The Federal Trade Commission (the "FTC") has withdrawn a policy statement issued in 2003, which outlined a methodology for determining when the FTC might pursue equitable monetary remedies such as disgorgement or restitution in antitrust cases. Under the withdrawn policy statement, the FTC considered the following three factors in deciding whether to pursue equitable monetary remedies: (i) whether the underlying violation was "clean;" (ii) whether there was a reasonable basis to calculate the amount of the monetary remedy; and (iii) whether other remedies would be more likely to achieve the objectives of the antitrust laws. The withdrawn policy statement further provided that equitable monetary remedies, such as disgorgement and restitution, should be pursued only in "exceptional cases" while in general the FTC should rely primarily on prospective remedies such as divestiture, conduct remedies, private damages and civil or criminal penalties. The FTC found that the policy statement at issue had the practical effect of overly restricting the FTC's options for equitable remedies.
Policy Statement on Monetary Equitable Remedies in Competition Cases (www.ftc.gov/os/2003/07/disgorgementfrn.htm)