1. An order of a district court in a suit brought by the United
States under § 4 of the Sherman Act against export associations and
members thereof to restrain violations of the Act, denying a motion
of the defendants to dismiss, made on the ground that, under §§ 1,
2, and 5 of the Webb-Pomerene Act, exclusive jurisdiction of the
matters charged in the complaint is vested in the first instance in
the Federal Trade Commission,
held reviewable here by
certiorari under § 262 of the Judicial Code. P.
325 U. S.
201.
(a) Where the proceeding is one in respect of which this Court
has exclusive appellate jurisdiction, an application for a common
law writ in aid of appellate jurisdiction must be to this Court. P.
325 U. S.
202.
(b) The hardship which would be imposed on the defendants by a
long postponed appellate review, coupled with the attendant
infringement of the asserted Congressional policy of conferring
primary jurisdiction on the Commission, together support the appeal
to the discretion of this Court to exercise its power to review the
ruling of the district court in advance of final judgment. P.
325 U. S.
204.
2. Exercise of the powers conferred on the Federal Trade
Commission by § 5 of the Webb-Pomerene Act -- to investigate
activities of any export association which are believed to be in
violation of the Sherman Act, if violations are found, to make
recommendations
Page 325 U. S. 197
to such association for readjustment of its business, and, upon
failure of the association to comply, to refer its findings and
recommendations to the Attorney General -- is not a prerequisite to
a suit by the United States against an export association to
restrain violations of the Sherman Act. P.
325 U. S.
205.
(a) The Webb-Pomerene Act's grant of power to the Commission
would curtail the authority of the United States to conduct
antitrust suits only if it were deemed an implied repeal
pro
tanto of § 4 of the Sherman Act. Repeals by implication are
not favored. P.
325 U. S.
209.
(b) The principle that equity will not lend its aid to plaintiff
who has not first exhausted his administrative remedies is
inapplicable, since the function of the Commission under § 5 of the
Webb-Pomerene Act is to investigate, recommend, and report. The
Commission, under that Act, can give no remedy, it can make no
controlling finding of law or fact, and its recommendation need not
be followed by any court or administrative or executive officer. P.
325 U. S.
210.
58 F. Supp.
785 affirmed.
Certiorari, 324 U.S. 834, to review an order of a district court
denying a motion of the defendants to dismiss a suit brought by the
United States to restrain violations of the Sherman Act.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
This is a suit in the District Court for Southern New York,
brought by the United States under § 4 of the Sherman
Page 325 U. S. 198
Anti-Trust Act, 15 U.S.C. § 4, to restrain violations of the
Act. The defendants, who are petitioners here, are two incorporated
export associations, thirteen domestic members of one or the other,
and a British corporation and its American subsidiary, all of which
are producers of alkalies. The bill of complaint alleges that
petitioners are engaged in a conspiracy to eliminate exports of
alkalies to the United States by the foreign members of the
conspiracy, to restrict or eliminate exports of alkalies by
domestic producers from the United States to many world markets, to
prevent independent domestic producers from competing with
petitioners in the export of alkalies, to restrict their production
of alkalies in the United States, and to fix prices of caustic soda
in the United States, all in violation of § 1 of the Sherman Act,
15 U.S.C. § 1.
The district court denied,
58 F. Supp.
785, petitioners' motion to dismiss the complaint, made on the
ground that exclusive jurisdiction of the matters charged in the
complaint is vested in the first instance in the Federal Trade
Commission, under §§ 1, 2, and 5 of the Webb-Pomerene Act of April
10, 1918, c. 50, 40 Stat. 516, 15 U.S.C. §§ 61, 62, 65. Petitioners
then filed here petitions for certiorari under § 262 of the
Judicial Code, 28 U.S.C. § 377, seeking review of the order of the
district court denying the motion to dismiss.
The questions for decision are (1) whether the order of the
district court denying petitioners' motion to dismiss the complaint
may appropriately be reviewed here by writ of certiorari issued
under § 262 of the Judicial Code, and, if so, (2) whether §§ 1, 2
and 5 of the Webb-Pomerene Act confer primary jurisdiction on the
Federal Trade Commission, exclusive of that of the District Court,
to pass upon alleged violations of the Sherman Act by export
associations.
