A related laws and regulations

(a) Regulations

1 USA competition law mainly consists of the following laws and amendments.
Sherman law (enacted in 1890)
The Clayton law (enacted in 1914)
The Federal Trade Commission (established in 1914)
Sherman Fa is banned in restraint of trade monopoly, cartel? And is provided to such behavior, criminal penalties and other provisions to suspend measures.

  Clayton method to prevent the violation of the Sherman act for the purpose, to price discrimination, hinder competition improper exclusive trading conditions, three times merger review, enterprise damages stipulated.

Federal Trade Commission is transaction unfair methods of prohibition, the Federal Trade Commission's authority and related procedure to do the required.
Can the relationship between illegal type antitrust 3 of law refer to the following table.
　

2 in addition, states also have their own antitrust law.

　

(2) exception

　Part of a specific industry, with exception of antitrust law privileges.

  In addition, the federal government or a state government behavior and its subordinate behavior does not apply anti-monopoly law.
　

A fishery agriculture?
According to the "Capper-Volstead Act", the establishment of industry associations to agricultural producers, set sales association price, does not belong to the breach of antitrust law, according to the "Fisherman's Collective Marketing Act", the fisheries association can enjoy exemption privileges.

B insurance
According to the "McCarran-Ferguson Act", state laws can provide some activities in the insurance industry to enjoy the privilege of exemption of antitrust law, but the combination is not included in the insurance industry "activity".

C press
According to the newspaper industry protection act of 1970, the operating difficulties of the newspaper company agreement about the newspaper, circulation and other common operations, can the antitrust law does not apply to.

D highway, railway and interstate shipping industry

  Merger between operators engaged in interstate and international commercial road transport, railway transport and shipping and related protocol border behavior, once by the Interstate Commerce Commission to management. With the Interstate Commerce Commission abolished (Interstate Commerce Commission Termination Act method "of 1995") through, the Committee has been repealed in 1995, the new land transportation committee (Surface Transportation Board; STB) replace sb.

 Antitrust law is not applicable to STB licensed enterprise merger and related agreements.
　　

E shipping industry
Maritime transportation and terminal operators on freight, delivery quantity agreement concluded, according to the 1984 Maritime Law ("Shipping Act"), to the Federal Maritime Commission (Federal Maritime Commission; FMC) for the record, in the FMC record, and is not to be rejected, the antitrust law does not apply to.

   In addition, according to the agreement between the marine transport industry, not according to the proposed and termination claim 3 times compensation claim antitrust law, such proceedings must be filed to FMC.

F labor union
 According to various federal regulations, anti monopoly law is not applicable to strike activities such as the labor organization and its implementation.

 

The two actuator

(a) the antitrust division of the Justice Department(Antitrust Division, Department of Justice)

A the antitrust division of the Justice Department has a director (Assistant Attorney General) a and vice director five, 7 under the jurisdiction of local firms. Antitrust bureau shall obtain the consent of the Senate, appointed by the president. The Ministry of justice on the antitrust law enforcement authority, in fact is concentrated in the hands of antitrust bureau director.

B antitrust bureau that there was a violation of Sherman Fa or Clayton act, self review, and filed a lawsuit in Federal District Court (civil or criminal).

  In addition, the antitrust bureau in the investigation of illegal events, you can use the Federal Bureau of investigation and the local procuratorial agency employees participated in the survey.

 

(two) the Federal Trade Commission (Federal Trade Commission)

A the Federal Trade Commission (FTC) comprises a chairman, a total of 5 members, otherwise affairs chief and 4 other director level officials, 8 local offices under the jurisdiction.

B FTC members with consent of the Senate, appointed by the president. A term of 7 years, due to the non official, shall not violate the will recall, the exercise of powers of the independent by law.

CFTC believes that the existence of the illegal acts in violation of the Clayton law or the Federal Trade Commission Act, can conduct its own investigation, start the review process, if the parties agree, can not decide directly make a decision, issue an exclusion measures command.

D FTC refuses to accept the decision, may apply to the federal court of appeals filed off v..

