If the damages suffered are measurable and ascertainable in money value Hunt Foods), or if the threatened damage can be adequately compensated for 17 betary damages (Fein v. Security Banknote Company, 157 F. Supp. 146, 14% 1957)), a preliminary injunction will not be issued. A preliminary injunction under section 16 will be granted only on a showing fireparable injury during the pendency of the action (Warner Bros. Pictures v. -me, 110 F. 2d 292 (1940))." It will be refused where the plaintiff does not inge and show that it individually has sustained or is threatened with irmaratie loss or damage immediately, or during the pendency of the action. Và tưreli Clements, Inc. v. McGraw-Hill Pub. Co., 12 F.R.D. 403 (1952)). And apreminary injunction has been denied where a showing of irreparable damage 1st obtaining the relief did not appear "too clearly" and a "reasonably early on the merits" could be accorded the plaintiffs. (Volk v. Loew's Inc., 94 ip 162 (1950)). whole tenor of injunctive relief is in conflict with the purpose of susn power in the Interstate Commerce Commission. Suspension of a rate g determination of its lawfulness is not an extraordinary procedure k in fact, of such a "routine” nature that it is delegated by the Commission an employee board. The difference between transportation and antitrust all makes the injunction provisions of the Clayton Act-even if availa totally inadequate substitute for the suspension power under the InterSAPUOLILPrve Act. f the most important types of cases in which the Commission presently ws its rate supervision and regulation-including suspension power is mai advoksing competitive rate wars. This is an essential power of the Comsince it permits the check of reckless retaliatory rate reductions which in debilitation of carriers' financial stability and impairment of their to meet their obligations to provide service. Of course, the bill before deitinate this "ounce of prevention" insofar as 70 percent of rail age is concerned. **ne of injunctions under section 16 would be subject to the very mera, standards of the antitrust laws and the "conditions and principles" of uerat, ata tive proceedings, rather than the more specific ratemaking standards the Interstate Commerce Act, as they have been implemented and given life Interstate Commerce Commission. Businessmen whose activities are *** t to mutitrust regulation frequently complain that it is impossible to deter» il ad alce whether an action will violate some provisions of the antitrust what one author has described as "the uncertain statutes, the unpredicable "pretations and the almost unprecedented problems of application, enforcea al compliance in this field of law." Van Cise, the Federal Antitrust At Least part of this confusion arises because of the multitude of jurisdictions chuh antitrust questions are initially determined. The advantage of having forum decide questions of the lawfulness of rates (subject, of course, to by the courts) would be lost if those questions are removed from the sor.'s jurisdiction and transferred to the courts. The Federal district speak in many voices, and those voices, unfortunately, do not always harThe not unusual conflicts which arise among the district courts and even the courts of appeals would be especially disastrous in the field of trans*rat, in which Congress has seen fit to regulate in accordance with an overall Deared policy. If the hill were enacted, and carriers could sue to enjoin proposed rates, it is *u* to visualize comparable rates enjoined in one court and allowed to remain à eft by other courts. Since many carriers operate in several jurisdictions, is not outside the realm of probability that the same rate attacked in diffont courts simultaneously could be both approved and enjoined. Where femrate interests are involved and the equaily compelling convenience of a Beg of widely separated parties must be considered, multiple proceedings in ☛☛eral courts involving the same rate are quite possible. A--1 £inaliv, courts are reluctant to make determinations which are prospective a tertia. While a court might conceivably find that a given rate was unlawful, kad siera'd be enjoined, it would not indicate to the parties what level of rate ♥• A ccaform to the antitrust laws. For example, suppose that a motor carrier could satisfy a court that a railmai in redu ing its rate from $1 to 50 cents, had violated the antitrust laws. Nu den;3 t, the court would enjoin the rate. But that is as far as the court would It would not, as the Commission often does, determine the level below which the rate could not be set. And, it is thus quite possible that a motor carrier, having gone to all