Section 4 of the Sherman Act invests the several district courts
with jurisdiction to restrain violations of the Act,
Page 325 U. S. 199
and it imposes on district attorneys of the United States, under
the direction of the Attorney General, the duty to institute suits
in equity in their respective districts to restrain such
violations. But § 2 of the Webb-Pomerene Act exempts from the
prohibitions of the Sherman Act associations "entered into for the
sole purpose of engaging in export trade and actually engaged
solely in such export trade" and also any
"agreement made or act done in the course of export trade by
such association, provided such association, agreement, or act is
not in restraint of trade within the United States, and is not in
restraint of the export trade of any domestic competitor of such
association."
To this is added a second proviso.
"that such association does not, either in the United States or
elsewhere, enter into any agreement, understanding, or conspiracy,
or do any act which artificially or intentionally enhances or
depresses prices within the United States of commodities of the
class exported by such association, or which substantially lessens
competition within the United States or otherwise restrains trade
therein."
The first paragraph of § 5 of the Webb-Pomerene Act requires
each association engaged solely in export trade to file with the
Federal Trade Commission a statement giving information concerning
its officers and stockholders or members, and its place of
business, and a copy of its articles of incorporation or its
contract of association; the association is required to refile
annually such statements with suitable corrections, and to furnish
such further specified information as the Commission may from time
to time request. Section 5 further provides in its second paragraph
that, whenever the Commission shall have reason to believe that an
export association is violating the Sherman Act in the ways
excepted by the provisos of § 2 from its exemptions, the Commission
shall conduct an investigation into the alleged violations. If
"it shall conclude that the law has been violated, it may make
to
Page 325 U. S. 200
such association recommendations for the readjustment of its
business, in order that it may thereafter maintain its organization
and management and conduct its business in accordance with
law."
If the association fails to comply with the recommendations of
the Commission, it "shall refer its findings and recommendations to
the Attorney General of the United States for such action thereon
as he may deem proper." [
Footnote
1]
Petitioners do not question the district court's rulings, in
denying their motion, that the complaint alleges violations of the
Sherman Act, and that, under its allegations petitioners are not
within any immunity from the Sherman Act secured by § 2 of the
Webb-Pomerene Act. Their sole contention on the merits is that § 5
of the latter Act, by authorizing the proceedings before the
Federal Trade Commission, deprives the district courts of
jurisdiction in Sherman Act cases until the Commission has made
its
Page 325 U. S. 201
investigation and recommendations, the associations have failed
to comply with them, and the Commission has referred its findings
and recommendations to the Attorney General.
I
Petitioners argue that this Court may appropriately review the
order of the district court by writ of certiorari, issued under §
262 of the Judicial Code. They point out that § 2 of the Expediting
Act of February 11, 1903, as amended, 15 U.S.C. § 29, governing
appeals in Sherman Act cases, makes no provision for appeals from
interlocutory orders or judgments, and provides that "an appeal
from the final decree of the district court will lie only to the
Supreme Court."
See United States v. California Canneries,
279 U. S. 553. But
it is urged that the district court is deprived of its jurisdiction
by § 5 of the Webb-Pomerene Act, until the Trade Commission has
made the investigation and followed the further procedure outlined
by § 5; that the assertion by the district court of its
jurisdiction, without awaiting an investigation by the Commission,
will entail protracted litigation and impose on the parties great
expense before the error can be corrected on appeal from the final
judgment to this Court. All this will be avoided, it is said, by
awaiting action by the Commission . Hence, petitioners insist that
the case is appropriate for the exercise by this Court of its
extraordinary power to review the order of the district court by
writ of certiorari.
Section 262 of the Judicial Code provides that the Supreme
Court, circuit courts of appeals, and the district courts
"shall have power to issue all writs not specifically provided
for by statute which may be necessary for the exercise of their
respective jurisdictions and agreeable to the usages and principles
of law."
Under § 262, this Court has power, in aid of its appellate
jurisdiction, to review judgments and orders of the district courts
by
Page 325 U. S. 202
resort to the common law writs of certiorari, mandamus, and
prohibition.
Whitney v. Dick, 202 U.
S. 132;
McClellan v. Carland, 217 U.
