Policy Statement on Monetary Equitable Remedies in Competition Cases

45820 	Federal Register / Vol. 68, No. 149 / Monday, August 4, 2003 / Notices
national understanding of TRS and does
not offend the public, consistent with
section 64.605(d) of the Commission’s
rules, 47 CFR 64.605 (d).
Because the Commission may adopt
changes to the rules governing relay
programs, including state relay
programs, the certification granted
herein is conditioned on a
demonstration of compliance with the
new rules adopted and any additional
new rules that are adopted by the
Commission. The Commission will
provide guidance to the states on
demonstrating compliance with such
rule changes.
This certification, as conditioned
herein, shall remain in effect for a five
year period, beginning July 26, 2003,
and ending July 25, 2008, pursuant to 47
CFR 64.605 (c). One year prior to the
expiration of this certification, July 25,
2007, the states may apply for renewal
of their TRS program certification by
filing demonstration in accordance with
the Commission’s rules, pursuant to 47
CFR 64.605(a) and (b).
Third Group of States Approved for
Certification
File No: TRS–54–02
Michigan Public Service Commission,
State of Michigan
File No: TRS–28–02
Puerto Rico Telecommunications
Regulatory Board, State of Puerto
Rico
Federal Communications Commission.
Thomas Wyatt,
Deputy Bureau Chief, Consumer &
Governmental Affairs Bureau.
[FR Doc. 03–19688 Filed 8–1–03; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL MARITIME COMMISSION
[Petition P3–03]
Petition of United Parcel Service, Inc.
for Exemption Pursuant to Section 16
of the Shipping Act of 1984 to Permit
Negotiation, Entry and Performance of
Service Contracts; Notice of Filing
Notice is hereby given that United
Parcel Service, Inc. (‘‘Petitioner’’) has
petitioned, pursuant to section 16 of the
Shipping Act of 1984, 46 U.S.C. app.
1715, and 46 CFR 502.67, for an
exemption from the Shipping Act, to
permit it to negotiate, enter into and
perform service contracts.
In order for the Commission to make
a thorough evaluation of the Petition,
interested persons are requested to
submit views or arguments in reply to
the Petition no later than August 22,
2003. Replies shall consist of an original
and 15 copies, be directed to the
Secretary, Federal Maritime
Commission, 800 North Capitol Street,
NW., Washington, DC 20573–0001, and
be served on Petitioner’s counsels, J.
Michael Cavanaugh, Esq., Holland &
Knight LLP, 2099 Pennsylvania Avenue,
NW., Suite 100, Washington, DC 20006–
6801 and Charles L. Coleman, III, Esq.,
Holland & Knight LLP, 50 California
Street, Suite 2800, San Francisco,
California 94111. It is also requested
that a copy of the reply be submitted in
electronic form (WordPerfect, Word or
ASCII) on diskette or e-mailed to
Secretary@fmc.gov. Copies of the
petition are available at the Office of the
Secretary of the Commission, 800 N.
Capitol Street, NW., Room 1046. A copy
may also be obtained by sending a
request to secretary@fmc.gov or by
calling (202) 523–5725. Parties
participating in this proceeding may
elect to receive service of the
Commission’s issuances in this
proceeding through email in lieu of
service by U.S. mail. A party opting for
electronic service shall advise the Office
of the Secretary in writing and provide
an email address where service can be
made. Such request may be directed to
secretary@fmc.gov.
Bryant L. VanBrakle,
Secretary.
[FR Doc. 03–19653 Filed 8–1–03; 8:45 am]
BILLING CODE 6730–01–P
FEDERAL RESERVE SYSTEM
Notice of Proposals to Engage in
Permissible Nonbanking Activities or
to Acquire Companies that are
Engaged in Permissible Nonbanking
Activities
The companies listed in this notice
have given notice under section 4 of the
Bank Holding Company Act (12 U.S.C.
1843) (BHC Act) and Regulation Y (12
CFR Part 225) to engage de novo, or to
acquire or control voting securities or
assets of a company, including the
companies listed below, that engages
either directly or through a subsidiary or
other company, in a nonbanking activity
that is listed in § 225.28 of Regulation Y
(12 CFR 225.28) or that the Board has
determined by Order to be closely
related to banking and permissible for
bank holding companies. Unless
otherwise noted, these activities will be
conducted throughout the United States.