E through many changes in the law, the Federal Trade Commission Act fifth (a) in addition to the competition unfair methods (unfair methods of
Competition) in outside, also prohibits fraudulent behaviors or habits unfair, (unfair or deceptive acts or practices), which belongs to the FTC consumer protection administrative department.

FFTC according to the Federal Trade Commission Act eighteenth, can prevent the scale from unfair and fraudulent transactions to make trading norms, rules (trade regulation rule). So far, FTC has developed into a large number of consumer protection rules, such as the door trading return rule (FTC Rule, Cooling-off Period for Door-to-Door Sales, 16 C.F.R. Part 4 29), telemarketing sales rule (FTC Rule, for Telemarketing Sales, 16 C.F.R. Part 3 10.1-10.8) etc..

 In addition, FTC is also responsible for enforcing consumer protection act of. (for example: credit equal opportunity (the Equal Credit Opportunity Act), real lending law (Truth-in-Lending Act), the Fair Credit Reporting Act (Fair Credit Reporting Act), cigarette identification method (Cigarette Labeling Act)). These laws prohibit the special definition of trading habits, if violated, that is specified for the Federal Trade Commission Act fifth (a) provisions on "unfair or deceptive acts or the custom of".

G FTC also has the economic status and the activities of the enterprise competence.

 

(three) the state judicial officer

   The state judicial officer (Attorney General) is not only responsible for the state antitrust law enforcement, for violation of the Sherman law, causes damage to the civil behavior, file a lawsuit to request for compensation of 3 times the nominal can also damage state to the jurisdiction of the Federal District court. (paternity suit) (Clayton Fa 4C).

The relationship between the related regulations and enforcement arrangement as shown in the following table.

 

Three Regulatory Overview

(a) Cattell

Any contract between A ban limit state or transactions with foreign,CombinationOr conspiracy.

B (transverse cartel price agreement, market segmentation protocol, bid rigging, concerted refusals to deal) behavior, regardless of the impact on the market competition is much, only according to the form can be judged as "of course illegal" (per se illegal).

C punishment, for the corporation may impose a fine of $100000000 below, is a personal, single or impose fines or below $1000000 less than 10 years in prison (Sherman first) (2004, revised in June). In addition, although the above provisions, the maximum penalty can be 2 times the amount of profit to violations of the law or the damage amount.

D Sherman law first also applies to the so-called vertical restraint of trade (resale price maintenance behavior and other non price limit line (about resale price behavior can be combined with the reference (four)).

The behavior of E , except the criminal procedure, the justice department may bring a civil action (stop tort claim), FTC can send out the measures command, may bring the stop tort claim directly (Clayton Fa sixteenth) v. 3 times compensation or damages (Clayton, fourth).

　

 

(two) the monopoly behavior

A prohibition of monopoly or attempt to monopolize interstate or international trading, or in monopoly for the purpose, in combination with other people or conspiracy. Punishment and (a) the same provisions on cartels (Sherman act of second. Criminal penalties, civil (stop infringement litigation request)? Elimination command administrative decisions, stop infringement and 3 times the damages of private litigation.

The object B specification includes not only the state monopoly, also includes the realization of monopoly behavior, namely can attempt to access or maintain monopoly power in a certain market (price, control ability to exclude competition) behavior (including predatory pricing, refusal to deal, exclusive dealing and so on).

 

(three) combination of enterprises

A no substantive exclusion limit competition, or may form the monopoly enterprise combining (including mergers, acquiring shares or assets)

(Clayton, seventh).

B Hart-Scott-Rodino Antitrust Improvements Act correction after "of 1976", seventh A standards to declare the Clayton method and the combination of enterprises, the enterprises after its shares or assets of more than $200000000 to $52300000, or 2 years sales or total assets of more than $26200000 in 100000000 enterprises and more than $12600000 in enterprises when, if combined enterprise of its own shares or assets of more than 6310 million, the two companies combined actions must be declared in advance to the antitrust authority and FTC (period, reporting after 30 days to merge banned but may also change.) (reporting standards according to the January 18, 2008 update of data.)

