15 U.S.C. § 15d — Measurement of damages

Page 24 TITLE 15—COMMERCE AND TRADE § 15d this section for injury sustained by such natural persons to their property by reason of any viola- tion of sections 1 to 7 of this title. The court shall exclude from the amount of monetary re- lief awarded in such action any amount of mone- tary relief (A) which duplicates amounts which have been awarded for the same injury, or (B) which is properly allocable to (i) natural persons who have excluded their claims pursuant to sub- section (b)(2) of this section, and (ii) any busi- ness entity. (2) The court shall award the State as mone- tary relief threefold the total damage sustained as described in paragraph (1) of this subsection, and the cost of suit, including a reasonable at- torney’s fee. The court may award under this paragraph, pursuant to a motion by such State promptly made, simple interest on the total damage for the period beginning on the date of service of such State’s pleading setting forth a claim under the antitrust laws and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the cir- cumstances. In determining whether an award of interest under this paragraph for any period is just in the circumstances, the court shall con- sider only— (A) whether such State or the opposing party, or either party’s representative, made motions or asserted claims or defenses so lack- ing in merit as to show that such party or rep- resentative acted intentionally for delay or otherwise acted in bad faith; (B) whether, in the course of the action in- volved, such State or the opposing party, or ei- ther party’s representative, violated any ap- plicable rule, statute, or court order providing for sanctions for dilatory behavior or other wise providing for expeditious proceedings; and (C) whether such State or the opposing party, or either party’s representative, en- gaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof. (b) Notice; exclusion election; final judgment (1) In any action brought under subsection (a)(1) of this section, the State attorney general shall, at such times, in such manner, and with such content as the court may direct, cause no- tice thereof to be given by publication. If the court finds that notice given solely by publica- tion would deny due process of law to any person or persons, the court may direct further notice to such person or persons according to the cir- cumstances of the case. (2) Any person on whose behalf an action is brought under subsection (a)(1) may elect to ex- clude from adjudication the portion of the State claim for monetary relief attributable to him by filing notice of such election with the court within such time as specified in the notice given pursuant to paragraph (1) of this subsection. (3) The final judgment in an action under sub- section (a)(1) shall be res judicata as to any claim under section 15 of this title by any per- son on behalf of whom such action was brought and who fails to give such notice within the pe- riod specified in the notice given pursuant to paragraph (1) of this subsection. (c) Dismissal or compromise of action An action under subsection (a)(1) shall not be dismissed or compromised without the approval of the court, and notice of any proposed dis- missal or compromise shall be given in such manner as the court directs. (d) Attorneys’ fees In any action under subsection (a)— (1) the amount of the plaintiffs’ attorney’s fee, if any, shall be determined by the court; and (2) the court may, in its discretion, award a reasonable attorney’s fee to a prevailing de- fendant upon a finding that the State attorney general has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. (Oct. 15, 1914, ch. 323, § 4C, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1394; amended Pub. L. 96–349, § 4(a)(3), Sept. 12, 1980, 94 Stat. 1157.) Editorial Notes REFERENCES IN TEXT The antitrust laws, referred to in subsec. (a)(2), are defined in section 12 of this title. AMENDMENTS 1980—Subsec. (a)(2). Pub. L. 96–349 inserted provisions respecting award of prejudgment interest including considerations for the court in determining whether an award is just under the circumstances. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–349 applicable only with re- spect to actions commenced after Sept. 12, 1980, see sec- tion 4(b) of Pub. L. 96–349, set out as a note under sec- tion 15 of this title. EFFECTIVE DATE Pub. L. 94–435, title III, § 304, Sept. 30, 1976, 90 Stat. 1396, provided that: ‘‘The amendments to the Clayton Act made by section 301 of this Act [enacting this sec- tion and sections 15d to 15h of this title] shall not apply to any injury sustained prior to the date of enactment of this Act [Sept. 30, 1976].’’ § 15d. Measurement of damages In any action under section 15c(a)(1) of this title, in which there has been a determination that a defendant agreed to fix prices in violation of sections 1 to 7 of this title, damages may be proved and assessed in the aggregate by statis- tical or sampling methods, by the computation of illegal overcharges, or by such other reason- able system of estimating aggregate damages as the court in its discretion may permit without the necessity of separately proving the indi- vidual claim of, or amount of damage to, per- sons on whose behalf the suit was brought. (Oct. 15, 1914, ch. 323, § 4D, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1395.