NASHVILLE MILK CO. v. CARNATION COMPANY.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Argued November 21, 1957.
Decided January 20, 1958.
A private cause of action under 4 and 16 of the Clayton Act, as amended, does not lie for sales at unreasonably low prices for the purpose of destroying competition or eliminating a competitor, which are forbidden only by 3 of the Robinson-Patman Act. Pp. 374-382.
Jerome F. Dixon argued the cause for petitioner. With him on the brief were Karl Edwin Seyfarth, Sherwood Dixon and Edward M. Sullivan.
Melville C. Williams argued the cause for respondent. With him on the brief was Frank F. Fowle.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner, alleging that it had been injured by respondent's sales at unreasonably low prices in violation of 3 of the Robinson-Patman Act, 1 49 Stat. 1526, 15 U.S.C. 13a, sued the respondent for treble damages and injunctive relief under 4 and 16 of the Clayton Act, 38 Stat. 730, as amended, 15 U.S.C. 15, 26. The District Court dismissed the complaint on the ground that the private remedies afforded by 4 and 16 of the Clayton Act cannot be based on a violation of 3 of the Robinson-Patman Act. The Court of Appeals affirmed. [355 U.S. 373, 375] 238 F.2d 86. We brought the case here, 352 U.S. 1023 , to resolve a conflict between the ruling below and a decision of the Court of Appeals for the Tenth Circuit holding that such a private action does lie. Vance v. Safeway Stores, Inc., 239 F.2d 144.
Sections 4 and 16 of the Clayton Act permit private actions of this kind 2 only for injuries resulting from practices forbidden by the "antitrust laws" as defined in 1 of the Clayton Act, 3 namely: (1) the Sherman Act (Act of July 2, 1890); (2) parts of the Wilson Tariff Act (Act of August 27, 1894); (3) the Act amending the Wilson Tariff Act (Act of February 12, 1913); and (4) the Clayton Act ("this Act"). In light of the much other so-called antitrust legislation enacted prior and subsequent [355 U.S. 373, 376] to the Clayton Act, 4 it seems plain that the rule expressio unius exclusio alterius is applicable, and that the definition contained in 1 of the Clayton Act is exclusive. Therefore it is of no moment here that the Robinson-Patman Act may be colloquially described as an "antitrust" statute. And since no one claims that 3 of the Robinson-Patman Act can be regarded as an amendment to the Sherman Act or the Wilson Tariff Act, the precise issue before us is whether Congress made that section of the Robinson-Patman Act a part of the Clayton Act, thus making it one of the "antitrust laws" whose violation can lead to the private causes of action authorized by 4 and 16. For the reasons stated below we hold that this is not the case. 5
The Robinson-Patman Act, consisting of four sections, convincingly shows on its face that 3 does not amend the Clayton Act, but stands on its own footing and carries its own sanctions.
The first section of the Act does expressly amend 2 of the Clayton Act, which prohibits certain kinds of price discriminations, and allied activities, on the part of those engaged in domestic or territorial commerce. The first paragraph of this section reads:
Two other sections of the Act are not in point here. Section 2 simply applies the amending provisions of 1 to litigation commenced under the former provisions of 2 of the Clayton Act, 15 U.S.C. 21a; and 4 deals with certain practices of cooperative associations. 15 U.S.C. 13b.
The only other section of the Act is 3, with which we are concerned here. It prohibits three kinds of trade practices, (a) general price discriminations, (b) geographical price discriminations, and (c) selling "at unreasonably low prices for the purpose of destroying competition or eliminating a competitor." The important thing to note is that this section, in contrast to 1 of the Robinson-Patman Act, does not on its face amend the Clayton Act. Further, 3 contains only penal sanctions for violation of its provisions; in the absence of a clear expression of congressional intent to the contrary, these sanctions should under familiar principles be considered exclusive, rather than supplemented by civil sanctions of a distinct statute. See D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 174 -175.