S. 268, and cases cited;
In re 620 Church Street
Building Corp., 299 U. S. 24,
299 U. S. 26,
and cases cited;
Ex parte Peru, 318 U.
S. 578, and cases cited;
House v. Mayo,
324 U. S. 42, and
cases cited;
compare Roche v. Evaporated Milk Assn.,
319 U. S. 21. These
writs are granted or withheld in the sound discretion of the Court.
See Roche v. Evaporated Milk Assn., supra, 319 U. S. 25,
and cases cited. In the usual case, this Court will decline to
issue a writ prior to review in the Circuit Court of Appeals,
whether by ordinary appeal,
In re Tampa Suburban R. Co.,
168 U. S. 583,
168 U. S. 588,
or by an extraordinary remedy,
see Ex parte Peru, supra,
318 U. S. 584.
But where, as here, sole appellate jurisdiction lies in this Court,
application for a common law writ in aid of appellate jurisdiction
must be to this Court.
The traditional use of such writs both at common law and in the
federal courts has been, in appropriate cases, to confine inferior
courts to the exercise of their prescribed jurisdiction or to
compel them to exercise their authority when it is their duty to do
so.
In re Chetwood, 165 U. S. 443,
165 U. S. 462
(citing Tidd's Prac. *398, and Bac.Ab., Certiorari);
Whitney v.
Dick, supra, 202 U. S.
139-140;
Ex parte Peru, supra, 318 U. S. 583,
and cases cited. [
Footnote 2]
It is evident that hardship is imposed on parties who are compelled
to await the correction of an alleged error at an interlocutory
stage by an appeal from a final judgment. But such hardship does
not necessarily justify resort to certiorari or other of the
extraordinary writs as a means of review. In such cases,
Page 325 U. S. 203
appellate courts are reluctant to interfere with decisions of
lower courts, even on jurisdictional questions, which they are
competent to decide and which are reviewable in the regular course
of appeal.
In re Tampa Suburban R. Co., supra; Ex parte
Harding, 219 U. S. 363,
219 U. S. 369;
Roche v. Evaporated Milk Assn., supra, 319 U. S. 30-31,
and cases cited;
cf. Stoll v. Gottlieb, 305 U.
S. 165;
Treinies v. Sunshine Mining Co.,
308 U. S. 66. The
writs may not be used as a substitute for an authorized appeal, and
where, as here, the statutory scheme permits appellate review of
interlocutory orders only on appeal from the final judgment, review
by certiorari or other extraordinary writ is not permissible in the
face of the plain indication of the legislative purpose to avoid
piecemeal reviews.
Roche v. Evaporated Milk Assn., supra,
319 U. S. 30,
and cases cited,
and see Cobbledick v. United States,
309 U. S. 323.
But the present case is not the ordinary one of hardship
resulting from overruling a plea in bar or denying a preliminary
motion which, if well founded, would end the litigation on the
merits -- decisions which Congress, in the absence of other
provisions for appeal, must have contemplated would, in the
ordinary course, be reviewed on appeal from the final judgment. The
questions now presented involve the propriety of the exercise by
the district court of its equity jurisdiction, and an asserted
conflict between its jurisdiction and that of an agency of Congress
said to be charged with the duty of enforcing the antitrust laws in
the circumstances of the present case. If petitioners' motion was
well founded, its denial operated to thwart the asserted purpose of
Congress to afford to export associations, which overstep the
bounds of the granted immunity, opportunity, with the expert aid of
the Trade Commission, to retrace their steps, without being
subjected to the penalties of the law. Exercise of its jurisdiction
by the district court would preclude the Commission from carrying
out its asserted functions of investigation,
Page 325 U. S. 204
recommendation, and report before any suit by the United States.
This would be more than the mere denial of the right of a suitor
such as Congress must have contemplated would be corrected by
recourse to the prescribed appeal procedure. It would be a
frustration of the functions which Congress has directed the
Commission to perform, and of the policy which Congress presumably
sought to effectuate by their performance.
