On October 7, 1964, respondent motor carrier instituted a
proceeding before the Interstate Commerce Commission in which it
asked the ICC to reopen proceedings in which the ICC, over
respondent's opposition, had approved petitioner's acquisition of
several bus companies, alleging that petitioner had not lived up to
representations that the acquisitions would not adversely affect
respondent. On December 14, 1964, the United States petitioned for
leave (and later was allowed) to intervene in the ICC proceeding,
stating that respondent's allegations made "a serious charge," but
that it did not know whether they were "true or false." After
extensive hearings, the ICC decided against petitioner. In the
meantime, on July 5, 1968, respondent filed an action in District
Court alleging,
inter alia, violations of the federal
antitrust laws, and the jury found violations of the Sherman Act
and fraudulent concealment of such violations. The court held that
the Government's petition to intervene in the ICC proceeding served
to toll the statute of limitations under § 5(i) of the Clayton Act
(which provides that "[w]henever any civil or criminal proceeding
is instituted by the United States to prevent, restrain, or punish
violations of any of the antitrust laws, . . . the running of the
statute of limitations in respect of every private . . . right of
action arising under said laws and based in whole or in part on any
matter complained of in said proceeding shall be suspended during
the pendency thereof and for one year thereafter"), with the result
that the Act's four-year period of limitations extended back to
December 14, 1960, when it was combined with fraudulent concealment
to create a 20-year damages period. The Court of Appeals affirmed,
holding that the literal wording of § 5(i) was not controlling and
that § 5(i)'s purpose in furthering effective enforcement of the
antitrust laws by permitting private litigants to benefit from
governmental antitrust enforcement efforts would be advanced by
treating the United States' petition to intervene as the
"functional equivalent of a direct action" by the United
States.
Held: The Clayton Act's statute of limitations was
Page 437 U. S. 323
not tolled under § 5(i) by the filing of the Government's
petition to intervene in the ICC proceeding. Pp.
437 U. S.
330-337.
(a) The ICC proceeding was plainly not "instituted by the United
States" within the meaning of § 5(i). It strains accepted usage to
argue that a part.y who intervenes in a proceeding instituted by
someone else has also "instituted that proceeding." In fact, the
United States not only did not institute the ICC proceeding but was
not in a position to do so, since, in view of its statement that it
did not know whether respondent's allegations were "true or false,"
it could not in good faith have made the charging allegations
necessary to institute the proceeding. Pp.
437 U. S.
330-331.
(b) Neither had the United States, within the meaning of § 5(i),
"complained of" anything on which the District Court action was
based, since in the ICC proceeding its petition to intervene
charged petitioner with no wrongdoing, took no position on the
merits, sought no relief, and disclaimed any knowledge of the
relevant facts, seeking only an opportunity for respondent to
establish its allegations. Pp.
437 U. S.
331-332.
(c) What is now § 5(i) was enacted to ensure that private
litigants would have the benefit of prior Government antitrust
efforts, and this purpose would not be served by construing § 5(i)
as applicable to the facts of this case, where respondent is
seeking to benefit not from a Government antitrust action, but from
an ICC proceeding respondent itself instituted. Pp.
437 U. S.
332-334.
(d) Application of § 5(i) to this case would also fail to give
weight to Congress' purpose in amending the Clayton Act to provide
a uniform four-year period of limitations, and thus eliminate the
prior confusion caused by determining the period of limitations by
state law. P.
437 U. S.
334.
555 F.2d 687, vacated and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
BURGER, C.J., filed a concurring opinion,
post, p.
437 U. S.
337.
Page 437 U. S. 324
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the issue whether § 5(i) of the Clayton Act,
as amended, 88 Stat. 1706, 90 Stat. 1396, 15 U.S.C. § 16(i) (1976
ed.), [
Footnote 1] operates to
toll the running of the Act's statute of limitations [
Footnote 2] from the date on which the United
States filed a petition for leave to intervene in an Interstate
Commerce Commission proceeding previously instituted by the
plaintiff.
I
Petitioner Greyhound [
Footnote
3] and respondent Mt. Hood Stages, Inc. (doing business as
Pacific Trailways), are motor common
Page 437 U. S. 325
carriers of passengers and package express and are subject to
regulation by the Interstate Commerce Commission (ICC). Greyhound
is the largest common carrier by bus in the United States. Mt. Hood
is one of Greyhound's comparatively small competitors; it operates
over routes in Oregon, Idaho, and Utah. Its principal routes are
between Portland, Eugene, and Albany, Ore., in the west, and Salt
Lake City, in the east, and between Klamath Falls, Ore., in the
south, and Biggs and The Dalles, Ore., in the north. Greyhound's
route authority surrounds that of Mt. Hood.
During the period from 1947 to 1956, Greyhound acquired control
of eight bus companies operating in the Western United States.
See Mt. Hood Stages, Inc., 104 M.C.C. 449, 450, and n. 1
(1968). In the proceedings before the ICC, Mt. Hood opposed four of
those acquisitions, [
Footnote
4] alleging that, if the acquisitions were approved, Greyhound
could route traffic around Mt. Hood's operations and thereby
deprive the public of the most convenient service and jeopardize
Mt. Hood's continued existence. [
Footnote 5]
Greyhound successfully contended, however, that the acquisitions
were not intended to, and would not, have such consequences.
Greyhound represented to the ICC that the acquisitions
"would not adversely affect connecting carriers; that
arrangements with such carriers, including interchange of traffic
and open gateways, would be maintained; that it was not the policy
of Greyhound to route passengers over circuitous routes; that its
agents were instructed to quote the direct route as well as the
Greyhound route and give passengers their choice; and that
Greyhound had always
Page 437 U. S. 326
carried MH's schedules in its folders and cooperated in every
way to acquaint the public with its service and thus promote
additional traffic and business for their lines. [
Footnote 6]"
Greyhound also represented to the Commission that it would
continue the joint through-bus arrangement with Mt. Hood. [
Footnote 7] As Greyhound had
anticipated, the ICC relied on these representations in determining
that the proposed acquisitions were in the public interest.
Id. at 454-457, 461.
In July, 1964, Greyhound terminated the through-bus arrangement
with Mt. Hood. On October 7 of that year, Mt. Hood filed a petition
with the Commission, pursuant to § 5(10) (formerly § 5(9)) of the
Interstate Commerce Act, [
Footnote
8] alleging that Greyhound had not lived up to various
representations it had made to the ICC and asking the Commission to
reopen the acquisition proceedings "for further hearing to consider
the necessity of attaching certain terms, conditions and
limitations to the privileges therein granted" or, in the
alternative, to order Greyhound to divest itself of operations
acquired in those proceedings. App. 4. The allegations in Mt.
Hood's petition to the Commission were essentially the same as
those Mt. Hood made later in this antitrust suit, that
Page 437 U. S. 327
is, that Greyhound had canceled the through-bus connection, had
scheduled connecting service so as to preclude reasonable
connections with Mt. Hood, had directed Greyhound's agents and
independent joint ticket agents to send traffic around Mt. Hood's
routes through use of longer all-Greyhound routes, and had
interfered in various ways with the distribution of Mt. Hood's
schedules and the quotation of Mt. Hood's rates and services, all
with the intent of injuring Mt. Hood.
Id. at 111.
Slightly more than two months later, on December 14, 1964, the
United States petitioned for leave to intervene in the ICC
proceeding.
Id. at 36. In its petition, the United States
stated it had an interest in the proceeding and it urged that the
Commission hold a hearing on Mt. Hood's allegations. The
Government's petition observed that Mt. Hood's allegations "make a
serious charge,"
Id. at 37, but added:
"We have no way of knowing whether those of Mt. Hood's
allegations which Greyhound denies are true or false; resolution of
such controversies is a typical function of a hearing. [
Footnote 9]"
Id. at 37-38.
On May 27, 1965, the United States and others were granted
permission to intervene in the ICC proceeding.
Id. at 43.
Such permission, however, was on condition that it "shall not be
construed to allow intervenors to introduce evidence which will
unduly broaden the issues raised in this proceeding."
Ibid.
After an extensive evidentiary hearing, the examiner resolved
all factual issues against Greyhound and recommended entry of an
order requiring Greyhound to abide by the representations it had
made in the acquisition proceedings.
Mt. Hood
Page 437 U. S. 328
Stages, Inc., 104 M.C.C. at 464-496. On April 5, 1968,
Division 3 of the ICC sustained the examiner's findings, but
deferred entry of a supplemental order to allow voluntary
negotiations between the parties.
