15 U.S.C. § 4303 — Limitation on recovery

Page 2115 TITLE 15—COMMERCE AND TRADE § 4303 section 3701 of this title] recognized the importance of technical standards developed by voluntary con- sensus standards bodies to our national economy by requiring the use of such standards to the extent practicable by Federal agencies and by encouraging Federal agency representatives to participate in on- going standards development activities. The Office of Management and Budget on February 18, 1998, revised Circular A–119 to reflect these changes made in law. ‘‘(3) Following enactment of the National Tech- nology Transfer and Advancement Act of 1995, tech- nical standards developed or adopted by voluntary consensus standards bodies have replaced thousands of unique Government standards and specifications allowing the national economy to operate in a more unified fashion. ‘‘(4) Having the same technical standards used by Federal agencies and by the private sector permits the Government to avoid the cost of developing dupli- cative Government standards and to more readily use products and components designed for the commer- cial marketplace, thereby enhancing quality and safety and reducing costs. ‘‘(5) Technical standards are written by hundreds of nonprofit voluntary consensus standards bodies in a nonexclusionary fashion, using thousands of volun- teers from the private and public sectors, and are de- veloped under the standards development principles set out in Circular Number A–119, as revised February 18, 1998, of the Office of Management and Budget, in- cluding principles that require openness, balance, transparency, consensus, and due process. Such prin- ciples provide for— ‘‘(A) notice to all parties known to be affected by the particular standards development activity, ‘‘(B) the opportunity to participate in standards development or modification, ‘‘(C) balancing interests so that standards devel- opment activities are not dominated by any single group of interested persons, ‘‘(D) readily available access to essential informa- tion regarding proposed and final standards, ‘‘(E) the requirement that substantial agreement be reached on all material points after the consid- eration of all views and objections, and ‘‘(F) the right to express a position, to have it considered, and to appeal an adverse decision. ‘‘(6) There are tens of thousands of voluntary con- sensus standards available for government use. Most of these standards are kept current through interim amendments and interpretations, issuance of ad- denda, and periodic reaffirmation, revision, or reissuance every 3 to 5 years. ‘‘(7) Standards developed by government entities generally are not subject to challenge under the anti- trust laws. ‘‘(8) Private developers of the technical standards that are used as Government standards are often not similarly protected, leaving such developers vulner- able to being named as codefendants in lawsuits even though the likelihood of their being held liable is re- mote in most cases, and they generally have limited resources to defend themselves in such lawsuits. ‘‘(9) Standards development organizations do not stand to benefit from any antitrust violations that might occur in the voluntary consensus standards de- velopment process. ‘‘(10) As was the case with respect to research and production joint ventures before the passage of the National Cooperative Research and Production Act of 1993, if relief from the threat of liability under the antitrust laws is not granted to voluntary consensus standards bodies, both regarding the development of new standards and efforts to keep existing standards current, such bodies could be forced to cut back on standards development activities at great financial cost both to the Government and to the national economy.’’ Pub. L. 103–42, § 2, June 10, 1993, 107 Stat. 117, provided that: ‘‘(a) FINDINGS.—The Congress finds that— ‘‘(1) technological innovation and its profitable commercialization are critical components of the ability of the United States to raise the living stand- ards of Americans and to compete in world markets; ‘‘(2) cooperative arrangements among nonaffiliated businesses in the private sector are often essential for successful technological innovation; and ‘‘(3) the antitrust laws may have been mistakenly perceived to inhibit procompetitive cooperative inno- vation arrangements, and so clarification serves a useful purpose in helping to promote such arrange- ments. ‘‘(b) PURPOSE.—It is the purpose of this Act [see Short Title of 1993 Amendment note above] to promote inno- vation, facilitate trade, and strengthen the competi- tiveness of the United States in world markets by clari- fying the applicability of the rule of reason standard and establishing a procedure under which businesses may notify the Department of Justice and Federal Trade Commission of their cooperative ventures and thereby qualify for a single-damages limitation on civil antitrust liability.’’ § 4302. Rule of reason standard In any action under the antitrust laws, or under any State law similar to the antitrust laws, the conduct of— (1) any person in making or performing a contract to carry out a joint venture, or (2) a standards development organization while engaged in a standards development ac- tivity, shall not be deemed illegal per se; such conduct shall be judged on the basis of its reasonable- ness, taking into account all relevant factors af- fecting competition, including, but not limited to, effects on competition in properly defined, relevant research, development, product, proc- ess, and service markets. For the purpose of de- termining a properly defined, relevant market, worldwide capacity shall be considered to the extent that it may be appropriate in the cir- cumstances. (Pub. L. 98–462, § 3, Oct. 11, 1984, 98 Stat. 1816; Pub. L. 103–42, § 3(d), June 10, 1993, 107 Stat. 119; Pub. L. 108–237, title I, § 104, June 22, 2004, 118 Stat. 663.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–237 substituted ‘‘of— ‘‘(1) any person in making or performing a contract to carry out a joint venture, or ‘‘(2) a standards development organization while en- gaged in a standards development activity, shall’’ for ‘‘of any person in making or performing a contract to carry out a joint venture shall’’. 