H.R. 8532 (94th): Antitrust Parens Patriae Act

94th Congress, 1975–1976. Text as of Sep 30, 1976 (Passed Congress/Enrolled Bill).

Status & Summary | PDF | Source: GPOStatutes at Large

PUBLIC LAW 94-435—SEPT. 30, 1976                                    90 STAT. 1383

Public Law 94-435
94th Congress
                                         An Act
To improve and facilitate tlie expeditious and effective enforcement of the                   aept. 60, lv7o
                 antitrust laws, and for other purposes.                                       [H.R. 8532]

  Be it enacted hy the Senate arid House of Representatwes        of the
United States of America in Congress assembled, T h a t this Act may                         Hart-Scott-
be cited as the "Hart-Scott-Rodino A n t i t r u s t Improvements A c t of                   Rodino Antitrust
•j^Q/rgj?                                                                                    Improvements
                                  TABLE OF CONTENTS                                          ^?T?«r^7q^'i
            TITLE I—ANTITRUST CIVIL PROCESS ACT AMENDMENTS                                   note.
   Sec.     101.   Definitions.
   Sec.     102.   Civil investigative demands.
   Sec.     103.   Custodian of documents, answers, and transcripts.
   Sec.     104.   Judicial proceedings.
   Sec.     105.   Criminal penalty.                                                                 ,
   Sec.     106.   Effective date.
                        TITLE II—PREMERGER NOTIFICATION
   Sec. 201. Notification and waiting period.
   Sec. 202. Effective dates.
                             TITLE III—PARENS PATRIAE
   See.     301.   Parens patriae actions by State attorneys general.
   Sec.     302.   Conforming amendments.
   Sec.     303.   Consolidation.                                                                .
   Sec.     304.   Effective date.                                                       v
   See.     305.   Short title to certain antitrust laws.

             TITLE I—ANTITRUST CIVIL PROCESS ACT
                        AMENDMENTS
                                        DEFINITIONS

  SEC. 101. Section 2 of the Antitrust Civil Process Act (15 U.S.C.
1311) is amended—                                                                              .    ...
       (1) in subsection (a) —
               ( A ) by inserting " a n d " after the semicolon at t h e end of
           paragraph ( 1 ) ;
               ( B ) by striking out p a r a g r a p h (2) and redesignating
           p a r a g r a p h (3) as p a r a g r a p h ( 2 ) ; and
               (C) by striking out " ( A ) " and ", or ( B ) any unfair t r a d e
           practice in or affecting such commerce" in p a r a g r a p h (2) (as
           .redesignated by s u b p a r a g r a p h ( B ) ) .
       (2) by amending subsection (c) to read as follows:
       " ( c ) T h e term 'antitrust investigation' means any inquiry con-
    ducted by any antitrust investigator for the purpose of ascertain-
    ing whether any person is or has been engaged in any antitrust
    violation or in any activities in preparation for a merger, acquisi-
    tion, joint venture, or similar transaction, which, if consummated,
    may result in an antitrust violation;".
        (3) by amending subsection (f) to read as follows:
       " ( f ) T h e t e r m ' p e r s o n ' m e a n s any n a t u r a l person, partnership,
    corporation, association, or other legal entity, including any per-
    son acting under color or authority of State l a w ; " .
       (4) by amending subsection (h) to read as follows:
       " ( h ) T h e term 'custodian' means the custodian or any deputy
    custodian designated under section 4 ( a ) of this Act.".                                 Post, p. 1387.

