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nor

within

Sec. 2. ASSOCIATION FOR OR AGREEMENT OR ACT MADE OR DONE IN COURSE OF EXPORT TRADE

STATUS UNDER SHERMAN ANTITRUST LAW-Continued. Nor agreement such export trade, or an agreement made or act done in in a restraint the the course of export trade by such association, provided United States of such association, agreement, or act is not in restraint of trade of any do trade within the United States, and is not in restraint of mestic competi. tor, and

the export trade of any domestic competitor of such asIl such associa: sociation: And provided further, That such association artificially or in: does not, either in the United States or elsewhere, enter tentionally . bance of depreso into any agreement, understanding, or conspiracy, or do prices , subcompetition, esser any act which artificially or intentionally enhances or de

,

presses prices within the United States of commodities class exported of the class exported by such association, or which sub

stantially lessens competition within the United States or otherwise restrains trade therein.

tion

restrain trade in commodities of

Sec. 3. ACQUISITION BY EXPORT TRADE CORPORATION OF STOCK OR CAPITAL OF OTHER CORPORATION.

Lawful

3

Sec. 3. That nothing contained in section seven of the

Act entitled " An Act to supplement existing laws against

under unlawful restraints and monopolies, and for other purClayton Act un less effect may be poses," approved October fifteenth, nineteen hundred to restrain trade or substantially and fourteen, shall be construed to forbid the acquisilessen competition within United tion or ownership by any corporation of the whole or any States.

part of the stock or other capital of any corporation organized solely for the purpose of engaging in export trade, and actually engaged solely in such export trade, unless the effect of such acquisition or ownership may be to restrain trade or substantially lessen competition within the United States.

Sec. 4. FEDERAL TRADE COMMISSION ACT EXTENDED TO EXPORT TRADE COMPETITORS.

SEC. 4. That the prohibition against “unfair methods of competition " and the remedies provided for enforcing said prohibition contained in the Act entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes," approved September twenty-sixth, nineteen hundred and fourteen," shall be construed as extending to unfair methods of competition used in export trade against competitors engaged in export trade, even though the acts constituting such unfair Even though

s See ante, p. 502 et seq. 4 See ante, p. 489 et seq.

acts methods are done without the territorial jurisdiction of done without ter: the United States.

tion of United States,

to file statement with

Trade Commission show.

cers, etc., and

Sec. 5. OBLIGATIONS OF EXPORT TRADE ASSOCIATIONS UNDER THIS ACT. PENALTIES FOR FAILURE TO COMPLY. DUTIES AND POWERS OF COMMISSION.

Sec. 5. That every association now engaged solely in Export trade export trade, within sixty days after the passage of this corporations Act, and every association entered into hereafter which Federal engages solely in export trade, within thirty days after ing location of

offices, names, and its creation, shall file with the Federal Trade Commis- addresses of offsion a verified written statement setting forth the loca- also articles of

incorporation or tion of its offices or places of business and the names and contract of asso. addresses of all its officers and of all its stockholders or members, and if a corporation, a copy of its certificate or articles of incorporation and by-laws, and if unincorporated, a copy of its articles or contract of association, and on the first day of January of each year thereafter it shall make a like statement of the location of its offices or places of business and the names and addresses of all its officers and of all its stockholders or members and of all amendments to and changes in its articles or certificate of incorporation or in its articles or contract of association. It shall also furnish to the com- To furnish also

information as to mission such information as the commission may require organization,

business, etc. as to its organization, business, oonduct, practices, management, and relation to other associations, corporations, partnerships, and individuals. Any association which shall fail so to do shall not have the benefit of the pro- of benefit et secs

.

Penalties, loss visions of section two and section three of this Act, and 2 and 3, and fine. it shall also forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the association has its principal office, or in any district in which it shall do business. It shall be the

neys to prosecute duty of the various district attorneys, under the direction for recovery of of the Attorney General of the United States, to prosecute for the recovery of the forfeiture. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.

80044°--24-VOL 5

District attor.

-35

Sec. 5. OBLIGATIONS OF EXPORT TRADE ASSOCIA. TIONS UNDER THIS ACT. PENALTIES FOR FAILURE TO COMPLY. DUTIES AND POWERS OF COMMISSIONContinued.

enhance

Federal Trade Whenever the Federal Trade Commission shall have Commission to investigate re reason to believe that an association or any agreement straint of trade, artificial or inten- made or act done by such association is in restraint of ment or depres-trade within the United States or in restraint of the exsion of prices or substantial o less port trade of any domestic competitor of such association,

compe tition by associa- or that an association either in the United States or elsetion.

where has entered into any agreement, understanding, or conspiracy, or done any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein, it shall summon such association, its officers, and agents to

appear before it, and thereafter conduct an investigation Mer recome into the alleged violations of law. Upon investigation, mend readjust ment in case of if it shall conclude that the law has been violated, it may violation.

make to such association recommendations for the readjustment of its business, in order that it may thereafter

maintain its organization and mangement and conduct its To refér find business in accordance with law. If such association fails metordet i Generte to comply with the recommendations of the Federal Trade it association fails Commission, said commission shall refer its findings and recommendation recommendations to the Attorney General of the United

.

States for such action thereon as he may deem proper. given same pow.

For the purpose of enforcing these provisions the Feders as under Fed. eral Trade Commission shall have all the powers, so far far as applicable as applicable, given it in “An Act to create a Federal

Trade Commission, to define its powers and duties, and for other purposes.” 5

Approved, April 10, 1918.

ings and recom.

to

Commission

Act

5 See ante, p. 489 et seq.

APPENDIX II.

