18 Pages Posted: 26 May 2008 Last revised: 6 Jul 2009
Date Written: July 3, 2009
Disgorgement of illicitly-gained profits is a legally available remedy, but is rarely sought by antitrust agencies. This piece argues that the main conventional explanation for its rare usage - the availability of private damage remedies - is often unconvincing given obstacles to such suits, and is becoming even less convincing given recent antitrust decisions narrowing private and class action damage suits. Further, because the behavioral and structural remedies otherwise sought by the government are often ineffective in monopolization cases, disgorgement might often be a referable governmental remedy. Finally, if we understood the EC claim for excessive pricing to be a claim for disgorgement of profits earned through the anticompetitive acquisition of a dominant position, we could both make better policy sense of that claim and fill a regulatory gap that EC law would otherwise leave for exclusionary conduct that created a dominant position, but did not abuse existing dominance.
Keywords: antitrust, competition law, monopolization, abuse of dominance, disgorgement, antitrust remedies, structural remedies, behavior remedies, equitable remedies, equitable monetary remedies, equitable monetary relief, FTC, DOJ, Microsoft, class action, excessive pricing
JEL Classification: K00, K10, K20, K21, K40, K41, K42, K49, L00, L10
Suggested Citation: Suggested Citation
Elhauge, Einer, Disgorgement as an Antitrust Remedy (July 3, 2009). Antitrust Law Journal, Vol. 76, 2009; Harvard Law and Economics Discussion Paper No. 613. Available at SSRN: https://ssrn.com/abstract=1136945 or http://dx.doi.org/10.2139/ssrn.1136945