 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--
Any such demand which is an express demand for any product of discovery shall not be returned or returnable until twenty days after a copy of such demand has been served upon the person from whom the discovery was obtained. (c) Protected material or information; demand for product of discovery superseding disclosure restrictions except trial preparation materials
(d) Service; jurisdiction
(e) Service upon legal entities and natural persons
(f) Proof of service A verified return by the individual serving any such demand or petition setting forth the manner of such service shall be proof of such service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand. (g) Sworn certificates The production of documentary material in response to a demand served
pursuant to this section shall be made under a sworn certificate, in
such form as the demand designates, by the person, if a natural person,
to whom the demand is directed or, if not a natural person, by a person
or persons having knowledge of the facts and circumstances relating
to such production, to the effect that all of the documentary material
required by the demand and in the possession, custody, or control of
the person to whom the demand is directed has been produced and made
available to the custodian. (h) Interrogatories Each interrogatory in a demand served pursuant to this section shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated in lieu of an answer, and it shall be submitted under a sworn certificate, in such form as the demand designates, by the person, if a natural person, to whom the demand is directed or, if not a natural person, by a person or persons responsible for answering each interrogatory, to the effect that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. (i) Oral examinations
Custodian of documents, answers and transcripts, 15 U.S.C. § 1313 (a) Designation The Assistant Attorney General in charge of the Antitrust Division
of the Department of Justice shall designate an antitrust investigator
to serve as custodian of documentary material, answers to interrogatories,
and transcripts of oral testimony received under this chapter, and such
additional antitrust investigators as he shall determine from time to
time to be necessary to serve as deputies to such officer. (b) Production of materials Any person, upon whom any demand under section 1312 of this title for the production of documentary material has been duly served, shall make such material available for inspection and copying or reproduction to the custodian designated therein at the principal place of business of such person (or at such other place as such custodian and such person thereafter may agree and prescribe in writing or as the court may direct, pursuant to section 1314(d) of this title) on the return date specified in such demand (or on such later date as such custodian may prescribe in writing). Such person may upon written agreement between such person and the custodian substitute copies for originals of all or any part of such material. (c) Responsibility for materials; disclosure
(d) Use of investigative files
(e) Return of material to producer If any documentary material has been produced in the course of any antitrust investigation by any person pursuant to a demand under this chapter and--
the custodian shall, upon written request of the person who produced such material, return to such person any such material (other than copies thereof furnished to the custodian pursuant to subsection (b) of this section or made by the Department of Justice pursuant to subsection (c) of this section) which has not passed into the control of any court, grand jury, or agency through the introduction thereof into the record of such case or proceeding. (f) Appointment of successor custodians In the event of the death, disability, or separation from service in the Department of Justice of the custodian of any documentary material, answers to interrogatories, or transcripts of oral testimony produced under any demand issued pursuant to this chapter, or the official relief of such custodian from responsibility for the custody and control of such material, answers, or transcripts, the Assistant Attorney General in charge of the Antitrust Division shall promptly
Judicial proceedings, 15 U.S.C. § 1314 (a) Petition for enforcement; venue Whenever any person fails to comply with any civil investigative demand
duly served upon him under section 1312 of this title or whenever satisfactory
copying or reproduction of any such material cannot be done and such
person refuses to surrender such material, the Attorney General, through
such officers or attorneys as he may designate, may file, in the district
court of the United States for any judicial district in which such person
resides, is found, or transacts business, and serve upon such person
a petition for an order of such court for the enforcement of this chapter.
(b) Petition for order modifying or setting aside demand; time for petition; suspension of time allowed for compliance with demand during pendency of petition; grounds for relief
(c) Petition for order modifying or setting aside demand for production of product of discovery; grounds for relief; stay of compliance with demand and of running of time allowed for compliance with demand Whenever any such demand is an express demand for any product of discovery, the person from whom such discovery was obtained may file, at any time prior to compliance with such express demand, in the district court of the United States for the judicial district in which the proceeding in which such discovery was obtained is or was last pending, and serve upon any antitrust investigator named in the demand and upon the recipient of the demand, a petition for an order of such court modifying or setting aside those portions of the demand requiring production of any such product of discovery. Such petition shall specify each ground upon which the petitioner relies in seeking such relief and may be based upon any failure of such portions of the demand to comply with the provisions of this chapter, or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of such petition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand. (d) Petition for order requiring performance by custodian of duties;
venue At any time during which any custodian is in custody or control of any documentary material or answers to interrogatories delivered, or transcripts of oral testimony given by any person in compliance with any such demand, such person, and, in the case of an express demand for any product of discovery, the person from whom such discovery was obtained, may file, in the district court of the United States for the judicial district within which the office of such custodian is situated, and serve upon such custodian a petition for an order of such court requiring the performance by such custodian of any duty imposed upon him by this chapter. (e) Jurisdiction; appeal; contempts Whenever any petition is filed in any district court of the United States under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this chapter. Any final order so entered shall be subject to appeal pursuant to section 1291 of Title 28. Any disobedience of any final order entered under this section by any court shall be punished as a contempt thereof. (f) Applicability of Federal Rules of Civil Procedure To the extent that such rules may have application and are not inconsistent with the provisions of this chapter, the Federal Rules of Civil Procedure shall apply to any petition under this chapter. (g) Disclosure exemption Any documentary material, answers to written interrogatories, or transcripts of oral testimony provided pursuant to any demand issued under this chapter shall be exempt from disclosure under section 552 of Title 5. Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. Disclosure to a foreign antitrust authority of antitrust evidence, 15 U.S.C. § 6201 In accordance with an antitrust mutual assistance agreement in effect under this chapter, subject to section 6207 of this title, and except as provided in section 6204 of this title, the Attorney General of the United States and the Federal Trade Commission may provide to a foreign antitrust authority with respect to which such agreement is in effect under this chapter, antitrust evidence to assist the foreign antitrust authority--
Investigations to assist a foreign antitrust authority in obtaining antitrust evidence, 15 U.S.C. § 6202 (a) Request for investigative assistance A request by a foreign antitrust authority for investigative assistance
under this section shall be made to the Attorney General, who may deny
the request in whole or in part. No further action shall be taken under
this section with respect to any part of a request that has been denied
by the Attorney General. (b) Authority to investigate In accordance with an antitrust mutual assistance agreement in effect under this chapter, subject to section 6207 of this title, and except as provided in section 6204 of this title, the Attorney General and the Commission may, using their respective authority to investigate possible violations of the Federal antitrust laws, conduct investigations to obtain antitrust evidence relating to a possible violation of the foreign antitrust laws administered or enforced by the foreign antitrust authority with respect to which such agreement is in effect under this chapter, and may provide such antitrust evidence to the foreign antitrust authority, to assist the foreign antitrust authority--
(c) Special scope of authority An investigation may be conducted under subsection (b) of this section, and antitrust evidence obtained through such investigation may be provided, without regard to whether the conduct investigated violates any of the Federal antitrust laws. (d) Rights and privileges preserved A person may not be compelled in connection with an investigation under this section to give testimony or a statement, or to produce a document or other thing, in violation of any legally applicable right or privilege. Jurisdiction of the district courts of the United States, 15 U.S.C.
