Cha-ching – The highest penalties in the world and the FTC is still not happy?
The FTC has withdrawn a 2003 policy statement that limited equitable monetary remedies for antitrust contraventions to only “exceptional cases”. In a 4-1 decision on 31 July 2012 , the FTC has said it will seek remedies such as restitution to victims and disgorgement of ill-gotten gains in any case where appropriate.
The FTC stated that while its decisions and orders generally focus on structural or behavioural remedies intended to curb future competitive harm, its mission to protect consumers and competition also includes, where appropriate, taking action to remedy the actual, realized effects of antitrust violations. These remedies have two effects – both depriving wrongdoers of unjust enrichment and to restoring their victims to the positions they would have occupied but for the illegal behaviour.
The aptness and potency of restitution as a remedy has been discussed in the context of the proposed Google settlement. While a settlement of US$22.5 million with the FTC for privacy-related offences would represent the single largest penalty ever assessed against a single company by the FTC, it amounts to half a day’s income for Google.
The issue remains live in Australia, with the recent $2.25M fine imposed on Apple for running misleading advertisements on its new iPad tablet computers reportedly representing only about 30 minutes’ worth of Apple’s global profit. Under section 87 of the Competition and Consumer Act 2010 (Cth), the ACCC is able to apply to the court for compensation for those who have suffered loss or damage if they consent to the application being made, and can seek restitutionary relief.