15 U.S.C. § 21 — Enforcement provisions

Page 35 TITLE 15—COMMERCE AND TRADE § 21 crease) in the gross national product, as deter- mined by the Department of Commerce or its successor, for the year then ended over the level so established for the year ending September 30, 1989. As soon as practicable, but not later than January 31 of each year, the Federal Trade Com- mission shall publish the adjusted amounts re- quired by this paragraph. (b) When any person elected or chosen as a di- rector or officer of any corporation subject to the provisions hereof is eligible at the time of his election or selection to act for such corpora- tion in such capacity, his eligibility to act in such capacity shall not be affected by any of the provisions hereof by reason of any change in the capital, surplus and undivided profits, or affairs of such corporation from whatever cause, until the expiration of one year from the date on which the event causing ineligibility occurred. (Oct. 15, 1914, ch. 323, § 8, 38 Stat. 732; May 15, 1916, ch. 120, 39 Stat. 121; May 26, 1920, ch. 206, 41 Stat. 626; Mar. 9, 1928, ch. 165, 45 Stat. 253; Mar. 2, 1929, ch. 581, 45 Stat. 1536; Aug. 23, 1935, ch. 614, § 329, 49 Stat. 717; Pub. L. 101–588, § 2, Nov. 16, 1990, 104 Stat. 2879; Pub. L. 103–203, § 1, Dec. 17, 1993, 107 Stat. 2368.) Editorial Notes REFERENCES IN TEXT The antitrust laws, referred to in subsec. (a)(1)(B), are defined in section 12 of this title. AMENDMENTS 1993—Subsec. (a)(5). Pub. L. 103–203 substituted ‘‘Jan- uary 31’’ for ‘‘October 30’’. 1990—Pub. L. 101–588 amended section generally, com- pletely revising it in form by substituting text divided into a subsec. (a) consisting of five numbered para- graphs and a subsec. (b) consisting of a single unnum- bered paragraph for former provisions which had con- sisted of a series of five undesignated paragraphs, and in substance by increasing the jurisdictional threshold for application of the section to corporations from $1,000,000 in net worth to $10,000,000 in net worth, cre- ating three ‘‘de minimis’’ exceptions to applications of the section in cases of insignificant competitive over- laps, and expanding the section to cover officers elected or chosen by the Board of Directors. 1935—Act Aug. 23, 1935, amended section generally. 1929—Act Mar. 2, 1929, amended second par. 1928—Act Mar. 9, 1928, amended second par. § 19a. Repealed. Aug. 23, 1935, ch. 614, § 329, 49 Stat. 717 Section, act Oct. 15, 1914, ch. 323, § 8a, as added June 16, 1933, ch. 89, § 33, 48 Stat. 194, related to interlocking corporations or partnerships making loans on securi- ties. § 20. Repealed. Pub. L. 101–588, § 3, Nov. 16, 1990, 104 Stat. 2880 Section, act Oct. 15, 1914, ch. 323, § 10, 38 Stat. 734, re- lated to a $50,000 yearly, aggregate limitation on pur- chases and contracts between a common carrier and any entity with whom such carrier has any form of interlocking directorate, etc., required filing with ICC of a full statement of transactions excluded from such limitation, and set forth fines and penalties for viola- tion of such limitation. § 21. Enforcement provisions (a) Commission, Board, or Secretary authorized to enforce compliance Authority to enforce compliance with sections 13, 14, 18, and 19 of this title by the persons re- spectively subject thereto is vested in the Sur- face Transportation Board where applicable to common carriers subject to jurisdiction under subtitle IV of title 49; in the Federal Commu- nications Commission where applicable to com- mon carriers engaged in wire or radio commu- nication or radio transmission of energy; in the Secretary of Transportation where applicable to air carriers and foreign air carriers subject to part A of subtitle VII of title 49; in the Board of Governors of the Federal Reserve System where applicable to banks, banking associations, and trust companies; and in the Federal Trade Com- mission where applicable to all other character of commerce to be exercised as follows: (b) Issuance of complaints for violations; hear- ing; intervention; filing of testimony; report; cease and desist orders; reopening and alter- ation of reports or orders Whenever the Commission, Board, or Sec- retary vested with jurisdiction thereof shall have reason to believe that any person is vio- lating or has violated any of the provisions of sections 13, 14, 18, and 19 of this title, it shall issue and serve upon such person and the Attor- ney General a complaint stating its charges in that respect, and containing a notice of a hear- ing upon a day and at a place therein fixed at least thirty days after the service of said com- plaint. The person so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the Commission, Board, or Secretary requiring such person to cease and desist