FTC Withdraws Agency's Policy Statement on Monetary Remedies in Competition Cases; Will Rely on Existing Law

The Federal Trade Commission has withdrawn the Policy Statement on Monetary Equitable Remedies in Competition Cases. The Statement was issued in 2003 and outlined a framework for determining when the Commission would seek equitable monetary remedies, such as disgorgement of ill-gotten gains, in competition cases.

In a statement issued, the Commission wrote that, “Although intended to clarify past Commission views on this topic, the practical effect of the Policy Statement was to create an overly restrictive view of the Commission’s options for equitable remedies. Accordingly, the Commission withdraws the Policy Statement and will rely instead upon existing law, which provides sufficient guidance on the use of monetary equitable remedies.”

“As always, the [agency] will exercise responsibly its prosecutorial discretion in determining which cases are appropriate for disgorgement. The Commission regards disgorgement as one of many remedial solutions at its disposal in competition cases, and will employ it accordingly to protect consumers and promote competition,” the statement concluded.

The Commission vote to withdraw the 2003 policy statement was 4-1, with Commissioner Maureen K. Ohlhausen voting no and issuing a dissenting statement. Commissioner Ohlhausen believes the majority has rescinded a clear, well-reasoned and widely supported policy and replaced it with a promise to exercise the Commission’s prosecutorial discretion responsibly – something it must do anyway as a matter of public trust.

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