90 STAT. 1384 PUBLIC LAW 94-435—SEPT. 30, 1976 CIVIL INVESTIGATIVE DEMANDS SEC. 102. Section 3 of the Antitrust Civil Process Act (15 U.S.C. 1312) is amended to read as follows: - CIVIL INVESTIGATIVE DEMANDS , "SEC. 3. (a) Whenever the Attorney General, or the Assistant Attorney General in charge of the Antitrust Division of the Depart- ment of Justice, has resison to believe that any person may be in pos- session, custody, or control of any documentary material, or may have ' an^ information, relevant to a civil antitrust investigation, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon such person, a civil investigative demand rec^uiring such person to produce such documentary material for inspection and copying or reproduction, to answer in writing written interrogatories, to give oral testimony concerning documen- tary material or information, or to furnish any combination of such material, answers, or testimony. "(b) Each such demand shall— " (1) state the nature of— " (A) the conduct constituting the alleged antitrust viola- tion, or " ( B ) the activities in preparation for a merger, acquisition, joint venture, or similar transaction, which, if consummated, may result in an antitrust violation, which are under investigation and the provision of law applicable thereto; Documentary "(2) if it is a demand for production of documentary material— material, " (A) describe the class or classes of documentary material production. ^Q j^g produced thereunder with such definiteness and certainty as to permit such material to be fairly identified; "(B) prescribe a return date or dates which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspec- tion and copying or reproduction; and "(C) identify the custodian to whom such material shall be made available; or Interrogatories, "(3) if it is a demand for answers to written interrogatories— answers. "(A) proj)ound with definiteness and certainty the written interrogatories to be answered; "(B) prescribe a date or dates at which time answers to written interrogatories shall be submitted; and "(C) identify the custodian to whom such answers shall be submitted; or Oral testimony. " (4) if it is a demand for the giving of oral testimony— "(A) prescribe a date, time, and place at which oral testimony shall be commenced; and "(B) identify an antitrust investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted. "(c) No such demand shall require the production of any documen- tary material, the submission of any answers to written interrogatories, or the giving of any oral testimony, if such material, answers, or testi- mony would be protected from disclosure under— "(1) the standards applicable to subpenas or subpenas duces tecum issued h^ a court of the United States in aid of a grand jury investigation, or
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1385 "(2) the standards applicable to discovery requests under the Federal Kules of Civil Procedure, to the extent that the applica- 28 u s e app. tion of such standards to any such demand is appropriate and con- sistent with the provisions and purposes of this Act. "(d) (1) Any such demand may be served by any antitrust investi- Service. gator, or by any United States marshal or deputy marshal, at any place within the territorial jurisdiction of any court of the United States. "(2) any such demand or any petition filed under section 5 of this Act may be served upon any person who is not to be found within the territorial jurisdiction of any court of the United States, in such man- ner as the Federal Rules of Civil Procedure prescribe for service in a foreign country. To the extent that the courts of the United States Jurisdiction. can assert jurisdiction over such person consistent with due process, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action respecting compliance with this Act by such person that such court would have if such person were personally within the jurisdiction of such court. "(e) (1) Service of any such demand or of any petition filed under Service upon section 5 of this Act may be made upon a partnership, corporation, legal entities. association, or other legal entity by— "(A) delivering a duly executed copy thereof to any partner, executive officer, managing agent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, asso- ciation, or entity ; " ( B ) delivering a duly executed copy thereof to the principal office or place of business of the partnership, corporation, associa- tion, or entity to be served; or "(C) depositing such copy in the United States mails, by regis- tered or certified mail, return receipt requested, duly addressed to such partnership, corporation, association, or entity at its prin- cipal office or place of business. "(2) Service of any such demand or of any petition filed under sec- Service upon tion 5 of this Act may be made upon any natural person by— natural person. "(A) delivering a duly executed copy thereof to the person to be served; or "(B) depositing such copy in the United States mails- by regis- tered or certified mail, return receipt requested, duly addressed to such person at his residence or principal office or place of business. "(f) A verified return by the individual serving any such demand or Proof of service. 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 deliv- ery of such demand. "(g) 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) 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
90 STAT. 1386 PUBLIC LAW 94-435—SEPT. 30, 1976 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. Procedures "(i) (1) The examination of any person pursuant to a demand for governing oral oral testimony served under this section shall be taken before an examinations. officer authorized to administer oaths and affirmations by the laws of the United States or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the custodian. "(2) The antitrust investigator or investigators conducting the examination shall exclude from the place where the examination is held all other persons except the person being examined, his counsel, the officer before whom the testimony is to be taken, and any stenog- rapher taking such testimony. The provisions of the Act of March 3, 1913 (Ch. 114, 37 Stat. 731; 15 U.S.C. 30), shall not apply to such examinations. " (3) The oral testimony of any person taken pursuant to a demand served under this section shall be taken in the judicial district of the United States within which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the antitrust investigator conducting the examination and such person. Transcript. "(4) When the testimony is fully transcribed, the antitrust investi- gator or the officer shall afford the witness (who may be accompanied by counsel) a reasonable opportunity to examine the transcript; and the transcript shall be read to or by the witness, unless such examina- tion and reading are waived by the witness. Any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript by the officer or the antitrust investiga- tor with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within thirty days of his being afforded a reasonable opportunity to examine it, the officer or the antitrust investigator shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reason, if any, given therefor. Certification. "(5) The officer shall certify on the transcript that the witness was duly sworn by him and that the transcript is a true record of the testimony given by the witness, and the officer or antitrust investigator shall promptly deliver it or send it by registered or certified mail to the custodian. Copies. "(6) Upon payment of reasonable charges therefor, the antitrust investigator shall furnish a copy of the transcript to the witness only, except that the Assistant Attorney General in charge of the Antitrust Division may for good cause limit such witness to inspection of the official transcript of his testimony. Right to counsel. "(7) (A) Any person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence,
