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Published online by Cambridge University Press: 04 April 2017
[Reproduced from the text provided by the U.S. Court of Appeals for the Second Circuit.]
* Of the United States District Court for the Southern District of New York, sitting by designation.
1 Hamburg-Sudamerikanische Dampfschiffarts-Gesellschaft, Eggert & Amsinck is organized under the laws of the Federal Republic of Germany. Associated Container is organized under the laws of the United Kingdom. Farrell Lines is a New York corporation.
2 On March 1, 1983 the Senate passed S. 47, a bill which would broaden the antitrust exemption for ocean carriers and render them essentially immune from antitrust prosecution, but the House has yet to act upon the bill. The Senate’s perception that current statutes do not fully protect shippers from antitrust liability, further underscores the legitimacy of the Justice Department’s investigation under present law.
3 On May 13, 1980, the Department of Justice issued CID No. 3760 which was served upon Associated Container and CID No. 3764 served on Columbus Line. The original CID served on Farrell Lines was quashed without prejudice to reissuance and Farrell Lines was eventually served with CID No. 4584 on July 22, 1981.
4 Prior to 1977 the functions of the Australian Meat and Live-stock Corporation were carried out by the Australian Meat Board. The CID’s at issue also seek communications between appellees and this now defunct organization. For convenience the Australian Meat and Live-stock Corporation and the Australian Meat Board will jointly be referred to as “AMLC.”
5 Similar CID’s issued to other carriers were enforced against challenge in the United States District Court for the Northern District of California. Pacific/Australia-New Zealand Conference v. United Stales, Nos. 80-3015, -3016, -3017 (N.D. Cal. Mar. 26, 1982), appeal dismissed Nos. 82-4205, -4218, -4219 (9th Cir. May 17, 1982). The United States District Court for the District of Columbia granted partial enforcement to virtually equivalent CID’s, setting aside only those portions seeking communications between the shipping conferences and agencies of the U.S. Government. Australia/Eastern U.S.A. Shipping Conference v. United States, 537 F. Supp. 807 (D.D.C. 1982), appeal argued, Nos. 82-1516, -1683 (D.C. Cir. Jan. 10, 1983).
6 Judge Brieant struck ¶ C.9 from each CID which requested “All documents relating or referring, directly or indirectly, to the dissolution of FMC Agreement No. 9450 and the creation of FMC Agreement No. 10268.” He also vacated ¶ C.4(l) from CID No. 3760 and ¶ C.4(k) from CID’s Nos. 3764 and 4584. These paragraphs sought
With respect to the U.S./Australia-New Zealand and Australia-New Zealand/U.S. trades, all documents relating or referring, directly or indirectly, to contacts with any Commissioners of the FMC by the U.S. Atlantic & Gulf/Australia-New Zealand Conference, Pacific Coast Australia Tariff Bureau, or any members thereof, in which such Commissioners were requested to contact officials of the Government of Japan regarding the use of Japanese flag vessels by [independent carriers].
7 The district court declined to enforce paragraph Nos. C.6 and C.7 of each CID which requested
all documents relating or referring, directly or indirectly, to any agreement or contract, written or oral, formal or informal, between the New Zealand Wool Board and the New Zealand/U.S. Atlantic & Gulf Shipping Lines Rate Agreement (“NZ/USA&GSLRA”) or its members in which the New Zealand Wool Board agreed to restrict its patronage in the trade to the members of the NZ/USA&GSLRA.
and
All documents relating or referring, directly or indirectly, to any agreement or contract, written or oral, formal or informal, between the Australian Meat Board (or its successor, the Australian Meat and Livestock Commission [sic]) and Farrell Lines, Columbus Line, Australia National Line, Associated Container Transportation, Atlantraffik Express Service, and Refrigerated Express Service, or any one or more of those lines, in which the Australian Meat Board agreed to restrict its patronage for the transportation of meat to all or any part of the United States to any one or more of them.
8 15 U.S.C. § 1312(a) provides in part
Whenever... the Department of Justice has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation, [it] may, prior to the institution of a civil or criminal proceeding thereon, 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 answer in writing written interrogatories, to give oral testimony concerning documentary material or information, or to furnish any combination of such materials answers or testimony.
9 In discussing the permissible scope of CID provisions the House Report accompanying the 1976 amendments to ACPA notes,
the civil discovery standards are tailored to meet the requirements of formal, adversary, adjudicatory proceedings. Unlike investigations, adjudications feature detailed pleadings setting forth specific allegations and responses. The issues will necessarily be more narrowly-drawn and well-defined than they can possibly be during an investigation.
Thus, the grand jury subpoena standard, tailored as it is to reflect the broader scope and less precise nature of investigations, may in this one respect seem to be a more appropriate standard for antitrust investigations than a rigidly-applied, post-complaint civil discovery standard would be.
H. Rep. No. 1343, 94th Cong., 2d Sess. 11 (1976), reprinted in [1976]
10 Our comments concerning the inapplicability of the Noerr-Pennington doctrine at this stage of the proceedings are equally pertinent to the Government’s request for appellees’ communications with the AMLC and the NZWB. We need not consider, therefore, whether Noerr-Pennington would apply to appellees’ contacts with foreign governments. See Coastal Slates Marketing Inc. v. Hunt, No. 81-2303, slip op. at 1811-14 (5th Cir. Jan. 14, 1983) (Noerr-Pennington applicable to petitioning of foreign governments); see also Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707 (1962); but cf. Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92, 108 (CD. Cal. 1971), aff’d per curiam on other grounds, 461 F.2d 1261 (9th Cir.), cert, denied, 409 U.S. 950 (1972) (Noerr-Pennington does not protect applications to governments of other nations).
11 We agree with Judge Brieant that the mere existence of a telephone connection between the Justice Department and the Department of State is insufficient to indicate approval of an investigation by the division of government responsible for conducting foreign relations. The State Department’s failure to intervene on either side, however, makes us less wary of permitting the Justice Department to execute its congressionally authorized responsibilities, than we might be if the appellees could demonstrate an articulated foreign policy with which these CID’s might interfere. Indeed, we note that Steven E. Asher, an attorney from the Department of State, is named as one of the lawyers assisting the Antitrust Division in preparing its reply brief before this Court.