ing to avoid duplicitous effort in order to permit each agency to function within the area of its greatest effectiveness. The staffs of the respective agencies shall be instructed to exchange information and evidence between the agencies freely and promptly and each shall fully inform the other of the scope, substance and disposition of proposed or pending investigations and cases whenever any question between the agencies arises. It shall be understood that each agency retains full responsibility and authority for the discharge of its statutory duties, and that the understanding between the agencies is for the purpose of cooperation and efficiency in the enforcement of the laws. Any issue with respect to the matters referred to herein which cannot be otherwise determined shall be referred to the Chairman of the Commission and the Assistant Attorney General in charge of the Antitrust Division, who shall confer and seek a resolution of the issue. I will appreciate it if you will consider the foregoing and let me know whether it meets with the approval of the Commission. If there are any questions about this, or if you have any suggestions as to a further improvement or refinement in either the principles or the statement suggested, I would be very happy to have these from you. Sincerely yours, Hon. LEE LOEVINGER, LEE LOEVINGER, Assistant Attorney General, Antitrust Division. FEDERAL TRADE COMMISSION, Washington, D.C., April 11, 1963. Assistant Attorney General, Antitrust Division, DEAR JUDGE LOEVINGER: In your letter of March 8, 1963, you have accurately reflected the liaison arrangements which have existed between the Antitrust Division of the Department of Justice and the Federal Trade Commission since 1948. We at the Commission wish to join with you in working toward a refinement of our relationship in order that there may be a more efficient utilization of the resources of both agencies. We believe that in the main our arrangement has served the public well in view of our respective statutory mandates. It is agreed that the staffs of each agency should be instructed that notice to the other agency of a proposed investigation is not merely a formal requirement but is intended to permit a full exchange of information with respect to the subject matter of the notice. If the recipient has further questions regarding the scope or nature of any proposed investigation, it is agreed that the initiating agency upon request shall submit all available information in answer to such questions. It is further agreed that when notice of a proposed investigation is given, the initiating agency shall fully advise the other agency of the purpose and scope of the proposed investigation, including the probable charges involved. If it subsequently appears that the scope of the investigation is significantly broadened or changed, the investigating agency shall notify the other agency promptly. Subject to applicable law and public policy, it is further agreed that the undertaking of a broad-scale study of an economic field by either agency shall not preclude the other either from utilizing information gathered by the investigating agency or from initiating a specific investigation or prosecution within the same general economic field. We recognize here that by virtue of the respective statutory mandates to both agencies there is an inescapable area of concurrent jurisdiction. Violation of the Sherman Act may constitute violation of Section 5 of the Federal Trade Commission Act, but the converse is not necessarily true. There are many unfair methods of competition and unfair practices that do not assume the proportions of a Sherman Act violation. In this connection, Congress gave to the Federal Trade Commission exclusive resopnsibility for enforcing the Federal Trade Commission Act and to the Department of Justice exclusive responsibility for enforcement of the Sherman Act. In those rare instances where we would not have jurisdiction under Section 5 of a Sherman Act violation because of the necessity of establishing that the activities were carried on "in commerce," the matters would be referred to the Department of Justice. In your letter of March 8, 1963, you suggest that the Federal Trade Commission refer to the Antitrust Division all matters involving per se violations of the Sherman Act, matters primarily concerned with Sherman Act violations, and matters within the scope of Section 3 of the Robinson-Patman Act. In line with this suggestion, but by way of a modification thereof, we propose the following: When a matter is before the Commission and the Commission determines prior to the issuance of a complaint that the facts appear to warrant consideration of possible criminal action against the parties involved the Commission by written notice will inform the Antitrust Division of the investigation and will make available to the Division the files of the investigation for determination by the Division as to whether it desires to present the matter to a grand jury. Such determination shall be made by the Antitrust Division within a period of thirty days, within which time the Division will inform the Commission of its position. If the Division desires to present the matter to a grand jury, it will request the Federal Trade Commission to transfer the matter to it for such purpose. If, on the other hand, the Antitrust Division within this period of time informs the Commission that it does not intend to present the matter for grand jury consideration, then the Commission will proceed under its regular procedures. We believe that we can and will conduct our investigations in such a way as to avoid the danger of deterring the effectiveness of the Department of Justice, by improvidently granting immunization to witnesses where