Gotta Get Those Ill-Gotten Gains: Improving the FTC's Authority to Seek Disgorgement in Antitrust Cases

Abstract

Disgorgement is an equitable monetary remedy that requires a defendant to give up all ill-gotten gains from their illegal conduct. Unlike damages, which can be compensatory, deterrent, or even punitive in nature, disgorgement focuses primarily on deterring future illegal conduct. It relies on the simple moral premise that wrongdoers should not be allowed to retain the profits of their wrongdoing. Especially in antitrust litigation involving complex, multilayered supply chains, damages can underestimate the true harm suffered as a result of anticompetitive conduct. Disgorgement, if calculated properly and litigated thoughtfully, has the potential to provide redress for the full amount of harm and therefore act as a more efficient deterrent. Federal and state antitrust enforcers have sought disgorgement for anticompetitive conduct with limited success, and a recent Supreme Court decision casts doubt on the Federal Trade Commission’s authority to seek disgorgement altogether. Still, there is bipartisan support in Congress and the White House to restore the FTC’s disgorgement authority. This Note proposes enacting legislation to that effect, including a provision that would allow state attorneys general or private plaintiffs to seek disgorgement on the FTC’s behalf (called a “qui tam” provision). Further, this Note outlines how leveraging existing litigation tools can alleviate concerns that disgorgement will lead to duplicative recovery. By restoring the FTC’s authority to seek disgorgement and creating a qui tam mechanism for private enforcement, antitrust plaintiffs will benefit from increased leverage, enabling them to both recover the totality of harm caused by anticompetitive conduct and deter such conduct in the future.