|
U.S. Code as of:
01/19/04
Section 57b-1. Civil investigative demands
(a) Definitions
For purposes of this section:
(1) The terms "civil investigative demand" and "demand" mean
any demand issued by the commission under subsection (c)(1) of
this section.
(2) The term "Commission investigation" means any inquiry
conducted by a Commission investigator for the purpose of
ascertaining whether any person is or has been engaged in any
unfair or deceptive acts or practices in or affecting commerce
(within the meaning of section 45(a)(1) of this title) or in any
antitrust violations.
(3) The term "Commission investigator" means any attorney or
investigator employed by the Commission who is charged with the
duty of enforcing or carrying into effect any provisions relating
to unfair or deceptive acts or practices in or affecting commerce
(within the meaning of section 45(a)(1) of this title) or any
provisions relating to antitrust violations.
(4) The term "custodian" means the custodian or any deputy
custodian designated under section 57b-2(b)(2)(A) of this title.
(5) The term "documentary material" includes the original or
any copy of any book, record, report, memorandum, paper,
communication, tabulation, chart, or other document.
(6) The term "person" means any natural person, partnership,
corporation, association, or other legal entity, including any
person acting under color or authority of State law.
(7) The term "violation" means any act or omission constituting
an unfair or deceptive act or practice in or affecting commerce
(within the meaning of section 45(a)(1) of this title) or any
antitrust violation.
(8) The term "antitrust violation" means -
(A) any unfair method of competition (within the meaning of
section 45(a)(1) of this title);
(B) any violation of the Clayton Act [15 U.S.C. 12 et seq.]
or of any other Federal statute that prohibits, or makes
available to the Commission a civil remedy with respect to, any
restraint upon or monopolization of interstate or foreign trade
or commerce;
(C) with respect to the International Antitrust Enforcement
Assistance Act of 1994 [15 U.S.C. 6201 et seq.], any violation
of any of the foreign antitrust laws (as defined in section 12
of such Act [15 U.S.C. 6211]) with respect to which a request
is made under section 3 of such Act [15 U.S.C. 6202]; or
(D) any activity in preparation for a merger, acquisition,
joint venture, or similar transaction, which if consummated,
may result in any such unfair method of competition or in any
such violation.
(b) Actions conducted by Commission respecting unfair or deceptive
acts or practices in or affecting commerce
For the purpose of investigations performed pursuant to this
section with respect to unfair or deceptive acts or practices in or
affecting commerce (within the meaning of section 45(a)(1) of this
title); all actions of the Commission taken under section 46 and
section 49 of this title shall be conducted pursuant to subsection
(c) of this section.
(c) Issuance of demand; contents; service; verified return; sworn
certificate; answers; taking of oral testimony
(1) Whenever the Commission has reason to believe that any person
may be in possession, custody, or control of any documentary
material or tangible things, or may have any information, relevant
to unfair or deceptive acts or practices in or affecting commerce
(within the meaning of section 45(a)(1) of this title), or to
antitrust violations, the Commission may, before the institution of
any proceedings under this subchapter, issue in writing, and cause
to be served upon such person, a civil investigative demand
requiring such person to produce such documentary material for
inspection and copying or reproduction, to submit such tangible
things, to file written reports or answers to questions, to give
oral testimony concerning documentary material or other
information, or to furnish any combination of such material,
answers, or testimony.
(2) Each civil investigative demand shall state the nature of the
conduct constituting the alleged violation which is under
investigation and the provision of law applicable to such
violation.
(3) Each civil investigative demand for the production of
documentary material shall -
(A) describe each class of documentary material to be produced
under the demand with such definiteness and certainty as to
permit such material to be fairly identified;
(B) prescribe a return date or dates which will provide a
reasonable period of time within which the material so demanded
may be assembled and made available for inspection and copying or
reproduction; and
(C) identify the custodian to whom such material shall be made
available.
(4) Each civil investigative demand for the submission of
tangible things shall -
(A) describe each class of tangible things to be submitted
under the demand with such definiteness and certainty as to
permit such things to be fairly identified;
(B) prescribe a return date or dates which will provide a
reasonable period of time within which the things so demanded may
be assembled and submitted; and
(C) identify the custodian to whom such things shall be
submitted.
(5) Each civil investigative demand for written reports or
answers to questions shall -
(A) propound with definiteness and certainty the reports to be
produced or the questions to be answered;
(B) prescribe a date or dates at which time written reports or
answers to questions shall be submitted; and
(C) identify the custodian to whom such reports or answers
shall be submitted.
(6) Each civil investigative demand for the giving of oral
testimony shall -
(A) prescribe a date, time, and place at which oral testimony
shall be commenced; and
(B) identify a Commission investigator who shall conduct the
investigation and the custodian to whom the transcript of such
investigation shall be submitted.
(7)(A) Any civil investigative demand may be served by any
Commission investigator at any place within the territorial
jurisdiction of any court of the United States.