Id. at 462-463.
On July 5, 1968, Mt. Hood filed this action in the United States
District Court for the District of Oregon for damages and
injunctive relief, alleging violations of the antitrust laws and
common law and statutory unfair competition. App. 46. Mt. Hood's
complaint alleged, as to the antitrust violations, that, beginning
before 1947 and continuing to the date of the complaint, Greyhound
had restrained and monopolized commerce in the carriage by
motorcoach of passengers and their luggage between points in the
Western United States, including Oregon, Idaho, and Utah, by means
essentially the same as those that were the subject of the ICC
proceeding.
Id. at 49-52.
In the Commission proceeding, meanwhile, the efforts of the
parties to agree upon an order failed. The entire Commission
therefore entered an order requiring Greyhound to restore the
practices and traffic patterns existing when the acquisitions at
issue were authorized and, specifically, to eliminate the
anticompetitive practices of which Mt. Hood had complained.
See
Greyhound Lines, Inc. v. United States, 308 F.
Supp. 1033, 1037 (ND Ill.1970). A three-judge United States
District Court denied Greyhound's motion to set aside the
Commission's order and granted the counterclaim of the United
States and the ICC by the issuance of its own order in similar
terms, thus granting injunctive relief.
Id. at 1040-1041.
Following entry of the District Court's order enforcing the ICC
decision, Mt. Hood amended its complaint in this antitrust suit to
eliminate its prayer for injunctive relief. [
Footnote 10] App. 57.
Page 437 U. S. 329
In the present action, interrogatories were submitted to the
jury. By its special verdict returned in May, 1973, the jury found
that, as alleged by Mt. Hood, Greyhound had violated both §§ 1 and
2 of the Sherman Act; that Greyhound had fraudulently concealed
these antitrust violations during the period from January 1, 1953,
to July 4, 1964; but that Mt. Hood knew or should have known of the
violation on December 14, 1960. App. 82. The trial court held that
the Government's petition to intervene in the ICC modification
proceeding on December 14, 1964, served to toll the statute of
limitations under § 5(i) of the Clayton Act. App. 80. The result
was that the Act's four-year period of limitations extended back to
December 14, 1960, where it was combined with the fraudulent
concealment to create a 20-year damages period. [
Footnote 11] Damages of $13,146,090 (after
trebling) were awarded Mt. Hood, plus attorneys' fees of $1,250,000
and costs.
Id. at 83, 104, 106.
On appeal, the United States Court of Appeals for the Ninth
Circuit affirmed. 555 F.2d 687 (1977). We granted certiorari
limited to the issue of the correctness of the interpretation of §
5(i) by the District Court and the Court of Appeals. [
Footnote 12] 434 U.S. 1008
(1978).
Page 437 U. S. 330
II
In holding that the United States' intervention in the ICC
proceeding served to toll, by reason of § 5(i), the Clayton Act's
period of limitations, the Court of Appeals stated that "[t]he
literal wording of section [5(i)] is not controlling." 555 F.2d at
699. The court, therefore, sought to identify the congressional
purpose behind § 5(i) and to effectuate that purpose. 555 F.2d at
699. In the court's view, the purpose of § 5(i)
"is to further effective enforcement of the antitrust laws by
permitting private litigants to have the benefits that may flow
from governmental antitrust enforcement efforts."
555 F.2d at 699. The Court of Appeals, quoting the District
Court (App. 80), declared that this purpose would be advanced by
"
treating intervention by Antitrust Division lawyers as the
functional equivalent of a direct action by them.'" 555 F.2d at
700.
We find this reasoning unpersuasive. In particular, we are
unable to agree that the language of § 5(i) is so unhelpful.
Neither do we agree that the congressional purpose behind § 5(i) is
advanced by the holdings of the District Court and the Court of
Appeals.
A
Logic and precedent dictate that "
[t]he starting point in
every case involving construction of a statute is the language
itself.'" Santa Fe Industries, Inc. v. Green, 430 U.
S. 462, 430 U. S. 472
(1977), and Ernst & Ernst v. Hochfelder, 425 U.
