United States: The Federal Trade Commission Withdraws Its Policy Statement On Monetary Equitable Remedies In Competition Cases

In July 2012, the Federal Trade Commission (FTC) withdrew its July 2003 policy statement on monetary equitable remedies in competition cases ("the Statement").¹ In deciding to change its policy, the FTC said that the Statement provided "an overly restrictive view of the Commission's options for equitable remedies" and that existing law provides the appropriate guidance. The FTC indicated that the Statement had restricted the number of times it sought monetary remedies in antitrust cases, having only pursued such relief twice in the nine years after the Statement was issued. While the change in FTC policy signals that the FTC will likely use disgorgement more often, we doubt that disgorgement will become an ordinary remedy. We do expect, however, that the FTC will look for opportunities to seek disgorgement, because FTC Chairman Jon Leibowitz has been considering ways to expand the scope and reach of the Federal Trade Commission Act, which prohibits unfair and deceptive methods of competition.

The Statement discussed the factors the FTC would consider when seeking return or disgorgement of illegally obtained profits arising from antitrust violations. The goal of obtaining disgorgement, according to the Statement, is to "depriv[e] the violator of any of the benefits of illegal conduct," and restitution, which is intended to restore victims to the position in which they would have been had the violator not engaged in the illegal conduct. The Statement provided that in order for the FTC to seek monetary remedies, the violation must be clear; the calculation of the payment must have a reasonable basis; and the FTC must consider the value of seeking monetary relief in light of other remedies available. A particularly strong showing under one of these factors could have affected whether the FTC pursued monetary relief.

Notably, the FTC's revocation of the Statement comes shortly after the Department of Justice (DOJ), for the first time ever, pursued disgorgement for an alleged antitrust violation under the Sherman Act.² Through settlement agreements with KeySpan Corporation and Morgan Stanley Capital Group, Inc., the DOJ was able to secure a total of nearly $17 million in disgorgement of profits for the two companies' alleged manipulation of the New York City electric generating capacity market.

Footnotes

1 Federal Trade Commission. "Policy Statement on Monetary Equitable Remedies in Competition Cases." July 25, 2003, available at: www.ftc.gov/os/2003/07/disgorgementfrn.htm; Federal Trade Commission. "Withdrawal of the Commission's Policy Statement on Monetary Equitable Remedies in Competition Cases." July 31, 2012, available at: www.ftc.gov/opa/2012/07/disgorgement.shtm.

2 United States v. KeySpan Corporation, 783 F. Supp. 2d 633 (S.D.N.Y. 2011).

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