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
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
(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
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.
Litigation 197
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.
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).

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