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1387 either upon the request of such person or upon counsel's own initiative, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may properly be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privi- lege, including the privilege against self-incrimination. Such person shall not otherwise object to or refuse to answer any question, and shall not by himself or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, the anti- trust investigator conducting the examination may petition the dis- trict court of the United States pursuant to section 5 of this Act for Post, p. 1389. an order compelling such person to answer such question. "(B) If such person refuses to answer any question on grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with the provisions of part V of title 18, United States Code. 18 USC 6001. "(8) Any person appearing for oral examination pursuant to a Fees and mileage, demand served under this section shall be entitled to the same fees and mileage which are paid to witnesses in the district courts of the United States.". CUSTODIAN OF DOCUMENTS, ANSWERS, AND TRANSCRIPTS SEC. 103. Section 4 of such Act is amended to read as follows: 15 USC 1313. "CUSTODIAN OF DOCUMENTS, ANSWERS, AND TRANSCRIPTS "SEC. 4. (a) The Assistant Attorney General in charge of the Anti- trust Division of the Department of Justice shall designate an anti- trust investigator to serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this Act, and such additional antitrust investigators as he shall determine from time to time to be necessary to serve as deputies to such officer. "(b) Any person, upon whom any demand under section 3 of this Documentary Act for the production of documentary material has been duly served, materials, shall make such material available for inspection and copying or repro- availability. duction to the custodian designated therein at the principal place of Ante, p. 1384. 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 5(d) of this Act) on the return 15 USC 1314. 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) (1) The custodian to whom any documentary material, answers Responsibility for to interrogatories, or transcripts of oral testimony are delivered shall materials. take physical possession thereof, and shall be responsible for the use made thereof and for the return of documentary material, pursuant to this Act. " (2) The custodian may cause the preparation of such copies of such Regulations; documentary material, answers to interrogatories, or transcripts of official use of oral testimony as may be required for official use by any duly author- materials. ized official or employee of the Department of Justice under regula- tions which shall be promulgated by the Attorney General. Notwith-
90 STAT. 1388 PUBLIC LAW 94-435—SEPT. 30, 1976 standing paragraph (3) of this subsection, such material, answers, and transcripts may be used by any such official or employee in connection with the taking of oral testimony pursuant to this Act. Disclosure, "(3) Except as otherwise provided in this section, while in the pos- limitation. session of the custodian, no documentary material, answers to interrog- atories, or transcripts of oral testimony, or copies thereof, so produced shall be available for examination, without the consent of the person who produced such material, answers, or transcripts, by any individ- ual other than a duly authorized official or employee of the Department of Justice. Nothing in this section is intended to prevent disclosure to either body of the Congress or to any authorized committee or sub- committee thereof. Documentary " (4) WTiile in the possession of the custodian and under such reason- materials, able terms and conditions as the Attorney General shall prescribe, (A) availability to documentary material and answers to interrogatories shall be avail- producer. able for examination by the person who produced such material or answers, or by any duly authorized representative of such person, and (B) transcripts of oral testimony shall be available for examination by the person who produced such testimony, or his counsel. Legal actions, use "(d) (1) Whenever any attorney of the Department of Justice has of investigative been designated to appear before any court, grand jury, or Federal files. administrative or regulatory agency in any case or proceeding, the cus- todian of any documentary material, answers to interrogatories, or transcripts of oral testimony may deliver to such attorney such material, answers, or transcripts for official use in connection with any such case, grand jury, or proceeding as such attorney determines to be required. Upon the completion of any such case, grand jury, or pro- ceeding, such attorney shall retTirn to the custodian any such material, answers, or transcripts so delivered which have not passed int-o the control of such court, grand jury, or agency through the introduction thereof into the record of such case or proceeding. FTC investi- "(2) The custodian of any documentary material, answers to inter- gations or rogatories, or transcripts of oral testimony may deliver to the Federal proceedings, Trade Commission, in response to a written request, copies of such use of material, answers, or transcripts for use in connection with an investi- investigative files. gation or proceeding under the Commission's jurisdiction. Such mate- rial, answers, or transcripts may only be used by the Commission in such manner and subject to such conditions as apply to the Department of Justice under this Act. Documentary "(e) If any documentary material has been produced in the course material, return of any antitrust investigation by any person pursuant to a demand to producer, under this Act and— limitation. " (1) any case or proceeding before any court or grand jiiry aris- ing out of such investigation, or any proceeding before any Federal administrative or regulatory agency involving such material, has been completed, or "(2) no case or proceeding, in which such material may be used, has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation* 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 sub- section (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.