Each notice is available for inspection
at the Federal Reserve Bank indicated.
The notice also will be available for
inspection at the offices of the Board of
Governors. Interested persons may
express their views in writing on the
question whether the proposal complies
with the standards of section 4 of the
BHC Act. Additional information on all
bank holding companies may be
obtained from the National Information
Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments
regarding the applications must be
received at the Reserve Bank indicated
or the offices of the Board of Governors
not later than August 18, 2003.
A. Federal Reserve Bank of San
Francisco (Tracy Basinger, Director,
Regional and Community Bank Group)
101 Market Street, San Francisco,
California 94105-1579:
1. Bank of Hawaii, Honolulu, Hawaii;
Bank of Hawaii Corporation, Honolulu,
Hawaii; Chicago Equity Partners Corp.,
Chicago, Illinois; to engage de novo
through a joint venture between Bank of
Hawaii, Honolulu, and Chicago Equity
Partners, Chicago, Illinois, to be known
as Bankoh Investment Partners, LLC,
Honolulu, Hawaii, in investment
advisory activities, pursuant to section
225.28(b)(6)(i) of Regulation Y.
Board of Governors of the Federal Reserve
System, July 29, 2003.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc.03–19669 Filed 8–01–03; 8:45 am]
BILLING CODE 6210–01–S
FEDERAL TRADE COMMISSION
Policy Statement on Monetary
Equitable Remedies in Competition
Cases
AGENCY: Federal Trade Commission
(FTC).
ACTION: Notice.
SUMMARY: The Commission has issued a
policy statement on the use of
disgorgement as a remedy for violations
of the Hart-Scott-Rodino (HSR) Act, FTC
Act and Clayton Act.
DATES: The Commission approved this
policy statement on July 25, 2003.
FOR FURTHER INFORMATION CONTACT: John
D. Graubert, Principal Deputy General
Counsel, Office of General Counsel,
FTC, 600 Pennsylvania Avenue, NW.,
Washington, DC 20580, (202) 326–2186,
jgraubert@ftc.gov.
SUPPLEMENTARY INFORMATION:
Policy Statement on Monetary
Equitable Remedies in Competition
Cases
In recent years the Commission has
given considerable thought to the
appropriate circumstances in which to
seek, as a matter of prosecutorial
VerDate jul<14>2003 	19:01 Aug 01, 2003 Jkt 200001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1

45821	Federal Register / Vol. 68, No. 149 / Monday, August 4, 2003 / Notices
1 15 U.S.C. 53(b).
2 66 FR 67254 (Dec. 28, 2001); also available on
the Commission’s web site at http://www.ftc.gov/os/
2001/12/disgorgefrn.htm.
3 The following filed comments: The Antitrust
Section of the American Bar Association, the
American Antitrust Institute, the American
Enterprise Institute for Public Policy Research,
James M. Spears, Stephen A. Stack, and Kenneth G.
Starling. These comments are available at http://
www.ftc.gov/os/comments/disgorgement/index.htm.
4 This statement sets forth some observations and
intentions of the Commission regarding its exercise
of discretion in determining whether to seek
monetary equitable remedies in competition cases.
It does not create any right or obligation, impose
any element of proof, or adjust the burden of proof
or production of evidence on any particular issue,
as those standards have been established by the
courts. This statement of policy does not apply to
consumer protection cases.
5 SEC v. First City Financial Corp., 890 F.2d 1215,
1230 (D.C. Cir. 1989).
6 See FTC v. College of Physicians-Surgeons of
Puerto Rico, Civ. No. 97–2466 HL (D.P.R. Oct. 2,
1997) (alleged price-fixing and boycott, under FTC
Act sections 5(a) and 13(b); stipulated judgment
included $300,000 restitution to Puerto Rico); FTC
v. Mead Johnson & Co., No. 92–1266 (D.D.C. June
11, 1992) (alleged bid-rigging, under FTC Act
sections 5(a) and 13(b); stipulated judgment
included restitution in kind to USDA); FTC v.