DECISIONS OF THE COURTS IN CASES INSTI

TUTED AGAINST OR BY THE COMMISSION.1

ALUMINUM CO. OF AMERICA v. FEDERAL

TRADE COMMISSION.? (Circuit Court of Appeals, Third Circuit, June 1, 1922.

Rehearing denied November 22, 1922.)

No. 2721.

1. MONOPOLIES KEY No. 20_EFFECT OF CONVEYANCE OF BUSINESS

TO ANOTHER CORPORATION, IN WHICH COMPETITOR PURCHASED
STOCK, TO BE CONSIDERED WITH REFERENCE TO TENDENCY TO

CREATE MONOPOLY. Under Clayton Act, Par. 7 (Comp. St. Par. 8835g), relative to the purchase by a corporation engaged in commerce of stock in another corporation so engaged, where, by agreement between the c Company and the A Company, a third corporation was organized to take over part of the business of the C Company, and the A Company purchased stock therein, though it was not the corporation engaged in interstate commerce in which stock was acquired, the effect of the transaction with reference to its tendency to create a monopoly, as well as its

tendency to lessen competition, must be considered. 2. MONOPOLIES KEY No. 20STATUTE NOT DIRECTED TO ACQUISI

TION OF STOCK IN ONE CORPORATION BY ANOTHER, BUT TO

EFFECT ON COMMERCE. Clayton Act, Par. 7 (Comp. St. Par. 8835g), forbidding a corporation engaged in commerce to acquire stock in another

· The period covered coincides with that of this volume, namely, May 22, 1922, to Feb. 13, 1923. During this period, however, in addition to the opinions and decisions herewith reprinted, the Supreme Court of the District of Columbia handed down a written opinion as of Jan. 30, 1923, in the case of the Maynard Coal Co. v. Federal Trade Commission, sustaining a motion of the company to strike out the Commission's amended answer upon the ground that it raised no defense. This opinion will be reprinted together with the court's final decree in the case (the Commission having elected to stand upon its answer) as of Mar. 6, 1923, the date of said decree. (For a statement by the court of the facts in this proceeding, pending on appeal as of this writing before the Court of Appeals for the District of Columbia, in wbich the Commission was enjoined from requiring certain reports required by it, see opinion handed down Apr. 19, 1920, in connection with the granting of a preliminary injunction, reported in 3 F. T. C. at p. 555 et seq.). It should also be noted that during the period referred to the Supreme Court on June 5, 1922, denied a petition by the Beechnut Co. for a rehearing in the case of Federal Trade Commission v. Beech-Nut Packing Co., 257 U. S. 441 (see opinion also reported in 4 F. T. C. at p. 583 et seq.).

? Petition of the Aluminum Co. for a rehearing or modification of the court's order, denied Nov. 22, 1922. Petition by the company for writ of certiorari denied by the Supreme Court on Feb. 26, 1923, 261 U. S. 616 (43 Sup. Ct. 362).

corporation so engaged, where the effect is substantially to lessen competition, to restrain commerce, or tend to create a monopoly, is not directed to the mere acquisition of stock of one corporation by another, but to the effect of such acquisition

on commerce.

3. MONOPOLIES KEY No. 20—COMPETITION Exists BETWEEN CORPO

RATIONS IN SAME BUSINESS, THOUGH THERE IS A “ SELLERS'

MARKET.” Within Clayton Act, Par. 7 (Comp. St. Par. 8835g), relative to the purchase by a corporation of stock in another corporation having the effect of substantially lessening competition, competition exists between corporations selling the same class of goods, though there is a “sellers' market,” or condition of affairs under which sellers do not have to compete for trade, but where

the trade competes for the sellers' products. 4. MONOPOLIES KEY No. 20.—COMPETITION HELD LESSENED WHEN

ONLY COMPETITOR IN CERTAIN GOODS AND ONE OF Two Com

PETITORS IN OTHERS ELIMINATED. Competition was substantially lessened, within Clayton Act, Par. 7 (Comp. St. Par. 8835g), by a stock acquisition which eliminated from the sheet aluminum trade a company's only competitor in the manufacture and sale of wide sheets, and one of its only two competitors in the manufacture of sheets of any width.

5. MONOPOLIES KEY No. 20.--LESSENING OF COMPETITION WITH

CORPORATION OTHER THAN ONE WHOSE STOCK WAS ACQUIRED

HELD TO HAVE EVIDENTIAL BEARING. Where, by agreement between the A Company and the C Company, a third company, in which the A Company acquired stock, was organized to take over part of the C Company's business, though the stock acquired was not that of the C Company, the lessening of competition with the C Company had an evidential bearing on the question whether the transaction tended to create a monopoly, within Clayton Act, Par.

7 (Comp. St. Par. 8835g). 6. MONOPOLIES KEY No. 20—MAY BE CREATED BY STOCK ACQUISI

TION NOT LESSENING COMPETITION WITH CORPORATION WHOSE

STOCK IS ACQUIRED. A " monopoly ” can be created, within Clayton Act, Par. 7 (Comp. St. Par. 8835g), by acquisition of stock in another corporation, when the effect is not to lessen competition with such corporation, if its effect is to end competition existing else

where. 7. MONOPOLIES KEY No. 20_-CORPORATION WHOSE STOCK WAS PUR

CHASED HELD ENGAGED IN COMMERCE," AND POTENTIALLY

ENGAGED IN COMPETITION WITH PURCHASER. Where the A Company and the C Company, a competitor, agreed that a third company, in which the A Company was to acquire stock, should be organized and purchase the aluminum rolling mill and rolling mill business of the C Company, and the new company paid for such business from the proceeds of

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