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1389 "(f) In the event of the death, disability, or separation from service Successor in the Department of Justice of the custodian of any documentary custodians, material, answers to interrogatories, or transcripts of oral testimony appointment produced under any demand issued pursuant to this Act, or the official Notice. relief of such custodian from responsibility for the custody and con- trol of such material, answers, or transcripts, the Assistant Attorney General in charge of the Antitrust Division shall promptly (1) desig- nate another antitrust investigator to serve as custodian of such material, answers, or transcripts, and (2) transmit in writing to the person who produced such material, answers, or testimony notice as to the identity and address of the successor so designated. Any successor designated under this subsection shall have with regard to such mate- rial, answers, or transcripts all duties and responsibilities imposed by this Act upon his predecessor in office with regard thereto, except that he shall not be held responsible for any default or dereliction which occurred prior to his designation.". JUDICIAL PROCEEDINGS SEC. 104. (a) Section 5(a) of such Act is amended by striking out 15 USC 1314. ", except that if" and all that follows down through the end of the sentence and inserting in lieu thereof a period. (b) The first sentence of subsection (b) of section 5 of such Act is amended to read as follows: "Within twenty days after the service of Order, filing, any such demand upon any person, or at any time before the return date specified in the demand, whichever period is shorter, or within such period exceeding twenty days after service or in excess of such return date as may be prescribed in writing, subsequent to service, by any antitrust investigator named in the demand, such person may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, and serve upon such antitrust investigator a petition for an order of such court modifying or setting aside such demand.". (c) The second sentence of subsection (b) of section 5 is amended by striking out the period at the end thereof and by inserting in lieu thereof: ", except that such person shall comply with any portions of the demand not sought to be modified or set aside.". (d) Subsection (c) of section 5 is amended by striking out "deliv- ered" and inserting in lieu thereof "or answers to interrogatories deliv- ered, or transcripts of oral testimony given". (e) Section 5 is further amended by adding at the end thereof the following: "(f) Any documentary material, answers to written interrogatories, Disclosure, or transcripts of oral testimony provided pursuant to any demand exemption, issued under this Act shall be exempt from disclosure under section 552 of title 5, United States Code.". CRIMINAL PENALTY SEC. 105. The third paragraph of section 1505 of title 18, United States Code, is amended to read as follows: "Whoever, with intent to avoid, evade, prevent, or obstruct com- pliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully 15 USC 1311 withholds, misrepresents, removes from any place, conceals, covers up, note. 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".
90 STAT. 1390 PUBLIC LAW 94-435—SEPT. 30, 1976 EFFECTIVE DATE 15 use 1311 SEC. 106. The amendments to the Antitrust Civil Process Act and note. to section 1505 of title 18, United States Code, made by this title shall take effect on the date of enactment of this Act, except section 3(i) (8) Ante, p. 1384. of the Antitrust Civil Process Act (as amended by this Act) shall take effect on the later of (1) the date of enactment of this Act, or (2) October 1, 1976. Any such amendment which provides for the produc- tion of documentary material, answers to interrogatories, or oral testi- mony shall apply to any act or practice without regard to the date on which it occurred. T I T L E II—PREMERGER NOTIFICATION NOTIFICATION AND WAITING PERIOD SEC. 201. The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting immediately after section 7 of such Act the following new section: Filing. "SEC. 7 A . (a) Except as exempted pursuant to subsection (c), no 15 use 18a. 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 subsec- tion (b) (1) has expired, if— " (1) the acquiring person, or the person whose voting securities or assets are being acquired, is engaged in commerce or in any activity affecting commerce; "(2) (A) any voting securities or assets of a person engaged in manufacturing which has annual net sales or total assets of $10,000,000 or more are being acquired by any person which has total assets or annual net sales of $100,000,000 or more; "(B) any voting securities or assets of a person not engaged in manufacturing which has total assets of $10,000,000 or more are being acquired bv any person which has total assets or annual net sales of $100,000,000 or more; or "(C) any voting securities or assets of a person with annual net sales or total assets of $100,000,000 or more are being acquired by any person with total assets or annual net sales of $10,000,000 or more; and "(3) as a result of such acquisition, the acquiring person would hold— "(A) 15 per centum or more of the voting securities or assets of the acquired person, or " ( B ) an aggregate total amount of the voting securities and assets of the acquired person in excess of $15,000,000. In the case of a tender offer, the person whose voting securities are sought to be acquired by a person required to file notification under this subsection shall file notification pursuant to rules under subsec- tion (d). Waiting period. "(b) (1) The waiting period required under subsection (a) shall— "(A) begin on the date of the receipt by the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (hereinafter re- ferred to in this section as the 'Assistant Attorney General') of— "(i) the completed notification required under subsection (a), or