American Home Products Corp., Civ. No. 92–1367
(D.D.C. June 11, 1992) (same); FTC v. Joseph Dixon
Crucible Co., Civ. No. C80–700 (N.D. Ohio 1983)
(alleged price-fixing, under Section 5(1) for
violation of earlier order; stipulated judgment
included $525,000 in consumer redress, plus
$75,000 civil penalty); Commonwealth Land Title
Ins. Co., 126 F.T.C. 680, 688 (1998) (alleged price-
fixing; consent order included refund of excess
charges); Binney & Smith Inc., 96 F.T.C. 625 (1980)
(alleged price-fixing; consent order included $1
million in consumer redress); Milton Bradley Co.,
96 F.T.C. 638 (1980) (same; consent order included
$200,000 in consumer redress); American Art Clay
Co., 96 F.T.C. 809 (1980) (same; consent order
included $25,000 in consumer redress); see also
FTC v. Abbott Laboratories, 1992–2 Trade Cas.
(CCH) ¶ 69,996 (D.D.C. 1992) (Gesell, J.), dismissed
on other grounds, 853 F. Supp. 526 (D.D.C. 1994)
(holding that FTC Act section 13(b) permitted the
FTC to seek permanent injunction ordering
restitution in antitrust case); FTC press release, June
5, 1989, re: A&P/Waldbaums (noting position of
Commissioner Strenio that Commission should
have exercised its ‘‘authority to obtain full
disgorgement of these ill-gotten gains’’).
7 FTC v. Mylan Labs, Inc., No. 1:98CV03114 (TFH)
(D.D.C. Feb 9, 2001) (alleged monopolization;
stipulated judgment included $100 million
restitution); see Mem. Opinion, 62 F. Supp. 2d 25,
36–37 (D.D.C.), revised and reaffirmed in pertinent
part, 99 F. Supp. 2d 1, 4–5 (D.D.C. 1999).
8 FTC v. The Hearst Trust, No. 1:01CV00734 (TPJ)
(D.D.C. Nov. 9, 2001) (alleged anticompetitive
acquisition and violation of pre-merger filing
requirements; stipulated judgment included $19
million disgorgement).
9 The analysis may be slightly more complicated
in cases in which the Commission is seeking
restitution rather than disgorgement. Restitution
focuses on the victim, not the violator, and is
justified by the need to restore the victim to the
status quo ante, not on ex ante deterrence of
unlawful conduct by a defendant. Thus, for
example, when significant consumer harm will not
(for one reason or another) be redressed through a
private action (see discussion of our third factor,
below), the Commission might therefore consider
Continued
discretion, monetary equitable remedies
(particularly disgorgement or
restitution) in competition cases brought
pursuant to section 13(b) of the FTC
Act.1 In December 2001, the
Commission issued a notice requesting
comment on the issue,2 and received six
comments in response.3 The agency has
also reviewed relevant case law and
literature, including a number of
sources cited by commentors, as well as
discussions in public fora and its own
experience. The Commission may use
all these resources to inform its
decisions whether to seek monetary
remedies in particular competition
matters on a case by case basis. In
addition, the Commission sets forth
below some general observations on the
use of disgorgement or restitution in
competition cases.4
Disgorgement is an equitable
monetary remedy ‘‘designed to deprived
a wrongdoer of his unjust enrichment
and to deter others’’ from future
violations.5 Depriving the violator of
any of the benefits of illegal conduct has
long been accepted as an appropriate,
indeed necessary, element of antitrust
remedies. See, e.g., United States v.
Grinnell Corp., 384 U.S. 563, 577 (1966);
Schine Chain Theatres, Inc. v. United
States., 334 U.S. 110, 128 (1948).
Restitution is also an equitable remedy,
serving different but often
complimentary purposes. Restitution is
intended to restore the victims of a
violation to the position they would
have been in without the violation,
often by refunding overpayments made
as a result of the violation. The
Commission has sought and obtained
disgorgement or restitution in a number
of competition cases over the last few
decades,6 most recently in the Mylan 7
and Hearst 8 matters. In exercising its
prosecutorial discretion in the
competition area, however, the
Commission has moved cautiously and
used its monetary remedial authority
there sparingly. The Commission
continues to believe that disgorgement
and restitution can play a useful role in
some competition cases, complementing
more familiar remedies such as
divestiture, conduct remedies, private
damages, and civil or criminal penalties.
The competition enforcement regime in
the United States is multifaceted, and it
is important and beneficial that there be
a number of flexible tools, as well as a
number of potential enforcers, available
to address competitive problems in a
particular case. Nonetheless, we do not
view monetary disgorgement or
restitution as routine remedies for
antitrust cases. In general, we will
continue to rely primarily on more
familiar, prospective remedies, and seek
disgorgement and restitution in
exceptional cases.
