Thursday, June 19, 2008
Posted by D. Daniel Sokol
Einer Elhauge of Harvard Law School offers what I believe is an important additional tool that should be used in the antitrust arsenal of remedies in his thought provoking paper Disgorgement as an Antitrust Remedy.
ABSTRACT: Disgorgement of illicitly-gained profits is a legally available remedy, but is rarely sought by antitrust agencies. This piece argues that the main conventional explanation for its rare usage - the availability of private damage remedies - is often unconvincing given obstacles to such suits, and is becoming even less convincing given recent antitrust decisions narrowing private and class action damage suits. Further, because the behavioral and structural remedies otherwise sought by the government are often ineffective in monopolization cases, disgorgement might often be a referable governmental remedy. Finally, if we understood the EC claim for excessive pricing to be a claim for disgorgement of profits earned through the anticompetitive acquisition of a dominant position, we could both make better policy sense of that claim and fill a regulatory gap that EC law would otherwise leave for exclusionary conduct that created a dominant position, but did not abuse existing dominance.