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§ 28. Trade Law creates merely a new remedy: In this aspect, the provisions of the Trade Law empowering the Trade Commission to institute proceedings to prevent "unfair methods of competition in commerce," appear merely to have created an additional remedy for a public wrong which, prior to the enactment of the Trade Law, had been denounced and made actionable.

Under the Sherman Law, an "attempt to monopolize" was punishable by fine or imprisonment, and a person injured in his business or property by such attempt could sue therefor and recover threefold damages, and costs including a reasonable attorney's fee. Also, under the Sherman Law, the government, through the Attorney General's department, could prevent and restrain an "attempt to monopolize" by a suit in equity. But, prior to the enactment of the Clayton Law,98 nobody, other than the government, could obtain preventive relief against an "attempt to monopolize" merely as such.99 Now, under the Trade Law, there is another governmental agency in addition to the Attorney General's department, namely the Trade Commission, which by instituting the statutory proceedings 100 provided in the Trade Law to prevent "unfair methods of competition", may in effect obtain in the right of the public preventive relief against an "attempt to monopolize." The probability would seem to be, however, that the Trade Law will be .so construed as to prevent private suitors from seeking to enjoin "unfair methods of competition," as such. That construction of the Trade Law would seem to be required by the same reasoning which led to the ruling that, under the Sherman Law, only the Attorney General's department may maintain a suit in equity

98 See Clayton Law, Sec. 16.
99 Wilder Mfg. Co. v. Corn Prod-

ucts Co. (1915) 236 U. S. 165, 174175.

100 Sec. 29, infra.

to enjoin an "attempt to monopolize." In addition, it is to be observed that while, as noted, the Clayton Law provides expressly that private suitors may have injunctive relief against threatened loss or damage by a violation of the antitrust laws, including sections two, three, seven and eight of the Clayton Law,101 the enforcement of which is entrusted in part to the Trade Commission, the Trade Law does not contain any similar provision with reference to a violation of its inhibition against "unfair methods of competition." That omission in the Trade Law is perhaps likely to be held significant in construing the Trade Law. It is not however of much practical importance whether a private suitor may or may not maintain a suit to enjoin "unfair methods of competition" as such, if "unfair methods of competition" shall be held, as seems probable, not to include any act which is not at the same time an "attempt to monopolize" under the Sherman Law,102 because if threatened with loss or damage as a result of an attempt to monopolize, section sixteen of the Clayton Law authorizes a private suitor to seek injunctive relief. But threatened loss or damage is essential to a private suitor's obtaining injunctive relief under the Clayton Law.103

§ 29. Proceedings by Commission: The Trade Law and the Clayton Law are substantially alike in their provisions 104 authorizing the Trade Commission to institute a proceeding to prevent "unfair methods of competition" under the Trade Law,105 and violations of sections two, three, seven and eight of the Clayton Law.106 (1) Complaint and notice. The statutory proceeding is to be commenced by the Commission's issuing and

101 Secs. 4, 9, 10, 11, 12, supra. 102 Sec. 27, supra.

108 Union Pacific R. Co. v. Frank, (1915) 226 Fed. 906, 911.

104 See Trade Law, Sec. 5, Clay

ton Law, Sec. 11.

105 Secs. 14-27, supra.

106 Secs. 4, 9, 10, 11, 12, supra.

serving upon the person, partnership, association or corporation to be proceeded against, a complaint stating the charges of the Commission against the accused, and containing a notice of a hearing of the charges before. the Commission at a specified place, and at a specified time at least thirty107 days after the service of the complaint. The complaint is not to issue in any event unless the Commission "shall have reason to believe" that a violation of law has occurred.108

(2) Service of complaint and notice. The complaint and notice may be served by anyone duly authorized by the Commission, by delivering a copy thereof to the accused, or by leaving a copy at, or mailing by registered mail a copy to, the principal office or place of business of the accused. If the accused be a partnership, service may be made upon any partner, and if a corporation, upon the president, secretary, or other executive officer or director. A verified return by the person serving the complaint setting forth the manner of service, or in case

107The statutes require at least thirty days notice. Trade Law, Sec. 5; Clayton Law, Sec. 11. The Commission, by rule, has provided for at least forty days notice. See Rules of Practice, No. II, in appendix.

