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In an April 20, 2015 article, Law360 interviewed Venable counsel Robert P. Davis on the Federal Trade Commission's (FTC) $26.8 million disgorgement settlement with a healthcare company. The settlement is the first time the FTC has succeeded in a disgorgement suit since withdrawing a nine-year old policy statement in 2012. Despite a dissent by two FTC commissioners, attorneys should have a clearer picture of when disgorgement might become an issue.

"The policy statement has gone away, but the analysis underlying it, the factors underlying it don't seem to have necessarily gone away," said Davis. "Now the focus seems to be on whether something is a clear violation of the antitrust laws — even though the commissioners disagreed here on whether that requirement applied — how plausible it is to calculate the illegal profits a company won from its conduct and whether companies might face other suits over the same conduct," he said pointing to the shifting criteria.

"If...you can calculate what the disgorgement amount would be and maybe the violation is not just clear but of a certain kind, clearly intentional or something like that, it might be more likely that you're going to have a disgorgement-type remedy than you would during the time when there was a statement," said Davis. "The assumption was that you're not going to have disgorgement except in very, very egregious cases and I think that's going away."

Davis said that guidance on the FTC's disgorgement policy was less important than understanding how the agency defines anti-competitive conduct. "Most companies when thinking about whether they should act in a way or not ask, 'Is it an antitrust violation?' they don't get into the optimal deterrence theory Commissioner Wright discussed," he said. "Most companies want to comply with the antitrust laws...they're not really thinking quite so much about what's the chance of there being disgorgement."