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1391 " ( i i ) if such notification is not completed, the notification t o the extent completed and a statement of the reasons for such noncompliance, from both persons, or, in the case of a tender offer, the acquiring person; and " ( B ) end on the thirtieth day after the date of such receipt (or in the case of a cash tender offer, the fifteenth d a y ) , or on such later date as. may be set under subsection (e) (2) or (g) ( 2 ) . " ( 2 ) The Federal T r a d e Commission and the Assistant Attorney Waiting period, General may, in individual cases, terminate the waiting period speci- termination. fied in p a r a g r a p h (1) and allow any person to proceed with any Publication in acquisition subject to this section, and promptly shall cause to be p u b - Federal Register. lished in the Federal Register a notice t h a t neither intends to take any action within such period with respect to such acquisition. " ( 3 ) As used in this section— " ( A ) T h e term 'voting securities' means any securities which at "Voting present or upon conversion entitle the owner or holder thereof securities.' to vote for the election of directors of the issuer or, with respect to unincorporated issuers, persons exercising similar functions. " ( B ) The amount or percentage of voting securities or assets of a person which are acquired or held by another person shall be determined by aggregating the amount or percentage of such voting securities or assets held or acquired by such other person and each affiliate thereof. " ( c ) T h e following classes of transactions are exempt from the Exempt requirements of this section— transactions. " (1) acquisitions of goods or realty transferred in the ordinary course of business; " ( 2 ) acquisitions of bonds, mortgages, deeds of trust, or other obligations w hich are not voting securities; " (3) acquisitions of voting securities of an issuer at least 50 per centum of the voting securities of which are owned by the acquir- ing person prior to such acquisition ; " (4) transfers to or from a Federal agency or a State or politi- cal subdivision thereof; " ( 5 ) transactions specifically exempted from the antitrust laws by Federal s t a t u t e ; " ( 6 ) transactions specifically exempted from the antitrust laws by Federal statute if approved by a Federal agency, if copies of all information and documentary material filed with such agency are contemporaneously filed with the Federal T r a d e Commission and the Assistant Attorney General; " ( 7 ) transactions which require agency approval under section 18(c) of the Federal Deposit Insurance Act (12 U.S.C. 1 8 2 8 ( c ) ) , or section 3 of the B a n k H o l d i n g Company Act of 1956 (12 U.S.C. 1842); " ( 8 ) transactions which require agency approval under sec- tion 4 of the B a n k H o l d i n g Company Act of 1956 (12 U.S.C. 1843), section 403 or 408(e) of the N"ational Housing Act (12 U.S.C. 1726 and 1730a), or section 5 of the H o m e Owners' Loan Act of 1933 (12 U.S.C. 1464), if copies of all information and documentary material filed with any such agency are contem- poraneously filed with the Federal T r a d e Commission and the Assistant Attorney General at least 30 days prior to consummation of the proposed transaction ; " ( 9 ) acquisitions, solely for the purpose of investment, of voting securities, if, as a result of such acquisition, t h e securities
90 STAT. 1392 PUBLIC LAW 94-435—SEPT. 30, 1976 acquired or held do not exceed 10 per centum of the outstanding voting securities of the issuer; "(10) acquisitions of voting securities, if, as a result of such acquisition, the voting securities acquired do not increase, directly or indirectly, the acquiring person's per centum share of outstand- ing voting securities of the issuer; (11) accfuisitions, solely for the purpose of investment, by any bank, banking association, trust company, investment company, or insurance company, of (A) voting securities pursuant to a plan of reorganization or dissolution; or (B) assets in the ordinary course of its business; and " (12) such other acquisitions, transfers, or transactions, as may be exempted under subsection ( d ) ( 2 ) ( B ) . "(d) The Federal Trade Commission, with the concurrence of the Assistant Attorney General and by rule in accordance with section 553 of title 5, United States Code, consistent with the purposes of this section— "(1) shall require that the notification required under