Wyndham Takes FTC Battle to Appeals Court, Asks Third Circuit to Decide

In early July, Wyndham Hotels and Resorts, LLC asked the Third Circuit Court of Appeals to decide whether the Federal Trade Commission (“FTC”) has the authority to oversee corporate data security. If the Third Circuit decides to hear the case, it will be the first time that the courts have been asked to consider the scope of the FTC’s regulatory powers in the data security realm. Based on her opinion that there are substantial grounds to justify certification for interlocutory appellate review, New Jersey District Court Judge, Esther Salas, granted Wyndham’s Motion for an Immediate Appeal of the district court’s earlier ruling. Although clearly standing behind the district court’s affirmation of the FTC’s Section 5 authority, she also acknowledged that Wyndham’s “statutory authority and fair-notice challenges confront this Court with novel, complex statutory interpretation issues that give rise to a substantial ground for difference of opinion.”