(15
US Code, Chapter 1)
Sec. 1.
Trusts, etc., in restraint of trade illegal; penalty
Every
contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal.
Every person who shall make any contract or engage in any combination or
conspiracy hereby declared to be illegal shall be deemed guilty of a felony,
and, on conviction thereof, shall be punished by fine not exceeding $
10,000,000 if a corporation, or, if any other person, $ 350,000, or by
imprisonment not exceeding three years, or by both said punishments, in the
discretion of the court.
Sec. 2.
Monopolizing trade a felony; penalty
Every
person who shall monopolize, or attempt to monopolize, or combine or conspire
with any other person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign nations, shall be deemed
guilty of a felony, and, on conviction thereof, shall be punished by fine not
exceeding $ 10,000,000 if a corporation, or, if any other person, $ 350,000, or
by imprisonment not exceeding three years, or by both said punishments, in the
discretion of the court.
Sec. 3.
Trusts in Territories or
Every
contract, combination in form of trust or otherwise, or conspiracy, in
restraint of trade or commerce in any Territory of the United States or of the
District of Columbia, or in restraint of trade or commerce between any such
Territory and another, or between any such Territory or Territories and any
State or States or the District of Columbia, or with foreign nations, or
between the District of Columbia and any State or States or foreign nations, is
declared illegal. Every person who shall
make any such contract or engage in any such combination or conspiracy, shall
be deemed guilty of a felony, and, on conviction thereof, shall be punished by
fine not exceeding $ 10,000,000 if a corporation, or, if any other person, $
350,000, or by imprisonment not exceeding three years, or both said
punishments, in the discretion of the court.
Sec. 4.
Jurisdiction of courts; duty of
The
several district courts of the
Sec. 5.
Bringing in additional parties
Whenever
it shall appear to the court before which any proceeding under section 4 of
this title may be pending, that the ends of justice require that other parties
should be brought before the court, the court may cause them to be summoned,
whether they reside in the district in which the court is held or not; and
subpoenas to that end may be served in any district by the marshal thereof.
Sec. 6.
Forfeiture of property in transit
Any
property owned under any contract or by any combination, or pursuant to any
conspiracy (and being the subject thereof) mentioned in section 1 of this
title, and being in the course of transportation from one State to another, or
to a foreign country, shall be forfeited to the United States, and may be
seized and condemned by like proceedings as those provided by law for the
forfeiture, seizure, and condemnation of property imported into the United
States contrary to law.
Sec. 6a.
Conduct involving trade or commerce with foreign nations
Sections
1 to 7 of this title shall not apply to conduct involving trade or commerce
(other than import trade or import commerce) with foreign nations unless
–
(1)
such conduct has a direct, substantial, and reasonably foreseeable effect
–
(A)
on trade or commerce which is not trade or commerce with foreign nations, or on
import trade or import commerce with foreign nations; or
(B)
on export trade or export commerce with foreign nations, of a person engaged in
such trade or commerce in the
(2)
such effect gives rise to a claim under the provisions of sections 1 to 7 of
this title, other than this section. If
sections 1 to 7 of this title apply to such conduct only because of the
operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply
to such conduct only for injury to export business in the
Sec. 7.
“Person” or “persons” defined
The
word “person”, or “persons”, wherever used in sections
1 to 7 of this title shall be deemed to include corporations and associations
existing under or authorized by the laws of either the United States, the laws
of any of the Territories, the laws of any State, or the laws of any foreign country.
Sec. 8.
Trusts in restraint of import trade illegal; penalty
Every
combination, conspiracy, trust, agreement, or contract is declared to be
contrary to public policy, illegal, and void when the same is made by or
between two or more persons or corporations, either of whom, as agent or
principal, is engaged in importing any article from any foreign country into
the United States, and when such combination, conspiracy, trust, agreement, or
contract is intended to operate in restraint of lawful trade, or free
competition in lawful trade or commerce, or to increase the market price in any
part of the United States of any article or articles imported or intended to be
imported into the United States, or of any manufacture into which such imported
article enters or is intended to enter.
Every person who shall be engaged in the importation of goods or any
commodity from any foreign country in violation of this section, or who shall
combine or conspire with another to violate the same, is guilty of a misdemeanor,
and on conviction thereof in any court of the United States such person shall
be fined in a sum not less than $ 100 and not exceeding $ 5,000, and shall be
further punished by imprisonment, in the discretion of the court, for a term
not less than three months nor exceeding twelve months.
Sec. 9.
Jurisdiction of courts; duty of
The
several district courts of the
Sec. 10. Bringing
in additional parties
Whenever
it shall appear to the court before which any proceeding under section 9 of
this title may be pending, that the ends of justice require that other parties
should be brought before the court, the court may cause them to be summoned,
whether they reside in the district in which the court is held or not; and
subpoenas to that end may be served in any district by the marshal
thereof.
Sec. 11.
Forfeiture of property in transit
Any
property owned under any contract or by any combination, or pursuant to any
conspiracy, and being the subject thereof, mentioned in section 8 of this
title, imported into and being within the United States or being in the course
of transportation from one State to another, or to or from a Territory or the
District of Columbia, shall be forfeited to the United States, and may be
seized and condemned by like proceedings as those provided by law for the
forfeiture, seizure, and condemnation of property imported into the United
States contrary to law.
Sec. 12.
Definitions; short title
(a)
“Antitrust laws,” as used herein, includes the Act entitled
“An Act to protect trade and commerce against unlawful restraints and
monopolies,” approved July second, eighteen hundred and ninety; sections
seventy-three to seventy-seven, inclusive, of an Act entitled “An Act to
reduce taxation, to provide revenue for the Government, and for other
purposes,” of August twenty-seventh, eighteen hundred and ninety-four; an
Act entitled “An Act to amend sections seventy-three and seventy-six of
the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled
‘An Act to reduce taxation, to provide revenue for the Government, and
for other purposes,’” approved February twelfth, nineteen hundred
and thirteen; and also this Act.
“Commerce,”
as used herein, means trade or commerce among the several States and with
foreign nations, or between the District of Columbia or any Territory of the
United States and any State, Territory, or foreign nation, or between any
insular possessions or other places under the jurisdiction of the United
States, or between any such possession or place and any State or Territory of
the United States or the District of Columbia or any foreign nation, or within
the District of Columbia or any Territory or any insular possession or other
place under the jurisdiction of the United States: Provided, That nothing in this Act
contained shall apply to the Philippine Islands.
The
word “person” or “persons” wherever used in this Act shall
be deemed to include corporations and associations existing under or authorized
by the laws of either the
(b)
This Act may be cited as the “Clayton Act”.
Sec. 13.
Discrimination in price, services, or facilities
(a)
Price; selection of customers
It
shall be unlawful for any person engaged in commerce, in the course of such
commerce, either directly or indirectly, to discriminate in price between
different purchasers of commodities of like grade and quality, where either or
any of the purchases involved in such discrimination are in commerce, where
such commodities are sold for use, consumption, or resale within the United
States or any Territory thereof or the District of Columbia or any insular
possession or other place under the jurisdiction of the United States, and
where the effect of such discrimination may be substantially to lessen
competition or tend to create a monopoly in any line of commerce, or to injure,
destroy, or prevent competition with any person who either grants or knowingly
receives the benefit of such discrimination, or with customers of either of
them: Provided, That nothing
herein contained shall prevent differentials which make only due allowance for
differences in the cost of manufacture, sale, or delivery resulting from the
differing methods or quantities in which such commodities are to such
purchasers sold or delivered: Provided,
however, That the
Federal Trade Commission
may, after due investigation and hearing to all interested parties, fix and
establish quantity limits, and revise the same as it finds necessary, as to
particular commodities or classes of commodities, where it finds that available
purchasers in greater quantities are so few as to render differentials on
account thereof unjustly discriminatory or promotive of monopoly in any line of
commerce; and the foregoing shall then not be construed to permit differentials
based on differences in quantities greater than those so fixed and
established: And provided further,
That nothing herein contained shall prevent persons engaged in selling goods,
wares, or merchandise in commerce from selecting their own customers in bona
fide transactions and not in restraint of trade: And provided
further, That nothing herein contained shall prevent price changes from
time to time where in response to changing conditions affecting the market for
or the marketability of the goods concerned, such as but not limited to actual
or imminent deterioration of perishable goods, obsolescence of seasonal goods,
distress sales under court process, or sales in good faith in discontinuance of
business in the goods concerned.
(b)
Burden of rebutting prima-facie case of discrimination
Upon
proof being made, at any hearing on a complaint under this section, that there
has been discrimination in price or services or facilities furnished, the
burden of rebutting the prima-facie case thus made by showing
justification shall be upon the person charged with a violation of this
section, and unless justification shall be affirmatively shown, the
Commission is authorized to issue an order
terminating the discrimination: Provided,
however, That nothing herein contained shall prevent a seller rebutting the
prima-facie case thus made by showing that his lower price or the
furnishing of services or facilities to any purchaser or purchasers was made in
good faith to meet an equally low price of a competitor, or the services or
facilities furnished by a competitor.
