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LAW 7383: Selected Problems in Antitrust Law: Primary Sources

Prepared for Professor C. Paul Rogers III's Select Problems in Antitrust Law course, Dedman School of Law, Southern Methodist University (Spring 2022)

Federal Statutes


Principal Antitrust and Trade Regulation Statutes

Sherman Act (15 U.S.C.A. §§ 1-7). The Sherman Act was enacted in 1890 to control the large monopolies, or “trusts,” which had proliferated after the Civil War. It condemns restraints on competition, monopolies and attempts to monopolize. The Sherman Act is the only antitrust law that imposes criminal penalties, including fines of up to $10,000,000 for corporations and $350,000 for individuals, and/or prison terms of up to three years.

Clayton Act (15 U.S.C. §§ 12-27). The Clayton Act, enacted in 1914, made the following four practices illegal, although not criminal:  a) price discrimination; b) tying and exclusive dealing contracts; c) corporate mergers (acquisitions of competing companies); and d) interlocking directorates (common board members among competing companies). The Act includes provisions for treble damages and imposes four-year statute of limitations which is triggered by the date of the cause of action.

Robinson-Patman Act (15 U.S.C. §§ 13-13c). The Robinson-Patman Act of 1936 amended and broadened the Clayton Act’s prohibitions against discriminatory pricing practices.

Federal Trade Commission Act (15 U.S.C. §§ 41-58). The Federal Trade Commission Act of 1914 was the enabling statute for creation of the Federal Trade Commission, an administrative agency established for policy development and enforcement of prohibitions against unfair methods of competition. Section 5 of the Act (as amended in 1938 and 1975) provides that “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce are hereby unlawful.” 15 U.S.C. § 45.

Hart-Scott-Rodino Antitrust Improvements Act of 1976.  15 U.S.C. § 18a. The Hart-Scott-Rodino Antitrust Improvements Act amended Section 7 of the Clayton Act and imposes pre-merger notification requirements on buyers and sellers of covered transactions, including the filing of Pre-merger Notification forms with both the Federal Trade Commission and the Department of Justice. (See section on treatises, infra, for additional sources in which these materials are conveniently accessible in full text.)

Antitrust Civil Process Act. 15 U.S.C. §§ 1311-1314; 18 U.S.C. § 1505. Enacted in 1962, the Antitrust Civil Process Act broadened the authority of the Department of Justice to obtain evidence in civil investigations of antitrust violations.

International Antitrust Enforcement Assistance Act.  15 U.S.C. §§ 6201-6212. This law, enacted in 1994, authorizes the FTC and the Justice Department to enter into mutual assistance agreements with foreign antitrust authorities. Under such agreements, U.S. and foreign authorities may share, subject to certain restrictions, evidence of antitrust violations and assist each other in investigations.

Selected Federal Statutes Related to Specific Industries or Functions

Banking - Bank Holding Company Act,  12 U.S.C. §§ 1842 & 1849, Bank Merger Act, 12 U.S.C. § 1828.

Insurance - McCarran-Ferguson Act.  15 U.S.C. §§ 1011-1015.

Health Care – Health Care Quality Improvement Act of 1986.  28 U.S.C. §§ 1602-1611.

Labor – Norris-LaGuardia Act.  29 U.S.C. §§ 101-115.

Foreign Governments – Foreign Sovereign Immunities Act of 1976.  28 U.S.C. §§ 1602-1611.

 

Other Related Federal Statutes. There are numerous other federal statutes which address trade and competition issues. Some are those, which have amended one of the four primary statutes above, such as the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act.  Many others address specific industries and include such laws as the Children’s Online Privacy Protection Act of 1998. For a complete list, see the Trade Regulation Reporter (CCH Wolters Kluwer).

Federal Legislative History

The Legislative History of the Federal Antitrust Laws and Related Statutes [KF1635.8 1977]. Legislative history generally consists of legislative committee reports, legislative hearings, transcripts of debate on floor of the legislative body, and various versions of the bill. This 11-volume set provides copies of such documents pertaining to federal antitrust laws. Note, however, that the most recent volumes were published in 1985 and do not include more recent amendments.

HeinOnline’s U.S. Federal Legislative History Library. Accessible from http://library.law.smu.edu/. HeinOnline contains the full-text (.pdf format) of many compiled legislative histories though few related to antitrust.

Court Opinions and Orders

The court opinions and orders arising from federal antitrust litigation may be published in the various federal court reporters:  Federal Supplement, Federal Reporter, and United States Reports. Unpublished court opinions and orders may be available on Lexis, Westlaw, court websites, Trade Regulation Reporter (CCH Wolters Kluwer), and various newsletters.

Administrative Regulation - Federal Rules

The two federal agencies with primary responsibility for antitrust and trade regulation at the federal level are the Antitrust Division of the U.S. Department of Justice (hereinafter referred to as the "DOJ") and the Federal Trade Commission (hereinafter referred to as the "FTC"). In general, except for certain express statutory exceptions or immunities, both agencies are empowered to take action against any conduct that both affects interstate commerce and can be construed as constituting the unreasonable restraint of trade. Only the Justice Department is empowered to seek criminal penalties for antitrust violations, however.  Both agencies have the authority to settle cases, pending agreement by the parties, either before or after the original complaint is filed.  However, neither agency has the power to enforce any final order for remedies or penalties for antitrust violations. Such enforcement powers may be invoked only through the involvement of the federal courts.

Code of Federal Regulations (C.F.R.) [2d floor]. Available on Lexis, Westlaw, HeinOnline, and on the GPO’s website.