The hardship imposed on petitioners by a long postponed
appellate review, coupled with the attendant infringement of the
asserted Congressional policy of conferring primary jurisdiction on
the Commission, together support the appeal to the discretion of
this Court to exercise its power to review the ruling of the
district court in advance of final judgment. The case is analogous
to those in which this Court has, by writs issued under § 262,
reviewed the action of district courts, alleged to be in excess of
their authority, by which they have foreclosed the adjudication of
rights or the protection of interests committed to the jurisdiction
of a state officer or tribunal,
see In re Chetwood, supra;
McClellan v. Carland, supra; Ex parte Metropolitan Water Co.,
220 U. S. 539;
Ex parte Skinner & Eddy Corp., 265 U. S.
86;
Maryland v. Soper (No. 1), 270 U. S.
9;
Ex parte Northern Pacific R. Co.,
280 U. S. 142;
Colorado v. Symes, 286 U. S. 510, or
by which they have deprived a party of a trial by jury.
Ex
parte Simons, 247 U. S. 231;
Ex parte Peterson, 253 U. S. 300,
253 U. S.
305.
For these reasons, we think the case is an appropriate one for
review of the district court's order by certiorari, and we pass to
the consideration of the merits.
II
Petitioners do not deny that the allegations of the complaint
are sufficient to charge violations of the Sherman Act not within
the exemptions created by § 2 of the Webb-Pomerene
Page 325 U. S. 205
Act. The contention is that, since the alleged violations are
being committed by and on behalf of export associations which have
conformed to § 5 of the latter Act, the authority of the United
States to maintain the suit is suspended until the Federal Trade
Commission has proceeded against the associations by way of
investigation, and, if found appropriate, by way of recommendations
to them and reference of its findings to the Attorney General, as
specified in § 5.
It is conceded that § 5 contains no explicit restriction on the
authority of the United States to institute antitrust suits in the
normal way, nor any explicit requirement that resort be had to the
Commission prior to the institution of such an antitrust suit.
Petitioners argue that this is to be implied from the structure of
the Act, which first, by § 2, exempts from the Sherman Act certain
activities of export associations, with specified exceptions, and
then, by the second paragraph of § 5, gives the Commission
authority, in language substantially identical with that of the
exceptions in § 2, to investigate such activities as continue to be
violations of the Sherman Act. It is argued that Congress, by
authorizing the Commission to investigate violations and, in
appropriate cases, to report to the Attorney General any violations
found, has expressed the purpose that the action by the Commission
and the Attorney General should be consecutive, and not
concurrent.
It would follow that, however strong the evidence and however
clear the violation of the Sherman Act, the Attorney General must
await the action of the Commission, which may or may not undertake
to proceed with the case, and that, in any event, the Attorney
General and the courts must abide by the Commission's determination
that there are no violations to report. During the twenty-eight
years between the enactment of the Sherman Act and the passage of
the Webb-Pomerene Act, the plenary authority and settled practice
of the Department of Justice to
Page 325 U. S. 206
institute antitrust suits without prior proceedings by other
agencies became firmly established. A
pro tanto repeal of
that authority, by conferring upon the Commission primary
jurisdiction to determine when, if at all, an antitrust suit may
appropriately be brought would require a clear expression of that
purpose by Congress.
United States v. Borden Co.,
308 U. S. 188,
308 U. S.
198-199,
308 U. S.
203-206;
see also Georgia v. Pennsylvania R.
Co., 324 U. S. 439. The
Webb-Pomerene Act, as we have said, contains no explicit indication
to that end. Nor may such an implication be readily drawn from the
language of the statutes, or their legislative history.
In determining whether the Webb-Pomerene Act curtailed the then
existing authority of the United States to bring antitrust suits,
it is important to consider what that Act did not do, as well as
what it did. True, it exempted from the antitrust laws some, but
not all, acts which would otherwise have been violations. But,
while it empowered the Commission to investigate, recommend, and
report, it gave the Commission no authority to make any order or
impose any prohibition or restraint, or make any binding
adjudication with respect to these violations.
