FTC Requires Disgorgement of Profits Obtained Through “<em>De Facto</em>” Exclusionary Conduct

FTC Requires Disgorgement of Profits Obtained Through “De Facto” Exclusionary Conduct

By: Bernard (Barry) A. Nigro Jr., Nathaniel L. Asker, Maria R. Cirincione

On April 20, 2015, the Federal Trade Commission announced a proposed settlement of allegations that Cardinal Health, Inc. used its monopoly power in 25 local markets to exclude potential entrants by obtaining de facto exclusive rights to distribute a key pharmaceutical.  The FTC alleged that Cardinal engaged in a variety of tactics to ensure that the only two suppliers of this product refused to distribute to potential competitors.  Cardinal agreed to a $26.8 million penalty for ill-gotten gains as a result of its conduct, as well as injunctive relief to prevent future violations and to restore competition in six local markets.  The disgorgement penalty is the second largest financial award that the FTC has ever obtained for a violation of the antitrust laws.  The proposed settlement is a reminder that:  1) antitrust disgorgement penalties are gaining prominence at the U.S. antitrust agencies; and 2) conduct short of an explicit exclusive agreement by firms with high market shares may run afoul of the antitrust laws, absent a procompetitive justification.

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