The conclusion that only 1 of the Robinson-Patman Act can be regarded as amendatory of the Clayton Act is further borne out by the title of the whole Robinson-Patman Act, which reads (49 Stat. 1526):
Because there is a partial overlap between the price-discrimination clauses of 3 of the Robinson-Patman Act (see note 1, supra) and those of 2 of the Clayton Act, as amended by the first section of the Robinson-Patman Act, 6 it is argued that it would be anomalous to allow a private cause of action for price discrimination in violation of 2 of the Clayton Act but to deny a private cause of action based on a violation of 3 of the Robinson-Patman Act. This argument, however, overlooks the fact that 3 of the Robinson-Patman Act includes a provision which is not found in 2 of the Clayton Act, namely, selling "at unreasonably low prices for the purpose of destroying competition or eliminating a competitor." It is not an idle conjecture that the possibility of abuse inherent in a private cause of action based upon this vague provision 7 was among the factors which led Congress to leave the enforcement of the provisions of 3 solely in the hands [355 U.S. 373, 379] of the public authorities, except to the extent that violation of any of its provisions also constituted a violation of 2 of the Clayton Act, and as such was subject to private redress under 4 and 16 of that Act. In any event, in the absence of a much clearer indication of congressional intent than is present in these statutory provisions and their legislative history (infra, p. 380), we should not read the Robinson-Patman Act as subjecting violations of the "unreasonably low prices" provision of 3 to the private remedies given by the Clayton Act.
Respondent calls our attention to the fact that the 1940 U.S. Code codifies 3 of the Robinson-Patman Act as being among the "antitrust laws" embraced in 1 of the Clayton Act. However, reference to the 1926 and 1934 Codes shows that the 1940 codification was a palpable error. 8 Moreover, this codification seems to us, for the [355 U.S. 373, 380] reasons set forth in this opinion, to be manifestly inconsistent with the Robinson-Patman Act, and in such circumstances Congress has specifically provided that the underlying statute must prevail. Act of June 30, 1926, 2 (a), vol. 1 U.S.C. (1952 ed.), p. LXIII; see Stephan v. United States, 319 U.S. 423, 426 .
What appears from the face of the Robinson-Patman Act finds full support in its legislative history. The fair conclusions to be drawn from that history are (a) that 3 of the Robinson-Patman Act was not intended to become part of the Clayton Act, and (b) that the section was intended to carry only criminal sanctions, except that price discriminations, to the extent that they were common to both that section and 2 of the Clayton Act, were also understood to carry, under the independent force of the Clayton Act, the private remedies provided in 4 and 16 of the Clayton Act. In other words, although price discriminations are both criminally punishable (under 3 of the Robinson-Patman Act) and subject to civil redress (under 2 of the Clayton Act), selling "at unreasonably low prices" is subject only to the criminal penalties provided in 3 of the Robinson-Patman Act. 9 This is evident from the Conference Report on the bill, which states:
Finally, it is noteworthy, by way of epitomizing the conclusions to be drawn from the legislative history, that in 1950 Representative Patman (a coauthor of the Robinson-Patman Act) stated in testimony before a Subcommittee of the House Committee on the Judiciary (Hearing on H. R. 7905, 81st Cong., 2d Sess., Serial No. 14, Part 5, p. 48):
[ Footnote 2 ] Section 4 of the Clayton Act provides:
[ Footnote 3 ] 38 Stat. 730. Section 1 of the Clayton Act provides:
[ Footnote 4 ] A total of 71 statutes (including the Clayton Act) are set forth in a compilation prepared by Elmer A. Lewis, Superintendent of the Document Room, House of Representatives, entitled Antitrust Laws with Amendments, 1890-1951 (1951). Of these statutes, 21 were on the books in 1914 when the Clayton Act was enacted, and 49 became law thereafter.
[ Footnote 6 ] 15 U.S.C. 13 (a). Section 2 of the Clayton Act, as amended, provides:
[ Footnote 7 ] The District Court indicated that the vagueness of the "unreasonably low prices" provision might give rise to constitutional difficulties, if such questions had to be faced. Cf. United States v. L. Cohen Grocery Co., 255 U.S. 81 ; Cline v. Frink Dairy Co., 274 U.S. 445 . See Comment, 55 Mich. L. Rev. 845, 853-856. Be that as it may, it is worthy of note that the Department of Justice has never, so far as we have been able to determine, brought proceedings under this provision of 3.
[ Footnote 8 ] In the 1926 U.S. Code, 1 of the Clayton Act was codified in part as follows (15 U.S.C. 12):
The error occurred in the 1940 codification. The Robinson-Patman Act was enacted in 1936. In the 1940 Code the codification of 1 of the Clayton Act was changed so that it read:
[ Footnote 9 ] Read in context, the legislative excerpts quoted in the dissenting opinion indicate no more than that.
[ Footnote 10 ] The House bill was introduced by Representative Patman. H. R. 8442, 79 Cong. Rec. 9081. Shortly thereafter an identical bill was introduced in the Senate by Senator Robinson. S. 3154, 79 Cong. Rec. 10129.
