Antitrust Procedural Improvements Act of 1980
PL 96-349 (S.390), enacted 09/12/1980

94 STAT. 1154 
PUBLIC LAW 96-349—SEPT. 12, 1980 
Sept. 12, 1980 
[S. 390] 
Antitrust 
Procedural 
Improvements 
Act 
of 1980. 
15 u s e 1311 
note. 
"Product of 
discovery." 
Civil 
investigative 
demands. 
Disclosure or 
restrain. 
Public Law 96-
96th Congress 
349 
An Act 
To expedite and reduce the cost of antitrust litigation, and for other purposes. 
Be it enacted by the Senate and House of Representatives of the 
United States of 
America in Congress assembled. That this Act may be 
cited as the Antitrust Procedural Improvements Act of 1980". 
CIVIL INVESTIGATIVE DEMANDS FOR PRODUCTS OP DISCOVERY 
SEC. 2. (a) Section 2 of the Antitrust Civil Process Act (15 U.S.C. 
1311; 76 Stat. 548) is amended— 
(1) in subsection (g), by striking out "; and" at the end thereof 
and inserting in lieu thereof the following: ", and any product of 
discovery;"; 
(2) in subsection (h), by striking out the period at the end 
thereof and inserting in lieu thereof a semicolon; and 
(3) by adding at the end thereof the following new paragraph: 
"(i) The term 'product of 
discovery* includes without limitation 
the original or duplicate of any deposition, interrogatory, docu-
ment, thing, result of the inspection of land or other property, 
examination, or admission obtained b}^ any method of discovery 
in any judicial litigation or in any administrative litigation of an 
adversarial nature; any digest, analj^sis, selection, compilation, 
or any derivation thereof; and any index or manner of access 
thereto; and". 
(b)(1) Section 3(a) of the Antitrust Civil Process Act (15 U.S.C. 
1312(a)) is amended by adding at the end thereof the following new 
sentence: "Whenever a civil investigative demand is an express 
demand for any product of discovery, the Attorney General or the 
Assistant Attorney General in charge of the Antitrust Division shall 
cause to be served, in any manner authorized by this section, a copy of 
such demand upon the person from whom the discovery was obtained 
and notify the person to whom such demand is issued of the date on 
which such copy was served.". 
(2) Section 3(b) of that Act (15 U.S.C. 1312(b)) is amended by adding 
at the end thereof the following new sentence: 
"Any such demand which is an express demand for any product of 
discovery shall not be returned or returnable until twenty days after 
a copy of such demand has been served upon the person from whom 
the discovery was obtained.". 
(3) Section 3(c) of 
that Act (15 U.S.C. 1312(c)) is amended— 
(A) by inserting "(1)" immediately after "(c)"; 
(B) by striking out "(1)" and inserting in lieu thereof "(A)"; 
(C) by striking out "(2)" and inserting in lieu thereof "(B)"; and 
(D) by adding at the end thereof the following new paragraph: 
"(2) Any such demand which is an express demand for any product 
of discovery supersedes £iny inconsistent order, rule, or provision of 
law (other than this Act) preventing or restraining disclosure of such 
product of discovery to any person. Disclosure of any product of 
discovery pursuant to any such express demand does not constitute a 
PUBLIC LAW 96-349—SEPT. 12, 1980 
94 STAT. 1155 
waiver of any right or privilege, including without limitation any 
right or privilege which may be invoked to resist discoveiy of trial 
preparation materials, to which the person making such (usclosure 
may be entitled.". 
(4) Paragraph (3) of section 4(c) of that Act (15 U.S.C. 1313(cX3)) is 
amended by inserting immediately after "transcripts" the second 
place it appears the following: ", and, in the case of any product of 
discovery produced pursuant to an express demand for such material, 
of the person from whom the discovery was obtained". 
(5) Section 5 of 
that Act (15 U.S.C. 1314) is amended— 
(A) by amending subsection (b) to read as follows: 
"(b)(1) Within twenty days after the service of any such demand 
upon any person, or at any time before the return date specified in 
the demand, whichever period is shorter, or within such period 
exceeding twenty days after service or in excess of such return date as 
may be prescribed in writing, subsequent to service, by any antitrust 
investigator named in the demand, such person may file and serve 
upon such antitrust investigator, and in the case of an express 
demand for any product of discovery upon the person from whom 
such discovery was obtained, a petition for an order modifying or 
setting aside such demand— 
"(A) in the district court of the United States for the judicial 
district within which such person resides, is found, or transacts 
business; or 
"(B) in the case of a petition addressed to an express demand 
for any product of discovery, only in the district court of the 
United States for the judicial district in which the proceeding in 
which such discovery was obtained is or was last pending. 