the trouble and expense of making his proof, and securing on injunction against the 50-cent rate, would find himself faced with, say, a 52-cent rate, placed in effect by his rail competitor as soon as the 50-cent rate was enjoined. For the reasons I have stated, the private injunctive remedy of section 16 of the Clayton Act-and we do not believe it would be available--is a com pletely unsatisfactory substitute for the minimum-rate powers of the Interstate Commerce Commission. And, as for the limited number of other provisions of the antitrust laws which the bill would apply to carrier practices, it seems likely that only after a carrier, in a given traffic and a specific route or territory, had achieved a virtual monopoly, could they be successfully invoked. the ICC's minimum-rate powers can now be used to stop such situations from developing. It is conceivable, for example, that in some situations court relief under the Sherman Act might make an aggrieved carried whole; but, even so. such relief would not protect the public interest in an adequate transportation system. SUPPORTERS OF THE BILL IGNORE HISTORY Here again, Finally, there is a bit of history which is very pertinent to consideration of the proposed legislation. The Commission did not acquire its power to regulate minimum rates of carriers until 1920. The Sherman Act was passed in 1890, and the Clayton Act in 1914. In Lake Line Applications Under Panama Canal Act, 33 ICC 699, 716 (1915), the Commission found that the railroads, acting in concert, "were able to, and did, drive all independent boats from the through lake and rail transportation, [and] thereby destroyed the possibility of competition with their railroads other than such competition as they were of a mind to permit. Having disposed of real competition via the lakes, these [rail-owned] boats are now held as a shield against possible competition of new independents." These railroad activities took place when the Sherman Act was in full force, and continued for some years after the Clayton Act was passed. In fact, it was not until the ICC was given its power over minimum rates that independent water carriage again came alive. Now we are told that the Commission can be deprived of this same minimum-rate power, and that these same two antitrust statutes, which were of no avail when the railroads drove the independent water carriers out of business, will somehow prevent them doing the same thing again to the motor and water carriers. We prefer to believe the lesson of history. APPENDIX. SECTION-BY-SECTION ANALYSIS OF ANTITRUST LAWS DESIGNATED IN SECTION 1 OF THE ACT OF OCTOBER 15, 1914 (CLAYTON ACT) The Sherman Act (15 U.S.C.A. secs. 1–7) Section 1: Declares every contract, combination, or conspiracy to restrain trade or commerce among the States, or with foreign nations, to be illegal. Provides fine or imprisonment, or both, for violations. Comment: Applicable to all businesses. Would apply to collective ratemaking by carriers, except for provisions of Reed-Bulwinkle Act, 49 U.S.C.A., section 5b. Section 2: Declares that every person who monopolizes, attempts to monopo lize, or combines or conspires with others to monopolize, trade or commerce, is guilty of a misdemeanor and subject to fine or imprisonment, or both. Comment: See section 1. Section 3: Same provisions as section 1 applied to territories or District of Columbia, or between them and the States. Section 4: Provides for jurisdiction of courts and duty of U.S. district attor neys to prevent and restrain violations of the Sherman Act. Section 5: Empowers district courts to bring in additional parties to section 4 proceedings by subpena, whether such parties reside in the district or not. Section 6: Provides for forfeiture of property moving in commerce owned under any contract or combination or pursuant to any conspiracy subject to section 1. Comment: In U.S. v. Addyston Pipe & Steel Co., 85 F. 271 (1898), modified, 175 U.S. 211, 20 S. Ct. 96, an injunction proceeding, it was held there could be no forfeiture of goods, except upon jury trial. Section 7: Defines "person" as used in Sherman Act. The Wilson Tariff Act of 1894 (secs. 73–77, inclusive) (15 U.S.C.A. secs. 8-11\ Section 8: Prohibits combinations, conspiracies, or contracts in restraint of import trade. 9. Provides for jurisdiction of courts and duty of U.S. district atcho restrain Violations of section 8. ~~ 510 – Empowers district courts to bring in additional parties to section 9 vw by subpena, whether such parties reside in the district or not. * 11: Provides for forfeiture of property moving in commerce owned aly contract or combination or pursuant to any conspiracy subject to tyt # Act (15 U 8.C.A., secs. 12. 