The Federal Trade Commission recently fired a warning shot to companies facing antitrust scrutiny by withdrawing its Policy Statement on Monetary Equitable Remedies in Competition Cases. Many had previously interpreted the policy statement, issued in 2003, as limiting the FTC’s use of monetary equitable remedies, including disgorgement of profits, to only “exceptional cases” involving “clear” antitrust violations and where “remedies in other civil or criminal litigation was likely to accomplish the purposes of the antitrust laws.” In withdrawing the policy statement, the FTC has now removed these limitations, and opened the barn door for the possibility of disgorgement of ill-gotten profits as well as restitution to injured parties, along with the usual injunctive relief, even in cases where the anti-competitive conduct is one of first impression and other private or criminal litigation is sufficient.

Under the now-rescinded policy statement, the FTC infrequently sought monetary equitable remedies in competition cases. The FTC reserved seeking such relief for “exceptional” cases. The FTC’s success in the courts to date has been limited in obtaining such relief. However, the FTC has successfully obtained such monetary relief in consent orders and stipulated judgments. Such cases include FTC v. Ovation Pharmaceuticals, (2008) (court ruled against the FTC on merits and denied all requested relief denied); FTC v. Perrigo, (2004) (consent order requiring disgorgement of profits in an amount exceeding $3 million); FTC v. The Hearst Trust, (2001) (stipulated judgment required $19 million in restitution); FTC v. Mylan Labs, (2001) (stipulated judgment required $100 million in restitution); and FTC v. College Physicians-Surgeons of Puerto Rico, (1997) (stipulated judgment required $300,000 in restitution). The rescinding of the policy statement suggests that the FTC will now seek significant monetary equitable remedies more regularly going forward.

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