FTC Monetary Remedies Policy and the Limits of Antitrust

Posted by D. Daniel Sokol

Alden Abbott (Research in Motion) discusses FTC Monetary Remedies Policy and the Limits of Antitrust.

ABSTRACT: The Federal Trade Commission’s abrupt July 2012 withdrawal of its 2003 Policy Statement on Monetary Equitable Remedies in Competition Cases (MER Statement)1 marks a change of direction in the FTC’s approach to monetary remedies—and, in particular, disgorgement and restitution— for antitrust violations. This action, which was taken without the benefit of advance notice and public comment, raises troubling questions. By increasing business uncertainty, the withdrawal may substantially chill efficient business practices that are not well understood by enforcers. In addition, it raises the specter of substantial error costs in the FTC’s pursuit of monetary sanctions. In short, it appears to represent