§ 6203 (a) Authority of the district courts On the application of the Attorney General made in accordance with an antitrust mutual assistance agreement in effect under this chapter, the United States district court for the district in which a person resides, is found, or transacts business may order such person to give testimony or a statement, or to produce a document or other thing, to the Attorney General to assist a foreign antitrust authority with respect to which such agreement is in effect under this chapter--
(b) Contents of order
(c) Rights and privileges preserved A person may not be compelled under an order issued under subsection
(a) of this section to give testimony or a statement, or to produce
a document or other thing, in violation of any legally applicable right
or privilege. (d) Voluntary conduct This section does not preclude a person in the United States from voluntarily giving testimony or a statement, or producing a document or other thing, in any manner acceptable to such person for use in an investigation by a foreign antitrust authority. Limitations on authority, 15 U.S.C. § 6204 Sections 6201, 6202, and 6203 of this title shall not apply with respect to the following antitrust evidence: (1) Antitrust evidence that is received by the Attorney General or the Commission under section 18a of this title, as added by title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Nothing in this paragraph shall affect the ability of the Attorney General or the Commission to disclose to a foreign antitrust authority antitrust evidence that is obtained otherwise than under such section 18a of this title. (2) Antitrust evidence that is matter occurring before a grand jury and with respect to which disclosure is prevented by Federal law, except that for the purpose of applying Rule 6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure with respect to this section--
(3) Antitrust evidence that is specifically authorized under criteria established by Executive Order 12356, or any successor to such order, to be kept secret in the interest of national defense or foreign policy, and--
(4) Antitrust evidence that is classified under section 2162 of Title 42. Exception to certain disclosure restrictions, 15 U.S.C. § 6205 Section 1313 of this title and sections 46(f) and 57b-2 of this title, shall not apply to prevent the Attorney General or the Commission from providing to a foreign antitrust authority antitrust evidence in accordance with an antitrust mutual assistance agreement in effect under this chapter and in accordance with the other requirements of this chapter. Publication requirements applicable to antitrust mutual assistance agreements, 15 U.S.C. § 6206 (a) Publication of proposed antitrust mutual assistance agreements Not less than 45 days before an antitrust mutual assistance agreement is entered into, the Attorney General, with the concurrence of the Commission, shall publish in the Federal Register--
(b) Publication of proposed amendments to antitrust mutual assistance agreements in effect Not less than 45 days before an agreement is entered into that makes an amendment to an antitrust mutual assistance agreement, the Attorney General, with the concurrence of the Commission, shall publish in the Federal Register--
(c) Publication of antitrust mutual assistance agreements, amendments, and terminations Not later than 45 days after an antitrust mutual assistance agreement is entered into or terminated, or an agreement that makes an amendment to an antitrust mutual assistance agreement is entered into, the Attorney General, with the concurrence of the Commission, shall publish in the Federal Register--
(d) Condition for validity An antitrust mutual assistance agreement, or an agreement that makes an amendment to an antitrust mutual assistance agreement, with respect to which publication does not occur in accordance with subsections (a), (b), and (c) of this section shall not be considered to be in effect under this chapter. Conditions on use of antitrust mutual assistance agreements, 15
U.S.C. § 6207 (a) Determinations Neither the Attorney General nor the Commission may conduct an investigation under section 6202 of this title, apply for an order under section 6203 of this title, or provide antitrust evidence to a foreign antitrust authority under an antitrust mutual assistance agreement, unless the Attorney General or the Commission, as the case may be, determines in the particular instance in which the investigation, application, or antitrust evidence is requested that--
(b) Limitation on disclosure of certain antitrust evidence Neither the Attorney General nor the Commission may disclose in violation of an antitrust mutual assistance agreement any antitrust evidence received under such agreement, except that such agreement may not prevent the disclosure of such antitrust evidence to a defendant in an action or proceeding brought by the Attorney General or the Commission for a violation of any of the Federal laws if such disclosure would otherwise be required by Federal law. (c) Required disclosure of notice received If the Attorney General or the Commission receives a notice described in section 6211(2)(H) of this title, the Attorney General or the Commission, as the case may be, shall transmit such notice to the person that provided the evidence with respect to which such notice is received. Limitations on judicial review, 15 U.S.C. § 6208 (a) Determinations Determinations made under paragraphs (1) and (3) of section 6207(a) of this title shall not be subject to judicial review. (b) Citations to and descriptions of confidentiality laws Whether an antitrust mutual assistance agreement satisfies section 6211(2)(C) of this title shall not be subject to judicial review. (c) Rules of construction
Nothing in this section shall be construed to affect the availability
of judicial review under laws referred to in section 6204 of this title.
Preservation of existing authority, 15 U.S.C. § 6209 (a) In general The authority provided by this chapter is in addition to, and not in lieu of, any other authority vested in the Attorney General, the Commission, or any other officer of the United States. (b) Attorney General and Commission This chapter shall not be construed to modify or affect the allocation of responsibility between the Attorney General and the Commission for the enforcement of the Federal antitrust laws. Report to Congress, 15 U.S.C. § 6210 In the 30-day period beginning 3 years after November 2, 1994 and with the concurrence of the Commission, the Attorney General shall submit, to the Speaker of the House of Representatives and the President pro tempore of the Senate, a report-- (1) describing how the operation of this chapter has affected the enforcement of the Federal antitrust laws, (2) describing the extent to which foreign antitrust authorities have complied with the confidentiality requirements applicable under antitrust mutual assistance agreements in effect under this chapter, (3) specifying separately the identities of the foreign states, regional economic integration organizations, and foreign antitrust authorities that have entered into such agreements and the identities of the foreign antitrust authorities with respect to which such foreign states and such organizations have entered into such agreements, (4) specifying the identity of each foreign state, and each regional economic integration organization, that has in effect a law similar to this chapter, (5) giving the approximate number of requests made by the Attorney General and the Commission under such agreements to foreign antitrust authorities for antitrust investigations and for antitrust evidence, (6) giving the approximate number of requests made by foreign antitrust authorities under such agreements to the Attorney General and the Commission for investigations under section 6202 of this title, for orders under section 6203 of this title, and for antitrust evidence, and (7) describing any significant problems or concerns of which the Attorney
General is aware with respect to the operation of this chapter. Definitions, 15 U.S.C. § 6211 For purposes of this chapter: (1) The term "antitrust evidence" means information, testimony, statements, documents, or other things that are obtained in anticipation of, or during the course of, an investigation or proceeding under any of the Federal antitrust laws or any of the foreign antitrust laws. (2) The term "antitrust mutual assistance agreement" means a written agreement, or written memorandum of understanding, that is entered into by the United States and a foreign state or regional economic integration organization (with respect to the foreign antitrust authorities of such foreign state or such organization, and such other governmental entities of such foreign state or such organization as the Attorney General and the Commission jointly determine may be necessary in order to provide the assistance described in subparagraph (A)), or jointly by the Attorney General and the Commission and a foreign antitrust authority, for the purpose of conducting investigations under section 6202 of this title, applying for orders under section 6203 of this title, or providing antitrust evidence, on a reciprocal basis and that includes the following:
(3) The term "Attorney General" means the Attorney General of the United States. (4) The term "Commission" means the Federal Trade Commission. (5) The term "Federal antitrust laws" has the meaning given the term "antitrust laws" in subsection 12(a) of this title but also includes section 45 of this title to the extent that such section 45 of this title applies to unfair methods of competition. (6) The term "foreign antitrust authority" means a governmental entity of a foreign state or of a regional economic integration organization that is vested by such state or such organization with authority to enforce the foreign antitrust laws of such state or such organization. (7) The term "foreign antitrust laws" means the laws of a foreign state, or of a regional economic integration organization, that are substantially similar to any of the Federal antitrust laws and that prohibit conduct similar to conduct prohibited under the Federal antitrust laws. (8) The term "person" has the meaning given such term in subsection 12(a) of this title. (9) The term "regional economic integration organization" means an organization that is constituted by, and composed of, foreign states, and on which such foreign states have conferred sovereign authority to make decisions that are binding on such foreign states, and that are directly applicable to and binding on persons within such foreign states, including the decisions with respect to--
Authority to receive reimbursement, 15 U.S.C. § 6212 The Attorney General and the Commission are authorized to receive from a foreign antitrust authority, or from the foreign state or regional economic integration organization represented by such foreign antitrust authority, reimbursement for the costs incurred by the Attorney General or the Commission, respectively, in conducting an investigation under section 6202 of this title requested by such foreign antitrust authority, applying for an order under section 6203 of this title to assist such foreign antitrust authority, or providing antitrust evidence to such foreign antitrust authority under an antitrust mutual assistance agreement in effect under this chapter with respect to such foreign antitrust authority. In addition to the Division's criminal enforcement activities under the Sherman Act, there are a number of criminal statutes where the conduct in question mandates additional --or related --criminal enforcement. These statutes include other offenses that arise from similar conduct accompanying the Sherman Act violation, including
The second group of criminal statutes is designed to protect the integrity of the investigatory process. These statutes include:
The third group of statutes is procedural and includes
The fourth group of materials relates to victim and witness rights. The final group is statutes relating to sentencing. The full text of these statutes follows. Principals [Aiding and Abetting], 18 U.S.C. § 2
Conspiracy to commit offense or to defraud United States, 18 U.S.C.
§ 371 If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. Statements or entries generally [False Statements], 18 U.S.C. § 1001 FALSE STATEMENTS ACCOUNTABILITY ACT OF 1996(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
shall be fined under this title or imprisoned not more than 5 years, or both. (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. (c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to--
18 U.S.C. § 1031 MAJOR FRAUD AGAINST THE UNITED STATES(5) (a) Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent--
in any procurement of property or services as a prime contractor with the United States or as a subcontractor or supplier on a contract in which there is a prime contract with the United States, if the value of the contract, subcontract, or any constituent part thereof, for such property or services is $1,000,000 or more shall, subject to the applicability of subsection (c) of this section, be fined not more than $1,000,000, or imprisoned not more than 10 years, or both. (b) The fine imposed for an offense under this section may exceed the maximum otherwise provided by law, if such fine does not exceed $5,000,000 and--
(c) The maximum fine imposed upon a defendant for a prosecution including a prosecution with multiple counts under this section shall not exceed $10,000,000. (d) Nothing in this section shall preclude a court from imposing any other sentences available under this title, including without limitation a fine up to twice the amount of the gross loss or gross gain involved in the offense pursuant to 18 U.S.C. section 3571(d). (e) In determining the amount of the fine, the court shall consider the factors set forth in 18 U.S.C. sections 3553 and 3572, and the factors set forth in the guidelines and policy statements of the United States Sentencing Commission, including--
(f) A prosecution of an offense under this section may be commenced any time not later than 7 years after the offense is committed, plus any additional time otherwise allowed by law. (g)
(h) Any individual who--
Frauds and swindles [Mail Fraud], 18 U.S.C. § 1341 Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. Fraud by wire, radio, or television [Wire Fraud], 18 U.S.C. § 1343 Whoever, having devised or intending to devise any scheme or artifice
to defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises, transmits or causes
to be transmitted by means of wire, radio, or television communication
in interstate or foreign commerce, any writings, signs, signals, pictures,
or sounds for the purpose of executing such scheme or artifice, shall
be fined under this title or imprisoned not more than five years, or
both. If the violation affects a financial institution, such person
shall be fined not more than $1,000,000 or imprisoned not more than
30 years, or both. Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 Definitions, 18 U.S.C. § 1961(6) As used in this chapter-- (1) "racketeering activity" means
(2) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, any political subdivision, or any department, agency, or instrumentality thereof; (3) "person" includes any individual or entity capable of holding a legal or beneficial interest in property; (4) "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (5) "pattern of racketeering activity" requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; (6) "unlawful debt" means a debt
(7) "racketeering investigator" means any attorney or investigator so designated by the Attorney General and charged with the duty of enforcing or carrying into effect this chapter; (8) "racketeering investigation" means any inquiry conducted by any racketeering investigator for the purpose of ascertaining whether any person has been involved in any violation of this chapter or of any final order, judgment, or decree of any court of the United States, duly entered in any case or proceeding arising under this chapter; (9) "documentary material" includes any book, paper, document, record, recording, or other material; and (10) "Attorney General" includes
Prohibited activities, 18 U.S.C. § 1962 (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. Attempt to evade or defeat tax [Tax Fraud], 26 U.S.C. § 7201 Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution. (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could be imposed for any offense charged in such case. (b) The punishment for an offense under this section is--
Obstruction of proceedings before departments, agencies, and committees
[including Antitrust Civil Process Act demand], 18 U.S.C. § 1505
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-- Shall be fined under this title or imprisoned not more than five years,
or both. Obstruction of criminal investigations, 18 U.S.C. § 1510
(b)
(c) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States. (d)
Tampering with a witness, victim, or an informant, 18 U.S.C. § 1512
(a)
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
shall be fined under this title or imprisoned not more than ten years, or both. (c) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from--
or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both. (d) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully. (e) For the purposes of this section--
(f) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance--
(g) There is extraterritorial Federal jurisdiction over an offense under this section. (h) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred. (i) If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case. Definitions for certain provisions; general provision, 18 U.S.C.
§ 1515 (a) As used in sections 1512 and 1513 of this title and in this section--
(b) As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information. (c) This chapter does not prohibit or punish the providing of lawful,
bona fide, legal representation services in connection with or anticipation
of an official proceeding. Perjury generally, 18 U.S.C. § 1621 Whoever--
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. Subornation of perjury, 18 U.S.C. § 1622 Whoever procures another to commit any perjury is guilty of subornation
of perjury, and shall be fined under this title or imprisoned not more
than five years, or both. False declarations before grand jury or court, 18 U.S.C. § 1623 (a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both. (b) This section is applicable whether the conduct occurred within or without the United States. (c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if--
In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true. (d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed. (e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.
Power of court, 18 U.S.C. § 401 A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as--
Contempts constituting crimes, 18 U.S.C. § 402 Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both. Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months. This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law. For purposes of this section, the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. Jury trial of criminal contempts, 18 U.S.C. § 3691 Whenever a contempt charged shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or omitted, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in other criminal cases. This section shall not apply to contempts committed in the presence
of the court, or so near thereto as to obstruct the administration of
justice, nor to contempts committed in disobedience of any lawful writ,
process, order, rule, decree, or command entered in any suit or action
brought or prosecuted in the name of, or on behalf of, the United States.