from the violation of the law so charged in said com- plaint. The Attorney General shall have the right to intervene and appear in said proceeding and any person may make application, and upon good cause shown may be allowed by the Com- mission, Board, or Secretary, to intervene and appear in said proceeding by counsel or in per- son. The testimony in any such proceeding shall be reduced to writing and filed in the office of the Commission, Board, or Secretary. If upon such hearing the Commission, Board, or Sec- retary, as the case may be, shall be of the opin- ion that any of the provisions of said sections have been or are being violated, it shall make a report in writing, in which it shall state its find- ings as to the facts, and shall issue and cause to be served on such person an order requiring such person to cease and desist from such violations, and divest itself of the stock, or other share cap- ital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections 18 and 19 of this title, if any there be, in the man- ner and within the time fixed by said order. Until the expiration of the time allowed for fil- ing a petition for review, if no such petition has been duly filed within such time, or, if a petition for review has been filed within such time then until the record in the proceeding has been filed in a court of appeals of the United States, as hereinafter provided, the Commission, Board, or Page 36 TITLE 15—COMMERCE AND TRADE § 21 Secretary may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any re- port or any order made or issued by it under this section. After the expiration of the time allowed for filing a petition for review, if no such peti- tion has been duly filed within such time, the Commission, Board, or Secretary may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission, Board, or Secretary conditions of fact or of law have so changed as to require such action or if the public interest shall so re- quire: Provided, however, That the said person may, within sixty days after service upon him or it of said report or order entered after such a re- opening, obtain a review thereof in the appro- priate court of appeals of the United States, in the manner provided in subsection (c) of this section. (c) Review of orders; jurisdiction; filing of peti- tion and record of proceeding; conclusive- ness of findings; additional evidence; modi- fication of findings; finality of judgment and decree Any person required by such order of the com- mission, board, or Secretary to cease and desist from any such violation may obtain a review of such order in the court of appeals of the United States for any circuit within which such viola- tion occurred or within which such person re- sides or carries on business, by filing in the court, within sixty days after the date of the service of such order, a written petition praying that the order of the commission, board, or Sec- retary be set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the commission, board, or Secretary, and thereupon the commission, board, or Sec- retary shall file in the court the record in the proceeding, as provided in section 2112 of title 28. Upon such filing of the petition the court shall have jurisdiction of the proceeding and of the question determined therein concurrently with the commission, board, or Secretary until the filing of the record, and shall have power to make and enter a decree affirming, modifying, or setting aside the order of the commission, board, or Secretary, and enforcing the same to the extent that such order is affirmed, and to issue such writs as are ancillary to its jurisdic- tion or are necessary in its judgment to prevent injury to the public or to competitors pendente lite. The findings of the commission, board, or Secretary as to the facts, if supported by sub- stantial evidence, shall be conclusive. To the ex- tent that the order of the commission, board, or Secretary is affirmed, the court shall issue its own order commanding obedience to the terms of such order of the commission, board, or Sec- retary. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the commission, board, or Secretary, the court may order such additional evidence to be taken before the commission, board, or Secretary, and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The commission, board, or Secretary may modify its findings as to the facts, or make new findings, by reason of the ad- ditional evidence so taken, and shall file such modified or new findings, which if supported by substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the re- turn of such additional evidence. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari, as provided in section 1254 of title 28. (d) Exclusive jurisdiction of Court of Appeals Upon the filing of the record with its jurisdic- tion of the court of appeals to affirm, enforce, modify, or set aside orders of the commission, board, or Secretary shall be exclusive. (e) Liability under antitrust laws No order of the commission, board, or Sec- retary or judgment of the court to enforce the same shall in anywise relieve or absolve any per- son from any liability under the antitrust laws. (f) Service of complaints, orders and other proc- esses Complaints, orders, and other processes of the commission, board, or Secretary under this sec- tion may be served by anyone duly authorized by the commission, board, or Secretary, either (1) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the cor- poration to be served; or (2) by leaving a copy thereof at the residence or the principal office or place of business of such person; or (3) by mail- ing by registered or certified mail a copy thereof addressed to such person at his or its residence or principal office or place of business. The verified return by the person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of the same, and the return post office receipt for said complaint, order, or other process mailed by registered or certified mail as aforesaid shall be proof of the service of the same. (g) Finality of orders generally Any order issued under subsection (b) shall be- come final— (1) upon the expiration of the time allowed for filing a petition for review, if no such peti- tion has been duly filed within such time; but the commission, board, or Secretary may thereafter modify or set aside its order to the extent provided in the last sentence of sub- section (b); or (2) upon the expiration of the time allowed for filing a petition for certiorari, if the order of the commission, board, or Secretary has been affirmed, or the petition for review has been dismissed by the court of appeals, and no petition for certiorari has been duly filed; or (3) upon the denial of a petition for certio- rari, if the order of the commission, board, or Secretary has been affirmed or the petition for Page 37 TITLE 15—COMMERCE AND TRADE § 21 review has been dismissed by the court of ap- peals; or (4) upon the expiration of thirty days from the date of issuance of the mandate of the Su- preme Court, if such Court directs that the order of the commission, board, or Secretary be affirmed or the petition for review be dis- missed. (h) Finality of orders modified by Supreme Court If the Supreme Court directs that the order of the commission, board, or Secretary be modified or set aside, the order of the commission, board, or Secretary rendered in accordance with the mandate of the Supreme Court shall become final upon the expiration of thirty days from the time it was rendered, unless within such thirty days either party has instituted proceedings to have such order corrected to accord with the mandate, in which event the order of the com- mission, board, or Secretary shall become final when so corrected. (i) Finality of orders modified by Court of Ap- peals If the order of the commission, board, or Sec- retary is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the court has been affirmed by the Supreme Court then the order of the commission, board, or Secretary rendered in accordance with the mandate of the court of appeals shall become final on the expiration of thirty days from the time such order of the commission, board, or Secretary was rendered, unless within such thir- ty days either party has instituted proceedings to have such order corrected so that it will ac- cord with the mandate, in which event the order of the commission, board, or Secretary shall be- come final when so corrected. (j) Finality of orders issued on rehearing ordered by Court of Appeals or Supreme Court If the Supreme Court orders a rehearing; or if the case is remanded by the court of appeals to the commission, board, or Secretary for a re- hearing, and if (1) the time allowed for filing a petition for certiorari has expired, and no such petition has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the court has been affirmed by the Supreme Court, then the order of the commission, board, or Secretary rendered upon such rehearing shall become final in the same manner as though no prior order of the commission, board, or Sec- retary had been rendered. (k) ‘‘Mandate’’ defined As used in this section the term ‘‘mandate’’, in case a mandate has been recalled prior to the ex- piration of thirty days from the date of issuance thereof, means the final mandate. (l) Penalties Any person who violates any order issued by the commission, board, or Secretary under sub- section (b) after such order has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and may be re- covered