   Reporting companies in their time, must to pay fees. According to the report of company size, divided into 40000 charges $5000, 120000 $5000 and $280000 in three grades.

C is engaged in a commercial activity of the two companies, if the operation or management exist in the area of competition between each other, and the two company capital, aggregate fund more than 25310000 $9000 (according to the January 18, 2008 update), anyone shall not concurrently hold the position of the two directors of the company (director) or executives (officer) (Clayton Fa eighth).

 In addition, bank directors or officers shall serve other bank directors or employees (ibid.).

　

(four) fixed resale price behavior

   Fixed resale price behavior, the past is of course the principle of law, but according to the Supreme Court case (2007 Leegin decision), to apply the principle of reasonable.
　As a violation of the Sherman Fa first elements, between producers and others need to have on the resale price formation collusion or agreement. Unilateral acts of producers (suspension of low-priced vendors supply), if it is within the range of free choice in the transaction object, it will not be illegal. The problem is, to sell at low prices as the reason for the termination of the contract, if the contract is between the other dealers outside producers and low-priced vendors have a fixed resale price agreement implemented in the context of situation, how to treat. According to the Supreme Court (1984 Monsanto cases) cases, only vendors for low sellers to producers in the report, opinion, is not enough to prove the existence of collusion, must prove the existence of both agreement on price or price level.

 

(five) the price discrimination

  Commodity price difference between similar equal between the behavior of buyers, if has the limitation of competition or monopoly may, or may hamper competition, banned, because sales method or the number of different, except for the cost of different appear reasonable price according to the situation (Clayton, second).

　For the illegal acts, may file an antitrust bureau suspended claim, FTC can issue an exclusion measures command, the victim may also file a private lawsuit in order to save themselves.

  According to the Robinson-Patman Act ("Robinson" pat Mongolian law, enacted in 1936) the provisions of section third, the seller for the intention destroyed the competition or the exclusion of competitors, in a certain area with lower than in other regions of the price of cheap sales behavior is forbidden. This offence is also to be punished accordingly.

(six) the provisions of article fifth of the Federal Trade Commission Act

A the Federal Trade Commission Act fifth (a) provisions unfair methods of competition's significance, in the content while no other use a clear, everyone was, according to the present case, the purpose of this article lies not only in violation of the Sherman law, Clayton Fa's illegal act, practice through "unfair methods of competition" to regulation (and therefore, at least in restraint of trade, monopoly, merged enterprise combination type is applicable object belongs to the Federal Trade Commission Act fifth bar), its purpose lies in the behavior or violation of the Sherman law, Clayton law practice to eliminate in the bud or the initial state.

B addition, the Federal Trade Commission Act fifth (a) also stipulates, "affect the normal trading unfair or deceptive acts or used as illegal", here the "unfair" is defined as "consumers cannot reasonably avoid, moreover, substantial damage this behavior or habits to consumers caused or may cause than to give the benefits" acts or practices (the Federal Trade Commission Act Article 5 (n)).

 

Four law enforcement program

(a) procedures according to the antitrust case

A preliminary examination

 After the discovery of clues to cases, whether there is illegal, the market influence, the bureau to review the case whether there are business space, the antitrust authority or FTC to the same case has been made to review, there is no need to transfer to other departments or state governments and so on, for those who think there is necessary the case file, the preliminary examination.

In the preliminary examination, shall listen to the opinions of informants report, information from the other departments, collect information.

 The preliminary results of the review of research, decide whether it is necessary to formally file review, as a civil or criminal cases review, also at this stage to determine.
 Criminal prosecution antitrust authority only to "clear and intentional offence". Belongs to the "type of course illegal behavior" are usually of criminal prosecution.

Processing program of B in criminal cases

(A) Decision as the criminal cases review process, responsible for the prosecutor with the local firms to discuss, to the grand jury

(Grand Jury, in criminal cases, the prosecution of the case whether there is enough evidence to trial the jury, and the jury are fewer in number than the grand jury jury trials, the number reached 16 to 23, so it is called the establishment of the relevant legal instruments), served to prepare.

