FTC Rescinds Policy Statement on Monetary Remedies in Competition Cases

Will use own discretion in hitting companies with financial penalties or disgorgement

By John Eggerton -- Broadcasting & Cable, 7/31/2012 11:25:02 AM

The Federal Trade Commission is giving notice that it will use its discretion on levying monetary remedies in competition cases rather than being tied to a previous policy statement.

The commission voted 4-1 to rescind a policy statement issued by a majority Republican commission in 2003 -- though on a 5-0 vote -- that limited monetary remedies, including disgorgement of ill-gotten gains.

"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," said the commission in a statement. "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."

New Republican commissioner Maureen Ohlhausen was the lone dissenting vote. "Rescinding the bipartisan policy statement signals that the commission will be seeking disgorgement in circumstances in which the three-part test heretofore utilized under the statement is not met, such as where the alleged antitrust violation is not clear or where other remedies would be sufficient to address the violation."