subsec- tion (a) be in such form and contain such documentary material and information relevant to a proposed acquisition as is necessary and appropriate to enable the Federal Trade Commission and the Assistant Attorney General to determine whether such acquisition may, if consummated, violate the antitrust laws; and "(2) may— " (A) define the terms used in this section; "(B) exempt, from the requirements of this section, classes of persons, acquisitions, transfers, or transactions which are not likely to violate the antitrust laws; and Rules. "(C) prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section. Acquisitions, "(e) (1) The Federal Trade Commission or the Assistant Attorney additional General may, prior to the expiration of the 30-day waiting period information. (or in the case of a cash tender offer, the 15-day waiting period) specified in subsection (b) (1) of this section, require the submission of additional information or documentary material relevant to the proposed acquisition, from a person required to file notification with respect to such acquisition under subsection (a) of this section prior to the expiration of the waiting period specified in subsection (b) (1) of this section, or from any officer, director, partner, agent, or employee of such person. Waiting period, "(2) The Federal Trade Commission or the Assistant Attorney extension. General, in its or his discretion, may extend the 30-day waiting period (or in the case of a cash tender offer, the 15-day waiting period) speci- fied in subsection (b) (1) of this section for an additional period of not more than 20 days (or in the case of a cash tender offer, 10 days) after the date on which the Federal Trade Commission or the Assist- ant Attorney General, as the case may be, receives from any person to whom a request is made under paragraph (1), or in the case of ten- der offers, the acquiring person, (A) all the information and documen- tary material required to be submitted pursuant to such a request, or (B) if such request is not fully complied with, the information and documentary material submitted and a statement of the reasons for such noncompliance. Such additional period may be further extended only by the United States district court, upon an application by the Federal Trade Commission or the Assistant Attorney General pursu- ant to subsection (g) (2).
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1393 " (f) If a proceeding is instituted or an action is filed by the Federal Trade Commission, alleging that a proposed acquisition violates sec- tion 7 of this Act or section 5 of the Federal Trade Commission Act, or 15 USC 18,45. an action is filed by the United States, alleging that a proposed acqui- sition violates such section 7 or section 1 or 2 of the Sherman Act, and 15 USC 1, 2. 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 to 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— "(A) 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 pur- poses ; and "(B) the motion for a preliminary injunction shall be set down for hearing by the district judge so designated at the earliest prac- ticable time, shall take precedence over all matters except older matters of the same character and trials pursuant to section 3161 of title 18, United States Code, and shall be in every way expedited. " (s) (1) -^^y person, or any officer, director, or partner thereof, who Civil penalty, fails to comply with any provision of this section shall be liable to the United States for a civil penalty of not more than $10,000 for each day during which such person is in violation of this section. Such penalty may be recovered in a civil action brought by the United States. (2) If any person, or any officer, director, partner, agent, or Compliance, employee thereof, fails substantially to comply with the notification requirement under subsection (a) or any request for the submission of additional information or documentary material under subsection (e) (1) of this section within the waiting period specified in subsection (b) (1) and as may be extended under subsection (e) (2), the United States district court— " (A) may order compliance; "(B) shall extend the waiting period specified in subsection (b) (1) and as may have been extended under subsection (e) (2) until there has been substantial compliance, except that, in the , .^. . case of a tender offer, the court may not extend such waiting period on the basis of a failure, by the person whose stock is sought to be acquired, to comply substantially with such notification require- ment or any such request; and "(C) may grant such other equitable relief as the court in its discretion determines necessary or appropriate, upon application of the Federal Trade Commission or the Assistant Attorney General. "(h) Any information or documentary material filed with the Disclosure Assistant Attorney General or the Federal Trade Commission pur- exemption, suant to this section shall be exempt from disclosure under section 562 of title 5, United States Code, and no such information or documentary material may be made public, except as may be relevant to any admin- istrative 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.