(B) Any such demand or any enforcement petition filed under this
section may be served upon any person who is not found within the
territorial jurisdiction of any court of the United States, in such
manner as the Federal Rules of Civil Procedure prescribe for
service in a foreign nation.
(C) To the extent that the courts of the United States have
authority to assert jurisdiction over such person consistent with
due process, the United States District Court for the District of
Columbia shall have the same jurisdiction to take any action
respecting compliance with this section by such person that such
district court would have if such person were personally within the
jurisdiction of such district court.
(8) Service of any civil investigative demand or any enforcement
petition filed under this section may be made upon a partnership,
corporation, association, or other legal entity by -
(A) delivering a duly executed copy of such demand or petition
to any partner, executive officer, managing agent, or general
agent of such partnership, corporation, association, or other
legal entity, or to any agent of such partnership, corporation,
association, or other legal entity authorized by appointment or
by law to receive service of process on behalf of such
partnership, corporation, association, or other legal entity;
(B) delivering a duly executed copy of such demand or petition
to the principal office or place of business of the partnership,
corporation, association, or other legal entity to be served; or
(C) depositing a duly executed copy in the United States mails,
by registered or certified mail, return receipt requested, duly
addressed to such partnership, corporation, association, or other
legal entity at its principal office or place of business.
(9) Service of any civil investigative demand or of any
enforcement petition filed under this section may be made upon any
natural person by -
(A) delivering a duly executed copy of such demand or petition
to the person to be served; or
(B) depositing a duly executed copy in the United States mails
by registered or certified mail, return receipt requested, duly
addressed to such person at his residence or principal office or
place of business.
(10) A verified return by the individual serving any civil
investigative demand or any enforcement petition filed under this
section setting forth the manner of such service shall be proof of
such service. In the case of service by registered or certified
mail, such return shall be accompanied by the return post office
receipt of delivery of such demand or enforcement petition.
(11) The production of documentary material in response to a
civil investigative demand shall be made under a sworn certificate,
in such form as the demand designates, by the person, if a natural
person, to whom the demand is directed or, if not a natural person,
by any person having knowledge of the facts and circumstances
relating to such production, to the effect that all of the
documentary material required by the demand and in the possession,
custody, or control of the person to whom the demand is directed
has been produced and made available to the custodian.
(12) The submission of tangible things in response to a civil
investigative demand shall be made under a sworn certificate, in
such form as the demand designates, by the person to whom the
demand is directed or, if not a natural person, by any person
having knowledge of the facts and circumstances relating to such
production, to the effect that all of the tangible things required
by the demand and in the possession, custody, or control of the
person to whom the demand is directed have been submitted to the
custodian.
(13) Each reporting requirement or question in a civil
investigative demand shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the
reasons for the objection shall be stated in lieu of an answer, and
it shall be submitted under a sworn certificate, in such form as
the demand designates, by the person, if a natural person, to whom
the demand is directed or, if not a natural person, by any person
responsible for answering each reporting requirement or question,
to the effect that all information required by the demand and in
the possession, custody, control, or knowledge of the person to
whom the demand is directed has been submitted.
(14)(A) Any Commission investigator before whom oral testimony is
to be taken shall put the witness on oath or affirmation and shall
personally, or by any individual acting under his direction and in
his presence, record the testimony of the witness. The testimony
shall be taken stenographically and transcribed. After the
testimony is fully transcribed, the Commission investigator before
whom the testimony is taken shall promptly transmit a copy of the
transcript of the testimony to the custodian.
(B) Any Commission investigator before whom oral testimony is to
be taken shall exclude from the place where the testimony is to be
taken all other persons except the person giving the testimony, his
attorney, the officer before whom the testimony is to be taken, and
any stenographer taking such testimony.
(C) The oral testimony of any person taken pursuant to a civil
investigative demand shall be taken in the judicial district of the
United States in which such person resides, is found, or transacts
business, or in such other place as may be agreed upon by the
Commission investigator before whom the oral testimony of such
person is to be taken and such person.
(D)(i) Any person compelled to appear under a civil investigative
demand for oral testimony pursuant to this section may be
accompanied, represented, and advised by an attorney. The attorney
may advise such person, in confidence, either upon the request of
such person or upon the initiative of the attorney, with respect to
any question asked of such person.
(ii) Such person or attorney may object on the record to any
question, in whole or in part, and shall briefly state for the
record the reason for the objection. An objection may properly be
made, received, and entered upon the record when it is claimed that
such person is entitled to refuse to answer the question on grounds
of any constitutional or other legal right or privilege, including
the privilege against self-incrimination. Such person shall not
otherwise object to or refuse to answer any question, and shall not
himself or through his attorney otherwise interrupt the oral
examination. If such person refuses to answer any question, the
Commission may petition the district court of the United States
pursuant to this section for an order compelling such person to
answer such question.
