 ANTITRUST DIVISION MANUAL CHAPTER II |
|
STATUTORY PROVISIONS AND GUIDELINES § 1 Sherman Act, 15 U.S.C. § 1 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.
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. § 3 Sherman Act, 15 U.S.C. § 3 Trusts in Territories or District of Columbia illegal; combination
a felony 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 by both said punishments, in the discretion of the court. § 4 Sherman Act, 15 U.S.C. § 4 Jurisdiction of courts; duty of United States attorneys; procedure The several district courts of the United States are invested with
jurisdiction to prevent and restrain violations of sections 1 to 7 of
this title; and it shall be the duty of the several United States attorneys,
in their respective districts, under the direction of the Attorney General,
to institute proceedings in equity to prevent and restrain such violations.
Such proceedings may be by way of petition setting forth the case and
praying that such violation shall be enjoined or otherwise prohibited.
When the parties complained of shall have been duly notified of such
petition the court shall proceed, as soon as may be, to the hearing
and determination of the case; and pending such petition and before
final decree, the court may at any time make such temporary restraining
order or prohibition as shall be deemed just in the premises. § 5 Sherman Act, 15 U.S.C. § 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. § 6 Sherman Act, 15 U.S.C. § 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. § 7 Sherman Act, 15 U.S.C. § 6a (Foreign Trade Antitrust Improvements Act of 1982) 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--
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 United States. § 8 Sherman Act, 15 U.S.C. § 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. Trusts in restraint of import trade illegal; penalty, 15 U.S.C.
§ 8 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. Jurisdiction of courts; duty of United States attorneys; procedure, 15 U.S.C. § 9 The several district courts of the United States are invested with
jurisdiction to prevent and restrain violations of section 8 of this
title; and it shall be the duty of the several United States attorneys,
in their respective districts, under the direction of the Attorney General,
to institute proceedings in equity to prevent and restrain such violations.
Such proceedings may be by way of petitions setting forth the case and
praying that such violations shall be enjoined or otherwise prohibited.
When the parties complained of shall have been duly notified of such
petition the court shall proceed, as soon as may be, to the hearing
and determination of the case; and pending such petition and before
final decree, the court may at any time make such temporary restraining
order or prohibition as shall be deemed just in the premises. Bringing in additional parties, 15 U.S.C. § 10 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. Forfeiture of property in transit, 15 U.S.C. 11 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. § 1 Clayton Act, 15 U.S.C. § 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 United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. (b) This Act may be cited as the "Clayton Act". § 2 Clayton Act, 15 U.S.C. §§ 13(2) 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 contract 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. Discrimination in rebates, discounts, or advertising service charges;
underselling in particular localities; penalties, 15 U.S.C. § 13a
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. Cooperative association; return of net earnings or surplus, 15 U.S.C.
§ 13b Nothing in sections 13 to 13b and 21a of this title 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. Exemption of non-profit institutions from price discrimination provisions, 15 U.S.C. § 13c Nothing in sections 13 to 13b and 21a of this title, 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. § 3 Clayton Act, 15 U.S.C. § 14 Sale, etc., on agreement not to use goods of competitor 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.
§ 4 Clayton Act, 15 U.S.C. § 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--
(b) Amount of damages payable to foreign states and instrumentalities of foreign states
(c) Definitions For purposes of this section--
§ 4A Clayton Act, 15 U.S.C. § 15a Suits by United States; amount of recovery; prejudgment interest 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 threefold the 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--
§ 4B Clayton Act, 15 U.S.C. § 15b Limitation of actions Any action to enforce any cause of action under sections 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. § 4C Clayton Act, 15 U.S.C. § 15c(3)
Actions by State attorneys general (a) Parens patriae; monetary relief; damages; prejudgment interest
(b) Notice; exclusion election; final judgment
(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--
§ 4D Clayton Act, 15 U.S.C. § 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. § 4E Clayton Act, 15 U.S.C. § 15e Distribution of damages Monetary relief recovered in an action under section 15c(a) (1) of this title shall--
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. § 4F Clayton Act, 15 U.S.C. § 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. § 4G Clayton Act, 15 U.S.C. § 15g Definitions For the purposes of sections 15c, 15d, 15e, and 15f of this title:
§ 4H Clayton Act, 15 U.S.C. § 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 nonapplicability in such State. § 5 Clayton Act, 15 U.S.C. § 16 (Tunney Act) 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 United States thereto, shall also be filed with such district court and published by the United States in the Federal Register within such sixty-day period. Copies of such proposal and any other materials and documents which the United States considered determinative in formulating such proposal, shall also be made available to the public at the district court and in such other districts as the court may subsequently direct. Simultaneously with the filing of such proposal, unless otherwise instructed by the court, the United States shall file with the district court, publish in the Federal Register, and thereafter furnish to any person upon request, a competitive impact statement which shall recite--
(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--
(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 United States may request and the court may grant, the United States shall receive and consider any written comments relating to the proposal for the consent judgment submitted under subsection (b) of this section. The Attorney General or his designee shall establish procedures to carry out the provisions of this subsection, but such 60-day time period shall not be shortened except by order of the district court upon a showing that
(e) Public interest determination Before entering any consent judgment proposed by the United States under this section, the court shall determine that the entry of such judgment is in the public interest. For the purpose of such determination, the court may consider--
(f) Procedure for public interest determination In making its determination under subsection (e) of this section, the court may--