[ Footnote 11 ] Independently of the Robinson bill, Senators Borah and Van Nuys introduced separate price-discrimination bills. S. 3670, 80 Cong. Rec. 461; S. 3835, 80 Cong. Rec. 1194. These bills were later consolidated, S. 4171, 80 Cong. Rec. 3204, and ultimately the consolidated bill became 3 of the Robinson-Patman Act.
[ Footnote 12 ] Representative Utterback, senior House Manager of the committee of conference, stated on the floor of the House (80 Cong. Rec. 9419):
The question in these cases is whether a person injured by a violation of 3 of the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. 13a, may sue the wrongdoer for treble damages and an injunction under 4 and 16 of the Clayton Act, 38 Stat. 730, 15 U.S.C. 15, 26. A dictum in Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 750 , indicated that the action would lie; and Moore v. Mead's Fine Bread Co., 348 U.S. 115 , sustained a recovery on that theory, though the point now at issue was neither briefed nor considered.
Section 4 of the Clayton Act allows suits for treble damages for acts forbidden by "the antitrust laws." Section 16 allows relief by injunction for violations of "the antitrust laws." The Court holds that 3 of the Robinson-Patman Act is not a part of "the antitrust laws" as used in the Clayton Act.
We disagree. The legislative history in our opinion shows that Congress intended to permit private actions to be brought for violations of 3 of the Robinson-Patman Act.
It is true that 1 of the Clayton Act defines "antitrust laws" as including, inter alia, the Sherman Act and the Clayton Act and that the Robinson-Patman Act did not in terms amend 1. It is also true that 3 of the Robinson-Patman Act does not in terms amend 2 of the Clayton Act, while 1 of the Robinson-Patman Act does. 80 Cong. Rec. 9414. The legislative history is further clouded by the fact that certain types of price discriminations are forbidden by both 1 1 and 3 of the Robinson-Patman [355 U.S. 373, 384] Act. Suits for damages on account of these violations plainly are suits for damages under the "antitrust laws" within the meaning of the enforcement provisions of the Clayton Act. It is only when a violation of 3 alone is involved that the issue we are concerned with here arises. Yet why allow suits for treble damages for price discrimination under 2 and not allow them when the discrimination practiced is of the kind condemned by 3? There is no suggestion that any such line was being drawn by the Congress. The emphasis on the restrictive effect of 3 relates simply to its criminal sanctions, not to the remedial provisions with which we are presently concerned. When the Conference Report was being considered in the House, Representative Miller, a House Conferee supporting the bill, made the following statements (80 Cong. Rec. 9421):
During the discussion of the Conference Report in the Senate, Senator Vandenberg stated:
In resolving all ambiguities against the grant of vitality to 3, we forget that the treble-damage technique for law enforcement was designed as an effective, if not the most effective, method of deterring violators of the Act.
The House Committee on the Judiciary is entrusted by Congress with the preparation and publication of the Code. 1 U.S.C. 202. That Committee construed 3 of the Robinson-Patman Act as part of the antitrust laws, for it gave the section number 13a in the Code and provided in 12 that the term "antitrust laws" "includes sections 1-27 of this title." That codification establishes "prima facie the laws of the United States," 1 U.S.C. 204 (a), and the countermanding considerations relied on by the Court do not seem sufficiently persuasive to us to rebut that construction. It indeed accords with what we deem to be the prevailing sentiment in Congress at the time that 3 became as much a part of the "antitrust laws" as the other provisions of the Robinson-Patman Act.
As the Court notes, it appears that the Department of Justice has never enforced the criminal provisions of 3 [355 U.S. 373, 388] of the Robinson-Patman Act. Because of the Court's holding that 3 is not available in civil actions to private parties, the statute has in effect been repealed. It is apparent that the opponents of the Robinson-Patman Act have eventually managed to achieve in this Court what they could not do in Congress. We would reverse in No. 67 and affirm in No. 69.
[ Footnote * ] [NOTE: This opinion applies also to No. 69, Safeway Stores, Inc., v. Vance, post, p. 389.]
[ Footnote 1 ] Section 1 of the Robinson-Patman Act amended and re-enacted 2 of the Clayton Act.
[ Footnote 2 ] In determining the legislative intent, reliance can hardly be placed on statements of Representative Patman, made in 1950, some 14 years after the passage of the Robinson-Patman Act. that 3 of the Act did not amend the Clayton Act. Hearings on H. R. 7905, 81st Cong., 2d Sess., Serial No. 14, Part 5, p. 48. [355 U.S. 373, 389]