FTC Antitrust Enforcement Post-AMG Capital Management, Some Assembly Required

• May 13, 2021

• Kevin Hahm , Hunton Andrews Kurth LLP
• Neil Gilman , Hunton Andrews Kurth LLP
• Colin Stanton , Hunton Andrews Kurth LLP

On April 22, 2021, the Supreme Court unanimously held in AMG Capital Management, LLC v. FTC, that the Federal Trade Commission (FTC) cannot obtain monetary relief pursuant to § 13(b) of the FTC Act. Because § 13(b) authorizes the FTC to go directly to court for injunctive relief and does not contain exacting requirements found elsewhere in the FTC Act, § 13(b) was the FTC’s preferred enforcement provision. Indeed, for around 40 years the FTC used § 13(b) to obtain equitable monetary relief, including restitution and disgorgement, which lower courts routinely granted. Unless Congress intervenes, the AMG Capital decision will dramatically change the FTC’s enforcement practice.

ARTICLE TAGS

• Antitrust Practice Group
• Antitrust