90 STAT. 1394 PUBLIC LAW 94-435—SEPT. 30, 1976 "(i) (1) Any action taken by the Federal Trade Commission or the Assistant Attorney General or any failure of the Federal Trade Com- mission or the Assistant Attorney General to take any action under this section shall not bar any proceeding or any action with respect to such acquisition at any time under any other section of this Act or any other provision of law. "(2) Nothing contained in this section shall limit the authority of the Assistant Attorney General or the Federal Trade Commission to secure at any time from any person documentary material, oral testi- 15 use 1311 mony, or other information under the Antitrust Civil Process Act, the note. Federal Trade Commission Act, or any other provision of law. 15 use 58. "(j) Beginning not later than January 1, 1978, the Federal Trade Report to Commission, with the concurrence of the Assistant Attorney General, eongress. shall annually report to the Congress on the operation of this section. Legislative Such report shall include an assessment of the effects of this section, recommenda- of the effects, purpose, and need for any rules promulgated pursuant tions. thereto, and any recommendations for revisions of this section.". EFFECTIVE DATES 15 u s e 18a note. SEC. 202. (a) The amendment made by section 201 of this Act shall take effect 150 days after the date of enactment of this Act, except that subsection (d) of section 7A of the Clayton Act (as added by section Ante, p. 1390. 201 of this Act) shall take effect on the date of enactment of this Act. 15 u s e 18a. T I T L E III—PARENS P A T R I A E PARENS PATRIAE ACTIONS BY STATE ATTORNEYS GENERAL SEC. 301. The Clayton Act is amended by inserting immediately following section 4B the following new sections: li ACTIONS BY STATE ATTORNEYS GENERAL 15 use 15c. "SEC. 4 C . (a) (1) Any attornev general of a State may bring a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of the Sherman 15 use 1-7. Act. The court shall exclude from the amount of monetary relief awarded in such action any amount of monetary relief (A) which duplicates amounts which have been awarded for the same injury, or (B) which is properly allocable to (i) natural persons who have excluded their claims pursuant to subsection (b) (2) of this section, and (ii) any business entity. Treble damage "(2) The court shall award the State as monetary relief threefold awards. the total damage sustained as described in paragraph (1) of this eosts. subsection, and the cost of suit, including a reasonable attorney's fee. Notice, "(b)(1) In any action brought under subsection (a)(1) of this publication. section, the State attorney general shall, at such times, in such manner, and with such content as the court may direct, cause notice thereof to be given by publication. If the court finds that notice given solely by publication would deny due process of law to any person or persons, the court may direct further notice to such person or persons according to the circumstances of the case.
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1395 "(2) Any person on whose behalf an action is brought under Monetary relief, subsection (a) (1) may elect to exclude from adjudication the portion exclusion, of the State claim for monetary relief attributable to him by filing ^ notice of such election with the court within such time as specified in the notice given pursuant to paragraph (1) of this subsection. "(3) The final judgment in an action under subsection (a) (1) shall Final judgment, be res judicata as to any claim under section 4 of this Act by any person on behalf of whom such action was brought and who fails to give such notice within the period specified in the notice given pursuant to paragraph (1) of this subsection. "(c) An action under subsection (a) (1) shall not be dismissed or Dismissal or compromised without the approval of the court, and notice of any compromise of proposed dismissal or compromise shall be given in such manner as action, notice. the court directs. "(d) I n a n y action under subsection (a)— Attorneys' fees. "(1) the amount of the plaintiffs' attorney's fee, if any, shall be determined by the court; and "(2) the court may, in its discretion, award a reasonable attor- ney's fee to a prevailing defendant upon a finding that the State attorney general has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. " M E A S U R E M E N T OF DAMAGES "SEC. 4 D . In any action under section 4 C ( a ) ( l ) , in which there 15 use 15d. has been a determination that a defendant agreed to fix prices in violation of the Sherman Act, damages may be proved and assessed 15 use 1-7. in the aggregate by statistical or sampling methods, by the computa- tion 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. DISTRIBUTION OF DAMAGES "SEG. 4 E , Monetary relief recovered in an action under section 15 USC 15e. 4C (a)(1) shall— "(1) be distributed in such manner as the district court in its discretion may authorize; or "(2) be deemed a civil penalty by the cx)urt and deposited with the State as general revenues; subject in either case to the requirement that any distribution proce- dure adopted afford each person a reasonable opportunity to secure his appropriate portion of the net monetary relief. "ACTIONS BY ATTORNEY GENERAL OF THE UNITED STATES "SEC. 4 F . (a) Whenever the Attorney General of the United States Notification, has brought an action under the antitrust laws, and he has reason to 15 USC 15f. 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) To assist a State attorney general in evaluating the notice or Investigative in bringing any action under this Act, the Attorney General of the fi^^S' availability. United States shall, upon request by such State attorney general, make