This is in marked contrast to the Commission's power to issue
cease and desist orders with respect to violations of § 5 of the
Federal Trade Commission Act, as amended, 15 U.S.C. § 45, [
Footnote 3] and with respect to
violations of the Clayton Act, §§ 1, 3, 7, 8, 11, as amended, 15
U.S.C. §§ 13, 14, 18, 19, 21. [
Footnote 4] On the other hand, it is consonant with
Page 325 U. S. 207
and closely related to another important function of the
Commission, which, from the beginning, has had extensive powers to
investigate and report on practices which concern or affect the
enforcement of laws relating to trade and commerce, including the
antitrust laws. [
Footnote 5]
Such investigations by the Commission have never been deemed
prerequisite to antitrust suits by the United States, and there is
nothing to suggest that Congress, in authorizing the Commission to
investigate export associations, intended to place such
investigations on any different footing than others, which the
Commission had already been authorized to conduct.
It is suggested that Congress could not have contemplated
"concurrent jurisdiction" of the Commission and the courts, because
of the inconvenience to suitors in not being afforded an
opportunity to mend their ways by
Page 325 U. S. 208
following the Commission's recommendations. And petitioners urge
that Congress could not have intended concurrent jurisdiction,
since it explicitly provided for it when it so desired. Thus, §§ 1,
3, 7, and 8 of the Clayton Act, as amended, 15 U.S.C. §§ 13, 14,
18, 19, may be enforced either by cease and desist orders of the
Commission, § 11, 15 U.S.C. § 21, or by suits in equity instituted
by the several district attorneys in their respective districts,
under the direction of the Attorney General, § 15, 15 U.S.C. §
25.
This argument overlooks the fact that the Commission's authority
is to investigate and recommend, not to restrain violations of the
antitrust laws (save as they may incidentally be violations of
other statutes, which the Commission may enforce). The Commission,
by its investigations and recommendations, may render a useful
service in bringing violations to the attention of the Department
of Justice or by showing that resort to the courts is unnecessary,
either because there has been no violation or because the
associations have satisfactorily corrected their trade practices.
But the Commission, under the Webb-Pomerene Act, does not enforce
the antitrust laws; its powers are exhausted when it has referred
its findings to the Attorney General. Indeed, the provisions for
such reference are necessary not because the Commission has a
primary jurisdiction, but only because it cannot itself enforce the
antitrust laws. Further, there is no want of specific authority for
the United States to enforce the antitrust laws: the violations
here alleged are not violations of the Webb-Pomerene Act, but of
the Sherman Act, and it is the latter which provides for suits to
be brought by the United States.
But, even if the case were one of concurrent jurisdiction, we
cannot assume that there would be any unseemly conflict between the
Commission and the Department of Justice. Congress has found no
such objection to the
Page 325 U. S. 209
concurrent jurisdiction to enforce the provisions of the Clayton
Act to which we have referred. The two agencies will seldom act
simultaneously. There would be no occasion for an investigation by
the Commission if the Attorney General had already procured the
requisite evidence of violations and was ready to proceed with his
suit, as is said to be the case here. And there is no basis for
interpreting the statute as though it had been contrived to prevent
hostile action, rather than to encourage efficient cooperation
between the Commission and the Department of Justice.
As we have said, the Webb-Pomerene Act's grant of power to the
Commission would curtail the authority of the United States to
conduct antitrust suits only if it were deemed to be an implied
repeal
pro tanto of § 4 of the Sherman Act. As we pointed
out in
United States v. Borden Co., supra, 308 U. S.
198-199,
308 U. S.
203-206, such repeals by implication are not favored.
There, we held that provisions of the Capper-Volstead Act, 7 U.S.C.
§§ 291, 292, comparable to those of §§ 2 and 5 of the Webb-Pomerene
Act, did not operate to restrict the authority of the United States
to maintain suits for violation of the antitrust laws.
Sections 1 and 2 of the Capper-Volstead Act, c. 57, 42 Stat.
388, 7 U.S.C. §§ 291, 292, authorized collective marketing by
members of agricultural cooperatives, but empowered the Secretary
of Agriculture to issue cease and desist orders upon investigation
and findings that any such cooperative associations monopolized or
restrained interstate trade and commerce to such an extent that the
prices of any agricultural products were thereby unduly enhanced.
And the Act gave jurisdiction to the district courts to enforce the
Secretary's orders.