1993—Pub. L. 103–42 substituted ‘‘joint venture’’ for ‘‘joint research and development venture’’ and ‘‘, development, product, process, and service’’ for ‘‘and development’’ and inserted at end ‘‘For the purpose of determining a properly defined, relevant market, worldwide capacity shall be considered to the extent that it may be appropriate in the circumstances.’’ § 4303. Limitation on recovery (a) Amount recoverable Notwithstanding section 15 of this title and in lieu of the relief specified in such section, any person who is entitled to recovery on a claim under such section shall recover the actual dam- Page 2116 TITLE 15—COMMERCE AND TRADE § 4304 ages sustained by such person, interest cal- culated at the rate specified in section 1961 of title 28 on such actual damages as specified in subsection (d) of this section, and the cost of suit attributable to such claim, including a rea- sonable attorney’s fee pursuant to section 4304 of this title if such claim— (1) results from conduct that is within the scope of a notification that has been filed under section 4305(a) of this title for a joint venture, or for a standards development activ- ity engaged in by a standards development or- ganization against which such claim is made, and (2) is filed after such notification becomes effective pursuant to section 4305(c) of this title. (b) Recovery by States Notwithstanding section 15c of this title, and in lieu of the relief specified in such section, any State that is entitled to monetary relief on a claim under such section shall recover the total damage sustained as described in subsection (a)(1) of such section, interest calculated at the rate specified in section 1961 of title 28 on such total damage as specified in subsection (d) of this section, and the cost of suit attributable to such claim, including a reasonable attorney’s fee pursuant to section 15c of this title if such claim— (1) results from conduct that is within the scope of a notification that has been filed under section 4305(a) of this title for a joint venture, or for a standards development activ- ity engaged in by a standards development or- ganization against which such claim is made, and (2) is filed after such notification becomes effective pursuant to section 4305(c) of this title. (c) Conduct similar under State law Notwithstanding any provision of any State law providing damages for conduct similar to that forbidden by the antitrust laws, any person who is entitled to recovery on a claim under such provision shall not recover in excess of the actual damages sustained by such person, inter- est calculated at the rate specified in section 1961 of title 28 on such actual damages as speci- fied in subsection (d) of this section, and the cost of suit attributable to such claim, including a reasonable attorney’s fee pursuant to section 4304 of this title if such claim— (1) results from conduct that is within the scope of a notification that has been filed under section 4305(a) of this title for a joint venture, or for a standards development activ- ity engaged in by a standards development or- ganization against which such claim is made, and (2) is filed after notification has become ef- fective pursuant to section 4305(c) of this title. (d) Interest Interest shall be awarded on the damages in- volved for the period beginning on the earliest date for which injury can be established and ending on the date of judgment, unless the court finds that the award of all or part of such inter- est is unjust in the circumstances. (e) Rule of construction Subsections (a), (b), and (c) shall not be con- strued to modify the liability under the anti- trust laws of any person (other than a standards development organization) who— (1) directly (or through an employee or agent) participates in a standards develop- ment activity with respect to which a viola- tion of any of the antitrust laws is found, (2) is not a fulltime employee of the stand- ards development organization that engaged in such activity, and (3) is, or is an employee or agent of a person who is, engaged in a line of commerce that is likely to benefit directly from the operation of the standards development activity with re- spect to which such violation is found. (f) Applicability This section shall be applicable only if the challenged conduct of a person defending against a claim is not in violation of any decree or order, entered or issued after October 11, 1984, in any case or proceeding under the antitrust laws or any State law similar to the antitrust laws challenging such conduct as part of a joint venture, or of a standards development activity engaged in by a standards development organi- zation. (Pub. L. 98–462, § 4, Oct. 11, 1984, 98 Stat. 1816; Pub. L. 103–42, § 3(e)(1), June 10, 1993, 107 Stat. 119; Pub. L. 108–237, title I, § 105, June 22, 2004, 118 Stat. 663.) Editorial Notes AMENDMENTS 2004—Subsecs. (a)(1), (b)(1), (c)(1). Pub. L. 108–237, § 105(1), inserted ‘‘, or for a standards development ac- tivity engaged in by a standards development organiza- tion against which such claim is made’’ after ‘‘joint venture’’. Subsec. (e). Pub. L. 108–237, § 105(3), added subsec. (e). Former subsec. (e) redesignated (f). Pub. L. 108–237, § 105(2)(A), inserted ‘‘, or of a stand- ards development activity engaged in by a standards development organization’’ before period at end. Subsec. (f). Pub. L. 108–237, § 105(2)(B), redesignated subsec. (e) as (f). 1993—Subsecs. (a) to (c). Pub. L. 103–42, § 3(e)(1)(A), (B), in introductory provisions inserted ‘‘of this sec- tion’’ after ‘‘subsection (d)’’ and in par. (1) substituted ‘‘joint venture’’ for ‘‘joint research and development venture’’. Subsec. (e). Pub. L. 103–42, § 3(e)(1)(A), (C), substituted ‘‘October 11, 1984,’’ for ‘‘the effective date of this Act’’ and substituted ‘‘joint venture’’ for ‘‘joint research and development venture’’. § 4304. Award of costs, including attorney’s fees, to substantially prevailing party; offset (a) Notwithstanding sections 15 and 26 of this title, in any claim under the antitrust laws, or any State law similar to the antitrust laws, based on the conducting of a joint venture, or of a standards development activity engaged in by a standards development organization, the court shall, at the conclusion of the action— (1) award to a substantially prevailing claimant the cost of suit attributable to such claim, including a reasonable attorney’s fee, or (2) award to a substantially prevailing party defending against any such claim the cost of