15 U.S.C. § 1311 — Definitions

Page 1390 TITLE 15—COMMERCE AND TRADE § 1311 § 1311. Definitions For the purposes of this chapter— (a) The term ‘‘antitrust law’’ includes: (1) Each provision of law defined as one of the antitrust laws by section 12 of this title; and (2) Any statute enacted on and after Sep- tember 19, 1962, by the Congress which pro- hibits, or makes available to the United States in any court of the United States any civil remedy with respect to any restraint upon or monopolization of interstate or for- eign trade or commerce; (b) The term ‘‘antitrust order’’ means any final order, decree, or judgment of any court of the United States, duly entered in any case or proceeding arising under any antitrust law; (c) The term ‘‘antitrust investigation’’ means any inquiry conducted by any antitrust investigator for the purpose of ascertaining whether any person is or has been engaged in any antitrust violation or in any activities in preparation for a merger, acquisition, joint venture, or similar transaction, which, if con- summated, may result in an antitrust viola- tion; (d) The term ‘‘antitrust violation’’ means any act or omission in violation of any anti- trust law, any antitrust order or, with respect to the International Antitrust Enforcement Assistance Act of 1994 [15 U.S.C. 6201 et seq.], any of the foreign antitrust laws; (e) The term ‘‘antitrust investigator’’ means any attorney or investigator employed by the Department of Justice who is charged with the duty of enforcing or carrying into effect any antitrust law; (f) The term ‘‘person’’ means any natural person, partnership, corporation, association, or other legal entity, including any person acting under color or authority of State law; (g) The term ‘‘documentary material’’ in- cludes the original or any copy of any book, record, report, memorandum, paper, commu- nication, tabulation, chart, or other docu- ment, and any product of discovery; (h) The term ‘‘custodian’’ means the custo- dian or any deputy custodian designated under section 1313(a) of this title; (i) The term ‘‘product of discovery’’ includes without limitation the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission obtained by any method of discovery in any judicial litigation or in any administrative litigation of an adversarial nature; any digest, analysis, selection, compilation, or any derivation thereof; and any index or manner of access thereto; and (j) The term ‘‘agent’’ includes any person re- tained by the Department of Justice in con- nection with the enforcement of the antitrust laws. (k) The term ‘‘foreign antitrust laws’’ has the meaning given such term in section 12 of the International Antitrust Enforcement As- sistance Act of 1994 [15 U.S.C. 6211]. (Pub. L. 87–664, § 2, Sept. 19, 1962, 76 Stat. 548; Pub. L. 94–435, title I, § 101, Sept. 30, 1976, 90 Stat. 1383; Pub. L. 96–349, §§ 2(a), 7(a)(1), Sept. 12, 1980, 94 Stat. 1154, 1158; Pub. L. 103–438, § 3(e)(1)(A), Nov. 2, 1994, 108 Stat. 4598.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 87–664, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables. The International Antitrust Enforcement Assistance Act of 1994, referred to in subsec. (d), is Pub. L. 103–438, Nov. 2, 1994, 108 Stat. 4597, which is classified prin- cipally to chapter 88 (§ 6201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6201 of this title and Tables. AMENDMENTS 1994—Subsec. (d). Pub. L. 103–438, § 3(e)(1)(A)(i), sub- stituted ‘‘, any’’ for ‘‘or any’’ and inserted before semi- colon at end ‘‘or, with respect to the International Antitrust Enforcement Assistance Act of 1994, any of the foreign antitrust laws’’. Subsec. (k). Pub. L. 103–438, § 3(e)(1)(A)(ii), added sub- sec. (k). 1980—Subsec. (g). Pub. L. 96–349, § 2(a)(1), extended definition of ‘‘documentary material’’ to include any product of discovery. Subsec. (h). Pub. L. 96–349, § 2(a)(2), substituted a semicolon for period at end. Subsec. (i). Pub. L. 96–349, § 2(a)(3), added subsec. (i). Subsec. (j). Pub. L. 96–349, § 7(a)(1), added subsec. (j). 1976—Subsec. (a). Pub. L. 94–435, § 101(1), in par. (1) in- serted ‘‘and’’ after semicolon preceding par. (2), struck out par. (2) which included the Federal Trade Commis- sion Act in definition of antitrust law for purposes of this chapter, redesignated par. (3) as (2), struck out ‘‘(A)’’ before ‘‘any restraint’’, and struck out subpar. (B) which related to any unfair trade practice in or af- fecting interstate or foreign trade or commerce. Subsec. (c). Pub. L. 94–435, § 101(2), inserted ‘‘or in any activities in preparation for a merger, acquisition, joint venture, or similar transaction, which if con- summated, may result in an antitrust violation;’’ after ‘‘engaged in any antitrust violation’’. Subsec. (f). Pub. L. 94–435, § 101(3), included ‘‘any nat- ural person’’ and ‘‘any person acting under color or au- thority of State law’’ in definition of ‘‘person’’. Subsec. (h). Pub. L. 94–435, § 101(4), substituted ‘‘the custodian’’ for ‘‘the antitrust document custodian’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1976 AMENDMENT Pub. L. 94–435, title I, § 106, Sept. 30, 1976, 90 Stat. 1390, provided that: ‘‘The amendments to the Antitrust Civil Process Act [see section 1 of Pub. L. 87–664 set out as a Short Title note under this section] and to section 1505 of title 18, United States Code, made by this title [title I of Pub. L. 94–435] shall take effect on the date of enactment of this Act [Sept. 30, 1976], except section 3(i)(8) of the Antitrust Civil Process Act [section 1312(i)(8) of this title] (as amended by this Act) shall take effect on the later of (1) the date of enactment of this Act [Sept. 30, 1976], or (2) October 1, 1976. Any such amendment which provides for the production of docu- mentary material, answers to interrogatories, or oral testimony shall apply to any act or practice without regard to the date on which it occurred.’’ SHORT TITLE OF 1980 AMENDMENT Pub. L. 96–349, § 1, Sept. 12, 1980, 94 Stat. 1154, pro- vided: ‘‘That this Act [amending sections 15, 15a, 15c, 16, 18, and 1311 to 1314 of this title, section 1905 of Title 18, Crimes and Criminal Procedure, and section 1927 of Page 1391 TITLE 15—COMMERCE AND TRADE § 1312 Title 28, Judiciary and Judicial Procedure, and enact- ing provisions set out as notes under sections 15, 16, and 18 of this title] may be cited as the ‘Antitrust Proce- dural Improvements Act of 1980’.’’ SHORT TITLE Pub. L. 87–664, § 1, Sept. 19, 1962, 76 Stat. 548, provided: ‘‘That this Act [enacting this chapter and amending section 1505 of Title 18, Crimes and Criminal Procedure] may be cited as the ‘Antitrust Civil Process Act’.’’ SAVINGS PROVISION Pub. L. 87–664, § 7, Sept. 19, 1962, 76 Stat. 552, provided that: ‘‘Nothing contained in this Act [see Short Title note above] shall impair the authority of the Attorney General, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, or any antitrust investigator to (a) lay before any grand jury impaneled before any district court of the United States any evidence concerning any alleged antitrust violation, (b) invoke the power of any such court to compel the production of any evidence before any such grand jury, or (c) institute any proceeding for the en- forcement of any order or process issued in execution of such power, or to punish disobedience of any such order of process by any person, including a natural person.’’ § 1312. Civil investigative demands (a) Issuance; service; production of material; testimony Whenever the Attorney General, or the Assist- ant Attorney General in charge of the Antitrust Division of the Department of Justice, has rea- son to believe that any person may be in posses- sion, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation or, with re- spect to the International Antitrust Enforce- ment Assistance Act of 1994 [15 U.S.C. 6201 et seq.], an investigation authorized by section 3 of such Act [15 U.S.C. 6202], he may, prior to the in- stitution of a civil or criminal proceeding by the United States thereon, issue in writing, and cause to be served upon such person, a civil in- vestigative demand requiring such person to produce such documentary material for inspec- tion and copying or reproduction, to answer in writing written interrogatories, to give oral tes- timony concerning documentary material or in- formation, or to furnish any combination of such material, answers, or testimony. Whenever a civil investigative demand is an express de- mand for any product of discovery, the Attorney General or the Assistant Attorney General in charge of the Antitrust Division shall cause to be served, in any manner authorized by this sec- tion, a copy of such demand upon the person from whom the discovery was obtained and no- tify the person to whom such demand is issued of the date on which such copy was served. (b) Contents; return date for demand for product of discovery Each such demand shall— (1) state the nature of— (A) the conduct constituting the alleged antitrust violation, or (B) the activities in preparation for a merger, acquisition, joint venture, or simi- lar transaction, which, if consummated, may result in an antitrust violation, which are under investigation and the provi- sion of law applicable thereto; (2) if it is a demand for production of docu- mentary material— (A) describe the class or classes of docu- mentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified; (B) prescribe a return date or dates which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspec- tion and copying or reproduction; and (C) identify the custodian to whom such material shall be made available; or (3) if it is a demand for answers to written interrogatories— (A) propound with definiteness and cer- tainty the written interrogatories to be an- swered; (B) prescribe a date or dates at which time answers to written interrogatories shall be submitted; and (C) identify the custodian to whom such answers shall be submitted; or (4) if it is a demand for the giving of oral tes- timony— (A) prescribe a date, time, and place at which oral testimony shall be commenced; and (B) identify an antitrust investigator who shall conduct the examination and the cus- todian to whom the transcript of such exam- ination shall be submitted. Any such demand which is an express demand for any product of discovery shall not be re- turned or returnable until twenty days after a copy of such demand has been served upon the person from whom the discovery was obtained. (c) Protected material or information; demand for product of discovery superseding disclo- sure restrictions except trial preparation ma- terials (1) No such demand shall require the produc- tion of any documentary material, the submis- sion of any answers to written interrogatories, or the giving of any oral testimony, if such ma- terial, answers, or testimony would be protected from disclosure under— (A) the standards applicable to subpenas or subpenas duces tecum issued by a court of the United States in aid of a grand jury investiga- tion, or (B) the standards applicable to discovery re- quests under the Federal Rules of Civil Proce- dure, to the extent that the application of such standards to any such demand is appro- priate and consistent with the provisions and purposes of this chapter. (2) Any such demand which is an express de- mand for any product of discovery supersedes any inconsistent order, rule, or provision of law (other than this chapter) preventing or restrain- ing disclosure of such product of discovery to any person. Disclosure of any product of dis- covery pursuant to any such express demand does not constitute a waiver of any right or privilege, including without limitation any right or privilege which may be invoked to re- sist discovery of trial preparation materials, to which the person making such disclosure may be entitled.