S. 185, 425 U. S. 197
(1976), each quoting Blue Chip Stamps v. Manor Drug
Stores, 421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J., concurring). Examination of the language of §
5(i) prevents acceptance of respondent's position.
Section 5(i) begins: "Whenever any civil or criminal proceeding
is
instituted by the United States. . . ." (Emphasis
Page 437 U. S. 331
added.) The ICC proceeding at issue here plainly was not one
instituted by the United States. As the foregoing statement of
facts demonstrates, and as the Court of Appeals acknowledged, "Mt.
Hood, rather than the United States, instituted the proceedings."
555 F.2d at 699. It strains accepted usage to argue that a party
who intervenes in a proceeding instituted by someone else has also
"instituted" that proceeding. This Court has observed:
"When the term [to intervene] is used in reference to legal
proceedings, it covers the right of one to interpose in, or become
a party to,
a proceeding already instituted. . . ."
Rocca v. Thompson, 223 U. S. 317,
223 U. S. 330
(1912) (emphasis added). In truth, the United States not only did
not institute the proceeding, but also was not in a position to do
so. As its petition to intervene stated, the Government had "no way
of knowing" whether Mt. Hood's allegations, which Greyhound denied,
were "true or false," and thus it could not in good faith have made
the charging allegations necessary to institute the proceeding. At
least in this case, therefore, the question is not primarily one of
form, that is, who reached the ICC first; it is one of substance,
that is, who investigated the facts enabling it to make charging
allegations and seek relief, and thereby to "institute" the
proceeding.
Just as the United States cannot be said to have "instituted"
the ICC proceeding, neither had it "complained of," within the
meaning of § 5(i), anything on which the present action is based.
The cases in which the applicability of 5(i) has been considered
establish that the determination of whether a private action is
based on matters "complained of" in a prior Government action "[i]n
general . . . must be limited to a comparison of the two complaints
on their face."
Leh v. General Petroleum Corp.,
382 U. S. 54,
382 U. S. 65
(1965);
accord, Luria Steel & Trading Corp. v. Ogden
Corp., 484 F.2d 1016, 1022 (CA3 1973),
cert. denied,
414 U.S. 1158 (1974);
Rader v.
Page 437 U. S. 332
Balfour, 440 F.2d 469, 473 (CA7),
cert. denied sub
nom. Alpha Chi Omega v. Rader, 404 U.S. 983 (1971). In the ICC
proceeding here in question, the United States' petition for leave
to intervene charged Greyhound with no wrongdoing, took no position
on the merits, sought no relief, and, indeed, disclaimed any
knowledge of the relevant facts. It sought only an opportunity for
Mt. Hood to establish its allegations. This case, therefore, simply
cannot be viewed as one based on any matter "complained of" by the
United States. [
Footnote
13]
B
Moreover, the language of § 5(i) that we rely upon accurately
manifests Congress' intent in enacting the section. As the Court
previously has noted, the original § 5 of the Clayton
Page 437 U. S. 333
Act, 38 Stat. 731, was adopted in response to the request of
President Wilson and consisted of material that now constitutes §§
5(a) [
Footnote 14] and 5(i).
[
Footnote 15] In a speech to
Congress on January 20, 1914, the President urged that a statute be
enacted that would permit victims of antitrust violations to have
"redress upon the facts and judgments proved and entered in suits
by the Government," and that
"the statute of limitations shall be suffered to run against
such litigants only from the date of the conclusion of the
Government's action. It is not fair that the private litigant
should be obliged to set up and establish again the facts which the
Government has proved. [
Footnote
16]"
51 Cong.Rec.1964 (1914). This very language of the President was
quoted in part in
Minnesota Mining & Mfg. Co. v. New Jersey
Wood Finishing Co., 381 U. S. 311,
381 U. S. 318
(1965). Congress acceded to the President's request. What is
now
Page 437 U. S. 334
§ 5(i) was enacted to ensure that private litigants would have
the benefit of prior Government antitrust enforcement efforts. 381
U.S. at
381 U. S. 317.
Here, however, as already has been pointed out, Mt. Hood is seeking
to benefit not from a Government antitrust action, but from an ICC
proceeding that Mt. Hood itself initiated.
