- The FTC will no longer limit disgorgement and restitution to “exceptional” cases, signaling an intention to make increased use of monetary equitable remedies.
- Separate pending or potential actions, whether civil or criminal, will not dissuade the FTC from pursuing monetary remedies.
- The downside risk to being found in violation of U.S. competition laws just got higher.
Introduction - Last week the U.S. Federal Trade Commission (FTC or Commission) abruptly rescinded its 2003 Policy Statement on Monetary Equitable Remedies in Competition Cases (Policy Statement), which had served for nearly a decade as a statement of the FTC’s enforcement philosophy with respect to monetary remedies. Specifically, the Policy Statement provided analytical guidelines for determining whether to seek monetary equitable remedies — i.e., disgorgement and restitution. In a 4-1 decision, the Commission abandoned this framework, choosing instead to rely only on existing case law for guidance. The stated rationale for this policy shift is the Commission’s view that “the Policy Statement has chilled the pursuit of monetary remedies in the years since the statement’s issuance.” What this change practically means is that the FTC is positioning itself to make increased use of monetary equitable remedies.
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