Criminal Contempt, Fed. R. Crim. P. 42 (a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record. (b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charges and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. Organized Crime Control Act of 1970, as amended Definitions, 18 U.S.C. § 6001 As used in this chapter--
Immunity generally, 18 U.S.C. § 6002 Whenever a witness refuses, on the basis of his privilege against self- incrimination, to testify or provide other information in a proceeding before or ancillary to--
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. Court and grand jury proceedings, 18 U.S.C. § 6003 (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title. (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General or any designated Assistant Attorney General or Deputy Assistant Attorney General, request an order under subsection (a) of this section when in his judgment--
Certain administrative proceedings, 18 U.S.C. § 6004 (a) In the case of any individual who has been or who may be called to testify or provide other information at any proceeding before an agency of the United States, the agency may, with the approval of the Attorney General, issue, in accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title. (b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment--
Demands for production of statements and reports of witnesses, 18 U.S.C. § 3500 (a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. (c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial. (d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared. (e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means--
Time limits and exclusions, 18 U.S.C. § 3161 (a) In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial. (b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days. (c)
(d)
(e) If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection. (f) Notwithstanding the provisions of subsection (b) of this section, for the first twelve-calendar-month period following the effective date of this section as set forth in section 3163(a) of this chapter the time limit imposed with respect to the period between arrest and indictment by subsection (b) of this section shall be sixty days, for the second such twelve-month period such time limit shall be forty-five days and for the third such period such time limit shall be thirty-five days. (g) Notwithstanding the provisions of subsection (c) of this section, for the first twelve-calendar-month period following the effective date of this section as set forth in section 3163(b) of this chapter, the time limit with respect to the period between arraignment and trial imposed by subsection (c) of this section shall be one hundred and eighty days, for the second such twelve-month period such time limit shall be one hundred and twenty days, and for the third such period such time limit with respect to the period between arraignment and trial shall be eighty days. (h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(i) If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final. (j)
(k)
Sanctions, 18 U.S.C. § 3162 (a)
(b) In any case in which counsel for the defendant or the attorney for the Government
the court may punish any such counsel or attorney, as follows:
(c) The court shall follow procedures established in the Federal Rules of Criminal Procedure in punishing any counsel or attorney for the Government pursuant to this section.
Release or detention of a defendant pending sentence or appeal, 18 U.S.C. § 3143 . . . (b) Release or detention pending appeal by the defendant.--
(c) Release or detention pending appeal by the government.--The judicial officer shall treat a defendant in a case in which an appeal has been taken by the United States under section 3731 of this title, in accordance with section 3142 of this title, unless the defendant is otherwise subject to a release or detention order. Except as provided in subsection (b) of this section, the judicial officer, in a case in which an appeal has been taken by the United States under section 3742, shall--
Offenses not capital, 18 U.S.C. § 3282 Except as otherwise expressly provided by law, no person shall be prosecuted,
tried, or punished for any offense, not capital, unless the indictment
is found or the information is instituted within five years next after
such offense shall have been committed. Criminal contempt, 18 U.S.C. § 3285 No proceeding for criminal contempt within section 402 of this title shall be instituted against any person, corporation or association unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act. Indictments and information dismissed after period of limitations, 18 U.S.C. § 3288 Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations. This section does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution. Indictments and information dismissed before period of limitations, 18 U.S.C. § 3289 Whenever an indictment or information charging a felony is dismissed
for any reason before the period prescribed by the applicable statute
of limitations has expired, and such period will expire within six calendar
months of the date of the dismissal of the indictment or information,
a new indictment may be returned in the appropriate jurisdiction within
six calendar months of the expiration of the applicable statute of limitations,
or, in the event of an appeal, within 60 days of the date the dismissal
of the indictment or information becomes final, or, if no regular grand
jury is in session in the appropriate jurisdiction at the expiration
of the applicable statute of limitations, within six calendar months
of the date when the next regular grand jury is convened, which new
indictment shall not be barred by any statute of limitations. This section
does not permit the filing of a new indictment or information where
the reason for the dismissal was the failure to file the indictment
or information within the period prescribed by the applicable statute
of limitations, or some other reason that would bar a new prosecution.
Suspension of limitations to permit United States to obtain foreign evidence, 18 U.S.C. § 3292 (a)
(b) Except as provided in subsection (c) of this section, a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request. (c) The total of all periods of suspension under this section with respect to an offense--
(d) As used in this section, the term "official request" means a letter rogatory, a request under a treaty or convention, or any other request for evidence made by a court of the United States or an authority of the United States having criminal law enforcement responsibility, to a court or other authority of a foreign country.
Guidelines for Fair Treatment of Crime Victims and Witnesses The Attorney General, in conformance with the requirements of the Victim and Witness Protection Act of 1982, the Crime Control Act of 1990, and the Violent Crime Control and Law Enforcement Act of 1994, has promulgated "Attorney General Guidelines for Victim and Witness Assistance" to establish procedures to be followed by the federal criminal justice system in responding to the needs of crime victims and witnesses. The AG Guidelines serve as a primary resource for Department of Justice agencies, including the Antitrust Division, in the treatment and protection of victims and witnesses of federal crimes under these Acts. Antitrust Division attorneys with criminal law enforcement responsibilities can obtain copies of the most recent version of the AG Guidelines through their section's or field office's Victim-Witness Coordinator, along with Antitrust Division memoranda setting out Division policy on implementing the AG Guidelines and other materials relating to their responsibilities under the AG Guidelines and the above-mentioned Acts. Order of Restitution, 18 U.S.C. § 3663(9) (a)
(b) The order may require that such defendant--
(c)
(d) An order of restitution made pursuant to this section shall be issued and enforced in accordance with section 3664. Mandatory restitution to victims of certain crimes, 18 U.S.C. §
3663A (a)
(b) The order of restitution shall require that such defendant--
(c)
(d) An order of restitution under this section shall be issued and enforced in accordance with section 3664. Procedure for issuance and enforcement of order of restitution, 18 U.S.C. § 3664 (a) For orders of restitution under this title, the court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly impracticable, the probation officer shall so inform the court. (b) The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the matters described in subsection (a) of this section. (c) The provisions of this chapter, chapter 227, and Rule 32(c) of the Federal Rules of Criminal Procedure shall be the only rules applicable to proceedings under this section. (d)
(e) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant's dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires. (f)
(g)
(h) If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant. (i) If the court finds that more than 1 victim has sustained a loss requiring restitution by a defendant, the court may provide for a different payment schedule for each victim based on the type and amount of each victim's loss and accounting for the economic circumstances of each victim. In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution. (j)