(c)
Payment or acceptance of commission, brokerage, or other compensation
It
shall be unlawful for any person engaged in commerce, in the course of such
commerce, to pay or grant, or to receive or accept, anything of value as a
commission, brokerage, or other compensation, or any allowance or discount in
lieu thereof, except for services rendered in connection with the sale or
purchase of goods, wares, or merchandise, either to the other party to such
transaction or to an agent, representative, or other intermediary therein where
such intermediary is acting in fact for or in behalf, or is subject to the
direct or indirect control, of any party to such transaction other than the
person by whom such compensation is so granted or paid.
(d)
Payment for services or facilities for processing or sale
It shall be unlawful for any person engaged in
commerce to pay or contact for the payment of anything of value to or for the
benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities furnished by or
through such customer in connection with the processing, handling, sale, or
offering for sale of any products or commodities manufactured, sold, or offered
for sale by such person, unless such payment or consideration is available on
proportionally equal terms to all other customers competing in the distribution
of such products or commodities.
(e)
Furnishing services or facilities for processing, handling, etc.
It
shall be unlawful for any person to discriminate in favor of one purchaser
against another purchaser or purchasers of a commodity bought for resale, with
or without processing, by contracting to furnish or furnishing, or by
contributing to the furnishing of, any services or facilities connected with
the processing, handling, sale, or offering for sale of such commodity so
purchased upon terms not accorded to all purchasers on proportionally equal
terms.
(f)
Knowingly inducing or receiving discriminatory price
It
shall be unlawful for any person engaged in commerce, in the course of such
commerce, knowingly to induce or receive a discrimination in price which is
prohibited by this section.
Sec. 13a.
Discrimination in rebates, discounts, or advertising service charges;
underselling in particular localities; penalties
It
shall be unlawful for any person engaged in commerce, in the course of such
commerce, to be a party to, or assist in, any transaction of sale, or contract
to sell, which discriminates to his knowledge against competitors of the
purchaser, in that, any discount, rebate, allowance, or advertising service
charge is granted to the purchaser over and above any discount, rebate, allowance,
or advertising service charge available at the time of such transaction to said
competitors in respect of a sale of goods of like grade, quality, and quantity;
to sell, or contract to sell, goods in any part of the United States at prices
lower than those exacted by said person elsewhere in the United States for the
purpose of destroying competition, or eliminating a competitor in such part of
the United States; or, to sell, or contract to sell, goods at unreasonably low
prices for the purpose of destroying competition or eliminating a
competitor.
Any
person violating any of the provisions of this section shall, upon conviction
thereof, be fined not more than $ 5,000 or imprisoned not more than one year,
or both.
Sec. 13b.
Cooperative association; return of net earnings or surplus
Nothing
in this Act shall prevent a cooperative association from returning to its
members, producers, or consumers the whole, or any part of, the net earnings or
surplus resulting from its trading operations, in proportion to their purchases
or sales from, to, or through the association.
Sec. 13c.
Exemption of non-profit institutions from price discrimination
provisions
Nothing
in the Act approved June 19, 1936, known as the Robinson-Patman Antidiscrimination
Act, shall apply to purchases of their supplies for their own use by schools,
colleges, universities, public libraries, churches, hospitals, and charitable
institutions not operated for profit.
Sec. 14.
It
shall be unlawful for any person engaged in commerce, in the course of such
commerce, to lease or make a sale or contract for sale of goods, wares,
merchandise, machinery, supplies, or other commodities, whether patented or unpatented,
for use, consumption, or resale within the United States or any Territory
thereof or the District of Columbia or any insular possession or other place
under the jurisdiction of the United States, or fix a price charged therefor,
or discount from, or rebate upon, such price, on the condition, agreement, or
understanding that the lessee or purchaser thereof shall not use or deal in the
goods, wares, merchandise, machinery, supplies, or other commodities of a
competitor or competitors of the lessor or seller, where the effect of such
lease, sale, or contract for sale or such condition, agreement, or
understanding may be to substantially lessen competition or tend to create a
monopoly in any line of commerce.
Sec. 15.
Suits by persons injured
(a)
Amount of recovery; prejudgment interest
Except
as provided in subsection (b) of this section, any person who shall be injured
in his business or property by reason of anything forbidden in the antitrust
laws may sue therefor in any
district court of the United States in the
district in which the defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall recover threefold the damages
by him sustained, and the cost of suit, including a reasonable attorney’s
fee. The court may award under this
section, pursuant to a motion by such person promptly made, simple interest on
actual damages for the period beginning on the date of service of such
person’s pleading setting forth a claim under the antitrust laws and
ending on the date of judgment, or for any shorter period therein, if the court
finds that the award of such interest for such period is just in the
circumstances. In determining whether an
award of interest under this section for any period is just in the circumstances,
the court shall consider only –
(1)
whether such person or the opposing party, or either party’s
representative, made motions or asserted claims or defenses so lacking in merit
as to show that such party or representative acted intentionally for delay, or
otherwise acted in bad faith;
(2)
whether, in the course of the action involved, such person or the opposing
party, or either party’s representative, violated any applicable rule,
statute, or court order providing for sanctions for dilatory behavior or
otherwise providing for expeditious proceedings; and
(3) whether such person or the opposing
party, or either party’s representative, engaged in conduct primarily for
the purpose of delaying the litigation or increasing the cost thereof.
(b) Amount of damages payable to foreign
states and instrumentalities of foreign states
(1) Except as provided in paragraph (2), any
person who is a foreign state may not recover under subsection (a) of this
section an amount in excess of the actual damages sustained by it and the cost
of suit, including a reasonable attorney’s fee.
(2) Paragraph (1) shall not apply to a
foreign state if –
(A) such foreign state would be denied, under
section 1605(a)(2) of title 28, immunity in a case in which the action is based
upon a commercial activity, or an act, that is the subject matter of its claim
under this section;
(B) such foreign state waives all defenses
based upon or arising out of its status as a foreign state, to any claims
brought against it in the same action;
(C) such foreign state engages primarily in
commercial activities; and
(D) such foreign state does not function,
with respect to the commercial activity, or the act, that is the subject matter
of its claim under this section as a procurement entity for itself or for
another foreign state.
(c) Definitions
For purposes of this section –
(1) the term “commercial
activity” shall have the meaning given it in section 1603(d) of title 28,
and
(2) the term “foreign state”
shall have the meaning given it in section 1603(a) of title 28.
Sec.
15a. Suits by
Whenever the United States is hereafter
injured in its business or property by reason of anything forbidden in the
antitrust laws it may sue therefor in the United States
district court for the
district in which the defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall recover threefold the damages
by it sustained and the cost of suit.
The court may award under this section, pursuant to a motion by the
United States promptly made, simple interest on actual damages for the period
beginning on the date of service of the pleading of the United States setting
forth a claim under the antitrust laws and ending on the date of judgment, or
for any shorter period therein, if the court finds that the award of such
interest for such period is just in the circumstances. In determining whether an award of interest
under this section for any period is just in the circumstances, the court shall
consider only –
(1) whether the United States or the opposing
party, or either party’s representative, made motions or asserted claims
or defenses so lacking in merit as to show that such party or representative
acted intentionally for delay or otherwise acted in bad faith;
(2) whether, in the course of the action
involved, the United States or the opposing party, or either party’s
representative, violated any applicable rule, statute, or court order providing
for sanctions for dilatory behavior or otherwise providing for expeditious
proceedings;
(3) whether the United States or the opposing
party, or either party’s representative, engaged in conduct primarily for
the purpose of delaying the litigation or increasing the cost thereof; and
(4) whether the award of such interest is
necessary to compensate the
Sec.
15b. Limitation of actions
Any action to enforce any cause of action
under section 15, 15a, or 15c of this title shall be forever barred unless
commenced within four years after the cause of action accrued. No cause of action barred under existing law
on the effective date of this Act shall be revived by this Act.
Sec.
15c. Actions by State attorneys
general
(a) Parens patriae; monetary relief;
damages; prejudgment interest
(1) Any attorney general of a State may bring
a civil action in the name of such State, as parens patriae on behalf of
natural persons residing in such State, in any
district court of the United
States having jurisdiction of the defendant, to secure monetary relief as
provided in this section for injury sustained by such natural persons to their
property by reason of any violation of sections 1 to 7 of this title.
The court shall exclude from the amount of
monetary relief awarded in such action any amount of monetary relief (A) which
duplicates amounts which have been awarded for the same injury, or (B) which is
properly allocable to
(i) natural persons who have excluded their
claims pursuant to subsection (b)(2) of this section, and (ii) any business
entity.