Accordingly, construing § 5(i) as applicable to the facts of
this case would not serve Congress' most obvious purpose. It would
also fail to give any weight to another related and important
congressional purpose. A Ninth Circuit panel very recently
emphasized:
"Although the plaintiff is correct in asserting that [ § 5(i)]
serves the broad and beneficent purpose of aiding private antitrust
litigants . . . , it is also true that it is a statute of
repose."
Dungan v. Morgan Drive-Away, Inc., 570 F.2d 867, 869
(1978). This is clear upon examination of the 1955 amendments to
the Clayton Act. 69 Stat. 282. Before these amendments, the period
of limitations under the Clayton Act was determined by state law.
This bred confusion in the computation of the period within which a
private suit was required to be brought, especially when the Act's
tolling provision (what is now § 5(i)) came into play. In order to
eliminate this confusion, the amendments established a uniform
period of limitations of four years [
Footnote 17] and declared that the suspension of the
statute would extend "during the pendency" of the federal
proceeding and "for one year thereafter." Finally, the amendments
mandated, in what is now the proviso to § 5(i), that, in the event
the statute of limitations is tolled, any private right of action
based on the matter complained of in the action by the Government
"shall be forever barred unless commenced . . . within four years
after the cause of action accrued." [
Footnote 18]
Page 437 U. S. 335
The Senate Report accompanying the 1955 amendments reflects
congressional policy against "undue prolongation of [antitrust]
proceedings" by extending the limitations period. It noted:
"While the committee believes it important to safeguard the
rights of plaintiffs by tolling the statute during the pendency of
Government antitrust actions, it recognizes that, in many
instances, the long duration of such proceedings, taken in
conjunction with a lengthy statute of limitations, may tend to
prolong stale claims, unduly impair efficient business operations,
and overburden the calendars of courts. The committee believes the
provision of this bill will tend to shorten the period over which
private treble damage actions will extend by requiring that the
plaintiff bring his suit within 4 years after it accrued or within
1 year after the Government's case has been concluded."
"While the committee considers it highly desirable to toll the
statute of limitations during a Government antitrust action and to
grant plaintiff a reasonable time thereafter in which to bring
suit, it does not believe that the undue prolongation of
proceedings is conducive to effective and efficient enforcement of
the antitrust laws."
S.Rep. No. 619, 84th Cong., 1st Sess., 6 (1955). [
Footnote 19]
In view of the congressional emphasis on certainty and
predictability in the application of § 5(i), the Court of Appeals'
conclusion that the United States' petition to intervene should be
treated as the "functional equivalent of a direct action" by the
United States, 555 F.2d at 700, is unacceptable. A functional
equivalence standard, applied this loosely, resurrects the very
confusion and uncertainty concerning the application of the statute
of limitations that Congress sought to eliminate in the 1955
amendments. In a case such as this,
Page 437 U. S. 336
in which the Government took no position in its initial
petition, a functional equivalence test would require a detailed
review of the record in each proceeding to see what position the
Government ultimately took and whether its participation was or was
not the "functional equivalent of a direct action." The Government,
of course, may well change its position. For example, in
Denver
& R. G. W. R. Co. v. United States, 387 U.
S. 485 (1967), the Government intervened in an ICC
proceeding with one position, adopted another in the District
Court, and then "completely reversed" itself in this Court.
Id. at
387 U. S. 490
492. Thus, endorsement of the suggested functional equivalence test
would mean that it might be impossible to determine whether
Government proceedings would toll the statute until those
proceedings were finally resolved. As the Court of Appeals seems to
have acknowledged, such an approach would lead to serious problems.
555 F.2d at 699 n. 31.
See also Dungan v. Morgan Drive-Away,
Inc., 570 F.2d at 870-871;
cf. Leh v. General Petroleum
Corp., 382 U.S. at
382 U. S. 65. To
be sure, one way around these problems would be to say that the
statute is tolled anytime the United States participates in any
regulatory proceeding, regardless of what it contends or does in
that proceeding. Even respondent, however, appears to recognize the
undesirability of this result, and that such an interpretation has
no support in the language or history of the statute. [
Footnote 20]
III
We conclude, in sum, that the Clayton Act's statute of
limitations was not tolled, under § 5(i), by the filing of the
Page 437 U. S. 337
Government's petition to intervene in the ICC proceeding. The
judgment of the Court of Appeals is therefore vacated, and the case
is remanded for further proceedings consistent with this opinion.