As a general matter, the Commission
will consider the following three factors
in determining whether to seek
disgorgement or restitution in a
competition case. First, the Commission
will ordinarily seek monetary relief only
where the underlying violation is clear.
Second, there must be a reasonable basis
for calculating the amount of a remedial
payment. Third, the Commission will
consider the value of seeking monetary
relief in light of any other remedies
available in the matter, including
private actions and criminal
proceedings. A strong showing in one
area may tip the decision whether to
seek monetary remedies. For example, a
particularly egregious violation may
justify pursuit of these remedies even if
there appears to be some likelihood of
private actions. Moreover, the pendency
of numerous private actions may tilt the
balance the other way, even if the
violation is clear.
Clear Violation
The Commission will ordinarily seek
monetary disgorgement only when the
violation is clear. A violation is ‘‘clear’’
for this purpose when, based on existing
precedent, a reasonable party should
expect that the conduct is issue would
likely be found to be illegal.
(‘‘Clearness’’ is therefore measured ex
ante, as of the time the act occurs, and
not ex post with the benefit of
hindsight.) In such cases, the use of
disgorgement will serve an appropriate
deterrence goal. One key purpose of the
disgorgement remedy is to remove the
incentive to commit violations by
demonstrating to the potential violator
that unlawful conduct will not be
profitable. This purpose can best be
served when the violator can determine
in advance that its conduct would
probably be considered illegal.
Disgorgement might arguably serve
useful purposes whether or not the
violation was clear—for instance, by
providing an example for future
violators and restoring the relevant
market to its pre-violation status
(thereby removing any unfair
advantages obtained by the violator).
Overall, however, the Commission
believes that the value of deterrence is
reduced when the violator has no
reasonable way of knowing in advance
that its conduct is placing it in jeopardy
of having to pay back all the potential
gains.9
VerDate jul<14>2003 	19:01 Aug 01, 2003 Jkt 200001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1

45822 	Federal Register / Vol. 68, No. 149 / Monday, August 4, 2003 / Notices
seeking restitution even if the conduct at issue does
not otherwise meet our definition of a ‘‘clear’’
violation.
10 Although there are some disagreement among
the Commissioners in Hearst on whether seeking
disgorgement resulted in the optimal payment from
the defendants, there was general agreement that
the conduct at issue was egregious. It is axiomatic
that a merger of the only significant competitors in
a market (absent unusual circumstances such as
proof of the ‘‘failing firm’’ criteria of Section 5 of
the Horizontal Merger Guidelines) violates the letter
of the Clayton and Sherman Acts. See United States
v. Aluminum Co. of America, 148 F.2d 416, 429 (2d
Cir. 1945); Areeda, Hovenkamp & Solow, IV
ANTITRUST LAW section 14.12 (2002 ed.). The
case is further bolstered when, as in Hearst, such
conduct is paired with evidence of specific intent
to monopolize. See United States v. Microsoft Corp,
253 F.3d 34, 59 (D.C. Cir.), (en banc), cert. denied,
534 U.S. 952 (2001); Statement of Chairman
Pitofsky and Commissioners Anthony and
Thompson (Apr. 2001) (available at http://
www.ftc.gov/os/2001/04/hearstpitantthom.htm).
11 According to the Commission’s complaint in
Mylan, the parties’ exclusive arrangements covered
90% of the supply of the ingredient necessary to
produce one of the drugs at issue, and 100% with
respect to a second drug. The Commissioners all
characterized the conduct alleged as ‘‘egregious,’’
with one Commissioner observing that the facts
alleged described ‘‘a clear cut antitrust violation.’’
Statement of Commissioner Thomas B. Leary,
Dissenting in Part and Concurring in Part (available
at http://www.ftc.gov/os/2000/11/
mylanlearystatement.htm).
12 See http://www.ftc.gov/opa/2000/03/
hoechst.htm.