Title 16, Parts 0 - 803 - Commercial Practices - Includes the regulations promulgated by the Federal Trade Commission.

Title 28 - Part 49 - Includes the rules promulgated by the Justice Department’s Antitrust Division.

Federal Register.  The text of proposed and final rules is published in the Federal Register before publication in the C.F.R. The preambles to the text of the rules, written by the promulgating agency, are excellent sources in which to trace regulatory history and intent. Available from 1936 on GPO's website. Also available on Lexis, Westlaw, and HeinOnline.

Administrative Agency Regulation - Department of Justice, Antitrust Division

The DOJ Antitrust Division website contains many of the sources listed below.

 

Consent Decrees - When the DOJ files a complaint, the defendant(s) may request the opportunity to negotiate a settlement. Records of these settlement agreements are called “consent judgments” or “consent decrees.” (See the Antitrust Procedures and Penalties Act of 1974, 15 U.S.C. §16.).

Lexis. Includes Proposed Final Judgments, Decrees and Proposed Terminations as published in the Federal Register beginning in 1936.

Westlaw. Includes DOJ materials published in the Federal Register beginning in 1936.

Web. DOJ Antitrust Division includes selected complaints from December 1994 at https://www.justice.gov/atr/antitrust-case-filings-alpha

 

Civil Litigation - DOJ Complaints and Decisions

Note that litigated decrees that have been appealed to: 1) the Federal Courts of Appeals and 2) the U.S. Supreme Court may also be found in 1) the Federal Reporter, Series 1 - 3, and 2) in the U.S. Reports, Supreme Court Reporter (West) and  U.S. Supreme Court Reports (Lawyers’ Edition).

Web. DOJ’s website includes selected documents beginning in 1994 at https://www.justice.gov/atr/antitrust-case-filings-alpha

 

DOJ Criminal Litigation - Indictments

Web. DOJ’s website at https://www.justice.gov/atr/antitrust-case-filings-alpha as noted above.

 

Other DOJ Regulatory Sources

U.S. Attorneys’ Manual is available on Lexis, Westlaw, and on the web.

DOJ Vertical Restraints Guidelines. Available on Lexis beginning in 1985.

Antitrust Guidelines for Collaborations Among Competitors. This document was issued by the DOJ and FTC on April 7, 2000, and is available as an individual file (database) in Lexis, in Trade & Antitrust, Administrative & Regulatory Materials.

Business Review Letters. Available on Westlaw from 1975 and on Lexis from 1984.

DOJ & FTC’s Horizontal Merger Guidelines (2010) available online.

Administrative Agency Regulation - Federal Trade Commission

Many of the documents listed below are available from the following sources:

  • FTC website.
  • Lexis
  • Westlaw
  • HeinOnline’s “U.S. Federal Agency Documents, Decisions, and Appeals” library

 

FTC Consent Agreements and Orders

 

Proposed Consent Agreements.  Parties under investigation by the FTC for antitrust violations usually have the opportunity to negotiate a pre-adjudication settlement.  If accepted by the FTC, summaries of these proposed Consent Orders are published in the Federal Register.  Full text orders were available in the Federal Register until September 26, 1996 when a Final Rule was enacted to publish only the summaries (61 Federal Register 50430, 9/26/96). 

 

Final Consent Orders.  After 30 days following publication in the Federal Register, the FTC may, depending upon responses to the proposed Order, withdraw, modify or enter the Order as final.

 

Sources of Text of Consent Orders

 

Web.  The full-text of proposed agreements and orders from 1996 are available on the agency's website at https://www.ftc.gov/enforcement/cases-proceedings.

 

Lexis.  Full-text is available from 1950 through current.

 

Civil Litigation - Complaints, Orders, Court Decisions & Administrative Decisions

As with DOJ Antitrust Division matters, note that litigated decrees that have been appealed to: 1) the Federal Court of Appeals and 2) the U.S. Supreme Court may also be found in 1) the Federal Reporter, Series 1 - 3, and 2) in the U.S. Reports, Supreme Court Reporter (West) and U.S. Supreme Court Reports (Lawyers’ Edition). 

Lexis.  Lexis contains FTC decisions beginning in 1949 and unpublished documents from 1990 to date.

Westlaw.  Coverage is from 1949 to present.

Web.  Complaints, decisions and orders, and final orders beginning in 1949 are available on the FTC website (http://www.ftc.gov/enforcement/cases-proceedings). 

 

FTC Advisory Opinions

FTC’s website (http://www.ftc.gov/enforcement/cases-proceedings) includes opinions from 1993 for Antitrust letters and from late 1990s for Consumer Protection “Staff Opinion” letters.

Westlaw. 1964 to present.

Federal Trade Commission Decisions [2-E: KF1606 .A2 T7]. Includes older FTC Opinion Letters from 1915. Available back to 1949 in HeinOnline’s “U.S. Federal Agency Documents, Decisions, and Appeals” library.

 

Formal Interpretations

Companies may request the FTC to issue formal or informal interpretations regarding specific aspects of the Hart-Scott-Rodino rules (at 16 CFR 803.30).

The “Formal Interpretations” published in response to these requests are available on the FTC website at: https://www.ftc.gov/enforcement/premerger-notification-program/statute-rules-and-formal-interpretations/formal

Rules and Industry Guides. FTC Rules and Industry Guides are available on the agency’s website at: https://www.ftc.gov/enforcement/premerger-notification-program.

 

FTC Rules of Practice

These rules “describe how the FTC is organized and its procedures for conducting investigational, administrative, and judicial proceedings.” The rules are available at https://www.ftc.gov/enforcement/rules.