in a civil action brought by the United States. Each separate violation of any such order shall be a separate offense, except that in the case of a violation through continuing fail- ure or neglect to obey a final order of the com- mission, board, or Secretary each day of con- tinuance of such failure or neglect shall be deemed a separate offense. (Oct. 15, 1914, ch. 323, § 11, 38 Stat. 734; June 19, 1934, ch. 652, title VII, § 702(d), formerly title VI, § 602(d), 48 Stat. 1102; renumbered Pub. L. 98–549, § 6(a), Oct. 30, 1984, 98 Stat. 2804; Aug. 23, 1935, ch. 614, § 203(a), 49 Stat. 704; June 23, 1938, ch. 601, § 1107(g), 52 Stat. 1028; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107; Dec. 29, 1950, ch. 1184, 64 Stat. 1125; Pub. L. 85–726, title XIV, § 1401(b), Aug. 23, 1958, 72 Stat. 806; Pub. L. 85–791, § 4, Aug. 28, 1958, 72 Stat. 943; Pub. L. 86–107, § 1, July 23, 1959, 73 Stat. 243; Pub. L. 98–443, § 9(m), Oct. 4, 1984, 98 Stat. 1708; Pub. L. 98–620, title IV, § 402(10)(B), Nov. 8, 1984, 98 Stat. 3358; Pub. L. 104–88, title III, § 318(2), Dec. 29, 1995, 109 Stat. 949.) Editorial Notes REFERENCES IN TEXT The antitrust laws, referred to in subsec. (e), are de- fined in section 12 of this title. CODIFICATION In subsec. (a), ‘‘part A of subtitle VII of title 49’’ sub- stituted for ‘‘the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]’’ on authority of Pub. L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49. AMENDMENTS 1995—Subsec. (a). Pub. L. 104–88 substituted ‘‘Surface Transportation Board where applicable to common car- riers subject to jurisdiction under subtitle IV of title 49’’ for ‘‘Interstate Commerce Commission where appli- cable to common carriers subject to the Interstate Commerce Act, as amended’’. 1984—Subsec. (a). Pub. L. 98–443, § 9(m)(1), substituted ‘‘Secretary of Transportation where applicable to air carriers and foreign air carriers subject to the Federal Aviation Act of 1958’’ for ‘‘Civil Aeronautics Board where applicable to air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938’’. Subsec. (b). Pub. L. 98–443, § 9(m)(2), substituted ‘‘Commission, Board, or Secretary’’ for ‘‘Commission or Board’’ wherever appearing. Subsecs. (c), (d). Pub. L. 98–443, § 9(m)(3), substituted ‘‘commission, board, or Secretary’’ for ‘‘commission or board’’ wherever appearing. Subsec. (e). Pub. L. 98–620 struck out provision that such proceedings in the court of appeals had to be given precedence over other cases pending therein, and had to be in every way expedited. Pub. L. 98–443, § 9(m)(3), substituted ‘‘commission, board, or Secretary’’ for ‘‘commission or board’’. Subsecs. (f) to (j), (l). Pub. L. 98–443, § 9(m)(3), sub- stituted ‘‘commission, board, or Secretary’’ for ‘‘com- mission or board’’ wherever appearing. 1959—Pub. L. 86–107 amended section generally, and among other changes, authorized the Commission or Board, upon notice and opportunity for hearing, in cases where a petition for review has not been filed within the time allowed, to reopen and alter, modify, or set aside, in whole or in part, any report or order, whenever conditions of fact or law have so changed as to require such action or if the public interest so re- quires, and added subsecs. (g) to (k), providing for final- Page 38 TITLE 15—COMMERCE AND TRADE § 21a ity of orders, and subsec. (l), prescribing the civil pen- alty for violation of orders. 1958—Pub. L. 85–791, § 4(a), struck out ‘‘a transcript of’’ after ‘‘Until’’ in last sentence of second par. Pub. L. 85–791, § 4(b), substituted in first sentence of third par., ‘‘file the record in the proceeding, as pro- vided in section 2112 of title 28’’ for ‘‘certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the Commission or Board’’, and in second sentence of third par., struck out ‘‘and tran- script’’ after ‘‘application’’, inserted ‘‘concurrently with the Commission or Board until the filing of the record’’, and struck out ‘‘upon the pleadings, testi- mony, and proceedings set forth in such transcript’’ after ‘‘make and enter’’. Pub. L. 85–791, § 4(c), substituted in second sentence of fourth par., ‘‘transmitted by the clerk of the court to’’ for ‘‘served upon’’ and ‘‘shall file in the court the record in the proceeding, as provided in section 2112 of title 28’’ for ‘‘forthwith shall certify and file in the court a transcript of the record in the proceeding, as hereinbefore provided’’, and in third sentence of fourth paragraph substituted ‘‘such petition’’ for ‘‘the tran- script’’ and inserted ‘‘determined as provided in section 1009(e) of title 5,’’. Pub. L. 85–791, § 4(d), substituted in fifth par., ‘‘Upon the filing of the record with it the’’ for ‘‘The’’. 