the Department desires to proceed against them for criminal sanctions. With respect to all of the laws under which the Commission and the Depart ment have concurrent jurisdiction, it is our feeling that except where criminal prosecution is preferable, no changes should be made in the liaison in procedures now in effect as described in the first paragraph of your letter. Except in rare instances, neither the Antitrust Division nor the Commission can predict with certainty the totality of facts which may develop during the course of an investigation. Because of this difficulty, I think the greatest public service that we can perform for our respective agencies is to respect each other and act together to use the best procedure available in individual instances in order to guarantee that the public interest is fully served. We at the Commission laud you for your resolve to use more effectively the criminal sections of the law. In this respect, we want to cooperate fully with the Department. We believe that we can best do this through the use of the suggested procedures we have outlined. We accept your suggestion that any matters referred to herein which cannot be otherwise determined shall be resolved by the Assistant Attorney General in charge of the Antitrust Division and the Chairman of the Commission, who shall obtain the approval of the Commission. With kind personal regards, I am Sincerely, Hon. PAUL RAND DIXON, PAUL RAND DIXON, Chairman. DEPARTMENT of Justice, Washington, D.C., April 18, 1963. Chairman, Federal Trade Commission, Washington, D.C. DEAR MR. DIXON: Thank you for your letter of April 11, 1963, stating the response of the Commission to my letter of March 8, 1963. I appreciate the consideration the Commission has given to the problems discussed and the agreement stated in your letter of April 11 with statements and suggestions contained in my March 8 letter. I shall distribute copies of these letters to the Antitrust Division staff and advise the staff that these letters represent the present arrangement and understanding between the agencies. Recognizing the inescapable area of concurrent jurisdiction referred to in your letter, I would still hope that it might be possible to delineate more specific areas of primary responsibility for these agencies. In any event, the Department of Justice will work with the Federal Trade Commission toward effective enforcement of the laws constituting the respective responsibilities of these agencies and will expect to have further discussions of these matters in the future. With best personal regards, I am [s] LEE LOEVINGER, Assistant Attorney General, Antitrust Division. Hon. LEE LOEVINGER, FEDERAL TRADE COMMISSION, Assistant Attorney General, Antitrust Division, Department of Justice, DEAR LEE: In response to your letter of April 18, this is to advise you that I shall distribute a copy of your letter of March 8, 1963 to the Commission, as well as the Commission's letter of April 11, 1963 in response thereto, to the staff of the Bureau of Restraint of Trade with the instruction to the staff that these letters represent the present arrangement and understanding between the agencies. We here at the Commission assure you that we shall continue to work with the Department of Justice toward more effective enforcement of the laws constituting the respective responsibilities of both agencies. With kindest personal regards, I am Sincerely, [s] PAUL RAND DIXON, Chairman. DEPARTMENT OF JUSTICE, Washington, D.C., August 28, 1962. Hon. PAUL RAND DIXON, Chairman, Federal Trade Commission, DEAR RAND: Thanks very much for your letter of August 14, 1962, regarding the clearance procedure followed by the Federal Trade Commission and the Antitrust Division. With respect to this Divison, although we do have field offices, we keep a record in Washington of the activities and investigations of each field office so that any field office check can be made here. In the exceptional case in which it may be necessary to seek further information from a field office, we are prepared to undertake this by telephone and to advise the Federal Trade Commission with respect to clearance of any matter within one day after an FTC request for clearance. In view of your letter, I shall advise the staff that we may presume that a matter has been cleared if we have not been advised to the contrary within one working day after reference of a clearance request to the FTC. We will, of course, expect the FTC to take the same position with reference to clearance requests made by the Antitrust Division. It has occurred to me that it might be desirable for us to keep soine further discussion of the division of cases between the FTC and the Antitrust Division and I would appreciate it if you would give me a ring sometime at your convenience so that we might set up a date for this. There is no immediate crisis or urgency and I am suggesting this in an effort to increase the efficiency of both agencies and the cooperation between us. DEAR JUDGE LOEVINGER: I have your letter of August 2, 1962, concerning delays in responding to requests for clearance and proposing the establishment of a rule whereby clearance may be assured on any matter referred by the Antitrust Division to the Federal Trade Commission unless you are advised to the contrary within one day after the reference. Although I am not aware of the particular incident or incidents which prompted your letter, I assure you that we too are interested in preventing undue delay in responding to requests for clearance. There are instances as you must know, where, because of the necessity of checking with field offices as to the status and nature of matters in investigation and litigation or for other valid resaons, it is not feasible to give an