[
Footnote 21]
It is so ordered.
[
Footnote 1]
Section 5(i), as set forth in 15 U.S.C. § 16(i) (1976 ed.),
provides:
"Whenever any civil or criminal proceeding is instituted by the
United States to prevent, restrain, or punish violations of any of
the antitrust laws, but not including an action under section 15a
of this title, the running of the statute of limitations in respect
to every private or State right of action arising under said laws
and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof and for
one year thereafter:
Provided, however, That whenever the
running of the statute of limitations in respect of a cause of
action arising under section 15 or 15c of this title is suspended
hereunder, any action to enforce such cause of action shall be
forever barred unless commenced either within the period of
suspension or within four years after the cause of action
accrued."
[
Footnote 2]
Section 4B, 69 Stat. 283, as amended, 15 U.S.C. § 15b (1976
ed.). It provides:
"Any action to enforce any cause of action under sections 15,
15a, or 15c of this title shall be forever barred unless commenced
within four years after the cause of action accrued. No cause of
action barred under existing law on the effective date of this Act
shall be revived by this Act."
[
Footnote 3]
Petitioner The Greyhound Corporation is a Delaware corporation
that now is a diversified holding company owning, among other
assets, all the issued and outstanding capital stock of petitioner
Greyhound Lines, Inc., a California corporation. On December 31,
1963, The Greyhound Corporation discontinued its operation of
scheduled common carrier bus service and transferred its motor
carrier operating rights and properties to Greyhound Lines, Inc.,
App. 68;
cf. Mt. Hood Stages, Inc., 104 M.C.C. 449, 465
(1968). For convenience, we refer to the two corporations
collectively as "Greyhound." The formal transfer of rights and
properties at the end of 1963 has no significance for purposes of
this litigation.
[
Footnote 4]
Mt. Hood, however, withdrew its opposition to one of these.
See id. at 452.
[
Footnote 5]
See 555 F.2d 687, 689 (CA9 1977).
[
Footnote 6]
This quoted material is from the opinion in the subsequent ICC
proceeding instituted by Mt. Hood to reopen the eight acquisition
proceedings.
Mt. Hood Stages, Inc., 104 M.C.C. at 452.
Greyhound's representations in those eight proceedings were so
summarized.
[
Footnote 7]
This arrangement, initiated in 1949, provided for a through bus
from San Francisco to Spokane, using Mt. Hood's bridge route
between Klamath Falls and Biggs. The route was shorter by 110 miles
and several hours than the all-Greyhound route via Portland. It
provided better service to travelers and was profitable for both
companies. 555 F.2d at 689 n. 3.
[
Footnote 8]
Section 5(10) of the Interstate Commerce Act, as amended, 90
Stat. 63, 66, 49 U.S.C. § 5(10) (1976 ed.), provides:
"The Commission may from time to time, for good cause shown,
make such orders, supplemental to any order made under
paragraph(1), (2), or(8) of this section as it may deem necessary
or appropriate."
[
Footnote 9]
Reiterating this point, the United States' petition stated:
"Mt. Hood's grave allegations, whether true or false, as well as
Greyhound's answer raise issues too serious and important to be
disposed of summarily without a full adversary hearing in which
allegation and denial can be put to the test of proof and
cross-examination."
App. 38.
[
Footnote 10]
Greyhound thereafter disobeyed the three-judge District Court's
order and was adjudged in criminal contempt. Certain of its
officers were adjudged in civil contempt. Fines aggregating
$600,000 were imposed.
United States v. Greyhound
Corp., 363 F.
Supp. 525 (ND Ill.1973), and
370 F.
Supp. 881 (ND Ill.1974),
aff'd, 508 F.2d 529 (CA7
1974).
[
Footnote 11]
The four-year period of limitations, as already noted,
n 2,
supra, is contained in §
4B of the Clayton Act, 15 U.S.C. § 15b (1976 ed.). Tolling of the
statute was essential to the award of all damages beyond the normal
four-year period, that is, back beyond July 5, 1964, the date four
years prior to the date of filing of the antitrust complaint. The
sum of $5,194,617, after trebling, is involved in the tolling
issue.
