In Short
The Situation: The United States Court of
Appeals for the Third Circuit ruled that the FTC could not recover
past profits under FTC Act Section 13(b) if the alleged violation
occurred in the past and the defendant was not
"violating" or "about to violate" the law.
The Impact: The FTC's pursuit of monetary
remedies in antitrust cases, in amounts as high as $1.2 billion in
one case, has been controversial. If followed in other circuits,
this decision would severely limit the FTC's ability to collect
monetary remedies for ceased conduct that violated the antitrust
laws.
Looking Ahead: While the FTC could seek a more
favorable result in another jurisdiction, the FTC may want to avoid
risk of similar precedent, limit use of Section 13(b) to cases
involving ongoing harm, and push for faster compliance with
investigative subpoenas.
