Commerce and Trade - 15 USC Section 16

01/03/05

Sec. 16. Judgments

(a) Prima facie evidence; collateral estoppel
A final judgment or decree heretofore or hereafter rendered in
any civil or criminal proceeding 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 entered
before any testimony has been taken. Nothing contained in this
section shall be construed to impose any limitation on the
application of collateral estoppel, except that, in any action or
proceeding brought under the antitrust 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.
(b) Consent judgments and competitive impact statements;
publication in Federal Register; availability of copies to the
public
Any proposal for a consent judgment submitted by the United
States for entry in any civil proceeding brought by or on behalf of
the United States under the antitrust laws shall be filed with the
district court before which such proceeding is pending and
published by the United States in the Federal Register at least 60
days prior to the effective date of such judgment. Any written
comments relating to such proposal and any responses by the United
States thereto, shall also be filed with such district court and
published by the United States in the Federal Register within such
sixty-day period. Copies of such proposal and any other materials
and documents which the United States considered determinative in
formulating such proposal, shall also be made available to the
public at the district court and in such other districts as the
court may subsequently direct. Simultaneously with the filing of
such proposal, unless otherwise instructed by the court, the United
States shall file with the district court, publish in the Federal
Register, and thereafter furnish to any person upon request, a
competitive impact statement which shall recite -
(1) the nature and purpose of the proceeding;
(2) a description of the practices or events giving rise to the
alleged violation of the antitrust laws;
(3) an explanation of the proposal for a consent judgment,
including an explanation of any unusual circumstances giving rise
to such proposal or any provision contained therein, relief to be
obtained thereby, and the anticipated effects on competition of
such relief;
(4) the remedies available to potential private plaintiffs
damaged by the alleged violation in the event that such proposal
for the consent judgment is entered in such proceeding;
(5) a description of the procedures available for modification
of such proposal; and
(6) a description and evaluation of alternatives to such
proposal actually considered by the United States.
(c) Publication of summaries in newspapers
The United States shall also cause to be published, commencing at
least 60 days prior to the effective date of the judgment described
in subsection (b) of this section, for 7 days over a period of 2
weeks in newspapers of general circulation of the district in which
the case has been filed, in the District of Columbia, and in such
other districts as the court may direct -
(i) a summary of the terms of the proposal for consent
judgment,
(ii) a summary of the competitive impact statement filed under
subsection (b) of this section,
(iii) and a list of the materials and documents under
subsection (b) of this section which the United States shall make
available for purposes of meaningful public comment, and the
place where such materials and documents are available for public
inspection.
(d) Consideration of public comments by Attorney General and
publication of response
During the 60-day period as specified in subsection (b) of this
section, and such additional time as the United States may request
and the court may grant, the United States shall receive and
consider any written comments relating to the proposal for the
consent judgment submitted under subsection (b) of this section.
The Attorney General or his designee shall establish procedures to
carry out the provisions of this subsection, but such 60-day time
period shall not be shortened except by order of the district court
upon a showing that (1) extraordinary circumstances require such
shortening and (2) such shortening is not adverse to the public
interest. At the close of the period during which such comments may
be received, the United States shall file with the district court
and cause to be published in the Federal Register a response to
such comments. Upon application by the United States, the district
court may, for good cause (based on a finding that the expense of
publication in the Federal Register exceeds the public interest
benefits to be gained from such publication), authorize an
alternative method of public dissemination of the public comments
received and the response to those comments.
(e) Public interest determination
(1) Before entering any consent judgment proposed by the United
States under this section, the court shall determine that the entry
of such judgment is in the public interest. For the purpose of such
determination, the court shall consider -
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon
the adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in
the relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set
forth in the complaint including consideration of the public
benefit, if any, to be derived from a determination of the issues
at trial.
(2) Nothing in this section shall be construed to require the
court to conduct an evidentiary hearing or to require the court to
permit anyone to intervene.
(f) Procedure for public interest determination
In making its determination under subsection (e) of this section,
the court may -
(1) take testimony of Government officials or experts or such
other expert witnesses, upon motion of any party or participant
or upon its own motion, as the court may deem appropriate;
(2) appoint a special master and such outside consultants or
expert witnesses as the court may deem appropriate; and request
and obtain the views, evaluations, or advice of any individual,
group or agency of government with respect to any aspects of the
proposed judgment or the effect of such judgment, in such manner
as the court deems appropriate;
(3) authorize full or limited participation in proceedings
before the court by interested persons or agencies, including
appearance amicus curiae, intervention as a party pursuant to the
Federal Rules of Civil Procedure, examination of witnesses or
documentary materials, or participation in any other manner and
extent which serves the public interest as the court may deem
appropriate;
(4) review any comments including any objections filed with the
United States under subsection (d) of this section concerning the
proposed judgment and the responses of the United States to such
comments and objections; and
(5) take such other action in the public interest as the court
may deem appropriate.
(g) Filing of written or oral communications with the district
court
Not later than 10 days following the date of the filing of any
proposal for a consent judgment under subsection (b) of this
section, each defendant shall file with the district court a
description of any and all written or oral communications by or on
behalf of such defendant, including any and all written or oral
communications on behalf of such defendant by any officer,
director, employee, or agent of such defendant, or other person,
with any officer or employee of the United States concerning or
relevant to such proposal, except that any such communications made
by counsel of record alone with the Attorney General or the
employees of the Department of Justice alone shall be excluded from
the requirements of this subsection. Prior to the entry of any
consent judgment pursuant to the antitrust laws, each defendant
shall certify to the district court that the requirements of this
subsection have been complied with and that such filing is a true
and complete description of such communications known to the
defendant or which the defendant reasonably should have known.
(h) Inadmissibility as evidence of proceedings before the district
court and the competitive impact statement
Proceedings before the district court under subsections (e) and
(f) of this section, and the competitive impact statement filed
under subsection (b) of this section, shall not be admissible
against any defendant in any action or proceeding brought by any
other party against such defendant under the antitrust laws or by
the United States under section 15a of this title nor constitute a
basis for the introduction of the consent judgment as prima facie
evidence against such defendant in any such action or proceeding.
(i) Suspension of limitations
Whenever any civil or criminal proceeding is instituted by the
United States to prevent, restrain, or punish violations of any of
the antitrust laws, but not including an action under section 15a
of this title, the running of the statute of limitations in respect
to every private or State right of action arising under said laws
and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof and for
one year thereafter: Provided, however, That whenever the running
of the statute of limitations in respect of a cause of action
arising under section 15 or 15c of this title is suspended
hereunder, any action to enforce such cause of action shall be
forever barred unless commenced either within the period of
suspension or within four years after the cause of action accrued.