[
Footnote 12]
Other issues advanced by Greyhound in its petition for
certiorari, review of which was not granted, were (a) whether §
5(12) of the Interstate Commerce Act, 49 U.S.C. § 5(12), and
applicable antitrust principles permitted the treble damages award
by the jury's application of antitrust standards to acquisitions
approved by the ICC and to the manner of operation of the acquired
companies which is subject to the Commission's "exclusive and
plenary" regulatory authority; (b) whether § 5(a) of the Clayton
Act, as amended, 15 U.S.C. § 16(a) (1976 ed.), permitted the jury
to base a finding of violation of the Sherman Act on consent
decrees that expressly denied any antitrust violation and were
entered before any testimony was taken; and (c) whether § 4B of the
Clayton Act was tolled by fraudulent concealment.
[
Footnote 13]
The Government's petition to intervene is clearly
distinguishable from the Federal Trade Commission's complaint that
this Court, in
Minnesota Mining & Mfg. Co. v. New Jersey
Wood Finishing Co., 381 U. S. 311
(1965), held to have tolled the Clayton Act's period of limitations
under the predecessor of § 5(i), 15 U.S.C. § 16(b) (1964 ed.).
There the FTC had filed a proceeding against the subsequent
antitrust defendant under § 7 of the Clayton Act, 15 U.S.C. § 18
(1964 ed.). It was clear that the Government had actually charged
the defendant with violations of the antitrust laws. The subsequent
private antitrust action was directly based on the Government's
allegations (which had resulted in a consent order). 381 U.S. at
381 U. S. 313,
322-323.
The petition to intervene in question here is also
distinguishable from cases (the correctness of which we do not
address) holding the Clayton Act's period of limitations to have
been tolled by § 5 of the Federal Trade Commission Act, 15 U.S.C. §
45 (1976 ed.).
See, e.g., Luria Steel & Trading Corp. v.
Ogden Corp., 484 F.2d 1016 (CA3 1973),
cert denied,
414 U.S. 1158 (1974);
Rader v. Balfour, 440 F.2d 469
(CA7),
cert. denied sub nom. Alpha Chi Omega v. Rader, 404
U.S. 983 (1971);
Lippa's, Inc. v. Leno,
Inc., 305 F.
Supp. 182 (Vt.1969). In each of these cases, the Government
actually had charged the defendant with, and sought the prevention
or punishment of, specific anticompetitive conduct or antitrust
violations, and a comparison of the Government's charges with the
private litigant's complaint showed that the private action was
based on the matter complained of by the Government.
[
Footnote 14]
15 U.S.C. § 16(a) (1976 ed.). This section provides:
"A final judgment or decree heretofore or hereafter rendered in
any civil or c[r]iminal proceeding brought by or on behalf of the
United States under the antitrust laws to the effect that a
defendant has violated said laws shall be
prima facie
evidence against such defendant in any action or proceeding brought
by any other party against such defendant under said laws or by the
United States under section 15a of this title, as to all matters
respecting which said judgment or decree would be an estoppel as
between the parties thereto:
Provided, That this section
shall not apply to consent judgments or decrees entered before any
testimony has been taken or to judgments or decrees entered in
actions under section 15a of this title."
[
Footnote 15]
The original version of what is now § 5(i) provided:
"Whenever any suit or proceeding in equity or criminal
prosecution is instituted by the United States to prevent, restrain
or punish violations of any of the antitrust laws, the running of
the statute of limitations in respect of each and every private
right of action arising under said laws and based in whole or in
part on any matter complained of in said suit or proceeding shall
be suspended during the pendency thereof."
38 Stat. 731.
[
Footnote 16]
President Wilson's message was quoted frequently during the
course of the congressional debates to explain the purpose of the
amendments.
See, e.g., 51 Cong.Rec. 9090, 9488 (1914).
[
Footnote 17]
69 Stat. 283, now § 4B of the Clayton Act, as amended, 15 U.S.C.
§ 15b (1976 ed.).
[
Footnote 18]
69 Stat. 283.
[
Footnote 19]
See also H.R.Rep. No. 422, 84th Cong., 1st Sess., 8-9
(1955).