(2) The court shall award the State as
monetary relief threefold the total damage sustained as described in paragraph
(1) of this subsection, and the cost of suit, including a reasonable
attorney’s fee. The court may
award under this paragraph, pursuant to a motion by such State promptly made,
simple interest on the total damage for the period beginning on the date of
service of such State’s pleading setting forth a claim under the
antitrust laws and ending on the date of judgment, or for any shorter period
therein, if the court finds that the award of such interest for such period is
just in the circumstances. In
determining whether an award of interest under this paragraph for any period is
just in the circumstances, the court shall consider only –
(A) whether such State or the opposing party,
or either party’s representative, made motions or asserted claims or
defenses so lacking in merit as to show that such party or representative acted
intentionally for delay or otherwise acted in bad faith;
(B) whether, in the course of the action
involved, such State or the opposing party, or either party’s
representative, violated any applicable rule, statute, or court order providing
for sanctions for dilatory behavior or other wise providing for expeditious
proceedings; and
(C) whether such State or the opposing party,
or either party’s representative, engaged in conduct primarily for the
purpose of delaying the litigation or increasing the cost thereof.
(b) Notice; exclusion election; final
judgment
(1) In any action brought under subsection
(a)(1) of this section, the State attorney general shall, at such times, in
such manner, and with such content as the court may direct, cause notice
thereof to be given by publication. If
the court finds that notice given solely by publication would deny due process
of law to any person or persons, the court may direct further notice to such
person or persons according to the circumstances of the case.
(2) Any person on whose behalf an action is
brought under subsection (a)(1) of this section may elect to exclude from
adjudication the portion of the State claim for monetary relief attributable to
him by filing notice of such election with the court within such time as
specified in the notice given pursuant to paragraph (1) of this
subsection.
(3) The final judgment in an action under
subsection (a)(1) of this section shall be res judicata as to any claim
under section 15 of this title by any person on behalf of whom such action was
brought and who fails to give such notice within the period specified in the
notice given pursuant to paragraph (1) of this subsection.
(c) Dismissal or compromise of action
An action under subsection (a)(1) of this
section shall not be dismissed or compromised without the approval of the
court, and notice of any proposed dismissal or compromise shall be given in such
manner as the court directs.
(d) Attorneys’ fees
In any action under subsection (a) of this
section –
(1) the amount of the plaintiffs’
attorney’s fee, if any, shall be determined by the court; and
(2) the court may, in its discretion, award a
reasonable attorney’s fee to a prevailing defendant upon a finding that
the State attorney general has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons.
Sec.
15d. Measurement of damages
In any action under section 15c(a)(1) of this
title, in which there has been a determination that a defendant agreed to fix
prices in violation of sections 1 to 7 of this title, damages may be proved and
assessed in the aggregate by statistical or sampling methods, by the
computation of illegal overcharges, or by such other reasonable system of
estimating aggregate damages as the court in its discretion may permit without
the necessity of separately proving the individual claim of, or amount of
damage to, persons on whose behalf the suit was brought.
Sec.
15e. Distribution of damages
Monetary relief recovered in an action under
section 15c(a)(1) of this title shall –
(1) be distributed in such manner as the
district court in its discretion may authorize; or
(2) be deemed a civil penalty by the court
and deposited with the State as general revenues; subject in either case to the
requirement that any distribution procedure adopted afford each person a
reasonable opportunity to secure his appropriate portion of the net monetary relief.
Sec.
15f. Actions by
Attorney General
(a) Notification to State attorney general
Whenever the
Attorney
General of the United States has brought an action under the antitrust
laws, and he has reason to believe that any State attorney general would be
entitled to bring an action under this Act based substantially on the same
alleged violation of the antitrust laws, he shall promptly give written
notification thereof to such State attorney general.
(b) Availability of files and other materials
To assist a State attorney general in
evaluating the notice or in bringing any action under this Act, the
Attorney General of the United States shall,
upon request by such State attorney general, make available to him, to the
extent permitted by law, any investigative files or other materials which are
or may be relevant or material to the actual or potential cause of action under
this Act.
Sec.
15g. Definitions
For the purposes of sections 15c, 15d, 15e,
and 15f of this title:
(1) The term “State attorney
general” means the chief legal officer of a State, or any other person
authorized by State law to bring actions under section 15c of this title, and
includes the Corporation Counsel of the District of Columbia, except that such
term does not include any person employed or retained on –
(A) a contingency fee based on a percentage
of the monetary relief awarded under this section; or
(B) any other contingency fee basis, unless
the amount of the award of a reasonable attorney’s fee to a prevailing
plaintiff is determined by the court under section 15c(d)(1) of this title.
(2) The term “State” means a
State, the District of
(3) The term “natural persons”
does not include proprietorships or partnerships.
Sec.
15h. Applicability of parens
patriae actions
Sections 15c, 15d, 15e, 15f, and 15g of this
title shall apply in any State, unless such State provides by law for its
non-applicability in such State.
Sec.
16. Judgments
(a)
Prima facie evidence; collateral
estoppel
A
final judgment or decree heretofore or hereafter rendered in any civil or
criminal proceeding brought by or on behalf of the United States under the
antitrust laws to the effect that a defendant has violated said laws shall be
prima facie evidence against such defendant in any action or proceeding brought
by any other party against such defendant under said laws as to all matters
respecting which said judgment or decree would be an estoppel as between the
parties thereto: Provided, That
this section shall not apply to consent judgments or decrees entered before any
testimony has been taken. Nothing
contained in this section shall be construed to impose any limitation on the
application of collateral estoppel, except that, in any action or proceeding
brought under the antitrust laws, collateral estoppel effect shall not be given
to any finding made by the
Federal Trade
Commission under the antitrust laws or under section 45 of this title which
could give rise to a claim for relief under the antitrust laws.
(b)
Consent judgments and competitive impact statements; publication in
Federal
Register; availability of copies to the public
Any
proposal for a consent judgment submitted by the United States for entry in any
civil proceeding brought by or on behalf of the United States under the
antitrust laws shall be filed with the
district court before which such
proceeding is pending and published by the United States in the
Federal
Register at least 60 days prior to the effective date of such
judgment. Any written comments relating
to such proposal and any responses by the
Simultaneously
with the filing of such proposal, unless otherwise instructed by the court, the
(1)
the nature and purpose of the proceeding;
(2)
a description of the practices or events giving rise to the alleged violation
of the antitrust laws;
(3)
an explanation of the proposal for a consent judgment, including an explanation
of any unusual circumstances giving rise to such proposal or any provision
contained therein, relief to be obtained thereby, and the anticipated effects
on competition of such relief;
(4)
the remedies available to potential private plaintiffs damaged by the alleged
violation in the event that such proposal for the consent judgment is entered
in such proceeding;
(5)
a description of the procedures available for modification of such proposal;
and
(6)
a description and evaluation of alternatives to such proposal actually considered
by the
(c)
Publication of summaries in newspapers
The United States shall also cause to be
published, commencing at least 60 days prior to the effective date of the
judgment described in subsection (b) of this section, for 7 days over a period
of 2 weeks in newspapers of general circulation of the district in which the
case has been filed, in the District of Columbia, and in such other districts
as the court may direct –
(i)
a summary of the terms of the proposal for consent judgment,
(ii)
a summary of the competitive impact statement filed under subsection (b) of
this section,
(iii)
and a list of the materials and documents under subsection (b) of this section
which the United States shall make available for purposes of meaningful public
comment, and the place where such materials and documents are available for
public inspection.
(d)
Consideration of public comments by
Attorney
General and publication of response
During
the 60-day period as specified in subsection (b) of this section, and such
additional time as the
(e)
Public interest determination
Before
entering any consent judgment proposed by the
(1)
the competitive impact of such judgment, including termination of alleged
violations, provisions for enforcement and modification, duration or relief
sought, anticipated effects of alternative remedies actually considered, and
any other considerations bearing upon the adequacy of such judgment;
(2)
the impact of entry of such judgment upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived from a
determination of the issues at trial.
(f)
Procedure for public interest determination
In
making its determination under subsection (e) of this section, the court may
–
(1)
take testimony of Government officials or experts or such other expert
witnesses, upon motion of any party or participant or upon its own motion, as
the court may deem appropriate;
(2)
appoint a special master and such outside consultants or expert witnesses as
the court may deem appropriate; and request and obtain the views, evaluations,
or advice of any individual, group or agency of government with respect to any
aspects of the proposed judgment or the effect of such judgment, in such manner
as the court deems appropriate;
(3)
authorize full or limited participation in proceedings before the court by
interested persons or agencies, including appearance amicus curiae,
intervention as a party pursuant to the Federal Rules of Civil Procedure,
examination of witnesses or documentary materials, or participation in any
other manner and extent which serves the public interest as the court may deem
appropriate;
(4)
review any comments including any objections filed with the United States under
subsection (d) of this section concerning the proposed judgment and the
responses of the United States to such comments and objections; and
(5)
take such other action in the public interest as the court may deem
appropriate.
