5(a), separated only by a colon. Section 5(b) is separate and apart, and makes no reference to 'judgments or decrees'. It is the 'pendency' of a 'proceeding' that operates to toll the running of the statute of limitations, and the manner of termination of that proceeding is not a factor under the language of section 5(b).
Second. Defendant contends that the action brought by the Federal Trade Commission is not a 'civil * * * proceeding * * * instituted by the United States to prevent, restrain, or punish violations of * * * the antitrust laws' within the meaning of section 5(b) of the Clayton Act. The argument is that the quoted language refers only to a judicial proceeding brought by the Antitrust Division of the Justice Department, and not to an administrative proceeding instituted by the Federal Trade Commission. 3M points out the well-known distinctions between judicial and administrative proceedings, and conjectures that Congress could not have intended a Commission proceeding to have such an effect without writing more specific language into the statute.
The cases coming to the Court's attention dealing with the tolling question have all involved prior Department of Justice proceedings. There appear to be no decisions as to whether or not section 5(b) is applicable in the case of a Federal Trade Commission proceeding. 3M has cited Proper v. John Bene & Sons, Inc., 295 F. 729 (E.D.N.Y.1923), which contains dicta to the effect that a proceeding before the Federal Trade Commission is not brought by the United States under the antitrust laws. But the Proper case involved the very different question of the res judicata effect of proceedings under the Federal Trade Commission Act pursuant to the present section 5(a) of the Clayton Act. There certainly can be no doubt that a proceeding brought by the Commission under section 7 of the Clayton Act is an action under the 'antitrust laws'. See section 1 of the Clayton Act, 15 U.S.C.A. § 12. Nor can there be much doubt today that a Commission proceeding is an action brought by the United States. See Brunswick-Balke-Collender Co. v. American Bowling & Billiard Corp., 150 F.2d 69 (2 Cir., 1945).
In the final analysis, the resolution of the issue of the applicability of the tolling provision in section 5(b) to Commission proceedings depends upon the legislative purposes behind the adoption of that section. It seems clear that Congress intended by section 5(b) to allow antitrust litigants an opportunity, which might otherwise be barred by the four year statute of limitations, to take advantage of facts uncovered in related Government proceedings. See Sen.Rep. 619, 84th Cong., 1st Sess., U.S.Code Cong. & Admin.News, p. 2332 (1955); Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561, 569 (10 Cir., 1962). Thus, a private party which has suffered damages to its business by reason of unlawful antitrust activity is permitted additional time to derive the benefits of a Government investigation. This purpose has nothing whatever to do with the competency of the evidence generated by the Government proceeding, or with which agency prosecuted the violation for the Government.
Both the Federal Trade Commission and the Department of Justice have concurrent jurisdiction over violations of section 7 of the Clayton Act. See section 11 of the Clayton Act, 15 U.S.C.A. § 21. It certainly would seem not to have been the Congressional intent to have plaintiff's rights turn on the fortuitous circumstance of which agency initiated the action. To permit a plaintiff to take advantage of facts uncovered as a result of a Department of Justice proceeding, but not as a result of a Federal Trade Commission proceeding brought under the same statute, does not seem logical. Thus, the difference between judicial and administrative proceedings has no meaning in the light of section 5(b)'s purpose to permit a plaintiff to take advantage of facts uncovered during the pendency of a Government proceeding. The Court, therefore, finds that the action before the Commission is a proceeding within the meaning of section 5(b) of the Clayton Act which tolls the running of the statute of limitations.
Third. The remaining issue concerns the extent to which the complaint filed in this Court is saved by the tolling provision. Concededly, the running of the statute of limitations would be tolled with respect to plaintiff's claim under section 7 of the Clayton Act, based on 3M's acquisition of IWI in August 1956, which was the subject of the Commission proceeding. But plaintiff contends that the statute is also tolled as to its claims of conspiracy and attempt to monopolize under sections 1 and 2 of the Sherman Act.
Section 5(b) of the Clayton Act tolls the statute 'in respect of every private right of action arising under (the antitrust) laws and based in whole or in part on any matter complained of in (the Government) proceeding'. The Sherman Act claims involved here are, at least 'in part', based on the same 'matter complained of' in the Commission proceeding. The factual issues, centering around 3M's acquisition of IWI in August 1956 and the consequent effects of such acquisition on competition in the electrical insulation field, appear to be substantially identical in the two proceedings. See Union Carbide & Carbon Corp. v. Nisley, supra, 300 F.2d p. 570. Thus, facts uncovered by the Government in the Commission proceeding would seem to bear on the issues which are involved in this case under sections 1 and 2 of the Sherman Act.
For the reasons stated, this Court holds that section 5(b) of the Clayton Act tolled the running of the statute of limitations as to both the Clayton and Sherman Act counts of the complaint against 3M in this case. Defendant 3M's motion for dismissal, or, in the alternative, for a summary judgment will be denied. Submit order.
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