This Court rejected the contention that the Capper-Volstead Act
gave to the Secretary "exclusive jurisdiction" to determine in the
first instance whether the acts of the
Page 325 U. S. 210
cooperatives were violations of the Sherman Act because they
went beyond the immunity granted by the Capper-Volstead Act. And we
held for the same reasons, which are controlling here, that neither
the language nor the structure of the Capper-Volstead Act indicated
a Congressional purpose to make the procedure by the Secretary,
which it established, either a substitute for or a prerequisite to
a suit by the United States under the Sherman Act.
A
fortiori, no such purpose is to be inferred from the
Webb-Pomerene Act, which has withheld from the Commission any
authority to enforce the Sherman Act.
Petitioners appeal to the familiar principle that equity will
not lend its aid to a plaintiff who has not first exhausted his
administrative remedies.
Natural Gas Pipeline Co. v.
Slattery, 302 U. S. 300,
302 U. S.
310-311;
Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41,
303 U. S. 51,
and n. 9, and cases cited. And especially they urge that the
Government may not proceed with the prosecution of a Sherman Act
case until the relevant issues have been submitted to and passed
upon an administrative tribunal established by the Government to
determine those issues.
See United States v. Pacific &
Arctic Co., 228 U. S. 87,
228 U. S.
106-108. To this the answer is, as already indicated,
that the only function of the Federal Trade Commission under § 5 of
the Webb-Pomerene Act is to investigate, recommend, and report. It
can give no remedy. It can make no controlling finding of law or
fact. Its recommendation need not be followed by any court or
administrative or executive officer.
Thus, the words of the Webb-Pomerene Act and its setting lend no
support to petitioners' contention. And there is nothing in its
legislative history to show a Congressional purpose to restrict the
authority of the United States to maintain suits for every kind of
violation of the antitrust laws. The precise problem presented by
the present case was not referred to in the committee reports or
the debates, except in a remark by Senator Pomerene indicating
that
Page 325 U. S. 211
the Act does not preclude suits by the United States before the
Commission has made its investigation. [
Footnote 6] But the absence of more extended discussion of
the matter is, in itself, persuasive evidence that there was no
purpose to repeal any portion of § 4 of the Sherman Act. And
Congress' clear purpose to insure continued and vigorous
application of the antitrust laws to domestic restraints of trade,
notwithstanding the Webb-Pomerene Act, is shown by the Committee
Reports, [
Footnote 7] as well
as by statements of the sponsors of the legislation on the floors
of Congress, [
Footnote 8] and
is a strong indication that there was no thought of depriving the
Attorney General of any of his powers to prosecute antitrust
suits.
Page 325 U. S. 212
We conclude that the United States was authorized to bring this
suit, and that the Commission's powers conferred by § 5 of the
Webb-Pomerene Act do not preclude the suit before the Commission
has acted. The order of the district court is therefore
Affirmed.
MR. JUSTICE ROBERTS concurs in this opinion in respect of this
Court's exercise of jurisdiction under § 262 of the Judicial Code.
He dissents from the decision that the District Court had power to
hear the cause in the absence of an investigation and
recommendation by the Federal Trade Commission.
* Together with No. 1017,
California Alkali Export
Association et al. v. United States, also on certiorari to the
District Court of the United States for the Southern District of
New York.
[
Footnote 1]
The second paragraph of § 5 of the Webb-Pomerene Act, with which
we are especially concerned, reads as follows:
"Whenever the Federal Trade Commission shall have reason to
believe that an association or any agreement made or act done by
such association is in restraint of trade within the United States
or in restraint of the export trade of any domestic competitor of
such association, or that an association either in the United
States or elsewhere has entered into any agreement, understanding,
or conspiracy, or done any act which artificially or intentionally
enhances or depresses prices within the United States of
commodities of the class exported by such association, or which
substantially lessens competition within the United States or
otherwise restrains trade therein, it shall summon such
association, its officers, and agents to appear before it, and
thereafter conduct an investigation into the alleged violations of
law. Upon investigation, if it shall conclude that the law has been
violated, it may make to such association recommendations for the
readjustment of its business in order that it may thereafter
maintain its organization and management and conduct its business
in accordance with law. If such association fails to comply with
the recommendations of the Federal Trade Commission, said
commission shall refer its findings and recommendations to the
Attorney General of the United States for such action thereon as he
may deem proper."
