Bridging the Gorge: States Prevent Retention of Ill-Gotten Profits Through Disgorgement

Disgorgement of ill-gotten gains is a crucial equitable remedy utilized by State Attorneys General. This is especially true in the context of antitrust cases because of the complexity of the industries where antitrust violations are prone to occur. The State Attorneys General seek to uphold the law, which goes beyond compensating those who have been harmed, in order to deter anticompetitive conduct. Disgorgement, unlike damages, focuses on the wrongdoer’s actions and windfall, rather than damages to an individual or entity. Damages calculations can be tricky and complex in the antitrust world, as some buyers pass along price increases to their customers and many times the ultimate victim does not even have standing to sue. As law enforcers, the State Attorneys’ General key goal is not to get money, but to uphold the law, seek justice on the victim’s behalf, and deter future anticompetitive conduct. Wrongdoers should not profit from illegal conduct and disgorgement ensures that does not happen.

By Schonette Walker, Steve Scannell & Abigail Wood¹

I. INTRODUCTION

Private antitrust actions are increasingly inadequate in bringing about meaningful change among industry participants who have engaged in anticompetitive conduct. That is where the State Attorneys General must step in because their goals differ from those in the private actions. State Enforcers are looking to hold wrongdoers accountable for violations of the law, deter others from engaging in the same