90 STAT. 1396 PUBLIC LAW 94-435—SEPT. 30, 1976 i * :, 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. "DEFINITIONS 15 use 15g. «SEC. 4 G . For the purposes of sections 4C, 4D, 4E, and 4F of this Act: "(1) The term 'State attorney general' means the chief legal officer of a State, or any other person authorized by State law to bring actions under section 4C of this Act, and includes the Corpo- ;, ration Counsel of the District of Columbia, except that such term does not include any person employed or retained on— " (A) a contingency fee based on a percentage of the mone- tary relief awarded under this section; or ' ( B ) any other contingency fee basis, unless the amount of the award of a reasonable attorney's fee to a prevailing plain- tiff is determined by the court under section 4C(d) (1). "(2) The term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States. "(3) The term 'natural persons' does not include proprietor- ships or partnerships. - ' "APPLICABILITT OF PARENS PATRIAE ACTIONS 15 use 15h. "SEC. 4 H . Sections 4C, 4D, 4E, 4F, and 4G shall apply in any State, unless such State provides by law for its nonapplicability in such State.". CONFORMING AMENDMENTS SEC. 302. The Clayton Act (15 U.S.C. 12 et seq.), is amended— (1) in section 4B (15 U.S.C. 15b), by striking out "sections 4 or 4A" and inserting in lieu thereof "section 4, 4A, or 4C" ; (2) in section 5(i) (15 U.S.C. 16(i)), by striking out "private right of action" and inserting in lieu thereof "private or State right of action"; and by striking out "section 4" and inserting in lieu thereof "section 4 or 4C"; and (3) by adding at the end of section 16 (15 U.S.C. 26) the fol- lowing: "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.". CONSOLIDATION SEC. 303. Section 1407 of title 28, United States Code, is amended by adding at the end thereof the following new section: 28 use 1404. "(h) Notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel on multidistrict litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under Ante, p. 1394. section 4C of the Clayton Act. EFFECTIVE DATE 15 use 15c note. SEC. 304. The amendments to the Clayton Act made by section 301 of this Act shall not apply to any injury sustained prior to the date of enactment of this Act.
PUBLIC LAW 94-435—SEPT. 30, 1976 90 STAT. 1397 SHORT TITLES FOR CERTAIN ANTITRUST LAWS SEC. 305. (a) The Act entitled "An Act to protect trade and com- 15 USC 1 note, merce against unlawful restraints and monopolies", approved July 2, 1890 (15 U.S.C. 1 et seq.), is amended by adding immediately after the enacting clause the following: "That this Act may be cited as the'Sherman Act'.". (b) The Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes", approved October 15, 1914 (15 U.S.C. 12 et seq.), is amended by— (1) inserting " ( a ) " after "That" in the first section; and (2) adding at the end of the first section the following new subsection: "(b) This Act may be cited as the'Clayton Act'.". (c) The Act entitled "An Act to promote export trade, and for other purposes", approved April 10, 1918 (40 Stat. 516; 15 U.S.C. 61 et seq.) is amended by adding at the end thereof the following new section: "SEC. 6. This Act may be cited as the 'Webb-Pomerene Act'.". 15 USC 66. (d) The Act entitled "An Act to reduce taxation, to provide revenue for the Government, and for other purposes", approved August 27, 1894 (28 Stat. 509; 15 U.S.C. 8 et seq.), is amended by adding at the end thereof the following new section: "SEC. 78. Sections 73, 74, 75, 76, and 77 of this Act may be cited as 15 USC 8 note, the 'Wilson Tariff Act'.". Approved September 30, 1976. LEGISLATIVE HISTORY: HOUSE REPORTS No. 94-499, No. 94-499, Part 2, No. 94-1343 accompanying H.R. 13489, and No. 94-1373 accompanying H.R. 14580 (all from Comm. on the Judiciary). SENATE REPORT No. 94-803 accompanying S. 1284 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 122 (1976): Mar. 18, considered and passed House. May 25, 27, 28, June 3, 4, 7-10, considered and passed Senate, amended. Aug. 2, H.R. 13489 and H.R. 14580 considered and passed House. Aug. 24, House agreed to Senate amendment with an amendment. Aug. 27, 30, 3 1 , Sept. 7, 8, Senate agreed to House amendment with an amendment. Sept. 16, House agreed to Senate amendment. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 40: Sept. 30, Presidential statement.