(k) A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require. (l) A conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim. (m)
(n) If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed. (o) A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that--
(p) Nothing in this section or sections 2248, 2259, 2264, 2327, 3663, and 3663A and arising out of the application of such sections, shall be construed to create a cause of action not otherwise authorized in favor of any person against the United States or any officer or employee of the United States. Contents of the Presentence Report, Fed. R. Crim. P. 32(b)(4)(D) (4) Contents of the Presentence Report. The presentence report must contain-- . . . (D) verified information, stated in a nonargumentative style, containing an assessment of the financial, social, psychological, and medical impact on any individual against whom the offense has been committed;
The statutory provisions concerning sentencing are lengthy, and accordingly only the section titles are reproduced here, with the exception of a frequently consulted statute, 18 U.S.C. § 3571. (In addition, 18 U.S.C. §§ 3663, 3663A, 3664 (restitution) are set out supra in Section B.4.) These statutory provisions are implemented by the Sentencing Guidelines, which should be read together with the statutory provisions. An index of commonly used Sentencing Guidelines provisions is also provided, although attorneys should generally be familiar with the Guidelines in their entirety as many provisions interrelate to one another. a. Index of useful sentencing provisions
b. Sentence of fine, 18 U.S.C. § 3571
c. Commonly Used Provisions of Sentencing Guidelines Manual Chapter One - Introduction and General Application Principles PART A - INTRODUCTION
PART B - GENERAL APPLICATION PRINCIPLES § 1B1.1. Application Instructions § 1B1.2. Applicable Guidelines § 1B1.3. Relevant Conduct (Factors That Determine the Guideline Range) § 1B1.4. Information to Be Used in Imposing Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines) § 1B1.5. Interpretation of References to Other Offense Guidelines § 1B1.6. Structure of the Guidelines § 1B1.7. Significance of Commentary § 1B1.8. Use of Certain Information [where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others . . . .] § 1B1.10. Retroactivity of Amended Guideline Range (Policy Statement) § 1B1.11. Use of Guidelines Manual in Effect on Date of Sentencing
(Policy Statement) Chapter Two - Offense Conduct PART R - ANTITRUST OFFENSES § 2R1.1. Bid-rigging, Price-fixing or Market-allocation Agreements
among Competitors Chapter Three - Adjustments PART B - ROLE IN THE OFFENSE § 3B1.1. Aggravating Role § 3B1.2. Mitigating Role § 3B1.3. Abuse of Position of Trust or Use of Special Skill PART C - OBSTRUCTION § 3C1.1. Obstructing or Impeding the Administration of Justice PART D - MULTIPLE COUNTS § 3D1.1. Procedure for Determining Offense Level on Multiple Counts § 3D1.2. Groups of Closely Related Counts § 3D1.3. Offense Level Applicable to Each Group of Closely Related Counts § 3D1.4. Determining the Combined Offense Level § 3D1.5. Determining the Total Punishment PART E - ACCEPTANCE OF RESPONSIBILITY § 3E1.1. Acceptance of Responsibility Chapter Five - Determining the Sentence PART A - SENTENCING TABLE PART B - PROBATION § 5B1.1. Imposition of a Term of Probation § 5B1.2 Term of Probation § 5B1.3. Conditions of Probation § 5B1.4. Recommended Conditions of Probation and Supervised Release (Policy Statement) PART C - IMPRISONMENT § 5C1.1. Imposition of a Term of Imprisonment PART D - SUPERVISED RELEASE § 5D1.1. Imposition of a Term of Supervised Release § 5D1.2. Term of Supervised Release § 5D1.3. Conditions of Supervised Release PART E - RESTITUTION, FINES, ASSESSMENTS, FORFEITURES § 5E1.1. Restitution § 5E1.2 Fines for Individual Defendants § 5E1.3. Special Assessments PART F - SENTENCING OPTIONS § 5F1.1. Community Confinement § 5F1.2. Home Detention § 5F1.3. Community Service PART G - IMPLEMENTING THE TOTAL SENTENCE OF IMPRISONMENT § 5G1.1. Sentencing on a Single Count of Conviction § 5G1.2. Sentencing on Multiple Counts of Conviction PART H - SPECIFIC OFFENDER CHARACTERISTICS § 5H1.1. Age (Policy Statement) § 5H1.2. Education and Vocational Skills (Policy Statement) § 5H1.3. Mental and Emotional Conditions (Policy Statement) § 5H1.4. Physical Condition, Including Drug or Alcohol Dependence or Abuse (Policy Statement) § 5H1.5. Employment Record (Policy Statement) § 5H1.6. Family Ties and Responsibilities, and Community Ties (Policy Statement) § 5H1.7. Role in the Offense (Policy Statement) § 5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-economic Status (Policy Statement) § 5H1.11. Military, Civic, Charitable, or Public Service; Employment-related Contributions; Record of Prior Good Works (Policy Statement) PART K - DEPARTURES 1. Substantial Assistance to Authorities § 5K1.1. Substantial Assistance to Authorities (Policy Statement) 2. Other Grounds for Departure § 5K2.0. Grounds for Departure (Policy Statement) § 5K2.16. Voluntary Disclosure of Offense (Policy Statement) Chapter Six - Sentencing Procedures and Plea Agreements PART A - SENTENCING PROCEDURES § 6A1.1. Presentence Report (Policy Statement) § 6A1.2. Disclosure of Presentence Report; Issues in Dispute (Policy Statement) § 6A1.3. Resolution of Disputed Factors (Policy Statement) PART B - PLEA AGREEMENTS § 6B1.1. Plea Agreement Procedure (Policy Statement) § 6B1.2. Standards for Acceptance of Plea Agreements (Policy Statement) § 6B1.3. Procedure upon Rejection of a Plea Agreement (Policy Statement) § 6B1.4. Stipulations (Policy Statement) Chapter Eight - Sentencing of Organizations PART A - GENERAL APPLICATION PRINCIPLES § 8A1.1. Applicability of Chapter Eight § 8A1.2. Application Instructions - Organizations PART B - REMEDYING HARM FROM CRIMINAL CONDUCT § 8B1.1. Restitution - Organizations § 8B1.2. Remedial Orders - Organizations (Policy Statement) § 8B1.3. Community Service - Organizations (Policy Statement) PART C - FINES 2. Determining the Fine - Other Organizations § 8C2.1. Applicability of Fine Guidelines § 8C2.2. Preliminary Determination of Inability to Pay Fine § 8C2.3. Offense Level § 8C2.4. Base Fine § 8C2.5. Culpability Score § 8C2.6. Minimum and Maximum Multipliers § 8C2.7. Guideline Fine Range - Organizations § 8C2.8. Determining the Fine Within the Range (Policy Statement) § 8C2.9. Disgorgement 3. Implementing the Sentence of a Fine § 8C3.1. Imposing a Fine § 8C3.2. Payment of the Fine - Organizations § 8C3.3. Reduction of Fine Based on Inability to Pay § 8C3.4. Fines Paid by Owners of Closely Held Organizations 4. Departures from the Guideline Fine Range § 8C4.1. Substantial Assistance to Authorities - Organizations (Policy Statement) § 8C4.5. Threat to a Market (Policy Statement) § 8C4.9. Remedial Costs That Greatly Exceed Gain (Policy Statement) § 8C4.10. Mandatory Programs to Prevent and Detect Violations of Law (Policy Statement) § 8C4.11. Exceptional Organizational Culpability (Policy Statement) PART D - ORGANIZATIONAL PROBATION § 8D1.1. Imposition of Probation - Organizations § 8D1.2. Term of Probation - Organizations § 8D1.3. Conditions of Probation - Organizations § 8D1.4. Recommended Conditions of Probation - Organizations (Policy Statement) § 8D1.5. Violations of Conditions of Probation - Organizations (Policy
Statement) PART E - SPECIAL ASSESSMENTS, FORFEITURES, AND COSTS § 8E1.1. Special Assessments - Organizations Section 6 Clayton Act, 15 U.S.C. § 17 This Act permits, among other things, the operation of agricultural or horticultural mutual assistance organizations when such organizations do not have capital stock or are not conducted for profit. See supra Section A.3 (setting out full text of the Act). Capper-Volstead Agricultural Producers' Associations Act, 7 U.S.C. §§ 291-292 This Act allows persons engaged in the production of agricultural products to act together for the purpose of "collectively processing, preparing for market, handling, and marketing" their products and permits cooperatives to have "market agencies in common." The Act also authorizes the Secretary of Agriculture to proceed against cooperatives that monopolize or restrain commerce to such an extent that the price of an agricultural commodity is "unduly enhanced." Capper-Volstead Cooperative Marketing Act of 1926, 7 U.S.C. § 455 This Act authorizes agricultural producers and associations to acquire and exchange past, present, and prospective pricing, production, and marketing data. Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 608b-c This Act provides that the Secretary of Agriculture is authorized to enter into marketing agreements with producers and processors of agricultural commodities. These arrangements are specifically exempted from the application of the antitrust laws. Under the Act, the Secretary may also enter into marketing orders, except for milk, that control the amount of an agricultural product reaching the market and thus serve to enhance the price. Milk marketing orders differ from other orders since they provide a mechanism for the establishment of a minimum price for milk rather than establishing levels of maximum output.