(iii) If such person refuses to answer any question on grounds of
the privilege against self-incrimination, the testimony of such
person may be compelled in accordance with the provisions of
section 6004 of title 18.
(E)(i) After the testimony of any witness is fully transcribed,
the Commission investigator shall afford the witness (who may be
accompanied by an attorney) a reasonable opportunity to examine the
transcript. The transcript shall be read to or by the witness,
unless such examination and reading are waived by the witness. Any
changes in form or substance which the witness desires to make
shall be entered and identified upon the transcript by the
Commission investigator with a statement of the reasons given by
the witness for making such changes. The transcript shall then be
signed by the witness, unless the witness in writing waives the
signing, is ill, cannot be found, or refuses to sign.
(ii) If the transcript is not signed by the witness during the
30-day period following the date upon which the witness is first
afforded a reasonable opportunity to examine it, the Commission
investigator shall sign the transcript and state on the record the
fact of the waiver, illness, absence of the witness, or the refusal
to sign, together with any reasons given for the failure to sign.
(F) The Commission investigator shall certify on the transcript
that the witness was duly sworn by him and that the transcript is a
true record of the testimony given by the witness, and the
Commission investigator shall promptly deliver the transcript or
send it by registered or certified mail to the custodian.
(G) The Commission investigator shall furnish a copy of the
transcript (upon payment of reasonable charges for the
transcription) to the witness only, except that the Commission may
for good cause limit such witness to inspection of the official
transcript of his testimony.
(H) Any witness appearing for the taking of oral testimony
pursuant to a civil investigative demand shall be entitled to the
same fees and mileage which are paid to witnesses in the district
courts of the United States.
(d) Procedures for demand material
Materials received as a result of a civil investigative demand
shall be subject to the procedures established in section 57b-2 of
this title.
(e) Petition for enforcement
Whenever any person fails to comply with any civil investigative
demand duly served upon him under this section, or whenever
satisfactory copying or reproduction of material requested pursuant
to the demand cannot be accomplished and such person refuses to
surrender such material, the Commission, through such officers or
attorneys as it may designate, may file, in the district court of
the United States for any judicial district in which such person
resides, is found, or transacts business, and serve upon such
person, a petition for an order of such court for the enforcement
of this section. All process of any court to which application may
be made as provided in this subsection may be served in any
judicial district.
(f) Petition for order modifying or setting aside demand
(1) Not later than 20 days after the service of any civil
investigative demand upon any person under subsection (c) of this
section, or at any time before the return date specified in the
demand, whichever period is shorter, or within such period
exceeding 20 days after service or in excess of such return date as
may be prescribed in writing, subsequent to service, by any
Commission investigator named in the demand, such person may file
with the Commission a petition for an order by the Commission
modifying or setting aside the demand.
(2) The time permitted for compliance with the demand in whole or
in part, as deemed proper and ordered by the Commission, shall not
run during the pendency of such petition at the Commission, except
that such person shall comply with any portions of the demand not
sought to be modified or set aside. Such petition shall specify
each ground upon which the petitioner relies in seeking such
relief, and may be based upon any failure of the demand to comply
with the provisions of this section, or upon any constitutional or
other legal right or privilege of such person.
(g) Custodial control of documentary material, tangible things,
reports, etc.
At any time during which any custodian is in custody or control
of any documentary material, tangible things, reports, answers to
questions, or transcripts of oral testimony given by any person in
compliance with any civil investigative demand, such person may
file, in the district court of the United States for the judicial
district within which the office of such custodian is situated, and
serve upon such custodian, a petition for an order of such court
requiring the performance by such custodian of any duty imposed
upon him by this section or section 57b-2 of this title.
(h) Jurisdiction of court
Whenever any petition is filed in any district court of the
United States under this section, such court shall have
jurisdiction to hear and determine the matter so presented, and to
enter such order or orders as may be required to carry into effect
the provisions of this section. Any final order so entered shall be
subject to appeal pursuant to section 1291 of title 28. Any
disobedience of any final order entered under this section by any
court shall be punished as a contempt of such court.
(i) Commission authority to issue subpoenas or make demand for
information
Notwithstanding any other provision of law, the Commission shall
have no authority to issue a subpoena or make a demand for
information, under authority of this subchapter or any other
provision of law, unless such subpoena or demand for information is
signed by a Commissioner acting pursuant to a Commission
resolution. The Commission shall not delegate the power conferred
by this section to sign subpoenas or demands for information to any
other person.
(j) Applicability of this section
The provisions of this section shall not -
(1) apply to any proceeding under section 45(b) of this title,
any proceeding under section 11(b) of the Clayton Act (15 U.S.C.
21(b)), or any adjudicative proceeding under any other provision
of law; or
(2) apply to or affect the jurisdiction, duties, or powers of
any agency of the Federal Government, other than the Commission,
regardless of whether such jurisdiction, duties, or powers are
derived in whole or in part, by reference to this subchapter.
|
|