27) 12- Defines "antitrust laws" for purpose of Clayton Act. 13 Prohibits discrimination in price between different purchasers of es of like grade and quality, where the effect may be substantially to net ~mpetition or tend to create a monopoly in any line of commerce. sent Not applicable to carriers, since transportation is not a comdry Should be broadened to include transportation. £14 Prohibits exclusive-use contracts in connection with the lease or • 4 'g»ds wares, merchandise, machinery, supplies, or other commodities.” Esent In Fruit Growers Erp., Inc. v. F.T.C., 274 F. 205 (1921), the Felers Trade Commission was held to be without jurisdiction in a case in*genitract requiring railroad party thereto to use Fruit Growers' nett exclusively in the movement of fruits and vegetables. ICC held *ive le jurisdiction Dismissed, 261 U.S. 629, 43 S. Ct. 518, e 15 Anthorizes treble damage suits for violation of "antitrust laws" *ed in section 12. Authorizes suits by United States to recover actual damages and Is injured in its business or property. 15h Provides 4-year limitation period upon suits brought under sec - 1 16. Makes final judgment or decree in civil or criminal suit brought by States -other than consent decrees--prima facie evidence in civil suits antity frivate parties—or by Government under section 15a. Tolls running s as to private actions during pendency of Government suit and one 517. Provides that nothing in the antitrust laws shall be construed to et state and operation of labor and other organizations. 1% Probabits acquisition of stock of one corporation by another where of may be substantially to lessen competition or tend to create Comment: Specifically exempts transactions consumated pursuant to au***y given by various administrative agencies, including Interstate Com* Coilusion Profubits interlocking directorates among banks, and any two or in dollar competitive corporations, rest Fxempts common carriers by rail, pipeline, and motor subject Tojirisdiction. ↑3) Prohibits purchases of more than $50,000 of securities, supplies, **common carriers from companies having same officers or directors as * erept upon a competitive bid basis under rules prescribed by ICC. Vests authority to enforce provisions of sections 13, 14, 18, and Ice where applicable to common carriers subject to the Interstate Authorizes suits against corporations under antitrust laws in any re they are found or transact business. Provides that subpenas for witnesses in actions by United States any district my run into any other district. 24 Makes officers and directors liable for acts of corporations, and **them upon conviction, to fine or imprisonment, or both Provides for jurisdiction of courts and duty of U S. district attor rostran violations of Clayton Act 53 Provides for injunctive relief by private parties against threatened ge of violation of the antitrust laws. **t* Bars such relief, except to United States, against common 100 or "in respect of any matter subject to the regulation, supervision, or risdiction of the Interstate Commerce Commission." Should be 16 43 pt 1---13 amended to authorize private injunctive relief against unreasonably low rates on traffic removed from ICC minimum-rate regulation. Section 27: Provides that invalidation of "any clause, sentence, paragraph or part" of Clayton Act shall not invalidate the remainder thereof. Seo. 3 of Robinson-Patman Act. (15 U.S.0.A. Sec. 13a) Section 3 of the Robinson-Patman Act (15 U.S.C.A. sec. 13a) provides criminal penalties for sales which discriminate between purchasers of goods of like grade and quantity by virtue of any discount, rebate, allowance, or advertising service charge. Also prohibits geographical price discrimination or sales at unreasonably low prices for the purpose of destroying competition or eliminating a competitor Comment: In Nashville Milk Co. v. Carnation Co. (355 U.S. 373, 78 S.Ct. 352 (1958), the Supreme Court held that this section is not one of the “antitrust laws" as defined in the Clayton Act. Thus, it is not included in the antitrust laws designated in H.R. 4700. This section should be amended to include transportation service, and applied to rates for commodities removed from ICC minimum rate control. The CHAIRMAN. In looking over this section-by-section analysis, I observed the references to the Sherman Act, the Wilson Tariff Act, the Clayton Act, the Robinson-Patman Act. Mr. BEARDSLEY. Yes, sir. The CHAIRMAN. Do you have a copy of the bill 4700 before you? The CHAIRMAN. For the benefit of the committee, would you refer to the language in the bill that would amend the antitrust provision? Mr. BEARDSLEY. That