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Injuries sustained prior to Sept. 30, 1976, not covered by this section, see section 304 of Pub. L. 94–435, set out as a note under section 15c of this title. Page 25 TITLE 15—COMMERCE AND TRADE § 16 § 15e. Distribution of damages Monetary relief recovered in an action under section 15c(a)(1) of this title shall— (1) be distributed in such manner as the dis- trict court in its discretion may authorize; or (2) be deemed a civil penalty by the court and deposited with the State as general reve- nues; subject in either case to the requirement that any distribution procedure adopted afford each person a reasonable opportunity to secure his appropriate portion of the net monetary relief. (Oct. 15, 1914, ch. 323, § 4E, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1395.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Injuries sustained prior to Sept. 30, 1976, not covered by this section, see section 304 of Pub. L. 94–435, set out as a note under section 15c of this title. § 15f. Actions by Attorney General (a) Notification to State attorney general Whenever the Attorney General of the United States has brought an action under the anti- trust laws, and he has reason to believe that any State attorney general would be entitled to bring an action under this Act based substan- tially on the same alleged violation of the anti- trust laws, he shall promptly give written noti- fication thereof to such State attorney general. (b) Availability of files and other materials To assist a State attorney general in evalu- ating the notice or in bringing any action under this Act, the Attorney General of the United States shall, upon request by such State attor- ney general, make available to him, to the ex- tent permitted by law, any investigative files or other materials which are or may be relevant or material to the actual or potential cause of ac- tion under this Act. (Oct. 15, 1914, ch. 323, § 4F, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1395.) Editorial Notes REFERENCES IN TEXT The antitrust laws, referred to in subsec. (a), are de- fined in section 12 of this title. This Act, referred to in text, is act Oct. 15, 1914, ch. 323, 38 Stat. 730, known as the Clayton Act, which is classified generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of this title, and sections 52 and 53 of Title 29, Labor. For further details and complete classification of this Act to the Code, see References in Text note set out under section 12 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Injuries sustained prior to Sept. 30, 1976, not covered by this section, see section 304 of Pub. L. 94–435, set out as a note under section 15c of this title. § 15g. Definitions For the purposes of sections 15c, 15d, 15e, and 15f of this title: (1) The term ‘‘State attorney general’’ means the chief legal officer of a State, or any other person authorized by State law to bring actions under section 15c of this title, and in- cludes the Corporation Counsel of the District of Columbia, except that such term does not include any person employed or retained on— (A) a contingency fee based on a percent- age of the monetary relief awarded under this section; or (B) any other contingency fee basis, unless the amount of the award of a reasonable at- torney’s fee to a prevailing plaintiff is deter- mined by the court under section 15c(d)(1) of this title. (2) The term ‘‘State’’ means a State, the Dis- trict of Columbia, the Commonwealth of Puer- to Rico, and any other territory or possession of the United States. (3) The term ‘‘natural persons’’ does not in- clude proprietorships or partnerships. (Oct. 15, 1914, ch. 323, § 4G, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1396.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Injuries sustained prior to Sept. 30, 1976, not covered by this section, see section 304 of Pub. L. 94–435, set out as a note under section 15c of this title. § 15h. Applicability of parens patriae actions Sections 15c, 15d, 15e, 15f, and 15g of this title shall apply in any State, unless such State pro- vides by law for its nonapplicability in such State. (Oct. 15, 1914, ch. 323, § 4H, as added Pub. L. 94–435, title III, § 301, Sept. 30, 1976, 90 Stat. 1396.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Injuries sustained prior to Sept. 30, 1976, not covered by this section, see section 304 of Pub. L. 94–435, set out as a note under section 15c of this title. § 16. Judgments (a) Prima facie evidence; collateral estoppel A final judgment or decree heretofore or here- after rendered in any civil or criminal pro- ceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees en- tered before any testimony has been taken. Nothing contained in this section shall be con- strued to impose any limitation on the applica- tion of collateral estoppel, except that, in any action or proceeding brought under the anti- trust laws, collateral estoppel effect shall not be given to any finding made by the Federal Trade Commission under the antitrust laws or under section 45 of this title which could give rise to a claim for relief under the antitrust laws.