AMENDMENTS
2004 - Subsec. (d). Pub. L. 108-237, Sec. 221(b)(1), inserted at
end "Upon application by the United States, the district court may,
for good cause (based on a finding that the expense of publication
in the Federal Register exceeds the public interest benefits to be
gained from such publication), authorize an alternative method of
public dissemination of the public comments received and the
response to those comments."
Subsec. (e). Pub. L. 108-237, Sec. 221(b)(2), designated
introductory provisions as par. (1), substituted "court shall" for
"court may", added subpars. (A) and (B) and par. (2), and struck
out former pars. (1) and (2) which read as follows:
"(1) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies actually considered, and any other
considerations bearing upon the adequacy of such judgment;
"(2) the impact of entry of such judgment upon the public
generally and individuals alleging specific injury from the
violations set forth in the complaint including consideration of
the public benefit, if any, to be derived from a determination of
the issues at trial."
Subsec. (g). Pub. L. 108-237, Sec. 221(b)(3), inserted "by any
officer, director, employee, or agent of such defendant" before ",
or other person" in first sentence.
1980 - Subsec. (a). Pub. L. 96-349 made collateral estoppel
inapplicable in any action or proceeding brought under the
antitrust laws to any finding made by the 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; struck out "or
by the United States under section 15a of this title," after "under
said laws"; and deleted from proviso "or to judgments or decrees
entered in actions under section 15a of this title" after
"testimony has been taken".
1976 - Pub. L. 94-435 substituted "private or State right of
action" for "private right of action" and "section 15 or 15c" for
"section 15".
1974 - Subsecs. (b) to (i). Pub. L. 93-528 added subsecs. (b) to
(h) and redesignated former subsec. (b) as (i).
1955 - Act July 7, 1955, substituted subsec. (a) for first
paragraph, to provide that final judgments in actions under the
antitrust laws by the United States shall be prima facie evidence
in damage suits by the United States as well as in private damage
suits, and substituted subsec. (b) for second paragraph, to provide
for a one-year suspension of limitations.
EFFECTIVE DATE OF 1980 AMENDMENT
Section 5(b) of Pub. L. 96-349 provided that: "The amendments
made by this section [amending this section] shall apply only with
respect to actions commenced after the date of the enactment of
this Act [Sept. 12, 1980]."
SUSPENSION OF LIMITATION
Act Oct. 10, 1942, ch. 589, 56 Stat. 781, as amended June 30,
1945, ch. 213, 59 Stat. 306, provided for the suspension of any
existing statutes of limitations relating to violations of
antitrust laws now indictable or subject to civil proceedings under
any existing statutes, until June 30, 1946.
FINDINGS AND PURPOSES OF 2004 AMENDMENT
Pub. L. 108-237, title II, Sec. 221(a), June 22, 2004, 118 Stat.
668, provided that:
"(1) Findings. - Congress finds that -
"(A) the purpose of the Tunney Act [probably means section 2 of
Pub. L. 93-528 which amended this section] was to ensure that the
entry of antitrust consent judgments is in the public interest;
and
"(B) it would misconstrue the meaning and Congressional intent
in enacting the Tunney Act to limit the discretion of district
courts to review antitrust consent judgments solely to
determining whether entry of those consent judgments would make a
'mockery of the judicial function'.
"(2) Purposes. - The purpose of this section [amending this
section] is to effectuate the original Congressional intent in
enacting the Tunney Act and to ensure that United States
settlements of civil antitrust suits are in the public interest."

Last modified: June 14, 2006