(g)
Filing of written or oral communications with the
district court
Not
later than 10 days following the date of the filing of any proposal for a
consent judgment under subsection (b) of this section, each defendant shall
file with the district court a description of any and all written or oral
communications by or on behalf of such defendant, including any and all written
or oral communications on behalf of such defendant, or other person, with any
officer or employee of the United States concerning or relevant to such
proposal, except that any such communications made by counsel of record alone
with the
Attorney General or the employees
of the
Department of Justice alone shall be
excluded from the requirements of this subsection. Prior to the entry of any consent judgment
pursuant to the antitrust laws, each defendant shall certify to the
district
court that the requirements of this subsection have been complied with and that
such filing is a true and complete description of such communications known to
the defendant or which the defendant reasonably should have known.
(h)
Inadmissibility as evidence of proceedings before the
district court and the
competitive impact statement
Proceedings
before the district court under subsections (e) and (f) of this section, and
the competitive impact statement filed under subsection (b) of this section,
shall not be admissible against any defendant in any action or proceeding
brought by any other party against such defendant under the antitrust laws or
by the United States under section 15a of this title nor constitute a basis for
the introduction of the consent judgment as prima facie evidence against
such defendant in any such action or proceeding.
(i)
Suspension of limitations
Whenever
any civil or criminal proceeding is instituted by the United States to prevent,
restrain, or punish violations of any of the antitrust laws, but not including
an action under section 15a of this title, the running of the statute of
limitations in respect to every private or State right of action arising under
said laws and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof and for one year
thereafter: Provided, however,
That whenever the running of the statute of limitations in respect of a cause
of action arising under section 15 or 15c of this title is suspended hereunder,
any action to enforce such cause of action shall be forever barred unless
commenced either within the period of suspension or within four years after the
cause of action accrued.
Sec. 17.
Antitrust laws not applicable to labor organizations
The
labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall
be construed to forbid the existence and operation of labor, agricultural, or
horticultural organizations, instituted for the purposes of mutual help, and
not having capital stock or conducted for profit, or to forbid or restrain
individual members of such organizations from lawfully carrying out the
legitimate objects thereof; nor shall such organizations, or the members
thereof, be held or construed to be illegal combinations or conspiracies in
restraint of trade, under the antitrust laws.
Sec. 18.
Acquisition by one corporation of stock of another
No
person engaged in commerce or in any activity affecting commerce shall acquire,
directly or indirectly, the whole or any part of the stock or other share
capital and no person subject to the jurisdiction of the
Federal Trade Commission shall acquire the whole
or any part of the assets of another person engaged also in commerce or in any
activity affecting commerce, where in any line of commerce or in any activity
affecting commerce in any section of the country, the effect of such
acquisition may be substantially to lessen competition, or to tend to create a
monopoly. No person shall acquire,
directly or indirectly, the whole or any part of the stock or other share
capital and no person subject to the jurisdiction of the
Federal Trade Commission shall acquire the whole
or any part of the assets of one or more persons engaged in commerce or in any
activity affecting commerce, where in any line of commerce or in any activity
affecting commerce in any section of the country, the effect of such
acquisition, of such stocks or assets, or of the use of such stock by the
voting or granting of proxies or otherwise, may be substantially to lessen
competition, or to tend to create a monopoly.
This
section shall not apply to persons purchasing such stock solely for investment
and not using the same by voting or otherwise to bring about, or in attempting
to bring about, the substantial lessening of competition. Nor shall anything contained in this section
prevent a corporation engaged in commerce or in any activity affecting commerce
from causing the formation of subsidiary corporations for the actual carrying
on of their immediate lawful business, or the natural and legitimate branches
or extensions thereof, or from owning and holding all or a part of the stock of
such subsidiary corporations, when the effect of such formation is not to
substantially lessen competition.
Nor
shall anything herein contained be construed to prohibit any common carrier
subject to the laws to regulate commerce from aiding in the construction of
branches or short lines so located as to become feeders to the main line of the
company so aiding in such construction or from acquiring or owning all or any
part of the stock of such branch lines, nor to prevent any such common carrier
from acquiring and owning all or any part of the stock of a branch or short
line constructed by an independent company where there is no substantial
competition between the company owning the branch line so constructed and the
company owning the main line acquiring the property or an interest therein, nor
to prevent such common carrier from extending any of its lines through the
medium of the acquisition of stock or otherwise of any other common carrier
where there is no substantial competition between the company extending its
lines and the company whose stock, property, or an interest therein is so
acquired.
Nothing
contained in this section shall be held to affect or impair any right
heretofore legally acquired: Provided,
That nothing in this section shall be held or construed to authorize or make
lawful anything heretofore prohibited or made illegal by the antitrust laws,
nor to exempt any person from the penal provisions thereof or the civil
remedies therein provided.
Nothing
contained in this section shall apply to transactions duly consummated pursuant
to authority given by the
Secretary of
Transportation,
Federal Power Commission,
Surface Transportation Board, the
Securities and Exchange Commission in the
exercise of its jurisdiction under section 79j of this title, the
United States Maritime Commission, or the
Secretary of Agriculture under any statutory
provision vesting such power in such Commission, Board, or Secretary.
Sec. 18a.
Premerger notification and waiting period
(a)
Filing
Except
as exempted pursuant to subsection (c) of this section, no person shall
acquire, directly or indirectly, any voting securities or assets of any other
person, unless both persons (or in the case of a tender offer, the acquiring
person) file notification pursuant to rules under subsection (d)(1) of this
section and the waiting period described in subsection
(b)(1)
of this section has expired, if –
(1)
the acquiring person, or the person whose voting securities or assets are being
acquired, is engaged in commerce or in any activity affecting commerce;
(2)
(A)
any voting securities or assets of a person engaged in manufacturing which has
annual net sales or total assets of $ 10,000,000 or more are being acquired by
any person which has total assets or annual net sales of $ 100,000,000 or more;
(B)
any voting securities or assets of a person not engaged in manufacturing which
has total assets of $ 10,000,000 or more are being acquired by any person which
has total assets or annual net sales of $ 100,000,000 or more; or
(C)
any voting securities or assets of a person with annual net sales or total
assets of $ 100,000,000 or more are being acquired by any person with total
assets or annual net sales of $ 10,000,000 or more; and
(3)
as a result of such acquisition, the acquiring person would hold –
(A)
15 per centum or more of the voting securities or assets of the acquired
person, or
(B)
an aggregate total amount of the voting securities and assets of the acquired
person in excess of $ 15,000,000. In the
case of a tender offer, the person whose voting securities are sought to be
acquired by a person required to file notification under this subsection shall
file notification pursuant to rules under subsection (d) of this section.
(b)
Waiting period; publication; voting securities
(1)
The waiting period required under subsection (a) of this section shall –
(A)
begin on the date of the receipt by the
Federal
Trade Commission and the
Assistant Attorney General in
charge of the
Antitrust Division
of the Department of Justice (hereinafter referred to in this section as
the “Assistant Attorney
General”) of –
(i)
the completed notification required under subsection (a) of this section, or
(ii)
if such notification is not completed, the notification to the extent completed
and a statement of the reasons for such noncompliance, from both persons, or,
in the case of a tender offer, the acquiring person; and
(B)
end on the thirtieth day after the date of such receipt (or in the case of a
cash tender offer, the fifteenth day), or on such later date as may be set
under subsection (e)(2) or (g)(2) of this section.
(2)
The
Federal Trade Commission and
the
Assistant Attorney General
may, in individual cases, terminate the waiting period specified in paragraph
(1) and allow any person to proceed with any acquisition subject to this
section, and promptly shall cause to be published in the
Federal Register a
notice that neither intends to take any action within such period with respect
to such acquisition.
(3)
As used in this section –
(A)
The term “voting securities” means any securities which at present
or upon conversion entitle the owner or holder thereof to vote for the election
of directors of the issuer or, with respect to unincorporated issuers, persons
exercising similar functions.
(B)
The amount or percentage of voting securities or assets of a person which are
acquired or held by another person shall be determined by aggregating the
amount or percentage of such voting securities or assets held or acquired by
such other person and each affiliate thereof.
(c)
Exempt transactions
The
following classes of transactions are exempt from the requirements of this
section –
(1)
acquisitions of goods or realty transferred in the ordinary course of business;
(2)
acquisitions of bonds, mortgages, deeds of trust, or other obligations which
are not voting securities;
(3)
acquisitions of voting securities of an issuer at least 50 per centum of the
voting securities of which are owned by the acquiring person prior to such
acquisition;
(4)
transfers to or from a Federal agency or a State or political subdivision
thereof;
(5)
transactions specifically exempted from the antitrust laws by Federal statute;
(6)
transactions specifically exempted from the antitrust laws by Federal statute
if approved by a Federal agency, if copies of all information and documentary
material filed with such agency are contemporaneously filed with the
Federal Trade Commission and the
Assistant Attorney General;
(7)
transactions which require agency approval under section 1467a(e) of title 12,
section 1828(c) of title 12, or section 1842 of title 12;
(8)
transactions which require agency approval under section 1843 of title 12 or
section 1464 of title 12, if copies of all information and documentary material
filed with any such agency are contemporaneously filed with the
Federal Trade Commission and the
Assistant Attorney General at
least 30 days prior to consummation of the proposed transaction;
(9)
acquisitions, solely for the purpose of investment, of voting securities, if,
as a result of such acquisition, the securities acquired or held do not exceed
10 per centum of the outstanding voting securities of the issuer;
(10)
acquisitions of voting securities, if, as a result of such acquisition, the
voting securities acquired do not increase, directly or indirectly, the
acquiring person’s per centum share of outstanding voting securities of
the issuer;
(11)
acquisitions, solely for the purpose of investment, by any bank, banking
association, trust company, investment company, or insurance company, of (A)
voting securities pursuant to a plan of reorganization or dissolution; or (B)
assets in the ordinary course of its business; and
(12)
such other acquisitions, transfers, or transactions, as may be exempted under
subsection (d)(2)(B) of this section.
