The FTC recently announced that it withdrew its 2003 Policy Statement on Monetary Equitable Remedies in Competition Cases. The FTC seeks monetary equitable remedies to compensate victims who are not fully restored under more common remedies like divestiture, private remedies, conduct remedies and civil or criminal penalties.

The policy statement explained when it was appropriate for the FTC to seek monetary remedies such as restitution and disgorgement in competition cases, using three factors:

The FTC withdrew the policy statement because courts, defendants and targets of investigations interpreted the clarity requirement too narrowly, possibly excluding novel antitrust violations. The inadequate remedy requirement also placed too high of a burden on the agency. Instead, alternative relief is just one question to consider in deciding whether a monetary remedy is appropriate.

The withdrawal of the policy statement signals a more aggressive approach by the FTC to seek disgorgement and restitution in competition cases. For example, by removing the clarity requirement, the agency may be able to seek monetary remedies for both:

Commissioner Maureen K. Ohlhausen dissented from the FTC's decision to withdraw the policy statement. She stated that eliminating the clear guidance regarding use of monetary remedies and the three-factor test would permit the FTC to seek monetary equitable remedies in inappropriate cases.