"(2) The time allowed for compliance with the demand in whole or 
in part as deemed proper and ordered by the court shall not run 
during the pendency of such petition in the court, 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 such demand to comply with the provisions of this 
Act, or upon any constitutional or other legal right or privilege of 
such person."; 
(B) by redesignating subsections (c), (d), (e), and if) as subsec-
tions (d), (e), (f), and (g), respectively; 
(C) by inserting immediately after subsection (b) the following 
new subsection: 
"(c) Whenever any such demand is an express demand for any 
product of discovery, the person from whom such discovery was 
obtained may file, at any time prior to compliance with such express 
demand, in the district court of the United States for the judicial 
district in which the proceeding in which such discovery was obtained 
is or was last pending, and serve upon any antitrust investigator 
named in the demand and upon the recipient of the demand, a 
petition for an order of such court modifjdng or setting aside those 
portions of the demand requiring production of anv such product of 
discovery. Such petition shall specify each ground upon which the 
petitioner relies in seeking such relief and may be based upon any 
failure of such portions of the demand to comply with the provisions 
of this Act, or upon any constitutional or other legal right or pri^dlege 
of 
the petitioner. During the pendency of 
such petition, the court may 
stay, as it deems proper, compliance with the demand and the 
running of the time allowed for compliance with the demand."; and 
Responsibility 
for materials, 
disclosure. 
Judicial 
proceedings. 
Demand for 
material, 
petition; 
modification. 
Compliance. 
Portions of 
demand, 
petition; 
modification. 
94 STAT. 1156 
PUBLIC LAW 96-349—SEPT. 12, 1980 
(D) in subsection (d), as that subsection has been redesignated 
by subparagraph (B), by inserting immediately after ''such 
person the following: ", and, in the case of an express demand 
for any product of discovery, the person from whom such discov-
ery was obtained,". 
Suits by 
persons injured. 
Award of 
interest, 
eligibility. 
Suits by U.S. 
Award of 
interest, 
eligibility. 
SANCTIONS FOR ATTORNEY DELAY 
SEC. 3. Section 1927 of title 28, United States Code, is amended— 
(1) by striking out "as to increase costs"; and 
(2) by striking out "such excess costs" and inserting in lieu 
thereof "the excess costs, expenses, and attorneys' fees reason-
ably incurred because of such conduct". 
PREJUDGMENT INTEREST 
SEC. 4. (a)(1) Section 4 of the Clayton Act (15 U.S.C. 15) is amended 
by adding at the end thereof the following new sentences: "The court 
may award under this section, pursuant to a motion by such person 
promptly made, simple interest on actual damages for the period 
beginning on the date of service of such person's pleading setting 
forth a claim under the antitrust laws and ending on the date of 
judgment, or for any shorter period therein, if the court finds that the 
award of such interest for such period is just in the circumstances. In 
determining whether an award of interest under this section for any 
period is just in the circumstances, the court shall consider only— 
"(1) whether such person or the opposing party, or either 
party's representative, made motions or asserted claims or 
defenses so lacking in merit as to show that such party or 
representative acted intentionally for delay, or otherwise acted 
in bad faith; 
"(2) whether, in the course of the action involved, such person 
or the opposing party, or either party's representative, violated 
any applicable rule, statute, or court order providing for sanc-
tions for dilatory behavior or otherwise providing for expeditious 
proceedings; and 
"(3) whether such person or the opposing party, or either 
party's representative, engaged in conduct primarily for the 
purpose of delaying the litigation or increasing the cost thereof.". 
(2) Section 4A of the Clayton Act (15 U.S.C. 15a) is amended by 
adding at the end thereof the following new sentences: "The court 
may award under this section, pursuant to a motion by the United 
States promptly made, simple interest on actual damages for the 
period beginning on the date of service of the pleading of the United 
States setting forth a claim under the antitrust laws and ending on 
the date of judgment, or for any shorter period therein, if the court 
finds that the award of such interest for such period is just in the 
circumstances. In determining whether an award of interest under 
this section for any period is just in the circumstances, the court shall 
consider only— 
"(1) whether the United States or the opposing party, or either 
party's representative, made motions or asserted claims or 
defenses so lacking in merit as to show that such party or 
representative acted intentionally for delay or otherwise acted in 
bad faith; 
"(2) whether, in the course of the action involved, the United 
States or the opposing party, or either party's representative, 
violated any applicable rule, statute, or court order providing for 
PUBLIC LAW 96-349—SEPT. 12, 1980 
94 STAT. 1157 
sanctions for dilatory behavior or otherwise providing for expedi-
tious proceedings; 
"(3) whether the United States or the opposing party, or either 
party's representative, engaged in conduct primarily for the 
purpose of delaying the litigation or increasing the cost thereof; 
and 
"(4) whether the award of such interest is necessary to compen-
sate the United States adequately for the injury sustained by the 
United States.". 
