Company Says the FTC’s Administrative Process Is Unconstitutional, Depriving Its Right to a Jury Trial
DULUTH, Ga., October 07, 2024--(BUSINESS WIRE)--Asbury Automotive Group (NYSE: ABG) today announced the filing of a lawsuit on October 4, 2024 in the United States District Court for the Northern District of Texas challenging as unconstitutional an administrative proceeding filed against Asbury by the Federal Trade Commission ("FTC"). In August, Asbury rejected as false and unfounded an FTC complaint that three Asbury dealerships in the Dallas-Ft. Worth area sold protection products to customers that the customers did not agree to buy.
The lawsuit Asbury filed in Texas seeks to enjoin the FTC’s administrative proceeding in that case on constitutional grounds. Among other things, Asbury’s lawsuit asserts that the FTC’s administrative proceeding violates Asbury’s constitutional rights by denying it the right to a jury trial and by allowing the FTC to serve as both prosecutor and judge in the same proceeding. Asbury’s lawsuit also contends that FTC commissioners and in-house administrative law judges are effectively insulated from removal by the President in contravention of the Constitution’s requirements.
Similar cases have been filed in federal courts to stop administrative proceedings conducted by federal agencies following the United States Supreme Court’s decision earlier this year in Securities and Exchange Commission (SEC) v. Jarkesy. In that case, the Supreme Court reaffirmed a defendant’s right to a jury trial, holding that the SEC could not use an internal administrative proceeding overseen by its own in-house administrative law judge to sidestep the requirements of the Constitution’s Seventh Amendment. Asbury asserts in its lawsuit that the Supreme Court’s holding in Jarkesy applies to administrative proceedings conducted by the FTC as well.
"The Supreme Court this year placed limits on the authority of executive branch agencies. One result is that agencies like the Federal Trade Commission can no longer operate as both judge and jury. In its lawsuit filed today, Asbury is seeking nothing more than the fair administration of justice and looks forward to making its case in federal court," said Ed Burbach, counsel for Asbury and a partner of Foley & Lardner LLP in Austin, Texas.
Asbury Automotive Group, Inc. (NYSE: ABG), a Fortune 500 company headquartered in Duluth, GA, is one of the largest automotive retailers in the U.S. In late 2020, Asbury embarked on a multi-year plan to increase revenue and profitability strategically through organic operations, acquisitive growth and innovative technologies, with its guest-centric approach as Asbury’s constant North Star. As of September 30, 2024, Asbury operated 153 new vehicle dealerships, consisting of 202 franchises, representing 31 domestic and foreign brands of vehicles. Asbury also operates Total Care Auto, Powered by Landcar, a leading provider of service contracts and other vehicle protection products, and 37 collision repair centers. Asbury offers an extensive range of automotive products and services, including new and used vehicles; parts and service, which includes vehicle repair and maintenance services, replacement parts and collision repair services; and finance and insurance products, including arranging vehicle financing through third parties and aftermarket products, such as extended service contracts, guaranteed asset protection debt cancellation, and prepaid maintenance. Asbury ranks 18th in the 2023 Forbes list of America’s Best Mid-Sized Companies. Asbury is recognized as one of America’s Fastest Growing Companies 2024 by the Financial Times, America’s Greatest Workplaces 2023 by Newsweek, as well as one of the Best Companies to Work For in the Retailers industry by U.S. News & World Report.
This press release contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements other than historical fact, and may include statements relating to goals, plans, objectives, beliefs, expectations and assumptions with respect to the lawsuit filed by Asbury against the FTC, the lawsuit filed by the FTC against Asbury and Asbury’s intentions with respect to challenging such lawsuit and the potential impact of such lawsuit, projections regarding Asbury's financial position, liquidity, results of operations, cash flows, leverage, market position, the timing and amount of any stock repurchases, and dealership portfolio, revenue enhancement strategies, operational improvements, projections regarding the expected benefits of Clicklane, management’s plans, projections and objectives for future operations, scale and performance, integration plans and expected synergies from acquisitions, capital allocation strategy, business strategy. These statements are based on management's current expectations and beliefs and involve significant risks and uncertainties that may cause results to differ materially from those set forth in the statements. These risks and uncertainties include, among other things, adverse outcomes with respect to current and future litigation and other proceedings, including, without limitation, the lawsuits involving the FTC, our inability to realize the benefits expected from recently completed transactions; our inability to promptly and effectively integrate completed transactions and the diversion of management’s attention from ongoing business and regular business responsibilities; our inability to complete future acquisitions or divestitures and the risks resulting therefrom; any supply chain disruptions impacting our industry and business, market factors, Asbury's relationships with, and the financial and operational stability of, vehicle manufacturers and other suppliers, acts of God, acts of war or other incidents and the shortage of semiconductor chips and other components, which may adversely impact supply from vehicle manufacturers and/or present retail sales challenges; risks associated with Asbury's indebtedness and our ability to comply with applicable covenants in our various financing agreements, or to obtain waivers of these covenants as necessary; risks related to competition in the automotive retail and service industries, general economic conditions both nationally and locally, governmental regulations, legislation, including changes in automotive state franchise laws, and Asbury's ability to execute its strategic and operational strategies and initiatives, including its five-year strategic plan, Asbury's ability to leverage gains from its dealership portfolio, Asbury's ability to capitalize on opportunities to repurchase its debt and equity securities or purchase properties that it currently leases, and Asbury's ability to stay within its targeted range for capital expenditures. There can be no guarantees that Asbury's plans for future operations will be successfully implemented or that they will prove to be commercially successful.
These and other risk factors that could cause actual results to differ materially from those expressed or implied in our forward-looking statements are and will be discussed in Asbury's filings with the U.S. Securities and Exchange Commission from time to time, including its most recent annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q. These forward-looking statements and such risks, uncertainties and other factors speak only as of the date of this press release. We undertake no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.