13 Several commentors suggested that the mere
availability of treble damage actions or other
avenues of relief will ordinarily render
disgorgement unnecessary, implying that ultimately
such other actions will have extracted the full
amount of unjust enrichment from violators and
will provide adequate deterrence against future
violations. On the current state of the record we
cannot share this confidence. We have not been
directed to empirical evidence indicating that
existing remedies routinely achieve these goals, let
alone evidence that antitrust defendants have been
subjected to excessive, ‘‘duplicative’’ damage
awards. In fact it appears that the issue has been
the subject of considerable debate. See, e.g., Richard
Posner, ANTITRUST LAW 47 (2d ed. 2001); John
Lopatka & William Page, Who Suffered Antitrust
Injury in the Microsoft Case?, 69 Geo. Wash. L. Rev.
829 (2001); Robert Lande, Are Antitrust ‘‘Treble’’
Damages Really Single Damages?, 54 Ohio St. L.J.
115 (1993); Steven Salop & Lawrence White,
Economic Analysis of Private Antitrust Litigation,
74 GEO. L.J. 1001, 1033–39 (1986); Walter Erickson,
The Profitability of Violating the Antitrust Laws:
Dissolution and Treble Damages in Private
Antitrust, 5:4 Antitrust L. & Econ. Rev. 101 (1972);
Alfred Parker, Treble Damage Action—A Financial
Deterrent to Antitrust Violations?, 16 Antitrust Bull.
483 (1971); compare Joseph Gallo et al., Department
of Justice Antitrust Enforcement, 1955–1997: An
Empirical Study, 17 Rev. Indus. Org. 75, 125–27
(2000). The Commission will therefore need to
continue to evaluate this issue on a case-by-case
basis.
14 For example, Hearst presented the somewhat
unusual case of a consummated merger that had
passed through the HSR review process. Absent
FTC action, private plaintiffs would have faced the
possibly discouraging prospect of not only having
to prove a violation of section 7 of the Clayton Act
or section 2 of the Sherman Act, but also, as a
practical matter, needing to show a violation of the
Hart-Scott-Rodino premerger notification rules to
explain why the FTC took no action with respect
to the merger.
15 Such a discrepancy could also be addressed by
the Department of Justice in a criminal action
seeking, among other remedies, the significant
penalties under the alternative fines provisions of
the Sentencing Reform Act. 18 U.S.C. 3571(d).
When DOJ has initiated a criminal prosecution,
however, under existing institutional arrangements
the Commission ordinarily will defer to DOJ and
not bring a separate action for monetary relief.
The Commission will assess whether
a violation is ‘‘clear’’ by means of an
objective, not a subjective, standard, i.e.,
a reasonableness test. ‘‘Naked’’
restraints of trade, such as price-fixing
or horizontal market division, are
presumptively clear cases. The list of
‘‘clear’’ cases, however, goes beyond
traditional per se violations. The Hearst
and Mylan cases are themselves
examples of easily condemned conduct
that would not necessarily be described
as a per se violation: In Hearst, merger
to monopoly aided by withholding key
documents from the FTC; 10 and in
Mylan, conspiracy to obtain monopoly
power through exclusive supply
agreements (unsupported by any
legitimate business purpose).11
Conversely, in the Commission’s
statement accompanying the issuance of
its consent agreement in Abbott
Laboratories and Geneva
Pharmaceuticals, Inc., File No. 981–
0395 (March 16, 2000), the Commission
noted that the case represented the first
resolution of an antitrust challenge by
the government to a private agreement
whereby a brand name drug company
paid the first generic company that
sought FDA approval not to enter the
market, and to retain its 180-day period
of market exclusivity under the Hatch-
Waxman Act. Because the behavior
occurred in a complex regulatory
context, and because this was the first
government antitrust enforcement
action in this area, the Commission
believed the public interest was
satisfied with orders that regulated
future conduct by the parties, without
further monetary relief. The
Commission warned pharmaceutical
firms that they ‘‘should now be on
notice, however, that [such]
arrangements * * * can raise serious
antitrust issues,’’ and that accordingly,
‘‘in the future, the Commission will
consider its entire range of remedies in
connection with enforcement actions
against such arrangements, including
possibly seeking disgorgement of
illegally obtained profits.’’ 12
Reasonable Basis for Calculation of
Remedy
The Commission will not seek a
monetary equitable remedy when there
is no reasonable basis for calculating the
amount of the disgorgement or
restitution to be ordered. Thus, the
agency does not expect to seek
disgorgement unless it can suggest to a
court a reasonable means of calculating
the gains or benefits from a violation,
nor to seek restitution unless it can offer
a reasonable gauge of the amount of
injury from a violation. Nontheless, a
reasonable basis for calculation does not
require undue precision. See, e.g., FTC
v. Febre, 128 F.3d 530, 535 (7th Cir.