Export Trading Company Act of 1982, 15 U.S.C. § 4001 et seq. This Act provides a limited antitrust immunity for export trade, export
trade activities and methods of operation specified in a certificate
of review issued by the Secretary of Commerce with the concurrence of
the Attorney General. To obtain the certificate a person must show that
the proposed activities: (1) will neither substantially lessen competition or restrain trade
in the United States nor substantially restrain the export trade of
any competitor of the applicant; (2) will not unreasonably enhance, stabilize, or depress prices in
the United States of the class of goods or services exported by the
applicant; (3) will not constitute unfair methods of competition against competitors engaged in the export of the class of goods or services exported by the applicant; and (4) will not include any act that may reasonably be expected to result in the sale for consumption or resale in the United States of the goods or services exported by the applicant. A certificate may be revoked or modified by the Secretary of Commerce if the Secretary or the Attorney General determines that the applicant's activities no longer comply with these standards. While a certificate is in effect, the persons named in it are immune from federal or state antitrust liability with respect to the conduct specified. However, parties injured by the conduct may sue for actual damages on the ground that the conduct does not comply with the statutory criteria. In addition, the Attorney General may sue under Section 15 of the Clayton Act "to enjoin conduct threatening a clear and irreparable harm to the national interest." Webb-Pomerene Export Trade Act, 15 U.S.C. §§ 61-64 This Act provides antitrust immunity for the formation and operation of associations of otherwise competing businesses to engage in collective export sales. The immunity conferred by this statute does not extend to actions that have an anticompetitive effect within the United States or that injure domestic competitors of members of export associations.
McCarran-Ferguson Insurance Regulation Act, 15 U.S.C. § 1011-1015 This Act exempts from the antitrust laws the "business of insurance" to the extent "regulated by state law." The Sherman Act continues to be applicable to all agreements or acts by those engaged in the "business of insurance" to boycott, coerce, or intimidate.
Section 6 Clayton Act, 15 U.S.C. § 17 This Act provides that the labor of a human being is not a commodity or article of commerce. The Act permits labor organizations to carry out their legitimate objectives. See supra Section A.3 (setting out the full text of the statute). Section 20 Clayton Act, 29 U.S.C. § 52 Generally, this Act immunizes collective activity by employees relating to a dispute concerning terms or conditions of employment. Norris-LaGuardia Act of 1932, 29 U.S.C. §§ 101-110, 113-115 This Act provides that courts in the United States do not have jurisdiction to issue restraining orders or injunctions against certain union activities on the basis that such activities constitute an unlawful combination or conspiracy under the antitrust laws.
Fishermen's Collective Marketing Act, 15 U.S.C. §§ 521-522 This Act permits persons engaged in the fisheries industry as fishermen to act together for the purpose of catching, producing, preparing for market, processing, handling and marketing their products. This immunity is patterned after the Capper-Volstead Act. This Act also provides for the enforcement by the Department of Justice of cease and desist orders issued by the Secretary of the Interior if interstate or foreign commerce is restrained or monopolized by any association of persons engaged in the fisheries industry as fishermen.
Defense Production Act of 1950, 50 U.S.C. app. § 2158 This Act provides that the President or his delegate, in conjunction with the Attorney General, may approve voluntary agreements among various industry groups for the development of preparedness programs to meet potential national emergencies. Persons participating in such an agreement are immunized from the operation of the antitrust laws with respect to good faith activities undertaken to fulfill their responsibilities under the agreement.
Newspaper Preservation Act of 1970, 15 U.S.C. §§ 1801-1804 This Act provides a limited exemption for joint operating arrangements between newspapers to share production facilities and combine their commercial operations. The newspapers are required to retain separate editorial and reporting staffs and to determine their editorial policies independently.
Sports Broadcasting Act, 15 U.S.C. §§ 1291-1295 This Act exempts, with some limitations, agreements among professional football, baseball, basketball, and hockey teams to negotiate jointly, through their leagues, for the sale of television rights.
Small Business Act, 15 U.S.C. §§ 638-640 The Small Business Administration may, after consultation with the Attorney General and the Chair of the FTC, and with the prior written approval of the Attorney General, approve any agreement between small business firms providing for a joint program of research and development if the Administrator finds that such a program will strengthen the free enterprise system and the national economy. To the extent the President has delegated his authority under § 640, the Department may also be asked to approve, on the Attorney General's behalf, proposed voluntary agreements or programs among small business concerns to further the objectives of the Small Business Act found to be in the public interest as contributing to national defense. Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36 This Act provides antitrust immunity for local government officials and employees thereof acting in an official capacity with respect to actions brought under 15 U.S.C. § 15 for damages, fees or costs. The Act provides similar immunity for claims directed at a person, as that term is defined in 15 U.S.C. § 12, based on an official action directed by a local government.
The following statutes have a direct impact upon the regulatory activities of the Antitrust Division. Although this list is not exhaustive, it indicates the major areas of federal regulation in certain industries with which the Division is especially concerned.
