The record clearly demonstrates that the district court fully performed its duty under
Affirmed.
UNITED STATES of America, Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Appellee.
No. 19179.
United States Court of Appeals Ninth Circuit.
March 18, 1965.
Before ORR, JERTBERG and MERRILL, Circuit Judges.
ORR, Circuit Judge:
On August 19, 1963, the Department of Justice of the United States issued a Civil Investigative Demand to the Union Oil Company of California. The demand recited that it was issued pursuant to the
On August 27, 1963, pursuant to
For purposes of this opinion we assume, without deciding, that the demand made was upon a “person under investigation“, that it was sufficiently definite and certain, and that it otherwise constituted a proper request for the production of documents which Union may have had in its possession from which it may have been determined that Union‘s activities were possibly in violation of
The issue in this case is clearly presented. The government states in its demand that it is investigating possible violations of
In seeking an answer to this question we examine first the wording of the statute.
“Whenever the Attorney General, or the Assistant Attorney General, in
charge of the Antitrust Division of the Department of Justice, has reason to believe that any person under investigation may be in possession, custody, or control of any documentary material relevant to a civil antitrust investigation, he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such material for examination.”
The section clearly imposes the requirement that the demand be for material relevant to a “civil antitrust investigation“.
“Antitrust investigation” is specifically defined in the Act,
“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.” (emphasis provided)
Thus, it is apparent that a demand must be confined to material relevant to the ascertainment of whether or not a person “is or has been engaged in any antitrust violation“. Obviously this does not include investigations of activity that will be a violation in the future.
An “antitrust violation” is defined in
“The term ‘antitrust violation’ means any act or omission in violation of any antitrust law or any antitrust order.”
In view of the clear import of the cited provisions, the question posed is: Can a proposed acquisition be a past or present violation of
The foregoing requires a negative answer, if the word “violation” is used in a normal sense. Under
While it is true that under
Appellant, however, does not read “antitrust violation“, as used and defined in the ACPA, to mean conduct made unlawful by the antitrust laws. It interprets the word to mean “any conduct for which the United States could bring an action and obtain relief under any antitrust law.” We take a look at the reasoning employed by the government in support of its argument that the disputed language of the ACPA can reasonably be so interpreted, so as to permit proposed acquisitions to be investigated as past or present “violations” of
First, the government argues, pointing to the title of the ACPA, that the Attorney General‘s civil investigative authority is made co-extensive with his powers of civil antitrust enforcement. The title of the ACPA is: “An Act to authorize the Attorney General to compel the production of documentary evidence required in civil investigations for the
Secondly, the government places much reliance on the fact that the trial court‘s interpretation of “violation” causes some distinction between the power to investigate pursuant to a possible action to enjoin an acquisition and the power to investigate pursuant to a possible action to divest. The government says that this is a purely formalistic distinction and one that should not be found in the statute. We disagree. The basic and broad distinction drawn in the statute, whether advisable or not, is clear and not inherently illogical in any way. The line was drawn between existing violations and prospective violations. There is nothing illogical in a decision to allow the former to be investigated, while leaving the investigation of the latter to traditional methods. There are still many reasons—relating to the desire to surround the grant of broad investigative powers with adequate safeguards—that can be advanced to support this distinction. Moreover, the ACPA does not direct itself exclusively to
The government further contends that the courts have often viewed successful actions to enjoin consummation of mergers as having established “violations” of
We give substantial weight to the above meaning of the words of the statute. We look to the legislative history only to determine if that meaning would produce “an unreasonable result plainly at variance with the policy of the legislation as a whole.” Takao Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199 (1922). Thus in this case, assuming that the language of the statute will bear the interpretation the government gives it, compelling evidence that the intent and purpose of Congress support that interpretation must appear in order to overcome the obvious force of a normal reading of the disputed provision.4 An examination of the history of the ACPA discloses no such evidence.