1997); see also SEC v. Bilzerian, 29 F.3d
689 (D.C. Cir. 1994); SEC v. First City
Financial Corporation, Ltd., 890 F.2d
1215 (D.C. Cir. 1989).
Value Added by the Commission’s
Monetary Remedy
The Commission will consider
monetary remedies when it anticipates
that other remedies are likely to fail to
accomplish fully the purposes of the
antitrust laws or when such a monetary
remedy may provide important
additional benefits. When other
remedies are brought to bear and are
likely to result in complete relief, a
Commission action for monetary
equitable relief might well be an
unnecessary and unwise expenditure of
limited agency resources.13
Thus, for example, a case may be
particularly appropriate for
disgorgement when private actions
likely will not remove the total unjust
enrichment from a violation. If statutes
of limitation for, or market disincentives
to, private damage actions are likely to
leave a violator with some or all of the
fruits of its violation, we may seek
disgorgement to prevent the violator
from benefitting from the violation.
Similarly, when practical or legal
difficulties are likely to preclude
compensation for those injured by a
violation who in equity should be made
whole, we may seek restitution for
them.14 Such situations can arise, for
example, when significant aggregate
consumer injury results from relatively
small individual injuries not justifying
the cost of a private lawsuit, or when
direct purchasers do not sue (for a
variety of possible reasons) and indirect
purchasers are precluded from suit
under section 4 of the Clayton Act.
Disgorgement can also be particularly
valuable when the advantages a violator
reaps from the violation greatly
outweigh the specific penalties
prescribed in applicable laws, and
thereby overwhelm the significant
disincentive to violating the law that
such penalties otherwise provide.15 The
paramount purpose of disgorgement is
to make sure that wrongdoers do not
profit from their wrongdoing. E.g., SEC
v. First City Financial Corp., supra; SEC
v. Tome, 833 F.2d 1086 (2d Cir. 1987),
VerDate jul<14>2003 	19:01 Aug 01, 2003 Jkt 200001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1

45823	Federal Register / Vol. 68, No. 149 / Monday, August 4, 2003 / Notices
16 Courts routinely allows ‘‘set-offs’’ and credits,
for example, to avoid duplicative payments. See,
e.g., SEC v. First Jersey Sec., Inc., 101 F. 3d 1450,
1475 (2d Cir. 1996), cert. denied, 552 U.S. 812
(1997); SEC v. Penn Cent. Co., 425 F. Supp. 593,
599 (E.D. Pa. 1976); see also SEC v. Texas Gulf
Sulphur Co., 446 F.2d 1301, 1307 (2d Cir.)
(establishing escrow fund to prevent ‘‘double
liability’’), cert denied, 404 U.S. 1005 (1971).
cert. denied, 486 U.S. 1014–15 (1988);
see also FTC v. Gem Merchandising
Corp., 87 F.3d 466, 470 (11th Cir. 1996).
The Commission is sensitive to the
interest in avoiding duplicative
recoveries by injured persons or
‘‘excessive’’ multiple payments by
defendants for the same injury. Thus,
although a particular illegal practice
may give rise both to monetary equitable
remedies and to damages under the
antitrust laws, when an injured person
obtains damages sufficient to erase an
injury, we do not believe that equity
warrants restitution to that person. We
will take pains to ensure that injured
persons who recover losses through
private damage actions under the
Clayton Act not recover doubly for the
same losses via FTC-obtained
restitution. Similarly, in cases involving
both disgorgement and restitution, we
would apply any available disgorged
funds toward restitution and credit any
funds paid for restitution against the
amount of disgorgement.
We do not, however, consider it
appropriate to offset a civil penalty
assessment against disgorgement or
restitution. As noted above,
disgorgement is an equitable remedy
whose purpose is simply to remove the
unjust gain of the violator. Penalties are
intended to punish the violator and
reflect a different, additional calculation
of the amount that will serve society’s
interest in optimal deterrence,
retribution, and perhaps other interests.