(d)
Commission rules
The
Federal Trade Commission, with the concurrence
of the
Assistant Attorney General
and by rule in accordance with section 553 of title 5, consistent with the
purposes of this section –
(1)
shall require that the notification required under subsection (a) of this
section be in such form and contain such documentary material and information
relevant to a proposed acquisition as is necessary and appropriate to enable
the
Federal Trade Commission and the
Assistant Attorney General to
determine whether such acquisition may, if consummated, violate the antitrust
laws; and
(2)
may –
(A)
define the terms used in this section;
(B)
exempt, from the requirements of this section, classes of persons,
acquisitions, transfers, or transactions which are not likely to violate the
antitrust laws; and
(C)
prescribe such other rules as may be necessary and appropriate to carry out the
purposes of this section.
(e)
Additional information; waiting period extensions
(1)
The
Federal Trade Commission or the
Assistant Attorney General may,
prior to the expiration of the 30-day waiting period (or in the case of a cash
tender offer, the 15-day waiting period) specified in subsection (b)(1) of this
section, require the submission of additional information or documentary
material relevant to the proposed acquisition, from a person required to file
notification with respect to such acquisition under subsection (a) of this
section prior to the expiration of the waiting period specified in subsection
(b)(1) of this section, or from any officer, director, partner, agent, or
employee of such person.
(2)
The
Federal Trade Commission or the
Assistant Attorney General, in
its or his discretion, may extend the 30-day waiting period (or in the case of
a cash tender offer, the 15-day waiting period) specified in subsection (b)(1)
of this section for an additional period of not more than 20 days (or in the
case of a cash tender offer, 10 days) after the date on which the
Federal Trade Commission or the
Assistant Attorney General, as
the case may be, receives from any person to whom a request is made under
paragraph (1), or in the case of tender offers, the acquiring person, (A) all
the information and documentary material required to be submitted pursuant to
such a request, or (B) if such request is not fully complied with, the
information and documentary material submitted and a statement of the reasons
for such noncompliance. Such additional
period may be further extended only by the
United States district court, upon
an application by the
Federal Trade Commission
or the
Assistant Attorney General
pursuant to subsection (g)(2) of this section.
(f)
Preliminary injunctions; hearings
If
a proceeding is instituted or an action is filed by the
Federal Trade Commission, alleging that a
proposed acquisition violates section 18 of this title, or section 45 of this
title, or an action is filed by the United States, alleging that a proposed
acquisition violates such section 18 of this title, or section 1 or 2 of this
title, and the
Federal Trade Commission or
the
Assistant Attorney General (1)
files a motion for a preliminary injunction against consummation of such
acquisition pendente lite, and (2)
certifies the United States district court for the judicial district within
which the respondent resides or carries on business, or in which the action is
brought, that it or he believes that the public interest requires relief pendente lite pursuant to this
subsection, then upon the filing of such motion and certification, the chief
judge of such district court shall immediately notify the chief judge of the
United States court of appeals for the circuit in which such
district court is
located, who shall designate a United States district judge to whom such action
shall be assigned for all purposes.
(g)
Civil penalty; compliance; power of court
(1)
Any person, or any officer, director, or partner thereof, who fails to comply
with any provision of this section shall be liable to the
(2)
If any person, or any officer, director, partner, agent, or employee thereof,
fails substantially to comply with the notification requirement under
subsection (a) of this section or any request for the submission of additional
information or documentary material under subsection (e)(1) of this section
within the waiting period specified in subsection (b)(1) of this section and as
may be extended under subsection (e)(2) of this section, the
United States
district court –
(A)
may order compliance;
(B)
shall extend the waiting period specified in subsection (b)(1) of this section
and as may have been extended under subsection (e)(2) of this section until
there has been substantial compliance, except that, in the case of a tender
offer, the court may not extend such waiting period on the basis of a failure,
by the person whose stock is sought to be acquired, to comply substantially
with such notification requirement or any such request; and
(C)
may grant such other equitable relief as the court in its discretion determines
necessary or appropriate, upon application of the
Federal
Trade Commission or the
Assistant Attorney General.
(h)
Disclosure exemption
Any
information or documentary material filed with the
Assistant Attorney General or
the
Federal Trade Commission pursuant to this
section shall be exempt from disclosure under section 552 of title 5, and no
such information or documentary material may be made public, except as may be
relevant to any administrative or judicial action or proceeding. Nothing in this section is intended to
prevent disclosure to either body of Congress or to any duly authorized
committee or subcommittee of the Congress.
(i)
Construction with other laws
(1)
Any action taken by the
Federal Trade Commission
or the
Assistant Attorney General or
any failure of the
Federal Trade Commission
or the
Assistant Attorney General
to take any action under this section shall not bar any proceeding or any action
with respect to such acquisition at any time under any other section of this
Act or any other provision of law.
(2)
Nothing contained in this section shall limit the authority of the
Assistant Attorney General or
the
Federal Trade Commission to secure at any
time from any person documentary material, oral testimony, or other information
under the Antitrust Civil Process Act (15 U.S.C. 1311 et seq.), the Federal Trade Commission Act (15 U.S.C. 41 et seq.), or any other provision of law.
(j)
Report to Congress; legislative recommendations
Beginning
not later than January 1, 1978, the
Federal Trade
Commission, with the concurrence of the
Assistant Attorney General,
shall annually report to the Congress on the operation of this section. Such report shall include an assessment of
the effects of this section, of the effects, purpose, and need for any rules
promulgated pursuant thereto, and any recommendations for revisions of this
section.
Sec.
19. Interlocking directorates and
officers
(a)
(1)
No person shall, at the same time, serve as a director or officer in any two
corporations (other than banks, banking associations, and trust companies) that
are –
(A)
engaged in whole or in part in commerce; and
(B)
by virtue of their business and location of operation, competitors, so that the
elimination of competition by agreement between them would constitute a
violation of any of the antitrust laws; if each of the corporations has
capital, surplus, and undivided profits aggregating more than $ 10,000,000 as
adjusted pursuant to paragraph (5) of this subsection.
(2)
Notwithstanding the provisions of paragraph (1), simultaneous service as a
director or officer in any two corporations shall not be prohibited by this
section if –
(A)
the competitive sales of either corporation are less than $ 1,000,000, as
adjusted pursuant to paragraph (5) of this subsection;
(B)
the competitive sales of either corporation are less than 2 per centum of that
corporation’s total sales; or
(C)
the competitive sales of each corporation are less than 4 per centum of that
corporation’s total sales. For
purposes of this paragraph, “competitive sales” means the gross
revenues for all products and services sold by one corporation in competition
with the other, determined on the basis of annual gross revenues for such
products and services in that corporation’s last completed fiscal
year. For the purposes of this
paragraph, “total sales” means the gross revenues for all products
and services sold by one corporation over that corporation’s last
completed fiscal year.
(3)
The eligibility of a director or officer under the provisions of paragraph (1)
shall be determined by the capital, surplus and undivided profits, exclusive of
dividends declared but not paid to stockholders, of each corporation at the end
of that corporation’s last completed fiscal year.
(4)
For purposes of this section, the term “officer” means an officer
elected or chosen by the Board of Directors.
(5)
For each fiscal year commencing after September 30, 1990, the $ 10,000,000 and
$ 1,000,000 thresholds in this subsection shall be increased (or decreased) as
of October 1 each year by an amount equal to the percentage increase (or
decrease) in the gross national product, as determined by the Department of
Commerce or its successor, for the year then ended over the level so
established for the year ending September 30, 1989. As soon as practicable, but not later than
January 31 of each year, the
Federal Trade
Commission shall publish the adjusted amounts required by this
paragraph.
(b)
When any person elected or chosen as a director or officer of any corporation
subject to the provisions hereof is eligible at the time of his election or
selection to act for such corporation in such capacity, his eligibility to act
in such capacity shall not be affected by any of the provisions hereof by
reason of any change in the capital, surplus and undivided profits, or affairs
of such corporation from whatever cause, until the expiration of one year from
the date on which the event causing ineligibility occurred.
Sec. 21.