First, the construction we have made is fortified by a look at the circumstances leading up to the introduction of the bill, S. 167, which, amended in several respects, was passed by the 87th Congress as the ACPA. The “Report of the Attorney General‘s National Committee to
In the 84th Congress a bill on the subject was introduced in the House of Representatives by Mr. Celler and introduced in the Senate by Senator Watkins.5 Section 3(a) of the bill authorized demand of “any documentary material bearing on any antitrust investigation“. “Antitrust investigation” was left undefined. No action was taken on this bill in either house.
In the 86th Congress Senator Kefauver introduced a revision of the earlier bill into the Senate.6 His bill differed from the former bill in that it, among other changes, added two definitional sections, clarifying the scope of the bill.7 The definitional sections comprised what are sections 2(c) and 2(d) of the present ACPA, quoted above, defining “antitrust investigation” and “antitrust violation“.8 In the same session, Mr. Celler and Senator Wiley introduced in both houses a different bill.9 The Senate Antitrust Subcommittee of the Committee on the Judiciary reported out Kefauver‘s bill, and not Wiley‘s.10 Due to the two definitional provisions mentioned, the concern of the Kefauver bill was only with past or existing violations, not with future violations. As a matter of fact, we find throughout the legislative history of the bill numerous statements indicating that the bill was aimed only at investigations of past or existing violations of the antitrust laws.11 Nowhere in the history of the bill do we find any real indication that it was intended to cover investigations of proposed acquisitions.12 The Senate passed the Kefauver bill.13 No action was taken upon either bill by the House.
In the 87th Congress a bill that was virtually identical to the bill that had passed the Senate during the 86th Congress was introduced by Senator Kefauver.14 Mr. Celler had abandoned his
The history up to this point discloses that a somewhat moderate bill—notably in the respect here relevant—had been settled upon. The inference can clearly be drawn that Section 3(a) of the bill finally passed was meant to carry a different meaning than Section 3(a) of the early, discarded bills—different in that investigations in which the ACPA could be used were consciously limited by Section 2(c) of the Kefauver bill to those inquiries conducted to determine whether a person “is or has been engaged in any antitrust violation.” We find no language anywhere in the history of the former bills that indicates that the added provision, 2(c), embodying the above language is to be read in other than its literal sense.
Looking to the discussion surrounding Senator Kefauver‘s bill in the 87th Congress, we likewise find no compelling evidence supporting the government‘s contention. There are many statements that indicate that a real need existed here, that the Justice Department needed some civil investigative powers to help enforce the antitrust laws.16 It could arguably be said that this lends some support to the proposition that the government‘s construction of this statute is most consistent with the purpose of this act. This line of argument loses its force, however, in light of the tremendous concern shared by the committees, and others concerned with the bill, that it be surrounded by adequate safeguards and proper limitations on its scope.17 A real fear was expressed as to the danger of improper use of investigative power. These fears were manifested in the many protective provisions put into the act at various stages.18 These two concerns in enacting the statute read together reflect a “purpose” of Congress not inconsistent with the interpretation we have given the statute.
The most revealing and legitimate tools of the judge engaged in an examination of the legislative history of an enactment are the reports by the House and Senate committees that consider it and report it to the respective houses. An examination of the House and Senate Reports concerned with the ACPA provides little illumination of the problem at hand, and certainly discloses no substantial support for the government‘s contention. Both reports contain broad language of general purpose, as well as language evidencing concern for adequate safeguards accompanying the bill. Both use much the same language as the report of the earlier Kefauver bill—concerning themselves
The only plausible support for appellant‘s position to be found in these reports lies in the following language in the House Report, at pages 5-6:
“During this period the Department of Justice had urged premerger notification legislation. Bills to enact such legislation have been pending in several Congresses. A comprehensive civil investigative demand statute would serve some of the purposes of, and hence might obviate the need for, premerger notification legislation.”
Much is made of this by the government; indeed, from its brief, this seems to be the basis for its principal argument. It points out that the premerger statute, requiring that the government be apprised of certain contemplated mergers, would “afford enforcement officials a reasonable period of time to study the competitive implications of a proposed merger or acquisition in order to determine whether to seek a preliminary injunction restraining its consummation pending adjudication of its legality or illegality.”20 This would allow the Justice Department to investigate and act before the corporations are “scrambled” in such a manner that the only remedy is the drastic one of divestiture. The government‘s argument suggests that this function of the premerger notification bills would be furthered by the ACPA only if the ACPA allowed investigations of proposed mergers.
