Post by Sapphire Capital on Aug 1, 2008 3:04:24 GMT 4
Disgorgement as an Antitrust Remedy
Einer Elhauge
Harvard University - Harvard Law School
July 28, 2008
Harvard Law and Economics Discussion Paper No. 613
Abstract:
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.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1186202_code837010.pdf?abstractid=1136945&mirid=1
Einer Elhauge
Harvard University - Harvard Law School
July 28, 2008
Harvard Law and Economics Discussion Paper No. 613
Abstract:
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.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1186202_code837010.pdf?abstractid=1136945&mirid=1