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That is, the time consumed in the government suit is added to the regular period of three years in determining the time in which a suit may be brought for the recovery of damages.
Section 16 of the Clayton law gives any person, firm or corporation the right to sue for injunctive relief against threatened loss or damage by violation of the Anti-trust laws, including sections 2, 3, 7 and 8 of the Clayton law, under the same conditions as injunctive relief in other matters is provided for in courts of equity. Provision is made for temporary injunction upon the filing of proper bond. This section was passed in view of certain decisions construing the Sherman law to the effect that the Attorney General alone could bring suits in equity to restrain violations thereof.15
The discussion as to the proviso preventing suits for injunction against common carriers is found under the title "Common Carriers."
Suits for injunctions based upon violations of the Sherman and Wilson laws may now be instituted by private persons or corporations and the benefit of the decree in a government suit likewise accrues to private litigants.
CRIMINAL PROVISIONS OF THE TWO LAWS.
1. Trade Commission Law.
Unfair methods of competition which are declared unlawful are not made criminal. There is no penalty imposed for a failure to obey an order of the Commission to cease and desist from using an unfair method of competition. Neglect or refusal to attend and testify or answer any lawful inquiry or produce
15.—National Fireproofing Company vs. Mason Builders' Association, 169 Fed. 259, and cases cited.
documentary evidence is made an offense punishable by fine, imprisonment, or both. Wilfully making any false report that the Commission may require is made an offense punishable by fine, imprisonment for not more than three years, or both. This offense applies only to corporate representatives, because the Commission has power to order reports from corporations only. Wilfully making or causing to be made any false entry in any account, record or memorandum of a corporation, or wilfully failing to make, or causing to be made, full, true or correct entries in such accounts of all facts appertaining to the business of such corporation, or wilfully removing out of the jurisdiction of the United States, or wilfully mutilating, altering or falsifying any documentary evidence of such corporation, or wilfully refusing to submit to the Commission for inspection and copying any such documentary evidence, is made an offense punishable in the same way.
An officer or employee of the Commission who makes public information without authority shall be guilty of a misdemeanor.
2. Clayton Law.
Violations of the provisions of the Clayton law against price discrimination, tying contracts, stock ownership and interlocking, are not made criminal offenses. No penalty is imposed for failure to obey an order of the Commission or Board "to cease and desist from such violations and divest itself of the stock held or rid itself of the directors chosen."
Embezzlement by a president, director, officer or manager of any common carrier engaged in interstate or foreign commerce, whether or not subject to the Acts to Regulate Commerce, is made a felony. But a judgment of conviction or acquittal on the
merits under the laws of any State bars any prosecution under the Clayton law for the same act.
Any common carrier violating the provisions regulating its relations with supply, construction or financial concerns, and every director, agent, manager, or officer of such common carrier who knowingly voted for or directed the violation, shall be deemed guilty of a misdemeanor and subjected to fine or imprisonment, or both. This language apparently applies to persons who are common carriers as well as to corporations. The law expressly imposes these penal provisions upon any person therein described who shall directly or indirectly do or attempt to do anything to prevent any bidding, or to prevent free and fair competition among bidders or those desiring to bid, for contracts with common carriers, in interlocking cases where section 10 of the law regulates such bidding.
Whenever a corporation shall violate any of the penal provisions of the Anti-trust laws such violation shall be deemed to be that of the individual directors, officers or agents of such corporations who shall have authorized or done any of the acts constituting in whole or in part such violation. And such violation shall be deemed a misdemeanor punishable by fine or imprisonment, or both.
It is to be especially noted that there are no criminal penalties imposed against persons, partnerships, corporations or their officers, agents, or directors for using unfair methods of competition, or for price discrimination, tying contracts, stock ownership or interlocking in violation of either of these two laws.
DEFECTS AND POSSIBLE AMENDMENTS.
These comments with reference to defects in and possible amendments to the law are made before the organization or appointment of the Commission.
1. Commission Has No Authority to Make Report or to Enter Order When Favorable to Person
or Corporation Complained Against.
No provision is contained in the Trade Commission or Clayton law requiring the Trade Commission to make a report or finding of facts or to enter any order in the event its conclusions are favorable to the business against which a proceeding has been instituted. It would seem that such report, finding and order might be authorized or even directed to be made by the Commission and be given the same force and effect as an unfavorable report, finding or order.
2. Commission Might Be Empowered to Recommend Rule of Conduct for the Future.
The Trade Commission is given no power to establish or enforce any rule of conduct for the future. Section 6 (e) makes it the duty of the Commission "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."
This provision in a limited way looks toward establishing guides for the future conduct of business. The Commission, however, can do nothing more than "make recommendations," and such recommendations apply only to "readjustment of the
business of any corporation alleged to be violating the antitrust Acts." Putting constitutional questions aside and assuming power in Congress to legislate further, it would seem to be helpful in the solution of many difficult problems which are constantly arising in business if the Commission were given at least enough power to enable it to put the stamp of approval upon plans for the conduct of any proposed new business, or combinations or associations of old businesses intending to consolidate or co-operate, if full and complete information concerning the same and the proposed conduct thereof be first given. The power of the Commission in any such case should be limited to the recommendation or approval of such plans for future action as might be agreed upon by the Commission and all parties concerned after full hearing. Such power to make recommendations for or give approval to future conduct, however, should be merely permissive and should have the effect of authorizing the plans to be carried out only so long as the parties desired, or the Commission believed the law was not being violated. All acts done in good faith under such recommendations or approval should be protected against liability under the laws. Wherein would lie the evil in an immunity which would be available as a defense only if the recommendations had been made or approval given after full hearing open to anyone concerned and the plans of operation thereunder had been carried out in the utmost good faith?
3. Commission Might Be Authorized to Permit Combinations for Furtherance of Foreign Trade.
The problems now existing in connection with the foreign trade of the United States and empha