Litigation

• Pages: 185-220

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CHAPTER VIII

LITIGATION

The Antitrust Division brings suit 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. In litigating civil actions, the Antitrust Division seeks 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 appeals of

adverse trial outcomes in the federal courts of appeal.

A. Beginning Civil Litigation

1. Complaints

Like all civil litigation, the Antitrust Division’s antitrust litigation

commences when the Division files a complaint in one of the federal

district courts. The Division must file antitrust complaints in federal

court, following the Federal Rules of Civil Procedure. As a general

matter, complaints in federal court need only include “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 The Division’s antitrust complaints typically state the

basis for jurisdiction and venue, describe the relevant product and

geographic markets, allege anticompetitive effect in those markets,

describe the conditions and likelihood of entry, and request relief. The

Supreme Court recently tightened the requirements for showing that a

plaintiff’s claim is entitled to relief.2

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

2. For further discussion on this point, see infra Chapter VIII.B.2.

186 DOJ Civil Antitrust Practice and Procedure Manual

a. Venue

In filing a complaint, at least one of the defendants must meet the

venue requirements.3 In addition, both the Sherman Act and the Clayton

Act include a mechanism for issuing summons to bring the defendants

within the jurisdiction of the court for the purposes of the case. 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.”4 The

Division need not usually navigate the process of summoning defendants

for whom venue is not proper because in many cases defendants stipulate

to, or do not contest, venue.

b. Service of Process

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

served on the defendant.5 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,6 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.7

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

3. See 28 U.S.C. §§ 1391-1413.

4. 15 U.S.C. § 5; 15 U.S.C. § 25.

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

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

7. Section 12 of the Clayton Act authorizes venue for suits under all of the

antitrust laws. Section 12 of the Clayton Act thus replaced the Sherman

Act’s “hairsplitting legal technicalities” for service of process. United

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

Litigation 187

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.8

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.9 However, when worldwide service of

process may be invoked is an uncertain question.

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

of process provision of Section 12 refers to “proceedings under the

antitrust laws against corporations” or refers 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 interpretation, 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.10 Thus, 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 sue 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.11 The Second

8. 15 U.S.C. § 22.

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

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

Cir. 1989).

10. Note that, although 28 U.SC. § 1391(d) permits an alien to be sued in any

district, the doctrine of forum non conveniens may support dismissal or

transfer. See United States v. Nat’l City Lines, 337 U.S. 78, 81-82

(1949); Capital Currency Exch., N.V. v. Nat’l Westminster Bank PLC,

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

11. See Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 294 (3d Cir.

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