1950—Act Dec. 29, 1950, amended section generally to allow the Attorney General to intervene and appear in any proceeding brought by any Commission or Board to enforce sections 13, 14, 18, and 19 of this title, but the amendment in nowise affects the jurisdiction of the De- partment of Justice to enforce these sections in the courts. 1938—Act June 23, 1938, inserted ‘‘in the Civil Aero- nautics Authority where applicable to air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938’’, and ‘‘authority’’ after ‘‘commission’’ wherever appearing. 1935—Act Aug. 23, 1935, changed the name of Federal Reserve Board to Board of Governors of the Federal Re- serve System. 1934—Act June 19, 1934, amended first par. Statutory Notes and Related Subsidiaries CHANGE OF NAME Act June 25, 1948, eff. Sept. 1, 1948, as amended by act May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit court of appeals’’. EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–88 effective Jan. 1, 1996, see section 2 of Pub. L. 104–88, set out as an Effective Date note under section 1301 of Title 49, Transpor- tation. EFFECTIVE DATE OF 1984 AMENDMENTS Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. Amendment by Pub. L. 98–443 effective Jan. 1, 1985, see section 9(v) of Pub. L. 98–443, set out as a note under section 5314 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1959 AMENDMENT Section 2 of Pub. L. 86–107 provided that: ‘‘The amendments made by section 1 [amending this section] shall have no application to any proceeding initiated before the date of enactment of this Act [July 23, 1959] under the third or fourth paragraph of section 11 of the Act entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes’, approved October 15, 1914 (38 Stat. 734, as amended; 15 U.S.C. 21) [this section]. Each such pro- ceeding shall be governed by the provisions of such sec- tion as they existed on the day preceding the date of enactment of this Act.’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Federal Trade Commis- sion, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 8 of 1950, § 1, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1264, set out under section 41 of this title. § 21a. Actions and proceedings pending prior to June 19, 1936; additional and continuing vio- lations Nothing herein contained shall affect rights of action arising, or litigation pending, or orders of the Federal Trade Commission issued and in ef- fect or pending on review, based on section 13 of this title, prior to June 19, 1936: Provided, That where, prior to June 19, 1936, the Federal Trade Commission has issued an order requiring any person to cease and desist from a violation of section 13 of this title, and such order is pending on review or is in effect, either as issued or as affirmed or modified by a court of competent ju- risdiction, and the Commission shall have rea- son to believe that such person has committed, used or carried on, since June 19, 1936, or is com- mitting, using or carrying on, any act, practice or method in violation of any of the provisions of said section 13 of this title, it may reopen such original proceedings and may issue and serve upon such person its complaint, supple- mentary to the original complaint, stating its charges in that respect. Thereupon the same proceedings shall be had upon such supple- mentary complaint as provided in section 21 of this title. If upon such hearing the Commission shall be of the opinion that any act, practice, or method charged in said supplementary com- plaint has been committed, used, or carried on since June 19, 1936, or is being committed, used or carried on, in violation of said section 13 of this title, it shall make a report in writing in which it shall state its findings as to the facts and shall issue and serve upon such person its order modifying or amending its original order to include any additional violations of law so found. Thereafter the provisions of section 21 of this title, as to review and enforcement of or- ders of the Commission shall in all things apply to such modified or amended order. If upon re- view as provided in said section 21 of this title the court shall set aside such modified or amended order, the original order shall not be affected thereby, but it shall be and remain in force and effect as fully and to the same extent as if such supplementary proceedings had not been taken. (June 19, 1936, ch. 592, § 2, 49 Stat. 1527.) Editorial Notes REFERENCES IN TEXT Nothing herein contained, referred to in text, prob- ably means nothing contained in act June 19, 1936, ch. 592, 49 Stat. 1526, popularly known as the Robinson-Pat- man Antidiscrimination Act and also as the Robinson- Patman Price Discrimination Act, which enacted sec- tions 13a, 13b, and 21a of this title and amended section 13 of this title. For complete classification of this Act