[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Notices]
[Pages 34590-34591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9363]


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ANTITRUST MODERNIZATION COMMISSION


Request for Public Comment

AGENCY: Antitrust Modernization Commission.

ACTION: Request for public comment.

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SUMMARY: The Antitrust Modernization Commission requests comments from 
the public regarding specific questions relating to the issues selected 
for Commission study.

DATES: Comments are due by July 10, 2006.

ADDRESSES: By electronic mail: [email protected]. By mail: Antitrust 
Modernization Commission, Attn: Public Comments, 1120 G Street, NW., 
Suite 810, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Andrew J. Heimert, Executive Director 
& General Counsel, Antitrust Modernization Commission. Telephone: (202) 
233-0701; e-mail: [email protected]. Internet: http://www.amc.gov.

SUPPLEMENTARY INFORMATION: The Antitrust Modernization Commission was 
established to ``examine whether the need exists to modernize the 
antitrust laws and to identify and study related issues.'' Antitrust 
Modernization Commission Act of 2002, Public Law 107-273, Sec.  11053, 
116 Stat. 1856. In conducting its review of the antitrust laws, the 
Commission is required to ``solicit the views of all parties concerned 
with the operation of the antitrust laws.'' Id. By this request for 
comments, the Commission seeks to provide a full opportunity for 
interested members of the public to provide input regarding certain 
issues selected for Commission study. From time to time, the Commission 
may issue additional requests for comment on issues selected for study.
    Comments should be submitted in written form. Comments should 
identify the topic to which it relates. Comments need not address every 
question within the topic. Comments exceeding 1500 words should include 
a brief (less than 250 word) summary. Commenters may submit additional 
background materials (such as articles, data, or other information) 
relating to the topic by separate attachment.
    Comments should identify the person or organization submitting the 
comments. If comments are submitted by an organization, the submission 
should identify a contact person within the organization. Comments 
should include the following contact information for the submitter: an 
address, telephone number, and email address (if available). Comments 
submitted to the Commission will be made available to the public in 
accordance with Federal laws.
    Comments may be submitted either in hard copy or electronic form. 
Electronic submissions may be sent by electronic mail to 
[email protected]. Comments submitted in hard copy should be delivered 
to the address specified above, and should enclose, if possible, a CD-
ROM or a 3\1/2\ inch computer diskette containing an electronic copy of 
the comment. The Commission prefers to receive electronic documents 
(whether by email or on CD-ROM/diskette) in portable document format 
(.pdf), but also will accept comments in Microsoft Word format.
    The AMC has issued this request for comments pursuant to its 
authorizing statute and the Federal Advisory Committee Act. Antitrust 
Modernization Commission Act of 2002, Public Law 107-273, Sec.  11053, 
116 Stat. 1758, 1856; Federal Advisory Committee Act, 5 U.S.C. App., 
10(a)(3).

Topic for Comment

    The Commission requests comment on the following topic.

Civil Remedies

    1. The Commission is evaluating a proposal to reform indirect 
purchaser litigation. The potential reform would consist of three 
principal components: (1) Legislative overruling of Illinois Brick Co. 
v. Illinois, 431 U.S. 720 (1977), so that indirect purchaser claims 
could be brought under federal antitrust law, and Hanover Shoe, Inc. v. 
United Shoe Machinery, 392 U.S. 481 (1968), so as to allow assertion of 
the pass-on defense; (2) Statutory provisions either (a) to allow 
removal of all state indirect purchaser actions to federal court to the 
full extent permitted under Article III, or (b) to preempt state 
indirect purchaser laws; and (3) Statutory provisions to allow the 
consolidation of all related direct and indirect purchaser actions in a 
single Federal district court for pre-trial and trial proceedings.
    Should the Commission recommend such reform to Congress? Should the 
proposal be modified in any respects? In responding, please also 
comment on the following:
    a. Is a provision that would allow removal of state indirect 
purchaser actions necessary or desirable, in light of the generally 
applicable removal provisions contained in the Class Action Fairness 
Act?
    b. Is preemption of state indirect purchaser actions necessary or 
desirable if state indirect purchaser actions may be removed to Federal 
court?
    c. Should the Commission also recommend to Congress that courts be 
required to use structured proceedings to resolve purchaser claims? 
Those proceedings would resolve liability in the one phase, determine 
total damages in another, and allocate damages among direct and 
indirect claimants in a separate phase. Would structured proceedings 
work better if courts could combine certain phases of the proceedings, 
especially liability and total damages, in appropriate cases in the 
exercise of their discretion?
    d. To what extent would the legislative overruling of Hanover Shoe 
create new challenges in the process of certifying appropriate classes 
of claimants? Can any such challenges be resolved fully through the 
structured approach suggested in (c) above?
    2. The Commission is evaluating a proposal to alter the 
circumstances in which treble damages are awarded to successful 
antitrust plaintiffs. The proposal would provide as follows:
    The court, in its discretion, may limit the award to single damages 
based on consideration of the following factors:
    a. Whether the violation was per se or rule of reason;
    b. whether the violation involved single-firm or multi-firm 
conduct;
    c. whether the violation was related to an otherwise pro-
competitive joint venture;
    d. the state of the development of the law with respect to the 
challenged conduct as an antitrust violation;
    e. whether the challenged conduct was overt or covert;
    f. whether the challenged conduct was criminal;
    g. whether there has also been a related government action;
    h. whether it is a competitor that is alleging the conduct was 
anticompetitive; and,
    i. whether the violation was proven by clear and convincing 
evidence.
    Should the Commission recommend such reform to Congress? Should any 
of the factors listed above be removed? Are there any other factors 
that should also be included?
    3. Should the Commission recommend to Congress that courts in their 
discretion be permitted to increase the damages multiplier above three? 
For

[[Page 34591]]

example, should courts be able to increase the multiplier above three 
where the conduct has significant effects outside the United States for 
which damages will not be paid?
    4. The Commission is evaluating a proposal to change the current 
regime regarding private antitrust actions. The proposal would provide 
as follows:
    a. In all matters where the government institutes criminal 
proceedings and obtains a guilty verdict by plea or trial, all unlawful 
gains made by the defendants and precomplaint and prejudgment interest 
thereon shall be disgorged in that proceeding, together with such fines 
as may be provided by law and a civil penalty of 200% of the amount 
disgorged.
    i. The disgorged unlawful gains shall be apportioned among those 
from whom they were taken directly or indirectly by the criminal court 
in a summary proceeding to be concluded within 90 days of the entry of 
a final criminal judgment as to all defendants. Classes of direct and 
indirect claimants may participate through counsel in that proceeding. 
Claims of less than $100 shall be disregarded and the amounts 
attributable to such claims paid to the Treasury.
    ii. Fines and civil penalties shall accrue solely to the Treasury, 
but the court may award compensation from those amounts to any private 
party found to have been a material factor in the instigation or 
successful conduct of the government's investigation and prosecution or 
to its counsel.
    b. In the case of defendants acquitted of criminal charges, private 
claims may be asserted as otherwise provided by law, but only the 
actual amount of unlawful gain may be recovered.
    Should the Commission recommend such reform to Congress? Should any 
of the particular components be modified?

    Dated: June 12, 2006.

By direction of the Antitrust Modernization Commission.
Andrew J. Heimert,
Executive Director & General Counsel, Antitrust Modernization 
Commission.
 [FR Doc. E6-9363 Filed 6-14-06; 8:45 am]
BILLING CODE 6820-YH-P