(B)   The grand jury permissions include issued by the legal instruments the submit command (Subpoena Duces Tecum) and subpoena a witness summons

(Subpoena Ad Testificandum), according to an order issued subpoenas to listen to the testimony of witnesses, or research review of submitted documents.
(C) after prosecutors charge case in the grand jury ends, we need to work on the collected evidence, the results of the review summary to report, determine the individual or legal person shall be prosecuted. Antitrust bureau decided to sue, sue to the grand jury issued recommendations. The grand jury by majority vote. In general, if the antitrust bureau issued a prosecution recommendations, will be officially filed a lawsuit (grand jury indictment, Indictment).

(C) Proceedings in the grand jury, if the defendant pleaded guilty, explicitly asked to give up the right of trial, is responsible for

Prosecutors can sue the program without the mention of simple, direct action (the prosecutor: information). Almost all the cases are treated by simple prosecution.
(E) antitrust bureau person or business for trial review with the case, under certain conditions, may be exempted from criminal prosecution for their (leniency policy).
(F) the antitrust authority when necessary, can be investigated in the grand jury, according to the necessary to issue a compulsory investigation command, or request the FBI and other federal agencies to assist in the investigation.
(G) the first public trial, the prosecution indictment, the accused will be a 1 to make the following statement guilty declaration (plea of guilty), the claims of Innocence (plea of not guilty), and no Proceedings (plea of nolo-contendere). No proceedings not is tantamount to a confession of guilt, then the claim for damages, the trial procedure, not adversely treatment caused by. Therefore, the defendant often want make not the proceedings, but in general, antitrust bureau has the right to make such a declaration against the defendant.
(H) on sentencing, sentencing guidelines formulated according to the United States Sentencing Commission (Sentencing Guidelines) for sentencing. (the 1984 sentencing improvement method)

 

A handler for the C civil cases

(A) if the preliminary results of the review is determined as a civil case trial, then the prosecutor in charge of will and the parties and witnesses were interviewed, asked the parties and witnesses any documents, or according to the civil censorship requirements (Civil Investigation Demand) to collect relevant review information.

CID provides "documents submitted orders" witness "command" and report the command (Interrogatories) and other 3 kinds of means.

  The report command, is related to relevant personnel is responsible for the prosecutors to answer. Since the CID itself does not have the ability to perform, therefore, fail to execute, antitrust bureau must request the court to order the execution.
(B) antitrust bureau decided as a civil case lawsuit, must to the jurisdiction of the Federal District court.
(C) the majority of Civil Procedure Justice Department filed in, are solved through mediation. Antitrust bureau deems it necessary to promptly correct the violations, the defendant did not acknowledge the existence of illegal behavior, but is willing to face the future, promised to take certain measures, if the two sides can reach a balance, it can be settled.

   Antitrust bureau and the defendant between the negotiations on the mediation, court mediation from the defendant began to apply for the. In recent years, between the antitrust bureau if the defendant can reach an agreement on the Mediation Program in the public interest, the antitrust authority will in the prosecution at the same time, submitted to court mediation program.
The court mediation program based on TunneyMethod(the official name for the "anti-monopoly procedures and Punishment Law") shall fulfill their. Antitrust bureau submitted to the court agreed to mediation opinions at the same time, need to submit competitive impact assessment (competitive impact statement), and the adjustment scheme and the evaluation opinions, must be announced through the official channels, but also for the summary of the contents of newspapers. This is mainly for the convenience of stakeholders the opportunity before the court mediation opinions. For public comment period is about 60 days. After that, the court can public hearings, judge the mediation program is consistent with the public interest, then decide whether to agree to the mediation decision.

　　

 

(two) FTC cases review program

One, review procedures

A FTC begins with a review of the specific case, first of all to the appointment of staff for investigators, investigation. Right of investigation and investigators may exercise the Federal Trade Commission Act ninth provisions and requirements to provide written materials, such as the civil investigation according to summon witnesses claim the method prescribed in article twentieth (Civil Investigation Demand: CID).

