Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Administrative proceedings before the FTC are governed by Section 5(b) of the FTCA, by the Administrative Procedure Act, and by Part 3 of the Commission's Rules of Practice (16 C.F.R. Part III).
The FTC initiates a proceeding by serving a complaint stating its charges upon a person, partnership or corporation and fixing a hearing date not less than thirty days after service of the complaint (16 C. …

Administrative proceedings

Administrative proceedings before the FTC are governed by Section 5(b) of the FTCA, by the Administrative Procedure Act, and by Part 3 of the Commission's Rules of Practice (16 C.F.R. Part III).

The FTC initiates a proceeding by serving a complaint stating its charges upon a person, partnership or corporation and fixing a hearing date not less than thirty days after service of the complaint (16 C.F.R. § 3.32). The person complained of has an opportunity to appear and show cause why a cease and desist order should not be issued (15 U.S.C. § 45). Any other person may be allowed to intervene upon showing good cause (15 U.S.C. § 45(b)).

The testimony is reduced to writing and, if the FTC is of the view that a violation has occurred, it makes a report in writing stating its findings and serves an order to cease and desist. The FTC may modify its report in whole or in part, either before expiration of the period for filing a request for review, or where conditions of fact or law have changed such that the public interest requires modification (15 U.S.C. § 45(b)).

Suits brought by private parties constitute a significant portion of antitrust suits. Section 4 of the Clayton Act provides that “any person... injured in his business or property by reason of anything forbidden in the antitrust laws” is permitted to recover three times the damages sustained. Section 16 of the Clayton Act likewise provides that “[a]ny person ... threatened [with] loss or damage by a violation of antitrust laws” is entitled to obtain an injunction. Thus, both damages and injunctive relief are available in private enforcement actions.

For purposes of Sections 4 and 16, the term “antitrust laws” is defined to include the Sherman Act, the Clayton Act (including the Robinson-Patman amendments) and parts of the Wilson Tariff Act (15 U.S.C. §§ 8-11). Section 3 of the Robinson-Patman Act, providing criminal penalties for predatory pricing, (15 U.S.C. § 13a), and Section 5 of the F TCA, are not included in the definition of antitrust laws.

A person within the meaning of Sections 4 and 16 has been defined to include individuals, partnerships, corporations and associations existing under Federal, State, territorial or foreign law (15 U.S.C. § 7; 15 U.S.C. § 26). States are considered persons, but the United States Government is not. The latter is nevertheless authorized to recover treble damages under Section 4A of the Clayton Act as a purchaser of goods (15 U.S.C. § 15a). Foreign Governments are considered persons, but their recovery is limited to actual damages.

Private parties bringing antitrust enforcement actions must meet requirements for standing. A private plaintiff has standing where the plaintiff has suffered “an antitrust injury,” that is, an injury of the type that the antitrust laws were intended to prevent. A number of alternative tests have been applied. The “target area test” inquires whether the plaintiff comes within the area of the economy toward which the challenged practice is directed. Other courts have asked whether the plaintiff has suffered a “direct” injury not overly remote from the antitrust offense at issue.

In addition Section 4C of the Clayton Act authorizes State Attorneys General to bring class action suits as parens patriae in Federal District Court on behalf of natural persons who are residents of their state for injuries arising from violations of the Sherman Act (15 U.S.C. § 15(c)). In such cases, both injunctive relief and treble damages are available. Unlike other class action suits, parens patriae actions do not require that the court certify a class of plaintiffs.

States are also entitled to bring actions under Section 4 in their capacity as direct purchasers of goods or services. On the other hand, States are not entitled to bring actions for damages based on harm to the general economy of the State, though injunctive actions to forestall harm to the State's economy are available under Section 16 of the Clayton Act.

The United States Attorney General is required to promptly notify the State Attorney General whenever the former has brought an action under the antitrust laws and has reason to believe that the latter would also be entitled to bring an action (15 U.S.C. § 15f (a)). Upon request, the United States Attorney General must make general investigative files or other potentially relevant material available to the State Attorney General.

Section 4 of the Sherman Act and Section 15 of the Clayton Act confer exclusive jurisdiction on the Federal District Court for violations of Federal antitrust laws. Civil antitrust suits are governed by the Federal Rules of Civil Procedure. Once a complaint is filed, traditional discovery techniques, including interrogatories, requests to produce documents, and requests for admissions and depositions may be used to supplement pre-filing investigation.

Federal courts are empowered to issue such orders as are necessary to accomplish the objectives of antitrust law. Thus, in fashioning relief, courts may seek to restore competitive conditions in addition to awarding damages for past violations. Antitrust suits may therefore result in orders for preliminary or permanent injunctive relief, divestiture, rescission and/or forfeiture.

Civil proceedings

    After a grand jury returns a felony indictment, a warrant may be issued for the arrest of the defendant. Alternatively a summons may be issued requiring the defendant appear at the arraignment.

  In the case of a corporate defendant, counsel may appear for the corporation at the arraignment. If the defendant is a natural person, the defendant must appear personally at the arraignment. A magistrate judge will determine the conditions for releasing an individual defendant pending trial.

  If the parties reach a plea bargain, it will be accepted or rejected by the court. In criminal antitrust matters, the defendant may file pretrial motions to raise any objections or defenses that can be determined without trial. Where two or more defendants are charged in the same indictment as a result of being accused of participating in the same act or series of acts, the defendants may seek separate trials.

  When there are concurrent criminal antitrust proceedings and civil enforcement and damage suits arising from the same conduct, the civil matter will often be stayed since statutes requiring a speedy trial of criminal defendants dictate the precedence of criminal trials.

Criminal proceedings

Section 13 of the FTCA authorizes the FTC to order preliminary and other injunctive relief pending the adjudication of its own administrative complaint (15 U.S.C. § 53). Subsection (a) specifically authorizes such preliminary injunctive relief in order to restrain false advertising of food, drugs, devices or cosmetics. Section (b) provides general authority to issue preliminary relief in connection with any provision of law enforced by the FTC. A preliminary injunction under Section 13(b) is dissolved if the FTC does not commence administrative proceedings within twenty days of issuance.

Preliminary injunctive relief is also available from the Federal District Court in private enforcement actions pursuant to Section 16 of the Clayton Act. In contrast to actions for damages under Section 4 which require a showing of actual injury to business or property, Section 16 actions for injunctive relief require only a showing of “threatened” loss or damages. Injunctive relief actions are also available to indirect purchasers even though such purchasers are not entitled to bring actions for damages (Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)).

Global Competition Law

1456. Administrative proceedings

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Les notions juridiques connexes

1456. Administrative proceedings

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Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise