[Congressional Record (Bound Edition), Volume 145 (1999), Part 19]
[Extensions of Remarks]
[Page 28309]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 28309]]

              ANTITRUST TECHNICAL CORRECTIONS ACT OF 1999

                                 ______
                                 

                               speech of

                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                       Tuesday, November 2, 1999

  Mr. HYDE. Mr. Speaker, I rise in support of H.R. 1801, the Antitrust 
Technical Corrections Act of 1999, which I have introduced with Ranking 
Member Conyers. H.R. 1801 makes four separate technical corrections to 
our antitrust laws. Three of these corrections repeal outdated 
provisions of the law: the requirement that depositions in antitrust 
cases brought by the government be taken in public; the prohibition on 
violators of the antitrust laws passing through the Panama Canal; and a 
redundant and rarely used jurisdiction and venue provision. The last 
one clarifies a long existing ambiguity regarding the application of 
Section 2 of the Sherman Act to the District of Columbia and the 
territories.
  The Committee has informally consulted the antitrust enforcement 
agencies, the antitrust Division of the Department of Justice and the 
Bureau of Competition of the Federal Trade Commission, and the agencies 
have indicated that they do not object to any of these changes. In 
response to written questions following the Committee's November 5, 
1997 oversight hearing on the antitrust enforcement agencies, the 
Department of Justice recommended two of the repeals and the 
clarification contained in this bill. The other repeal was recommended 
to the Committee by the House Legislative Counsel. In addition, the 
Antitrust Section of the American Bar Association supports the bill, 
and I ask unanimous consent to insert their comments in the Record.
  First, H.R. 1801 repeals the Act of March 3, 1913. That act requires 
that all depositions taken in Sherman Act equity cases brought by the 
government be conducted in public. In the early days, the courts 
conducted such cases by deposition without any formal trial proceeding. 
Thus, Congress required that the depositions be open as a trial would 
be. Under the modern practice of broad discovery, depositions are 
generally taken in private and then made public if they are used at 
trial. Under our system, this act causes three problems: (1) it sets up 
a special rule for a narrow class of cases when the justification for 
that rule has disappeared; (2) it makes it hard for a court to protect 
proprietary information that may be at issue in an antitrust case; and 
(3) it can create a circus atmosphere in the deposition of a high 
profile figure. In a recent decision, the D.C. Circuit invited Congress 
to repeal this law.
  Second, H.R. 1801 repeals the antitrust provision in the Panama Canal 
Act. Section 11 of the Panama Canal Act provides that no vessel owned 
by someone who is violating the antitrust laws may pass through the 
Panama Canal. The Committee has not been able to determine why this 
provision was added to the Act or whether it has ever been used. 
However, with the return of the Canal to Panamanian sovereignty at the 
end of 1999, it is appropriate to repeal this outdated provision. The 
Committee has consulted informally with the House Committee on Armed 
Services, which has jurisdiction over the Panama Canal Act. Chairman 
Spence has indicated that the Committee has no objection to this 
repeal, and the Committee has waived its secondary referral. I thank 
Chairman Spence for his cooperation.
  Third, H.R. 1801 clarifies that Section 2 of the Sherman Act applies 
to the District and the territories. Two of the primary provisions of 
antitrust law are Section 1 and Section 2 of the Sherman Act. Section 1 
prohibits conspiracies in restraint of trade, and Section 2 prohibits 
monopolization, attempts to monopolize, and conspiracies to monopolize. 
Section 3 of the Sherman Act was intended to apply these provisions to 
the District of Columbia and the various territories of the United 
States. Unfortunately, however, ambiguous drafting in Section 3 leaves 
it unclear whether Section 2 applies to those areas. The Committee is 
aware of at least one instance in which the Department of Justice 
declined to bring an otherwise meritorious Section 2 claim in a Virgin 
Island case because of this ambiguity. This bill clarifies that both 
Section 1 and Section 2 apply to the District and the Territories. All 
of the congressional representatives of the District and the 
Territories are cosponsors of the bill.
  Finally, H.R. 1801 repeals a redundant antitrust jurisdictional 
provision in Section 77 of the Wilson Tariff Act. In 1955, Congress 
modernized the jurisdictional and venue provisions relating to 
antitrust suits by amending Section 4 of the Clayton Act. At that time, 
it repealed the redundant jurisdictional provision in Section 7 of the 
Sherman Act, but not the one contained in Section 77 of the Wilson 
Tariff Act. It appears that this was an oversight because Section 77 
was never codified and has rarely been used. Repealing Section 77 will 
not diminish any jurisdictional or venue rights because Section 4 of 
the Clayton Act provides any potential plaintiff with the same 
jurisdiction and venue rights that Section 77 does and it also provides 
broader rights. Rather, the repeal simply rids the law of a confusing, 
redundant, and little used provision.
  Since the Committee on the Judiciary ordered this bill reported, we 
discovered two drafting errors that we have corrected in the current 
managers' amendment that is before the House. One change corrects an 
incorrect reference to the United States Code. Secondly, we discovered 
that the language describing the scope of commerce covered by the 
territorial provision did not precisely parallel that in the existing 
section 3 of the Sherman Act, and we have changed that language so that 
the new subsection 3(b) will parallel the existing law.
  In addition, we realized after reporting the bill that it would be 
helpful to clarify the effect of these changes on pending cases. 
Because the public deposition matter does not affect the litigants' 
substantive rights, we have made that change apply to pending cases. 
The other three changes could affect the substantive rights of 
litigants. For that reason, we have not made those changes apply to 
pending cases, although we believe that it is unlikely that there are 
any pending cases that are affected.
  I believe that all of these provisions are non-controversial, and 
they will help to clean up some underbrush in the antitrust laws. I 
recommend that the House suspend the rules and pass the bill as amended 
by the managers' amendment.

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