(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 of 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. § 6 Clayton Act, 15 U.S.C. § 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. §7 Clayton Act, 15 U.S.C. § 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. § 7A Clayton Act, 15 U.S.C. § 18a. Premerger notification and waiting period (a) Filing Except as exempted pursuant to subsection (c), 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) and the waiting period described in subsection (b)(1) has expired, if--
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). (b) Waiting period; publication; voting securities
(c) Exempt transactions The following classes of transactions are exempt from the requirements 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--
(e) Additional information; waiting period extensions
(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
(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
(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. (k) If the end of any period of time provided in this section falls on a Saturday, Sunday, or legal public holiday (as defined in section 6103(a) of title 5 of the United States Code), then such period shall be extended to the end of the next day that is not a Saturday, Sunday, or legal public holiday. § 8 Clayton Act, 15 U.S.C. § 19 Interlocking directorates and officers (a)
§ 11 Clayton Act, 15 U.S.C. § 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 the Federal Aviation Act of 1958 [49 App. U.S.C.A. § 1301 et seq.]; 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 it the 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 served by anyone duly authorized by the commission, board, or Secretary, either
(g) Finality of orders generally Any order issued under subsection (b) of this section shall become final--
(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
(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
(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. § 12 Clayton Act, 15 U.S.C. § 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. § 13 Clayton Act, 15 U.S.C. § 23 Suits by United States; subpoenas for witnesses 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. § 14 Clayton Act, 15 U.S.C. § 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. § 15 Clayton Act, 15 U.S.C. § 25 Restraining violations; procedure The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of this Act, and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition, the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition, and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. Whenever it shall appear to the court before which any such proceeding 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. § 16 Clayton Act, 15 U.S.C. § 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. § 26 Clayton Act, 15 U.S.C. § 26a Restrictions on the purchase of gasohol and synthetic motor fuel (a) Limitations on the use of credit instruments; sales, resales,
and transfers Except as provided in subsection (b) of this section, it shall be unlawful for any person engaged in commerce, in the course of such commerce, directly or indirectly to impose any condition, restriction, agreement, or understanding that--
(b) Credit fees; equivalent conventional motor fuel sales; labeling of pumps; product liability disclaimers; advertising support; furnishing facilities
(c) "United States" defined As used in this section, "United States" includes the several
States, the District of Columbia, any territory of the United States
and any insular possession or other place under the jurisdiction of
the United States. § 27 Clayton Act, 15 U.S.C. § 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. (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
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. Definitions, 15 U.S.C. 1311 For the purposes of this chapter-- (a) The term "antitrust law" includes:
(b) The term "antitrust order" means any final order, decree, or judgment of any court of the United States, duly entered in any case or proceeding arising under any antitrust law; (c) The term "antitrust investigation" means any inquiry conducted by any antitrust investigator for the purpose of ascertaining whether any person is or has been engaged in any antitrust violation or in any activities in preparation for a merger, acquisition, joint venture, or similar transaction, which, if consummated, may result in an antitrust violation; (d) The term "antitrust violation" means any act or omission in violation of any antitrust law, any antitrust order or, with respect to the International Antitrust Enforcement Assistance Act of 1994 [15 U.S.C.A. § 6201 et seq.] any of the foreign antitrust laws; (e) The term "antitrust investigator" means any attorney or investigator employed by the Department of Justice who is charged with the duty of enforcing or carrying into effect any antitrust law; (f) The term "person" means any natural person, partnership, corporation, association, or other legal entity, including any person acting under color or authority of State law; (g) The term "documentary material" includes the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, and any product of discovery; (h) The term "custodian" means the custodian or any deputy custodian designated under section 1313(a) of this title; (i) The term "product of discovery" includes without limitation the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission obtained by any method of discovery in any judicial litigation or in any administrative litigation of an adversarial nature; any digest, analysis, selection, compilation, or any derivation thereof; and any index or manner of access thereto; and (j) The term "agent" includes any person retained by the Department of Justice in connection with the enforcement of the antitrust laws. (k) The term "foreign antitrust laws" has the meaning given such term in section 12 of the International Antitrust Enforcement Assistance Act of 1994 [15 U.S.C.A. § 6211] Civil investigative demands, 15 U.S.C. § 1312 (a) Issuance; service; production of material; testimony Whenever the Attorney General, or the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation or, with respect to the International Antitrust Enforcement Assistance Act of 1994 [15 U.S.C.A. § 6201 et seq.], an investigation authorized by section 3 of such Act [15 U.S.C.A. § 6202], he may, prior to the institution of a civil or criminal proceeding by the United States thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such documentary material for inspection and copying or reproduction, to answer in writing written interrogatories, to give oral testimony concerning documentary material or information, or to furnish any combination of such material, answers, or testimony. Whenever a civil investigative demand is an express demand for any product of discovery, the Attorney General or the Assistant Attorney General in charge of the Antitrust Division shall cause to be served, in any manner authorized by this section, a copy of such demand upon the person from whom the discovery was obtained and notify the person to whom such demand is issued of the date on which such copy was served. (b) Contents; return date for demand for product of discovery Each such demand shall--
|