Enforcement provisions
(a)
Commission,
Board, or
Secretary authorized to enforce compliance
Authority
to enforce compliance with sections 13, 14, 18, and 19 of this title by the persons
respectively subject thereto is vested in the
Surface
Transportation Board where applicable to common carriers subject to
jurisdiction under subtitle IV of title 49; in the
Federal
Communications Commission where applicable to common carriers engaged in
wire or radio communication or radio transmission of energy; in the
Secretary of Transportation where applicable to
air carriers and foreign air carriers subject to part A of subtitle VII of
title 49; in the
Board of Governors of
the Federal Reserve System where applicable to banks, banking associations,
and trust companies; and in the
Federal Trade
Commission where applicable to all other character of commerce to be
exercised as follows:
(b)
issuance of complaints for violations; hearing; intervention; filing of
testimony; report; cease and desist orders; reopening and alteration of reports
or orders
Whenever
the Commission,
Board, or
Secretary vested with jurisdiction thereof shall have
reason to believe that any person is violating or has violated any of the
provisions of sections 13, 14, 18, and 19 of this title, it shall issue and
serve upon such person and the
Attorney General
a complaint stating its charges in that respect, and containing a notice of a
hearing upon a day and at a place therein fixed at least thirty days after the
service of said complaint. The person so
complained of shall have the right to appear at the place and time so fixed and
show cause why an order should not be entered by the
Commission,
Board, or
Secretary
requiring such person to cease and desist from the violation of the law so
charged in said complaint. The
Attorney General shall have the right to
intervene and appear in said proceeding and any person may make application,
and upon good cause shown may be allowed by the Commission,
Board, or
Secretary, to intervene and appear in said proceeding by counsel or in
person. The testimony in any such
proceeding shall be reduced to writing and filed in the office of the
Commission,
Board, or
Secretary. If upon
such hearing the Commission,
Board, or
Secretary, as the case may be, shall be
of the opinion that any of the provisions of said sections have been or are
being violated, it shall make a report in writing, in which it shall state its
findings as to the facts, and shall issue and cause to be served on such person
an order requiring such person to cease and desist from such violations, and
divest itself of the stock, or other share capital, or assets, held or rid
itself of the directors chosen contrary to the provisions of sections 18 and 19
of this title, if any there be, in the manner and within the time fixed by said
order. Until the expiration of the time
allowed for filing a petition for review, if no such petition has been duly
filed within such time, or, if a petition for review has been filed within such
time then until the record in the proceeding has been filed in a
court of
appeals of the United States, as hereinafter Provided, the
Commission,
Board, or
Secretary may at any time, upon such notice and in such manner as it
shall deem proper, modify or set aside, in whole or in part, any report or any
order made or issued by it under this section.
After the expiration of the time allowed for filing a petition for
review, if no such petition has been duly filed within such time, the
Commission,
Board, or
Secretary may at any time, after notice and opportunity
for hearing, reopen and alter, modify, or set aside, in whole or in part, any
report or order made or issued by it under this section, whenever in the
opinion of the Commission,
Board, or
Secretary conditions of fact or of law
have so changed as to require such action or if the public interest shall so
require: Provided, however, That
the said person may, within sixty days after service upon him or it of said
report or order entered after such a reopening, obtain a review thereof in the
appropriate court of appeals of the United States, in the manner provided in
subsection (c) of this section.
(c)
Review of orders; jurisdiction; filing of petition and record of proceeding;
conclusiveness of findings; additional evidence; modification of findings;
finality of judgment and decree
Any
person required by such order of the commission,
board, or
Secretary to cease
and desist from any such violation may obtain a review of such order in the
court of appeals of the United States for any circuit within which such
violation occurred or within which such person resides or carries on business,
by filing in the court, within sixty days after the date of the service of such
order, a written petition praying that the order of the
commission,
board, or
Secretary be set aside. A copy of such
petition shall be forthwith transmitted by the clerk of the court to the
commission,
board, or
Secretary, and thereupon the
commission,
board, or
Secretary shall file in the court the record in the proceeding, as provided in
section 2112 of title 28. Upon such
filing of the petition the court shall have jurisdiction of the proceeding and
of the question determined therein concurrently with the
commission,
board, or
Secretary until the filing of the record, and shall have power to make and
enter a decree affirming, modifying, or setting aside the order of the
commission,
board, or
Secretary, and enforcing the same to the extent that such
order is affirmed, and to issue such writs as are ancillary to its jurisdiction
or are necessary in its judgment to prevent injury to the public or to
competitors pendente lite. The findings of the
commission,
board, or
Secretary as to the facts, if supported by substantial evidence, shall be
conclusive. To the extent that the order
of the commission,
board, or
Secretary is affirmed, the
court shall issue its
own order commanding obedience to the terms of such order of the
commission,
board, or
Secretary. If either party
shall apply to the court for leave to adduce additional evidence, and shall
show to the satisfaction of the
court that such additional evidence is material
and that there were reasonable grounds for the failure to adduce such evidence
in the proceeding before the commission,
board, or
Secretary, the
court may
order such additional evidence to be taken before the
commission,
board, or
Secretary, and to be adduced upon the hearing in such manner and upon such
terms and conditions as to the
court may seem proper. The commission,
board, or
Secretary may
modify its findings as to the facts, or make new findings, by reason of the
additional evidence so taken, and shall file such modified or new findings,
which if supported by substantial evidence, shall be conclusive, and its
recommendation, if any, for the modification or setting aside of its original
order, with the return of such additional evidence. The judgment and decree of the court shall be
final, except that the same shall be subject to review by the
Supreme Court
upon certiorari, as provided in section 1254 of title 28.
(d)
Exclusive jurisdiction of Court of Appeals
Upon
the filing of the record with its jurisdiction of the
court of appeals to
affirm, enforce, modify, or set aside orders of the
commission,
board, or
Secretary shall be exclusive.
(e) Liability under antitrust laws
No
order of the commission,
board, or
Secretary or judgment of the court to
enforce the same shall in anywise relieve or absolve any person from any
liability under the antitrust laws.
(f)
Service of complaints, orders and other processes
Complaints,
orders, and other processes of the commission,
board, or
Secretary under this
section may be serviced by anyone duly authorized by the
commission,
board, or
Secretary, either (1) by delivering a copy thereof to the person to be served,
or to a member of the partnership to be served, or to the president, secretary,
or other executive officer or a director of the corporation to be served; or
(2) by leaving a copy thereof at the residence or the principal office or place
of business of such person; or (3) by mailing by registered or certified mail a
copy thereof addressed to such person at his or its residence or principal
office or place of business. The
verified return by the person so serving said complaint, order, or other
process setting forth the manner of said service shall be proof of the same,
and the return post office receipt for said complaint, order, or other process
mailed by registered or certified mail as aforesaid shall be proof of the
service of the same.
(g)
Finality of orders generally
Any
order issued under subsection (b) of this section shall become final –
(1)
upon the expiration of the time allowed for filing a petition for review, if no
such petition has been duly filed within such time; but the
commission, board,
or Secretary may thereafter modify or set aside its order to the extent
provided in the last sentence of subsection (b) of this section; or
(2)
upon the expiration of the time allowed for filing a petition for certiorari,
if the order of the commission,
board, or
Secretary has been affirmed, or the
petition for review has been dismissed by the
court of appeals, and no petition
for certiorari has been duly filed; or
(3)
upon the denial of a petition for certiorari, if the order of the
commission,
board, or
Secretary has been affirmed or the petition for review has been
dismissed by the court of appeals; or
(4)
upon the expiration of thirty days from the date of issuance of the mandate of
the
Supreme Court, if such
Court directs that the order of the
commission,
board, or
Secretary be affirmed or the petition for review be
dismissed.
(h)
Finality of orders modified by
Supreme
Court
If
the
Supreme Court directs that the
order of the commission,
board, or
Secretary be modified or set aside, the
order of the commission,
board, or
Secretary rendered in accordance with the
mandate of the
Supreme Court shall
become final upon the expiration of thirty days from the time it was rendered,
unless within such thirty days either party has instituted proceedings to have
such order corrected to accord with the mandate, in which event the order of
the commission,
board, or
Secretary shall become final when so corrected.
(i)
Finality of orders modified by
Court of
Appeals
If
the order of the commission,
board, or
Secretary is modified or set aside by
the court of appeals, and if (1) the time allowed for filing a petition for
certiorari has expired and no such petition has been duly filed, or (2) the
petition for certiorari has been denied, or (3) the decision of the court has
been affirmed by the
Supreme Court
then the order of the commission,
board, or
Secretary rendered in accordance
with the mandate of the court of appeals shall become final on the expiration
of thirty days from the time such order of the commission,
board, or
Secretary was
rendered, unless within such thirty days either party has instituted
proceedings to have such order corrected so that it will accord with the
mandate, in which event the order of the commission,
board, or
Secretary shall
become final when so corrected.