We are not so persuaded. The Department of Justice admitted that the ACPA and the premerger notification bills were concerned with somewhat different questions.21 The Department desired the premerger bill in addition to the ACPA.22 The premerger bill does not to any appreciable degree facilitate investigation of “proposed” mergers. No notice need be given until 60 days before the effective date of the merger under the bill reported to the House in the 87th Congress.23 The required 60 days notice need not be given until after stockholder‘s approval so long as 60 days are allowed to elapse after notice and before the effective date of acquisition.24 Moreover, there is some area of overlap of the ACPA with the premerger bills. The House Report quoted above provided only that some of the purposes of the premerger bills would be served by the ACPA. One of the purposes of the premerger bills was to allow the Justice Department to acquire information that would enable them to bring a suit to undo a freshly consummated merger before the “scrambling” was such that divestiture was inappropriate.25 This purpose of the premerger bills is certainly served by the ACPA as we interpret it.
In the floor debates we find no persuasive indication that the position we have taken is incorrect.
The government in its argument points to a list of 29 instances, which was compiled by the Justice Department, where civil antitrust investigations were frustrated.26
Finally, the history of the bill confirms that the wording of the ACPA—specifically the wording of sections 2(c) and 2(d)—was carefully chosen. The provisions were, as we have said, definitional, and were added to clarify the scope of the bills initially considered. The ACPA, as finally enacted, is quite short. It was long deliberated and its words carefully chosen.28 Thus it is quite significant that the phrase “is or has been engaged in any antitrust violation” makes conspicuous use of the present and present perfect tenses.29 Likewise, conscious use was made of the word “violation“. It is apparent that the Congress intended Section 3(a) of the ACPA to mean exactly what it says.
Affirmed.
MERRILL, Circuit Judge (concurring):
I would agree that acquisitions which have not progressed beyond mere contemplation or consideration or a subjective judgment to proceed cannot be made the subject of a § 1312 civil investigative demand. In the light of that proposition, “proposed acquisitions” is a most equivocal term since it may well be directed to such situations. I therefore agree that the demand in suit is not subject to enforcement and was properly set aside.
However, I disagree with the majority opinion in permitting the demand only as to an accomplished acquisition—one beyond the reach of preventive injunction. This, in my judgment, reads the
In my view the business of acquiring encompasses more than the formal corporate resolutions finally accomplishing the acquisition. If companies are engaged in activities leading to that end which they can under the antitrust laws be halted from pursuing I would say that they are presently engaged in the process of acquiring and accordingly are presently in the process of violating the antitrust laws.
Notes
“You are hereby required to produce, to make available for inspection and copying or reproduction, and to deliver to a custodian named herein, at your principal place of business, designated above, the documentary material in your possession, custody or control described on the attached schedule, on the 28th day of August, 1963 at 10:00 A.M.
“This civil investigative demand is issued pursuant to the provisions of the Antitrust Civil Process Act, 76 Stat. 548-552, Title 15 United States Code Secs. 1311-1314, in the course of an inquiry for the purpose of ascertaining whether there is or has been a violation of the provisions of Title 15 United States Code Secs. 18 by conduct of the following nature: The proposed acquisitions of fertilizer companies by petroleum companies.” (The italicized portions were inserted into a standard form).
Attached to this demand was the following “Schedule of Documents:
“The following information is requested from the corporation for the period from January 1, 1960 to date. As used herein, ‘the corporation’ means the corporation to which this Civil Investigative Demand is addressed, its parent, subsidiaries, associated and affiliated companies.
“1. Each survey, study, report or other writing prepared or used by the corporation, its officers, directors or employees, which refers or relates to the maintenance or improvement of the corporation‘s position in the fertilizer market, including each such document relating to any acquisition, merger, sale of assets, or consolidation consummated or considered by the corporation.”