Words “Civil or Criminal” in Clayton Act Section 5 Do Not Include Federal Trade Commission Proceedings-Highland Supply Corp. v. Reynolds Metals Co.

In a private antitrust action for treble damages filed in 1963, plaintiff referred in its complaint to a Federal Trade Commission proceeding brought against the defendant in 1957, which had resulted in a final divestiture order. Defendant moved to strike these references in the complaint on the ground that section 5(a) of the Clayton Act, which authorizes private parties to utilize a government “judgment or decree . . . rendered in any civil or criminal proceeding” as prima facie evidence in subsequent treble damage suits, does not include a Federal Trade Commission proceeding. Defendant also moved to dismiss the suit on the ground that the claim was barred by the Clayton Act’s four-year statute of limitations since the allegedly illegal acts occurred in 1957. The defendant claimed that, because the act’s tolling provision in section 5(b) is limited to a “civil or criminal proceeding . . . instituted by the United States,” it also does not apply to a Federal Trade Commission proceeding. Held, motions sustained. An FTC proceeding is not “civil or criminal” within the meaning of section 5 of the Clayton Act; consequently, the Commission’s order is not admissible as prima fade evidence in a subsequent private suit, and its proceedings do not toll the statute of limitations. Highland Supply Corp. v. Reynolds Metals Co., 221 F. Supp. 15 (E.D. Mo. 1963), rev’d on other grounds, 327 F.2d 725 (8th Cir. 1964).