Bank Merger Acts of 1960 and 1966, 12 U.S.C. § 1828(c) These Acts require that planned bank or saving association mergers not be consummated until 30 days after the date of approval by the appropriate banking agency. If a suit under the antitrust laws is not instituted during the 30-day period, the merger may be consummated and thereafter will be exempt from such challenge except suits brought under Section 2 of the Sherman Act. They also create a special defense that allows an anticompetitive merger if the banks can show that its anticompetitive effects will be outweighed by the merged entity's ability to meet the convenience and needs of the community to be served. The Department of Justice is required to report to the Comptroller of Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the Office of Thrift Supervision on the competitive factors involved in any proposed merger, consolidation, acquisition of assets, or assumption of liabilities of any bank insured by the Federal Deposit Insurance Corporation. Bank Holding Company Act, 12 U.S.C. §§ 1841-1850, 1971-1978 This Act provides that the Federal Reserve Board must apply the standards set out in the Bank Merger Act to mergers and acquisitions involving bank holding companies. This Act also governs any acquisition of a nonbank by a bank holding company. The parties to a bank holding company transaction must file copies of their application to the Department at least 30 days before consummation for it to be exempt from HSR reporting requirements. The Act also prohibits certain tying arrangements by banks, as well as certain exclusive dealing agreements with customers (§§ 1971-1978).
Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended by the Telecommunications Act of 1996 This Act establishes the Federal Communications Commission, which is responsible for regulating the common carrier communications of the telephone industry, radio and television broadcasting, and other communications businesses. Under Section 402(a) of the Act, the Antitrust Division, representing the United States, is automatically a party respondent in most appeals from FCC common carrier and rule-making actions. The stated purposed of the Telecommunications Act of 1996 was to encourage competition over regulation in the telecommunications markets. In so doing, it repealed the few previous immunities the FCC could confer (for, e.g., telephone mergers). Cable Communications Policy Acts of 1984 and 1992, 47 U.S.C. §§
521-559 Congress also intended to promote competition over regulation in passing the 1984 and 1992 Cable Acts. These Acts reduced the level of regulation in the cable industry. Under the Acts, the FCC is given authority to approve transfers of cable television relay service licenses. Although the parties are not immunized from challenge under the antitrust laws, governmental entities are immune from claims for damages under any federal law for conduct related to the regulation of cable services after October 2, 1992.
Section 337 of the Tariff Act of 1930, 19 U.S.C. §§ 1337 Under this Act, the International Trade Commission evaluates claims that there have been unfair trade practices involving the importation of articles into the United States (primarily with regard to intellectual property rights). The ITC is required to seek the Department's advice before making a final determination. The Department may also participate in the interagency group that advises the President whether to accept the ITC's findings and proposed relief. Sections 201, 301, and 406 of the Trade Act of 1974, 19 U.S.C. §§ 2252, 2411, 2436 Investigation by International Trade Commission Section 201 of this Act, 19 U.S.C. § 2252, provides that American businesses claiming serious injury caused by increased imports may petition the International Trade Commission for tariff and quota relief under the so-called "escape clause." Once the ITC makes a determination of whether such injury occurred and formulates appropriate relief, the Department may participate in the interagency committee that advises the President whether to institute or modify the import relief urged by the ITC. Determinations and Action by President Section 301, 19 U.S.C. § 2411, provides that the President may take action, including restricting imports, to enforce rights of the United States under any trade agreement or to respond to unfair practices of foreign governments that restrict U.S. commerce. Interested parties may initiate such actions through petitions to the U.S. Trade Representative. The Department participates in the interagency committee that makes recommendations to the President on what actions, if any, should be taken. Market Disruption Section 406, 19 U.S.C. § 2436, provides that businesses claiming injury relating to imports from communist countries may also petition the ITC under the so-called "market disruption statute." The Department may participate in the interagency committee that advises the President whether to institute or alter the import relief urged by the ITC. Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 Under this Act, the President shall take action to control any imports that the President and the Secretary of Commerce determine are threatening to impair national security because of their impact on defense-related domestic producers. Interested parties may initiate these actions through petitions to the Secretary of Commerce. The Department participates in the interagency committee that makes recommendations to the President on what actions, if any, should be taken. Countervailing Duties Imposed, 19 U.S.C. § 1671 This Act provides that American manufacturers, producers, wholesalers, unions, and trade associations may petition for the imposition of offsetting duties on subsidized foreign imports. Duties will be imposed if the Department of Commerce determines that a foreign country is subsidizing the foreign import and, in almost all cases, if the International Trade Commission determines that a domestic industry is materially injured or threatened with injury by the foreign merchandise. The Antitrust Division may apply to appear as a party in proceedings before the International Trade Commission. Imposition of Antidumping Duties, 19 U.S.C. § 1673 This statute provides that antidumping duties shall be imposed on foreign merchandise that is being, or is likely to be, sold in the United States at "less than fair value," if the Commerce Department determines tha such sales have or will occur and the International Trade Commission determines that a domestic industry is materially injured or threatened with material injury by imports of the foreign merchandise. The Antitrust Division may apply to appear as a party in proceedings before the International Trade Commission.
Department of Energy Organization Act, 42 U.S.C. § 7101 et seq. This Act provides for the organization of the Department of Energy and the transfer of functions from other agencies to that Department. The Act determines that it is in the national interest to promote the interest of consumers through the provision of an adequate and reliable supply of energy at the lowest reasonable cost and to foster and assure competition among parties engaged in the supply of energy and fuels. The Act established the Federal Energy Regulatory Commission ("FERC") as an independent regulatory commission within the Department of Energy. FERC establishes rates for the transmission and sale of electric energy and the transportation and sale of natural gas; it also regulates gas and oil pipelines. FERC has authority to regulate mergers and acquisitions, except for acquisitions of voting securities of natural gas companies, under the Federal Power Act and the Natural Gas Act. The Antitrust Division often intervenes as a competition advocate in FERC proceedings and in other proceedings involving Department of Energy activities. Atomic Energy Act of 1954, 42 U.S.C. § 2135 Under this Act, the Department is required to advise the Nuclear Regulatory Commission whether granting a license as proposed or certifying a plant would create or maintain a situation consistent with the antitrust laws. If the Department recommends a hearing, the Department may participate as a party. Federal Coal Leasing Amendments Act of 1976, 30 U.S.C. § 181 et seq. The Department also reviews the issuance, renewal or modification of federal coal leases to ensure they are consistent with the antitrust laws. See 30 U.S.C. § 184(1)-(2). Under this Act, the Department is required to prepare an annual report on the state of competition in the coal industry. See 30 U.S.C. § 208-2. Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. 1331, 1337(c) et seq. This Act requires that the Departments of the Interior and Energy consult with the Attorney General regarding offshore lease analysis, pipeline rights of entry, review of lease transfers, and review of regulations and plans that the Departments of the Interior and Energy formulate for offshore leasing that may affect competition in the acquisition and transfer of offshore leases. Naval Petroleum Reserves Production Act of 1996, 10 U.S.C. § 7430(g), (h), (i), § 7431(b)(2) These amendments require the Secretary of Energy to consult with and give due consideration to the views of the Attorney General prior to promulgating any rules and regulations or plans of development and amendments thereto, and prior to entering into contracts or agreements of the production or sale of petroleum from the naval petroleum and oil shale reserves. If the Attorney General advises the Secretary within the 15 days allowed for review that any proposed contract or agreement would create or maintain a situation inconsistent with the antitrust laws, then the Secretary may not enter into that arrangement. The Attorney General is also required to report on the competitive effects of any plans or substantial amendments to ongoing plans for the exploration, development, and production of naval petroleum and oil shale reserves. National Petroleum Reserves in Alaska, 42 U.S.C. §§ 6504(d), 6506 This Act provides that no contract for the exploration of the National Petroleum Reserve in Alaska may be executed by the Secretary of the Interior if the Attorney General advises the Secretary within the 30 days allowed for review that such contract would unduly restrict competition or be inconsistent with the antitrust laws. The Attorney General is also required to report on the competitive effects of any new plans or substantial amendments to ongoing plans for the exploration of the reserve. Whenever development leading to production of petroleum is authorized, the provisions of 10 U.S.C. § 7430(g), (h) and (i) apply. Deepwater Port Act, 33 U.S.C. §§ 1501-1524 The granting of deepwater port licenses, used to load and unload oil for transportation to the United States, is entrusted to the Secretary of Transportation. Before such action is taken, the Secretary must obtain the opinion of the Attorney General and the FTC as to whether the grant of the license would adversely affect competition or be otherwise inconsistent with the antitrust laws. The Secretary only needs to notify the Attorney General and FTC before amending, transferring, or renewing a license.