[
Footnote 20]
We do not mean to suggest that no rational distinctions
concerning the Government's participation in regulatory proceedings
can be drawn. It may be appropriate, in a given case, to apply §
5(i) where the Government's petition to intervene in fact charged a
violation of the antitrust laws and demanded relief to prevent,
restrain, or enjoin that violation. That, however, is not this
case, and we expressly decline to offer any view as to the
applicability
vel non of § 5(i) in such a context.
[
Footnote 21]
As already stated,
supra at
437 U. S. 329,
we limited our grant of certiorari to the issue of the
applicability of § 5(i). Respondent nevertheless argues that even
if § 5(i) is not applicable, the Clayton Act's statute of
limitations was tolled under equitable principles. Pursuant to the
terms of our grant of certiorari, we see no compulsion -- indeed,
no justification -- for our reaching this distinct issue. It will
be for the Court of Appeals, on remand, to determine whether
respondent may argue this point and, if so, its merits. Similarly,
we express no view on what other issues may be raised on
remand.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully in the Court's opinion, but with great
reluctance; in my view, respondent is entitled to the award of
treble damages ordered by the District Court. Given the Court's
analysis of the legal issues involved here, the opinion today has
no occasion to focus on Greyhound's egregious behavior toward Mt.
Hood Stage -- aimed at total destruction of a competitor. In the
present case, the jury found Greyhound not only to be in violation
of the Sherman Act, but that it had fraudulently concealed its
antitrust violations for more than a decade. Moreover, the
Interstate Commerce Commission found that petitioner's actions were
"inspired by a desire to stifle competition," in particular an
intent to "injure or destroy" respondent.
Mount Hood Stages,
Inc., 104 M.C.C. 449, 461 (1968). Beyond its unlawful conduct,
Greyhound took the added step of willfully disobeying the
enforcement order of the United States District Court. In assessing
criminal fines of $600,000 against Greyhound, the District Court,
in a careful and detailed opinion, observed that Greyhound had
"displayed a contemptuous reluctance to even commence compliance"
with the court's order.
United States v. Greyhound
Page 437 U. S. 338
Corp., 370 F.
Supp. 881, 884 (ND Ill.1974). The District Court went on to
note:
"In determining the extent of Greyhound's willful defiance of
the order, the court recognizes Greyhound's record of purposeful
non-action, protracted resistance, and emasculating interpretations
of the order. The court also notes Greyhound's 'paper compliance'
program and the reluctance with which Greyhound's top management
became actively involved in securing compliance with the order. All
of this suggests that Greyhound's failure to comply with certain
parts of the order was deliberate."
Ibid. These determinations by the District Court were
upheld in every respect by the Court of Appeals.
United States
v. Greyhound Corp., 508 F.2d 529 (CA7 1974).
There is no question that Mount Hood has been injured
substantially by Greyhound. Moreover, were it not for the statute
of limitations in the Clayton Act, respondent would clearly receive
the full measure of treble damages. However, I am bound to agree
with the Court's opinion that the explicit language of § 5(i) of
the Clayton Act, as amended, 15 U.S.C. § 16(i) (1976 ed.),
precludes a statutory tolling of the statute of limitations. But as
the Court carefully stresses,
ante at
437 U. S. 337
n. 21, we expressly do not reach respondent's claim that the
limitations period should be tolled on equitable grounds. The
Court. of Appeals explicitly left this question open, 555 F.2d 687,
701 n. 34, and the Court's opinion today leaves it free to
reexamine the issue on remand.
*
Page 437 U. S. 339
Since the Court's remand allows for an inquiry into the issue of
equitable tolling, the Court of Appeals may apply traditional
equitable principles in reaching its decision.
See, e.g.,
2 J. Pomeroy, Equity Jurisprudence 90-143 (5th ed. 1941).
* The authority of a federal court, sitting as a chancellor, to
toll a statute of limitations on equitable grounds is a well
established part of our jurisprudence.
See, e.g., American Pipe
& Constr. Co. v. Utah, 414 U. S. 538
(1974);
Burnett v. New York Central R. Co., 380 U.
S. 424 (1965);
Telegraphers v. Railway Express
Agency, 321 U. S. 342,
321 U. S.
347-349 (1944). With respect to the limitations period
of the Clayton Act, equitable tolling is particularly appropriate,
since the addition of a federal limitations period in the Act was
essentially a "procedural" change in the statute.
American
Pipe, supra at
414 U. S. 558
n. 29.