(j)
Finality of orders issued on rehearing ordered by
Court of Appeals or
Supreme Court
If
the
Supreme Court orders a rehearing;
or if the case is remanded by the
court of appeals to the
commission,
board, or
Secretary for a rehearing, and if (1) the time allowed for filing a petition
for certiorari has expired, and no such petition has been duly filed, or (2)
the petition for certiorari has been denied, or (3) the decision of the court
has been affirmed by the
Supreme Court,
then the order of the commission,
board, or
Secretary rendered upon such
rehearing shall become final in the same manner as though no prior order of the
commission,
board, or
Secretary had been rendered.
(k)
“Mandate” defined
As
used in this section the term “mandate”, in case a mandate has been
recalled prior to the expiration of thirty days from the date of issuance
thereof, means the final mandate.
(l)
Penalties
Any
person who violates any order issued by the commission,
board, or
Secretary
under subsection (b) of this section after such order has become final, and
while such order is in effect, shall forfeit and pay to the United States a
civil penalty of not more than $ 5,000 for each violation, which shall accrue
to the United States and may be recovered in a civil action brought by the
United States. Each separate violation
of any such order shall be a separate offense, except that in the case of a
violation through continuing failure or neglect to obey a final order of the
commission,
board, or
Secretary each day of continuance of such failure or
neglect shall be deemed a separate offense.
Sec. 21a.
Actions and proceedings pending prior to June 19, 1936; additional and
continuing violations
Nothing
herein contained shall affect rights of action arising, or litigation pending,
or orders of the
Federal Trade Commission
issued and in effect or pending on review, based on section 13 of this title,
prior to June 19, 1936: Provided,
That where, prior to June 19, 1936, the
Federal
Trade Commission has issued an order requiring any person to cease and
desist from a violation of section 13 of this title, and such order is pending
on review or is in effect, either as issued or as affirmed or modified by a
court of competent jurisdiction, and the
Commission
shall have reason to believe that such person has committed, used or carried
on, since June 19, 1936, or is committing, using or carrying on, any act,
practice or method in violation of any of the provisions of said section 13 of
this title, it may reopen such original proceedings and may issue and serve
upon such person its complaint, supplementary to the original complaint,
stating its charges in that respect.
Thereupon the same proceedings shall be had upon such supplementary
complaint as provided in section 21 of this title. If upon such hearing the
Commission shall be of the opinion that any act,
practice, or method charged in said supplementary complaint has been committed,
used, or carried on since June 19, 1936, or is being committed, used or carried
on, in violation of said section 13 of this title, it shall make a report in
writing in which it shall state its findings as to the facts and shall issue
and serve upon such person its order modifying or amending it original order to
include any additional violations of law so found. Thereafter the provisions of section 21 of
this title, as to review and enforcement of orders of the
Commission shall in all things apply to such
modified or amended order. If upon
review as provided in said section 21 of this title the court shall set aside
such modified or amended order, the original order shall not be affected
thereby, but it shall be and remain in force and effect as fully and to the
same extent as if such supplementary proceedings had not been taken.
Sec. 22.
District in which to sue corporation
Any
suit, action, or proceeding under the antitrust laws against a corporation may
be brought not only in the judicial district whereof it is an inhabitant, but
also in any district wherein it may be found or transacts business; and all
process in such cases may be served in the district of which it is an
inhabitant, or wherever it may be found.
Sec. 23.
Suits by
In
any suit, action, or proceeding brought by or on behalf of the United States
subpoenas for witnesses who are required to attend a court of the United States
in any judicial district in any case, civil or criminal, arising under the
antitrust laws may run into any other district:
Provided, That in civil cases no writ of subpoena shall issue for
witnesses living out of the district in which the court is held at a greater
distance than one hundred miles from the place of holding the same without the
permission of the trial court being first had upon proper application and cause
shown.
Sec. 24.
Liability of directors and agents of corporation
Whenever
a corporation shall violate any of the penal provisions of the antitrust laws,
such violation shall be deemed to be also that of the individual directors,
officers, or agents of such corporation who shall have authorized, ordered, or
done any of the acts constituting in whole or in part such violation, and such
violation shall be deemed a misdemeanor, and upon conviction therefor of any
such director, officer, or agent he shall be punished by a fine of not
exceeding $ 5,000 or by imprisonment for not exceeding one year, or by both, in
the discretion of the court.
Sec. 25. Restraining
violations; procedure
The
several district courts of the
Sec. 26. Injunctive
relief for private parties; exception; costs
Any
person, firm, corporation, or association shall be entitled to sue for and have
injunctive relief, in any court of the United States having jurisdiction over
the parties, against threatened loss or damage by a violation of the antitrust
laws, including sections 13, 14, 18, and 19 of this title, when and under the
same conditions and principles as injunctive relief against threatened conduct
that will cause loss or damage is granted by courts of equity, under the rules
governing such proceedings, and upon the execution of proper bond against
damages for an injunction improvidently granted and a showing that the danger
of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein
contained shall be construed to entitle any person, firm, corporation, or
association, except the United States, to bring suit for injunctive relief
against any common carrier subject to the jurisdiction of the
Surface Transportation
Board under subtitle IV of title 49. In
any action under this section in which the plaintiff substantially prevails,
the court shall award the cost of suit, including a reasonable attorney’s
fee, to such plaintiff.
Sec. 27. Effect
of partial invalidity
If
any clause, sentence, paragraph, or part of this Act shall, for any reason, be
adjudged by any court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, or invalidate the remainder thereof, but shall be
confined in its operation to the clause, sentence, paragraph, or part thereof
directly involved in the controversy in which such judgment shall have been
rendered.
Sec. 27a.
Application of antitrust laws to professional
major league baseball
(a)
Major league baseball subject to antitrust laws
Subject
to subsections (b) through (d) of this section, the conduct, acts, practices,
or agreements of persons in the business of organized professional
major league baseball directly relating to or
affecting employment of major league baseball players to play baseball at the
major league level are subject to the antitrust laws to the same extent such
conduct, acts, practices, or agreements would be subject to the antitrust laws
if engaged in by persons in any other professional sports business affecting
interstate commerce.
(b)
Limitation of section
No
court shall rely on the enactment of this section as a basis for changing the
application of the antitrust laws to any conduct, acts, practices, or
agreements other than those set forth in subsection (a) of this section. This section does not create, permit or imply
a cause of action by which to challenge under the antitrust laws, or otherwise
apply the antitrust laws to, any conduct, acts, practices, or agreements that
do not directly relate to or affect employment of major league baseball players
to play baseball at the major league level, including but not limited to
–
(1)
any conduct, acts, practices, or agreements of persons engaging in, conducting
or participating in the business of organized professional baseball relating to
or affecting employment to play baseball at the minor league level, any
organized professional baseball amateur or first-year player draft, or any
reserve clause as applied to minor league players;
(2)
the agreement between organized professional major league baseball teams and
the teams of the National Association of Professional Baseball Leagues,
commonly known as the “Professional Baseball Agreement”, the
relationship between organized professional major league baseball and organized
professional minor league baseball, or any other matter relating to organized
professional baseball’s minor leagues;
(3)
any conduct, acts, practices, or agreements of persons engaging in, conducting
or participating in the business of organized professional baseball relating to
or affecting franchise expansion, location or relocation, franchise ownership
issues, including ownership transfers, the relationship between the Office of
the Commissioner and franchise owners, the marketing or sales of the
entertainment product of organized professional baseball and the licensing of
intellectual property rights owned or held by organized professional baseball
teams individually or collectively;
(4)
any conduct, acts, practices, or agreements protected by Public Law 87-331 (15
U.S.C. Sec. 1291 et seq.) (commonly known as the “Sports Broadcasting Act
of 1961”);
(5)
the relationship between persons in the business of organized professional
baseball and umpires or other individuals who are employed in the business of
organized professional baseball by such persons; or
(6)
any conduct, acts, practices, or agreements of persons not in the business of
organized professional major league baseball.
(c)
Standing to sue
Only
a
major league baseball player has standing
to sue under this section. For the
purposes of this section, a major league baseball player is –
(1)
a person who is a party to a major league player’s contract, or is
playing baseball at the major league level; or
(2)
a person who was a party to a major league player’s contract or playing
baseball at the major league level at the time of the injury that is the
subject of the complaint; or
(3)
a person who has been a party to a major league player’s contract or who
has played baseball at the major league level, and who claims he has been
injured in his efforts to secure a subsequent major league player’s
contract by an alleged violation of the antitrust laws: Provided however, That for the
purposes of this paragraph, the alleged antitrust violation shall not include
any conduct, acts, practices, or agreements of persons in the business of
organized professional baseball relating to or affecting employment to play
baseball at the minor league level, including any organized professional
baseball amateur or first-year player draft, or any reserve clause as applied
to minor league players; or
(4)
a person who was a party to a major league player’s contract or who was
playing baseball at the major league level at the conclusion of the last full
championship season immediately preceding the expiration of the last collective
bargaining agreement between persons in the business of organized professional
major league baseball and the exclusive
collective bargaining representative of
major
league baseball players.