108 It would seem doubtful at least whether the Trade Commission can be compelled by writ of mandamus to institute any pro* ceeding. Mandamus will lie as against the Interstate Commerce Commission to compel it to exercise its regulative power. Int. Com. Com. v. Humboldt S. S. Co. (1912) 224 U. S. 474, 484. The Trade Commission, however, would seem to be put upon a dif

ferent footing by the fact that no third person can invoke its regulative power as a matter of right, but the Commission itself must be the actor in proceedings under its regulative power (Sec. 29, (3) infra), and by the further fact that the Commission is not required to institute proceedings until and unless it "shall have reason to believe" that a violation of law has occurred. Decatur v. Paulding (1840) 39 U. S. (14 Pet.) 497, 514-516. Any attempt to coerce action by the Trade Commission could be defeated, it would seem, by the Commission's merely saying that it did not have "reason to believe."

of service by mail the registry return receipt, shall be sufficent proof of the service of the complaint.109

(3) Commission the complainant. There are not to be adversary parties litigant before the Commission, with the Commission sitting as an impartial arbiter to determine their respective rights and obligations. The law does not contemplate that any person supposing himself to be aggrieved by another's practising "unfair methods of competition" or violating section two, three, seven or eight of the Clayton Law, shall file with the Commission a complaint against such other person, and have his supposed grievance adjudged.110 The Commission itself must be the complaining witness, in the first instance, in any proceeding before it. After the Commission shall have instituted a proceeding it may, upon good cause shown, permit another party than the one first accused to intervene therein, and to appear in person or by counsel. Such intervenor may, of course, align himself against the person first accused, but even in such event, the proceedings before the Commission obviously cannot be regarded as a contest between private suitors.

(4) No compulsory process. The Commission is not authorized to issue any attachment, warrant, or other compulsory process to require the appearance before it of any person against whom it issues a complaint. The only thing in the nature of process which the Commission may issue to secure the appearance before it of the accused, is the notice of the time and place of hearing upon the complaint. The accused may appear or

109Cf., Rules of Practice, No. IV, in appendix.

110The Commission has, by rule, authorized an application in writing by any person to the Commission for the institution of proceedings by the Commission in

respect of any violation of law over which the Commission has jurisdiction. See Rules of Practice, No. II, in appendix.

111Cf., Rules of Practice, No. V, in appendix.

not, as he shall see fit, but a failure to appear, if he should desire ever at any time to seek to make a defense, would be prejudicial.112 If he shall appear at the hearing before the Commission, the statutes provide merely that "he may show cause why an order should not be entered by the Commission requiring" him to "cease and desist from the violation of law" charged against him in the complaint.113

(5) No default. If the accused shall not appear, the Commission cannot, it would seem, enter his default and take the complaint against him as confessed, because the statutes clearly contemplate that, in every proceeding whatsoever before the Commission, whether the accused shall appear or not, testimony shall be taken, reduced to writing, and preserved as well for the use of the accused, as for the use of the Commission, in possible subsequent court proceedings.

(6) Report and order by Commission. After a hearing upon any complaint shall have been had, the Commission, if of opinion that a violation of law has occurred as charged in the complaint, shall make a report in writing in which it shall state its findings upon the facts, and shall then issue and cause to be served upon the accused an order requiring him to cease and desist from the violation of law in question. The order of the Commission may be served in the same manner, above noted, as the complaint. The Commission may require the accused to cease and desist from violations of the Clayton Law

112Sec. 32, infra.

113The rules of the Commission provide for the filing of an answer by the accused, within thirty days after the service upon the accused of the Commission's complaint. See Rules of Practice, No. III, in appendix. The accused

will not be heard orally in argument before the Commission, unless the Commission shall so order, but the accused may file a brief with the Commission at the close of the testimony. See Rules of Practice, No. X, in appendix.

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