A penalty award would have no
punitive effect if it were simply offset
against these equitable remedies. It is no
the Commission’s intent, therefore, to
allow its monetary relief proceedings to
dilute the effectiveness of a civil
penalty.
When the same conduct gives rise to
two different causes of action, moreover,
the imposition of remedies for each
cause of action does not necessarily
mean the resulting sanctions are
‘‘excessive.’’ See e.g., California v. ARC
America Corp., 490 U.S. 93 (1989); Loeb
Industries, Inc. v. Sumitomo Corp., 306
F.3d 469, 492 (7th Cir. 2002), cert.
denied, 123 S. Ct. 2247 (2003); In Re
Lorazepam & Clorazepate Antitrust
Litigation, MDL Dkt. No. 1290 (D.D.C.)
(denial of motion to dismiss, July 2,
2001) Mem. Order at 15–16. Ultimately,
we believe that courts considering
equitable remedies have sufficient
flexibility to craft orders to avoid unjust
results.16 We have not yet encountered
any such complications.
As a procedural matter, in the
Commission’s two recent cases in which
disgorgement was approved, claims
administration procedures were being
developed in parallel state and private
litigation. To simplify the process and
avoid any appearance of duplicative
payments, in each of those cases the
funds recovered by the Commission
were combined with other recoveries
and a single claims administration
process handled the administration of
all the funds. In future cases, the
Commission could also consider the
suggestion of several commentors to set
up an escrow fund, to seek appointment
of a special master or claims
administrator to determine the
appropriate allocation of funds
collected, or to seek to coordinate
parallel actions.
By direction of the Commision
Donal S. Clark,
Secretary.
[FR Doc. 03–19722 Filed 8–1–03; 8:45 am]
BILLING CODE 6750–01–M
HARRY S. TRUMAN SCHOLARSHIP
FOUNDATION
Notice of Intent To Extend an
Information Collection
AGENCY: Harry S. Truman Scholarship
Foundation.
ACTION: Notice and request for
comments.
SUMMARY: In compliance with the
requirements of section 3506(c)(2)(A) of
the Paperwork Reduction Act of 1995
for opportunity for public comment on
proposed data collection projects, the
Harry S. TrumanScholarship
Foundation [Foundation] will publish
periodic summaries of proposed
projects.
Comments are invited on (a) whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information; (c)
ways to enhance the quality, utility and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or the forms of information technology.
DATES: Written comments on this notice
must be received by October 3, 2003 to
be assured of consideration. Comments
received after that date will be
considered to the extent practicable.
FOR FURTHER INFORMATION CONTACT:
Contact Louis H. Blair, Executive
Secretary, Harry S. Truman Scholarship
Foundation, 712 Jackson Place, NW.,
Washington, DC 20006; telephone 202–
395–4831; or send e-mail to
lblair@truman.gov. You also may obtain
a copy of the data collection instrument
and instructions from Mr. Blair.
SUPPLEMENTARY INFORMATION:
Title of Collection: Truman Scholar
Payment Request Form.
OMB Approval Number: 3200–0005.
Expiration Date of Approval:
September 30, 2003.
Type of Request: Intent to seek
approval to extend an information
collection for three years.
Proposed Project: The Foundation has
been providing scholarships since 1977
in compliance with Public Law 93–642.
This data collection instrument is used
to collect essential information to enable
the Truman Scholarship Foundation to
determine the amount of financial
support to which each Truman Scholar
is eligible and then to make the
payment. A total response rate of 100%
was provided by the 315 Truman
Scholars who received support in FY
2002.
Estimate of Burden: The Foundation
estimates that, on average, 0.5 hours per
Scholar applying for funds will be
required to complete the Payment
Request Form, for a total annual burden
of 157.5 hours for all applicants.
Respondents: Individuals.
Estimated Number of Responses: 215.
Estimated Total Annual Burden on
Respondents: 157.5 hours.
Dated: July 30, 2003.
Louis H. Blair,
Executive Secretary.
[FR Doc. 03–19777 Filed 8–1–03; 8:45 am]
BILLING CODE 6820–AD–U
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
[30Day–59–03]
Proposed Data Collections Submitted
for Public Comment and
Recommendations
The Centers for Disease Control and
Prevention (CDC) publishes a list of
information collection requests under
review by the Office of Management and
VerDate jul<14>2003 	19:01 Aug 01, 2003 Jkt 200001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1