former USAID offices in another location in the city will cause other disruptions, Cohen said. And spending limits have forced the FTC to take the cheapest and slowest option on basic litigation costs, such as buying testimony transcripts, meaning it can take up to 18 days for FTC lawyers to obtain transcripts, he told the judge. Depositions and court filings are delayed as a result.
“I really want to emphasize that our resource constraints are severe and really unique to this moment,” Cohen said. “Your Honor, we have lost employees in the agency, in our division and on the case team.”
Chun said the situation sounded like “a crisis” for the FTC. “I certainly have never encountered a situation like this in a case,” the judge said. He asked Cohen if the FTC could cite case law for trial delays for similar circumstances, but Cohen didn't address that issue.
Chun ordered the FTC to file a brief by the end of the day Friday for a recommendation on whether and how long the trial should be delayed, with Amazon required to file its response next week. He asked both sides to suggest dates in mid-2026, six to nine months beyond the current Sept. 22 date, for a rescheduled trial.
Amazon does not want the trial delayed, John Hueston, a lawyer representing the company, told Chun. “The FTC has already taken almost 30 depositions in this case. We’re well toward the completion of discovery, as we should be,” Hueston said. “We really want to keep the date.”
Amazon has seen no indication there are resource constraints with the FTC trial team, he said, and many cases see changes in the trial team over the course of litigation. “DOGE or no DOGE, that’s not a basis for seeking a continuance,” Heuston said.
Asked following today's hearing about concerns raised by Cohen, Ferguson told MLex in a statement provided by an agency spokesman that the FTC's trial team would get the resources it needs to pursue the case.
“The attorney was wrong," Ferguson said. "I have made it clear since Day One that we will commit the resources necessary for this case. The Trump-Vance FTC will never back down from taking on Big Tech.”
The FTC sued Amazon and three executives in June 2023, alleging it violated the FTC Act and the Restore Online Shoppers’ Confidence Act (ROSCA) by manipulating customers into subscribing to Amazon Prime service with unclear and misleading terms and disclosures known as “dark patterns” (see here).
Chun last May denied Amazon’s motion to dismiss the FTC’s claims against the company and its executives, senior vice presidents Neil Lindsay and Russell Grandinetti, and Vice President Jamil Ghani (see here). The “Amended Complaint contains sufficient allegations … that each of the Individual Defendants had sufficient control over Prime’s cancellation flows to state a claim for relief,” Chun wrote.
One reason Amazon wants to stick to the September trial schedule, Heuston said today, is that Lindsay, Grandinetti and Ghani want to “clear their names, and move on."
“I've never heard of an office move being more than a few days disruptive. I don't understand how somebody's out of pocket for weeks because of that,” Heuston said, referring to Cohen’s discussion of the FTC’s April office move, reported by MLex last month (see here).
“We need to see something, a demonstration here, not an oral argument with a chain of speculation, but something in writing, that justifies moving this trial date,” he said.
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