(d)
Conduct, acts, practices, or agreements subject to antitrust laws
(1)
As used in this section, “person” means any entity, including an
individual, partnership, corporation, trust or unincorporated association or
any combination or association thereof.
As used in this section, the National Association of Professional
Baseball Leagues, its member leagues and the clubs of those leagues, are not
“in the business of organized professional
major
league baseball”.
(2)
In cases involving conduct, acts, practices, or agreements that directly relate
to or affect both employment of
major league
baseball players to play baseball at the major league level and also relate
to or affect any other aspect of organized professional baseball, including but
not limited to employment to play baseball at the minor league level and the
other areas set forth in subsection (b) of this section, only those components,
portions or aspects of such conduct, acts, practices, or agreements that
directly relate to or affect employment of major league players to play
baseball at the major league level may be challenged under subsection (a) of
this section and then only to the extent that they directly relate to or affect
employment of
major league baseball players
to play baseball at the major league level.
(3)
As used in subsection (a) of this section, interpretation of the term
“directly” shall not be governed by any interpretation of section
151 et seq. of title 29, United States
Code (as amended).
(4)
Nothing in this section shall be construed to affect the application to
organized professional baseball of the nonstatutory labor exemption from the
antitrust laws.
(5)
The scope of the conduct, acts, practices, or agreements covered by subsection
(b) of this section shall not be strictly or narrowly construed.
Sec. 28.
REPEALED.
Sec. 29.
Appeals
(a)
Court of appeals; review by
Supreme Court
Except
as otherwise expressly provided by this section, in every civil action brought
in any district court of the United States under the Act entitled “An Act
to protect trade and commerce against unlawful restraints and monopolies”,
approved July 2, 1890, or any other Acts having like purpose that have been or
hereafter may be enacted, in which the United States is the complainant and
equitable relief is sought, any appeal from a final judgment entered in any
such action shall be taken to the
court of appeals pursuant to sections 1291
and 2107 of title 28. Any appeal from an
interlocutory order entered in any such action shall be taken to the
court of
appeals pursuant to sections 1292(a)(1) and 2107 of title 28 but not
otherwise. Any judgment entered by the
court of appeals in any such action shall be subject to review by the
Supreme
Court upon a writ of certiorari as provided in section 1254(1) of title
28.
(b)
Direct appeals to
Supreme Court
An
appeal from a final judgment pursuant to subsection (a) of this section shall
lie directly to the
Supreme Court, if, upon application of a party filed within
fifteen days of the filing of a notice of appeal, the
district judge who
adjudicated the case enters an order stating that immediate consideration of
the appeal by the
Supreme Court is of general public importance in the
administration of justice. Such order
shall be filed within thirty days after the filing of a notice of appeal. When such an order is filed, the appeal and
any cross appeal shall be docketed in the time and manner prescribed by the
rules of the
Supreme Court. The
Supreme
Court shall thereupon either (1) dispose of the appeal and any cross appeal in
the same manner as any other direct appeal authorized by law, or (2) in its
discretion, deny the direct appeal and remand the case to the
court of appeals,
which shall then have jurisdiction to hear and determine the same as if the
appeal and any cross appeal therein had been docketed in the court of appeals
in the first instance pursuant to subsection (a) of this section.
Sec. 30.
Depositions for use in suits in equity; proceedings open to public
In
the taking of depositions of witnesses for use in any suit in equity brought by
the United States under sections 1 to 7 of this title, and in the hearings
before any examiner or special master appointed to take testimony therein, the
proceedings shall be open to the public as freely as are trials in open court;
and no order excluding the public from attendance on any such proceedings shall
be valid or enforceable.
Sec. 31.
No
vessel permitted to engage in the coastwise or foreign trade of the United
States shall be permitted to enter or pass through the Panama Canal if such
ship is owned, chartered, operated, or controlled by any person or company
which is doing business in violation of the provisions of sections 1 to 11 of
this title or of any other Act of Congress amending or supplementing the same. The question of fact may be determined by the
judgment of any court of the
Sec. 32.
REPEALED.
Sec. 33.
REPEALED.
For
purposes of sections 34 to 36 of this title –
(1)
the term “local government” means –
(A)
a city, county, parish, town, township, village, or any other general function
governmental unit established by State law, or
(B)
a school district, sanitary district, or any other special function
governmental unit established by State law in one or more States,
(2)
the term “person” has the meaning given it in subsection (a) of the
first section of the Clayton Act (15 U.S.C. 12(a)), but does not include any
local government as defined in paragraph (1) of this section, and
(3)
the term “State” has the meaning given it in section 4G(2) of the
Clayton Act (15 U.S.C. 15g(2)).
Sec. 35.
Recovery of damages, etc., for antitrust violations from any local
government, or official or employee thereof acting in an official capacity
(a) Prohibition in general
No
damages, interest on damages, costs, or attorney’s fees may be recovered
under section 4, 4A, or 4C of the Clayton Act (15 U.S.C. 15, 15a, or 15c) from
any local government, or official or employee thereof acting in an official
capacity.
(b)
Preconditions for attachment of prohibition; prima facie evidence for
nonapplication of prohibition Subsection (a) of this section shall not apply to
cases commenced before the effective date of this Act unless the defendant
establishes and the court determines, in light of all the circumstances,
including the stage of litigation and the availability of alternative relief
under the Clayton Act, that it would be inequitable not to apply this
subsection to a pending case. In
consideration of this section, existence of a jury verdict, district court
judgment, or any stage of litigation subsequent thereto, shall be deemed to be
prima facie evidence that subsection (a) of this section shall not apply.
Sec. 36.
Recovery of damages, etc., for antitrust violations on claim against
person based on official action directed by local government, or official or
employee thereof acting in an official capacity
(a)
Prohibition in general
No
damages, interest on damages, costs or attorney’s fees may be recovered
under section 4, 4A, or 4C of the Clayton Act (15 U.S.C. 15, 15a, or 15c) in
any claim against a person based on any official action directed by a local
government, or official or employee thereof acting in an official
capacity.
(b)
Nonapplication of prohibition for cases commenced before effective date of
provisions
Subsection
(a) of this section shall not apply with respect to cases commenced before the
effective date of this Act.
Sec. 37.
Immunity from antitrust laws
(a)
Inapplicability of antitrust laws
Except
as provided in subsection (d) of this section, the antitrust laws, and any
State law similar to any of the antitrust laws, shall not apply to charitable
gift annuities or charitable remainder trusts.
(b)
Immunity
Except
as provided in subsection (d) of this section, any person subjected to any legal
proceeding for damages, injunction, penalties, or other relief of any kind
under the antitrust laws, or any State law similar to any of the antitrust
laws, on account of setting or agreeing to rates of return or other terms for,
negotiating, issuing, participating in, implementing, or otherwise being
involved in the planning, issuance, or payment of charitable gift annuities or
charitable remainder trusts shall have immunity from suit under the antitrust
laws, including the right not to bear the cost, burden, and risk of discovery
and trial, for the conduct set forth in this subsection.
(c)
Treatment of certain annuities and trusts
Any
annuity treated as a charitable gift annuity, or any trust treated as a
charitable remainder trust, either –
(1)
in any filing by the donor with the
Internal Revenue Service; or
(2)
in any schedule, form, or written document provided by or on behalf of the
donee to the donor; shall be conclusively presumed for the purposes of this
section and section 37a of this title to be respectively a charitable gift
annuity or a charitable remainder trust, unless there has been a final
determination by the
Internal Revenue Service that, for fraud or otherwise, the
donor’s annuity or trust did not qualify respectively as a charitable
gift annuity or charitable remainder trust when created.
(d)
Limitation
Subsections
(a) and (b) of this section shall not apply with respect to the enforcement of
a State law similar to any of the antitrust laws, with respect to charitable
gift annuities, or charitable remainder trusts, created after the State enacts
a statute, not later than December 8, 1998, that expressly provides that
subsections (a) and (b) of this section shall not apply with respect to such
charitable gift annuities and such charitable remainder trusts.
Sec. 37a.
Definitions
For
purposes of this section and section 37 of this title:
(1)
Antitrust laws
The
term “antitrust laws” has the meaning given it in subsection (a) of
section 12 of this title, except that such term includes section 45 of this
title to the extent that such section 45 applies to unfair methods of
competition.
(2)
Charitable remainder trust
The
term “charitable remainder trust” has the meaning given it in
section 664(d) of title 26.
(3)
Charitable gift annuity
The
term “charitable gift annuity” has the meaning given it in section
501(m)(5) of title 26.
(4)
Final determination
The
term “final determination” includes an
Internal Revenue Service
determination, after exhaustion of donor’s and donee’s
administrative remedies, disallowing the donor’s charitable deduction for
the year in which the initial contribution was made because of the
donee’s failure to comply at such time with the requirements of section
501(m)(5) or 664(d), respectively, of title 26.
(5)
Person
The
term “person” has the meaning given it in subsection (a) of section
12 of this title.
(6)
State
The term “State” has the meaning given it in section 15g(2) of this title.
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