(3) Section 4C(a)(2) of the Clayton Act (15 U.S.C. 15c(a)(2)) is 
amended by adding at the end thereof the following new sentences: 
"The court may award under this paragraph, pursuant to a motion by 
such State promptly made, simple interest on the total damage for 
the period beginning on the date of service of such State's pleading 
setting forth a claim under the antitrust laws and ending on the date 
of judgment, or for any shorter period therein, if the court finds that 
the award of such interest for such period is just in the circumstances. 
In determining whether an award of interest under this paragraph 
for any period is just in the circumstances, the court shall consider 
only— 
"(A) whether such State or the opposing party, or either 
party's representative, made motions or asserted claims or 
defenses so lacking in merit as to show that such party or 
representative acted intentionally for delay or otherwise acted in 
bad faith; 
"(B) whether, in the course of 
the action involved, such State or 
the opposing party, or either party's representative, violated any 
applicable rule, statute, or court order providing for sanctions for 
dilatory behavior or otherwise providing for expeditious proceed-
ings; and 
"(C) whether such State or the opposing party, or either party's 
representative, engaged in conduct primarily for the purpose of 
delaying the litigation or increasing the cost thereof". 
(b) The amendments made by this section shall apply only with 
respect to actions commenced after the date of the enactment of this 
Act. 
APPLICATION OF COLLATERAL ESTOPPEL 
Award 
to States. 
Eligibility. 
Effective 
date. 
15 u s e 15 note. 
SEC, 5. (a) Section 5(a) of the Clayton Act (15 U.S.C. 16(a)) is 
amended— 
(1) by striking out "or by the United States under section 4A,"; 
(2) by striking out "or to judgments or decrees entered in 
actions under section 4A"; and 
(3) by inserting at the end thereof the following new sentence: 
"Nothing contained in this section shall be construed to impose 
any limitation on the application of collateral estoppel, except 
that, in any action or proceeding brought under the antitrust 
laws, collateral estoppel effect shall not be given to any finding 
made by the Federal Trade Commission under the antitrust laws 
or under section 5 of the Federal Trade Commission Act which is use 45 
could give rise to a claim for relief under the antitrust laws.". 
(b) The amendments made by this section shall not apply with 
respect to any actions brought by or on behalf of the United States 
under the antitrust laws before the date of the enactment of this Act. 
15 u s e 16 
note. 
MERGER JURISDICTION 
SEC. 6. (a) Section 7 of the Clayton Act (15 U.S.C. 18) is amended— 
94 STAT. 1158 
PUBLIC LAW 96-349—SEPT. 12, 1980 
(1) by striking out "corporation" each place it appears in the 
first and second paragraphs and inserting in lieu thereof 
"person" in each such place; 
(2) by striking out "corporations" in the second paragraph and 
in the first sentence of the third paragraph and inserting in lieu 
thereof "persons"; and 
(3) by inserting "or in any activity affecting commerce" after 
"commerce" each place it appears in the first three paragraphs. 
Effective 
(b) The amendments made by this section shall apply only with 
1
5 use 1
8 
respect to acquisitions made after the date of the enactment of this 
ACV« 
USE OF AGENTS BY THE DEPARTMENT OP JUSTICE 
note. 
SEC. 7. (a)(1) Section 2 of the Antitrust Civil Process Act (15 U.S.C. 
1311), as amended by section 2 of this Act, is further amended by 
adding at the end thereof the following new paragraph: 
"Agent." 
"(j) The term 'agent' includes any person retained by the 
Dei)artment of 
Justice in connection with the enforcement of the 
antitrust laws.". 
(2) Paragraphs (2) and (3) of section 4(c) of the Antitrust Civil 
Ante, p. 1155. 
Process Act (15 U.S.C. 1313(c) (2) and (3)) are amended by striking out 
"official or employee" each place it appears and inserting in lieu 
thereof "official, employee, or agent" in each such place. 
(b) Section 1905 of title 18, United States Code, is amended by 
inserting after "thereof," the first place it appears the following: "or 
agent of the Department of Justice as defined in the Antitrust Civil 
Process Act (15 U.S.C. 1311-1314),". 
Approved September 12, 1980. 
LEGISLATIVE HISTORY: 
HOUSE REPORTS: No. 96-875 (Comm. on the Judiciary) accompanying H.R. 4048 and 
No. 96-1234 (Comm of Conference). 
SENATE REPORT No. 96-238 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD: 
Vol. 125 (1979): July 20, considered and passed Senate. 
Vol. 126 (1980): June 12, H.R. 4048 considered and passed House; passage 
vacated and S. 390, amended, passed in lieu. 
Aug. 18, Senate agreed to conference report. 
Aug, 28, House agreed to conference report. 
[See also the following bills and their accompanying reports: 
H.R. 4046, H.R. 4049, H.R. 4050, and H.R. 5949.]