[
Footnote 2]
See also Regina v. Yarrington, 1 Salk. 406, 91 Eng.Rep.
353 (Q.B. 1710);
King v. The Justices of the West Riding of
Yorkshire, 5 T.R. 629, 101 Eng.Rep. 352 (K.B. 1794);
King
v. The Justices of Somersetshire, 5 Barn & Cress., 816,
108 Eng.Rep. 303 (K.B. 1826);
King v. Judge Clements
[1932] 2 K.B. 535;
King v. Middlesex Justices [1933] 1
K.B. 72.
[
Footnote 3]
Section 5 of the Federal Trade Commission Act, as amended, 15
U.S.C. § 45, declares that "unfair methods of competition in
commerce, and unfair or deceptive acts or practices in commerce"
are unlawful.
[
Footnote 4]
Section 1 of the Clayton Act, 15 U.S.C. § 13, prohibits certain
discriminations in price and services; section 3, 15 U.S.C. § 14,
certain sales or leases where the purchaser is required to refrain
from dealing with competitors of the seller; section 7, 15 U.S.C. §
18, certain acquisitions by corporations of stocks in other
corporations; and § 8, 15 U.S.C. § 19, certain interlocking
directorates. Section 11, 15 U.S.C. § 21, confers on the Commission
power to issue cease and desist orders with respect to violations
of §§ 1, 3, 7 and 8.
[
Footnote 5]
Section 6(e) of the Federal Trade Commission Act, 15 U.S.C. §
46(e), authorizes the Commission, in language comparable to that of
§ 5 of the Webb-Pomerene Act,
"upon the application of the Attorney General, to investigate
and make recommendations for the readjustment of the business of
any corporation alleged to be violating the antitrust Acts in order
that the corporation may thereafter maintain its organization,
management, and conduct of business in accordance with law."
Section 6 further authorizes the Commission to investigate the
organization, business, practices, and management of any
corporation engaged in interstate commerce; to require such
corporations to file annual and special reports and answers to
questions concerning such matters; to investigate the manner in
which corporations, defendants in Sherman Act suits brought by the
Government, have complied with the decrees, and to transmit to the
Attorney General its "findings and recommendations;" to investigate
and report, upon the direction of the President or Congress, the
facts relating to any "violations of the antitrust Acts by any
corporation;" to investigate trade conditions in foreign countries
where trade practices may affect our foreign trade, and to report
to Congress its recommendations.
[
Footnote 6]
In response to a question by Senator Weeks, that,
"assuming . . . that the conclusion of the commission might be
altogether wise, what assurance has the commission that the
Department of Justice may not take a different view, and proceed
against these combinations under the provisions of the Sherman
Antitrust Act?,"
Senator Pomerene answered: "It might do that." 55 Cong.Rec.
2788.
[
Footnote 7]
H.Rep. No.1118, 64th Cong., 1st Sess., p. 3; S.Rep. No.1056,
64th Cong., 2d Sess., pp. 3-4.
See also H.Rep. No.50, 65th
Cong., 1st Sess., pp. 1, 3; S.Rep. No.109, 65th Cong., 1st Sess.,
pp. 3-4; Federal Trade Commission, Report on Cooperation in
American Export Trade (1916), Vol. 1, p. 376,
et seq.
[
Footnote 8]
Senator Pomerene said, 56 Cong.Rec. 173:
"It [the bill] does not repeal, it does not affect the Sherman
Law so far as it applies to domestic commerce. It strengthens the
Sherman law and the Federal Trade Commission law, insofar as unfair
practices are concerned, beyond territorial limits."
And he also said: "this bill does not repeal the Sherman law,"
and that associations not remaining within the immunity granted by
§ 2 "violate the law of the land." (P. 172.) He said further that
such an association "would be subject to the jurisdiction of the
authorities of this country, including both the Federal Trade
Commission and the Department of Justice." (P. 170.) Congressman
Webb, in discussing the amendment to § 5, said that the language of
the provisions of § 2 "is a perfect preservation of the Sherman law
in all of its virility within the confines of this country," 56
Cong.Rec. 4724, and that associations straying beyond the confines
of their immunity "are liable both under the Federal Trade
Commission law and the Sherman antitrust law." 55 Cong.Rec.
3579.