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."