  In addition, the Federal Trade Commission Act ninth although the provisions, "for the purpose of cost method, single board or have a legitimate rights or more agents, for the purpose of investigation, within a reasonable time, have the right to read or copy as investigation object or program for the partnership enterprise or the company's relevant documentary evidence". But the Supreme Court case (1962, International Nickel Co cases) regulations, can investigate the permission to copy only and in relevant documents, is a lawyer to investigate enterprise or its agent can be as investigation object file selection.

B reconciliation

　FTC according to the results of the survey on illegal events, in that can take appropriate legal measures, first of all to a review decision and eliminating measures command to each other, and the measures of the scheme with each other by command representations, if able to agree, after a public hearing time, can release and command the.

  In addition, after the start of the review decision, still can enter the reconciliation procedure. Decides to review by the review, if they agree to a settlement, can convey agreed to a settlement intention to FTC by the censor. At this time, the plan to open through official channels, and to solicit the views of the general public. FTC according to public opinion, to continue to examine or decision to publish and command.

  Reconciliation is not through formal orders because of the review process, therefore, for the illegal facts are not legal, the illegality in the law is uncertain.

C examination procedure and the review decision

 If you fail to reach settlement, then FTC will be served to book review decision, officially launched the review procedure. Review procedures taken by the review as a plaintiff, the defendant was examined as both an adversary system, examination by the administrative judge (administrative judges with government departments staff identity, but not as the Department Reference clear object, their wages by the office of personnel management (Office of Personnel Management) shall decide, in order to ensure its status and independence) As a leading review and the review decision (initial decision). Be examined to decide without objection, that is final.

  If this review is not satisfied with the decision, the FTC must review decided to do final review.

 Review and final review is decided by the fact, conclusions of law and measures of order is composed of 3 parts.

D refuses to accept the prosecution

　By the review of final examination results disaffected, can to a federal appeals court to cancel the decision.

   The court will respect the judgment of FTC as a professional organization to review, if the FTC facts are made based on actual evidence, then the fact to the court and binding (substantive rules of evidence, the Federal Trade Commission Act fifth (C)).

E temporary injunction

  FTC in the review decision, can to the court issued a temporary injunction (preliminary injunction) (Federal Trade Commission thirteenth, merger review this.)

 

(three) the merger review process

The A declaration accepting

 The declaration must provide FTC and antitrust bureau submitted by both parties. Accepts the declaration, two departments to decide the case who is in charge of.

 In addition, formulate and define terminology detailed rules for the implementation of article seventh of the A Clayton, reporting duty scope rules drawn up by the FTC supervisor.

B is responsible for the Department to declare formally accepted, if not to take any measures in 30 days, as the approval of the merger case. Responsible for the Department requirements during the 30 days to provide further information, should extend the 30 day period, the parties to provide further information within 30 days after the implementation of the merger, not. If the responsible departments that need to further extend the period, need to apply to the Federal District Court, obtain court approval, may be extended.

C FTC as head of department, think the merger violated antitrust law, may request the injunction to the Federal District Court, the court does not support, FTC can be made whether to begin a formal review of the decision of the case review. Antitrust bureau is responsible for, as a violation of antitrust law, need to sue in federal district court.

 

(four) private litigation

V. compensation request 3 times A damage

 According to the antitrust prohibitions, thinks his business or property damage, the victim may institute proceedings, ask for compensation for 3 times the amount of damage, including legal fees reasonable legal costs (Clayton, fourth). The United States of America's property or business damage, American government as a party (Clayton fourth A).

The B request to stop the action of trespass (Sixteenth Clayton Fa)

  According to Sherman Fa and Clayton law provisions, may damage the parties may bring a request to stop the infringement lawsuit. (in violation of the FTC method is not in this case.)

　

Five.      Paternity suit (Clayton fourth C, referring to the two (three))