Interstate Commerce Commission Termination Act, Pub. L. No. 104-88, 109 Stat. 803 This Act dissolved the Interstate Commerce Commission which, until 1976, exercised regulatory control over entry, rates, routings, classifications, intercarrier mergers and collective ratemaking activities, which the ICC could approve and immunize from antitrust exposure. The ICCTA transferred its few remaining functions to the Surface Transportation Board within the Department of Transportation, and the Secretary of Transportation. Although most of the areas formerly under the ICC's jurisdiction are now deregulated, very limited antitrust immunity is still available in some of these areas. The relevant statutes are: the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), Pub. L. No. 94-210, 90 Stat. 31; the Antitrust Amendments Act of 1990, Pub. L. No. 101-588, 104 Stat. 2879; the Motor Carrier Act of 1980, 49 U.S.C. § 10706; The Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat. 1895; and the Bus Regulatory Reform Act of 1982, Pub. L. No. 97-261, 96 Stat. 1102. Federal Aviation Act of 1958, 49 U.S.C. §§ 408, 409, 412 Until 1978, the Civil Aeronautics Board exercised extensive regulatory
control over entry, fares, mergers, interlocking directorates and agreements
among air carriers. In 1978, Congress passed the Airline Deregulation
Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705, which phased out the
CAB and many of its functions. The Justice Department now reviews domestic
airline mergers, acquisitions, and interlocking directorates under the
antitrust laws as it does in other industries. The Department of Transportation
approves and may grant antitrust immunity to agreements between U.S.
and foreign carriers. Shipping Act of 1984, 46 U.S.C. §§ 1701-1721 The Act provides that the Federal Maritime Commission may approve the participation of domestic ocean carriers in international rate-making conferences. Commission-approved conferences are immunized from the operation of the antitrust laws. Federal Property and Administrative Services Act, 40 U.S.C. § 488 This Act provides for the Attorney General to give antitrust advice on the sale of surplus government property having an acquisition cost of $3 million or more, and the sale of surplus government real property having an acquisition value of $1 million or more.
National Cooperative Research Act, 15 U.S.C. §§ 4301-4305 The National Cooperative Research and Production Act ("NCRPA"), 15 U.S.C. §§ 430106, clarifies the substantive application of the U.S. antitrust laws to joint research and development ("R&D") activities and joint production activities. Originally drafted to encourage research and development by providing a special antitrust regime for research and development joint ventures, the NCRPA requires U.S. courts to judge the competitive effects of a challenged joint R&D or joint production venture, or a combination of the two, in properly defined relevant markets and under a rule-of-reason standard. The statute specifies that the conduct "shall be judged on the basis of its reasonableness, taking into account all relevant factors affecting competition, including, but not limited to, effects on competition in properly defined, relevant research, development, product, process, and service markets."(12) The NCRPA also establishes a voluntary procedure pursuant to which the Attorney General and the FTC may be notified of a joint R&D or production venture. The statute limits the monetary relief that may be obtained in private civil suits against the participants in a notified venture to actual rather than treble damages, if the challenged conduct is within the scope of the notification. With respect to joint production ventures, the National Cooperative Production Amendments of 1993(13) provide that the benefits of the limitation on recoverable damages for claims resulting from conduct within the scope of a notification are not available unless (1) the principal facilities for the production are located within the United States or its territories, and (2) "each person who controls any party to such venture (including such party itself) is a United States person, or a foreign person from a country whose law accords antitrust treatment no less favorable to United States persons than to such country's domestic persons with respect to participation in joint ventures for production."(14)
Several official sets of guidelines have been issued by the Antitrust Division.
The Statements of Antitrust Enforcement Policy and Analytical Principles Relating to Health Care and Antitrust ("Health Care Policy Statements") were jointly issued by the Division and FTC on August 28, 1996. They revise policy statements jointly issued by the agencies on September 27, 1994, which were themselves a revision and expansion of joint policy statements issued on September 15, 1993. The Health Care Policy Statements consist of nine statements that describe antitrust enforcement policy with respect to various issues in the health care industry. Most of the statements include guidance in the form of antitrust safety zones, which describe conduct that the agencies will not challenge under the antitrust laws, absent extraordinary circumstances. The Horizontal Merger Guidelines, Intellectual Property Guidelines, and Guidelines for International Operations are reprinted here.(16)
1. Statutory material is current as of January 1997. 2. The Robinson-Patman Antidiscrimination Act amended this section and added 15 U.S.C. §§ 13a, 13b, and 21a. 3. Sections 4C to 4H of the Clayton Act, added in 1976, relate to parens patriae actions. See also Section 4B (limitation of actions). 4. So in original. Probably should be "Any." 5. The Attorney General is also required by statute diligently to investigate false claims against the United States and to bring civil actions as appropriate. See 31 U.S.C. §§ 3729-3733. 6. See also 18 U.S.C. §§ 1963-1968 (relating to criminal penalties and forfeiture, civil remedies, venue and process, expedition of actions, evidence, and CIDs in RICO cases). 7. See also 18 U.S.C. § 1504 (influencing a juror by writing); 18 U.S.C. § 1508 (recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting); 18 U.S.C. § 1509 (obstruction of court orders). 8. See also 18 U.S.C. § 3285 (statute of limitations) (set out at p. II-83 infra). 9. See also 18 U.S.C. § 3663A (mandatory restitution to victims of certain crimes, including fraud and crimes of violence) (set out infra at p. II-87); 18 U.S.C. § 3556 (order of restitution authorized); U.S.S.G. §§ 5E1.1, 8B1.1 (restitution). 10. Text is set out below. See infra Section B.5.b. 11. The text of Sections 3663, 3663A, and 3664 is set out supra at Chapter II, Section B.4. See also U.S.S.G. §§ 5E1.1, 8B1.1 (restitution). 12. 15 U.S.C. § 4302. 13. Pub. L. No. 103-42, 107 Stat. 117, 119 (1993). 14. 15 U.S.C. § 4306 (2). 15. The Horizonal Merger Guidelines do not replace section 4 of the 1984 merger guidelines dealing with non-horizontal mergers (i.e., vertical mergers; mergers that eliminate potential competitors). 16. The Division issued non-price vertical restraint guidelines in 1985. These no longer reflect Division policy. |