Litigation

• Pages: 195-234

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CHAPTER VIII

LITIGATION

The Antitrust Division brings suit on behalf of the United States in

federal court challenging anticompetitive practices and merger-related

conduct pursuant to the Sherman and Clayton Acts. Like any other

litigant in federal court, the Antitrust Division has a host of discovery

tools and devices available to it. It also may seek various types of

injunctive and other relief to remedy antitrust violations. Post-trial, the

Antitrust Division enforces final judgments and any consent decrees

entered into with defendants, and it regularly is involved in matters

appealed to the U.S. Circuit Courts of Appeal.

A. Beginning Civil Litigation

1. Complaints

The Antitrust Division commences litigation by filing a complaint in

a federal district court and must comply with the Federal Rules of Civil

Procedure, as well as local rules of the federal district in which it files

suit. Therefore, the Antitrust Division must file a complaint that complies

with notice and pleading requirements, including by providing “a short

and plain statement” of “the grounds for the court’s jurisdiction,” “the

claim showing that the pleader is entitled to relief,” and “a demand for

the relief sought.”1 Complaints filed by the Antitrust Division typically

also state the basis for jurisdiction and venue, the alleged relevant

market, including its product and geographic dimensions, alleged

anticompetitive effect in the relevant market, the conditions and

likelihood of entry, and relief requested. The Antitrust Division, like all

other litigants, must demonstrate that its alleged claims are entitled to

relief.

a. Venue

A complaint typically includes one or more statements asserting that

venue is proper. Venue is proper if at least one defendant meets the

1. FED. R. CIV. P. 8(a).

196 DOJ Civil Antitrust Practice and Procedure Manual

venue requirements.2 In addition, both the Sherman Act and the Clayton

Act include respective mechanisms for bringing defendants within the

jurisdiction of the court for purposes of the litigation. In particular, both

acts provide that a court may summon a party when “the ends of justice

require that other parties should be brought before the court.”3 However,

the Antitrust Division often obtains the agreement or stipulation of a

defendant regarding matters of venue during the investigative process,

including as part of a defendant’s response to compulsory process.

b. Service of Process

Once a complaint is filed in federal court, the complaint must be

served on the defendants.4 Although the Federal Rules of Civil Procedure

generally limit the effectiveness of service of process to the state in

which the district court is located,5 the Clayton Act provides for

significantly broader service of process on corporations as discussed

below.

(1) Nationwide and Extraterritorial Service of Process on Corporations

Section 12 of the Clayton Act supplies the broader basis for service

of process on corporations for suits brought under the antitrust laws.6

This section provides:

Any suit, action, or proceeding under the antitrust laws against a

corporation may be brought not only in the judicial district

whereof it is an inhabitant, but also in any district wherein it may

be found or transacts business; and all process in such cases may

be served in the district of which it is an inhabitant, or wherever

it may be found.7

2. See 28 U.S.C. § 1391.

3. 15 U.S.C. § 5; 15 U.S.C. § 25.

4. See FED. R. CIV. P. 4(c)(1).

5. See FED. R. CIV. P. 4(k)(1)(A).

6. Section 12 of the Clayton Act authorizes venue for suits unde r all of the

antitrust laws. Section 12 of the Clayton Ac t thus replaced the Sherman

Act’s “hair-splitting legal technicalities” for service of process. United

States v. Scophony Corp., 333 U.S.795, 806-08 (1948).

7. 15 U.S.C. § 22.

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The extent to which the Clayton Act broadens the scope of service of

process is subject to some debate and has resulted in a split of authority

among federal appeals courts. Courts have interpreted Section 12’s

allowance of service “wherever [a corporation] may be found,” to allow

worldwide service of process.8 However, when world wide service of

process may be invoked is an uncertain question.

The courts of appeals are split as to whether “in such cases” in the

service of proc ess provision o f Section 12 ref ers to “[a]ny sui t, action, or

proceeding under the antitrust laws against corporations,” or refers more

generally to the entire venue provision. If the entire venue provision must

be satisfied, then a corporation will only be subject to worldwide service

of process when suit is brought in the judicial district where the

corporation is an inhabitant, is found, or transacts business. If the venue

provision of Section 12 need not be satisfied, then any corporation in any

antitrust suit is subject to worldwide service of process without regard to

which statute establishes venue. Under this latter construction, Section

12, in combination with general venue provisions, provides a powerful

means to serve alien defendants. 28 U.S.C. § 1391(d) allows an alien

defendant to be sued in any district.9 Thus, it follows that if venue is

proper under § 1391(d) and service of process does not depend on venue

being proper under Section 12 of the Clayton Act, a plaintiff may su e an

alien defendant under the antitrust laws in any federal court and serve the

alien defendant worldwide. Currently, the Ninth and Third Circuits

follow this interpretation of Section 12 and do not require satisfaction of

Section 12’s venue provision before permitting worldwide service of

process.10 The Second, Seventh, and D.C. Circuits, in contrast, require

satisfaction of Section 12’s venue provision.11

8. See, e.g., Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 422 (2d

Cir. 2005); Go-Video v. Akai Elec. Co., 885 F.2d 1406, 1413 (9th Cir.

1989).

9. Although 28 U.S.C. § 1391(d) permits an alien to be sued in any district,

the doctrine of forum non conveniens may support dismissal or transfer.

See Capital Currency Exch., N.V. v. Nat’l Westminster Bank PLC, 155

F.3d 603, 608-09 (2d Cir. 1998).

10. See In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 294 (3d

Cir. 2004); Go-Video, 885 F.2d at 1412.

11. See Daniel, 428 F.3d at 422-23; KM Enters. v. Glob. Traffic Techs., 725

F.3d 718, 728 (7th Cir. 2013) (explaining circuit split); GTE New Media

Servs. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000).