Antitrust: the Civil Rights Law for Small Business

Last Revision: 8/3/01 18:30

Antitrust: the Civil Rights Law for Small Business

The antitrust laws seem to have a new life after years of relative inactivity during the years of the Nixon and Reagan administrations. During those years, the antitrust laws were seldom enforced, and big business interests were free to do many things which the antitrust laws were supposedly enacted to prohibit, because the elected officials and their political appointees were not interested in bringing antitrust suits, and the courts (apparently following the lead of the highest elected officials) rendered decisions in antitrust suits which emasculated antitrust law and discouraged new cases from being brought.

For whatever reasons, and I can think of a few, the nation's antitrust laws are coming back into the realm of possible even-handed treatment by some of the federal courts, making it more possible now than during the preceding 20 years for an antitrust case to have a chance for success in the courts.

One difference is the existence of a democratic administration; another factor is the unchecked growth of big business through mergers and acquisitions and the corresponding loss of jobs and careers when wholesale terminations of employment result from me rgers and acquisitions; and of course the public's perception that the economy is getting worse, with no relief in sight, while the profits and capital values of big business steadily increase, and hit new highs with regularity, while jobs in the United States are being transferred to other countries. For these apparent reasons and undoubtedly others, there is now more thought in the United States that the antitrust laws should be enforced. Of course, it is quite possible that the nation's failure to enforce the antitrust laws during the Nixon and Reagan years has caused at least a significant part of our current economic woes.

History of Antitrust Law

During the latter part of the 19th century, big business developed different techniques for exploiting their economic power to maximize their profits, at the cost of small business and consumers. Small businesses were driven out of business by these practices and consumers wound up paying higher prices for goods and services as a result of the decrease in competition.

During 1890, the Sherman Act or Sherman Antitrust Act was enacted to prohibit conspiracies, contracts and combinations in restraint of trade, and to prohibit monopolization or contracts, combinations and agreements tending to monopolize. In 1895, the Wilson Tariff Act was enacted, and section 73 thereof became part of the antitrust laws, 15 USCS 8. And in 1914 the Clayton Act was enacted, which completed the nation's antitrust laws (with a few amendments from time to time thereafter).

Federal Antitrust Statutes

The Sherman Act has 13 sections, of which 4 (sections 1, 2, 3 and 8) contain substantive prohibitions of conduct, and the other sections are remedial or needed for implementing the substantive provisions. The Clayton Act has 25 sections (counting section 2 with its a-f subdivisions as 6 sections). The Sherman Act, Clayton Act, as amended by the Robinson-Patman Act, and Section 73 of the Wilson Tariff Act of 1894 constitute what is known as the United States antitrust laws.

The headings for each of the 13 sections of the Sherman Act (including section 73 of the Wilson Tariff Act) and 25 sections of the Clayton Act follow:

1. Trusts, etc. [contract, combination or conspiracy], in restraint of trade illegal; penalty

2. Monopolization; penalty

3. Trusts in Territories or District of Columbia illegal; combination a felony

4. Jurisdiction of courts; duty of United States attorneys; Procedure

5. Bringing in additional parties

6. Forfeiture of property in transit

6a. Conduct involving trade or commerce with foreign nations

7. "Person" defined

8. Trust in restraint of import trade illegal; penalty [actually Section 73 of the Wilson Tariff Act of 1894]

9. Jurisdiction of courts; duty of United States attorneys; procedure

10. Bringing in additional parties

11. Forfeiture of property in transit

12. Words defined; short title

End of the Sherman Act Section Headings

Start of the Clayton Act Section Headings:

13. Discrimination in price, services, or facilities

13(a). Price; selection of customers.

13(b). Burden of rebutting prima-facie case of discrimination.

13(c). Payment or acceptance of commission, brokerage or other compensation.

13(d). Payment for services or facilities for processing or sale.

13(e). Furnishing services or facilities for processing, handling, etc.

13(f). Knowingly inducing or receiving discriminatory price.

14. Sale, etc., on agreement not to use goods of competitor

15. Suits by persons injured

16. Judgments

17. Antitrust laws not applicable to labor organizations

18. Acquisition by one corporation of stock of another

19. Interlocking directorates and officers

20. [Repealed]

21. Enforcement provisions

22. District in which to sue corporation

23. Suits by United States; subpoenas for witnesses

24. Liability of directors and agents of corporation

25. Restraining violations; procedure

26. Injunctive relief for private parties; exception; costs

27. Effect of partial invalidity

28. [Repealed]

29. Appeals

30. Depositions for use in suits in equity; proceedings open to public

31. Panama Canal closed to violators of antitrust laws

32. [Repealed]

33. [Repealed]

34. Definitions applicable to 15 USCS Sections 34-36

35. Recovery of damages, etc., for antitrust violations from any local government, or official or employee thereof acting in an official capacity

36. Recovery of damages, etc., for antitrust violations on claim against person based on official action directed by local government, or official or employee thereof acting in an official capacity

End of the Clayton Act Section Headings

The Sherman Act is a powerful political and economic factor in the United States (and beyond). It is not very long, and if you are interested in antitrust law, you should take a look at The Sherman Act.

State Antitrust Statutes

In addition to the United States antitrust laws, many of the states have enacted antitrust laws of their own. For example, the New York Donnelley Act, Section 340 of the New York General Business Law; and Section 17045 of the California Business & Professions Code, which is part of the California Unfair Practices Act.

Free Consultation

The author of this website is Carl E. Person, who is an experienced federal litigator and antitrust attorney. He sees that antitrust law enforcement is becoming more possible today than it has been over the past 20 years, and believes that a website offering antitrust information will be of value in helping interested lawyers, businesspersons and prospective clients learn about a field of law which has almost died for lack of enforcement by the administration and interest by the federal judiciary.

The author is always interested in hearing from lawyers and prospective clients about what may be antitrust problems, and to help the caller decide whether there is anything worth pursuing, through the author (Carl Person) or any other attorney.

The consultation should take place by telephone at the outset, to avoid unnecessary paperwork, and to enable Carl Person to weed out problems which may belong with lawyers in other fields of law or which have no merit at all, or may be too costly to pursue.

All consultations are without charge, and the caller incurs no obligation unless and until a written fee agreement is entered into providing the terms for any representation.

Also, if you have any ideas for improving this antitrust website, I would like to hear from you.

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Copyright 1997, 2001 by Carl E. Person