would do what, sir? The CHAIRMAN. That would amend or affect the antitrust law. Mr. BEARDSLEY. Yes. Page 3, just to shorten it, beginning up at line 9, starting "If any carrier or carriers exempted," and so forth, shall do anything in violation of the provision of the antitrust laws, down to line 16, "as designated in section 1 of the Act of October 15, 1914." Now, the act of October 15, 1914, is the Clayton Act and it includes in that definition of antitrust laws contained in that act all of the provisions that I have listed here in this digest except section 3 of the Robinson-Patman Act which is not included within the definition of antitrust laws as this bill now reads. The CHAIRMAN. Now, it does go ahead with a proviso. The CHAIRMAN. The proviso has to do with section 5A. Mr. BEARDSLEY. Yes sir, and I stated in my testimony that this bill would remove the Reed-Bulwinkle Act protection from what I call single factor or local rates, that is to say, rates where there is no joint ratemaking necessitated or no joint haul involved. The CHAIRMAN. In other words, the provision of the Reed-Bulwinkle Act of 1948, I believe, was it not Mr. BEARDSLEY. I think so. The CHAIRMAN (continuing). Would be repealed? Mr. BEARDSLEY. No, sir: only insofar as local single factor rates are concerned. This bill would not disturb the Reed Bulwinkle exemption with respect to joint rates as I understand the bill. The CHAIRMAN. The authority under the Reed-Bulwinkle Act for joint rates would be retained? Mr. BEARDSLEY. Yes, sir; that is my understanding. The CHAIRMAN. And the provision of the Reed-Bulwinkle Act referring to independent rates would not be permitted? Mr. BEARDSLEY. That is my understanding of the intention of the bill. T. CHAIRMAN. In other words, the provision of the bill applicable ay of the antitrust provisions, again on page 3, line 9, and go down a: through line 11 on page 4. M-. BEARDSLEY. Yes, sir. Te CHAIRMAN. I have at all times had some concern myself on a trasie philosophy of transferring certain authority from the reguatry agency, the Interstate Commerce Commission, dealing with herbiem of ratemaking to the broad or broader general authority Department of Justice. That has been one of the things that cerned me a great deal about this whole program. I: ave listened with a great deal of interest to the discussions herefre, at the hearing last year, and will expect to as we go along in estion with this program. Iave observed the activities of the Department of Justice in conwith matters of this kind. Because of the difficulty we have as encountered in the application of antitrust law, I think there .4 of merit in this proposition of what a small business might be - do in connection with his own operation. I am not concerned about the American Trucking Associations and i am not concerned about the Association of American Railroads I think you are big enough, powerful enough and strong 125 to protect yourselves. You have got the facilities, personnel, ty and all to deal with it. The ones that disturb me are the at do not have such organizations and financial capacity as vas otherwise to protect themselves. I am very much interested in this particular principle involved. aly, you have discussed it very forcefully from your viewpoint. d.fficulty, I must say, is the anxiety which runs throughout feeling about it that some of the suggestions which seem to me a little exaggerated because of the feeling you naturally will 4 r. our competitive system. It is our responsibility to try to e the real issues involved here and the information that is butable to them from the excessive feeling of competitive spirit exists among the great organizations. ow, you did not mention the alternative suggestion of the President reage. Do you have any comment on that? Mr. BEARDSLEY. Well, as it has been made pretty clear here so far der witnesses representing our industry, we certainly much favor ternative approach. There has been so much said about that 17 that I didn't think I would add anything to it, but I cannot ulating that if there was as much energy put into the stive approach by all of the forms of transportation plus the ration, that maybe that line is not so impregnable as many CHAIRMAN. Do you have any complaints with the adminis M- BEARDSLEY. I vote over in Virginia. » € HAIRMAN. I don't mean the administration, as such. V- BEARDSLEY. I thought maybe a little humor would not hurt. HAIRMAN. I apologize for my EARDSLEY. Well, I thought that I had made it clear that we endore this bill one iota. We much prefer and we believe pable interest can only be served by retaining in the Intermerce Commission the authority to deal with minimum |