immediate response to a request for clerance. I am informed that is quite often necessary for members of your staff to check with your field offices before responding to a Federal Trade Commission request for clearance. I understand that in instances of this nature the requesting agency is notified of the reason for the delay. I have instructed our liaison officer to see that any such delay is not unduly prolonged. I assume that your letter did not refer to delays of this kind. I have no objection to the rule you proposed if it is understood that it will not be applicable to those matters wherein clearance is delayed for a good reason and the requesting agency is advised of the reason, providing, of course, that the rule will be applicable to matters referred by the Federal Trade Commission to the Antitrust Division for clearance as well as to matters referred by the Antitrust Division to the Federal Trade Commission. Sincerely yours, PAUL RAND DIXON, Chairman. DEPARTMENT OF JUSTICE, Hon. PAUL RAND DIXON, Chairman, Federal Trade Commission, DEAR RAND: The clearance procedure by which the Federal Trade Commission and the Antitrust Division avoid duplication of effort in the investigation of complaints and the prosecution of proceedings has been established for a long time and has, on the whole, worked well. However, it has come to my attention that there is one difficulty we have experienced on a number of occasions. I understand that an Antitrust Division inquiry concerning a matter. or request for clearance from FTC, sometimes receives no response for as long as a week or ten days. We are making every effort to act promptly on complaints received, and with respect to matters referred by Senators and Congressmen we seek to respond within 48 hours. You will understand, therefore, that a delay of a week or more in securing a response from FTC substantially impedes the operation of this Division. Accordingly, unless you have very strong objections, I should like to establish the rule that we will assume that we have FTC clearance on any matter referred by the Antitrust Division to the FTC unless we are advised to the contrary within one day after the reference. Sincerely yours, LEE LOEVINGER, Assistant Attorney General, Antitrust Division. FEDERAL TRADE COMMISSION, Washington, D.C., July 8, 1948. Re proposed liaison arrangements of Federal Trade Commission with Antitrust Division of the Department of Justice. Hon. HERBERT A. BERGSON, Assistant Attorney General, Department of Justice, DEAR MR. BERGSON: The Commission authorized Everette MacIntyre, its liaison official with the Antitrust Division of the Department of Justice, to place before you in his conference in your office, on June 21, 1948, a proposal that there be established a systematic mutual exchange of information regarding pending antimonopoly investigations and of each new investigation at the time it is directed. The exchange of information proposed would include the following for each investigation: the file number, the title, specification of product or products involved, and statement of charges. The proposal provides that all information concerning Federal Trade Commission investigations exchanged would be transmitted from the office of Assistant Chief Examiner L. Garland Kendrick to the office of Mr. Edward P. Hodges, Chief of the Complaint Section of the Antitrust Division, and that information concerning Department of Justice antitrust investigations would be transmitted from the office of Mr. Hodges to the office of Mr. Kendrick. Information thus exchanged would be designated confidential. Its use would be limited to the promotion of liaison and coordination of effort of the two agencies in their antimonopoly work. It is understood that the details concerning the exchange of information were discussed and agreed upon by Mr. MacIntyre, Mr. Kendrick and Mr. Hodges in conference June 21, 1948. By direction of the Commission. Very truly yours, R. E. FREER, Chairman. PROPOSED LIAISON ARRANGEMENTS WITH THE ANTITRUST DIVISION OF THE DEPARTMENT OF JUSTICE Reference is made to Commission minute of June 11, 1948, authorizing and directing the undersigned to attend a conference, which was held in the office of the Assistant Attorney General in charge of the Antitrust Division on June 21, 1948, concerning liaison relations between the Commission and the Department of Justice, with particular reference to investigations involving farm equipment manufacturers and the National Paper Trade Association, and to present his suggestions, as set forth in his memorandum of June 8, 1948, with reference to liaison arrangements between the Commission and the Department of Justice. The authorized conference was held on June 21. Those in attendance included Hon. Herbert A. Bergson, Assistant Attorney General in Charge of the Antitrust Division, Holmes Baldridge, Chief of the Litigation Section, Antitrust Division, Edward P. Hodges, Chief of the Complaint Section, Antitrust Division, L. Garland Kendrick, Assistant Chief Examiner, and the undersigned. During the course of the conference an agreement was reached providing for the establishment of a systematic, mutual exchange of information, regarding pending antimonopoly investigations and of each new investigation at the time it is directed. The exchange of information thus agreed upon would include the file number, the title, specification of product or products involved, and statement of charges. The proposal provides that all information concerning Federal Trade Commission investigations exchanged would be transmitted from the office of Assistant Chief Examiner L. Garland Kendrick to the office of Mr. Edward P. Hodges, Chief of the Complaint Section of the Antitrust Division, and that information concerning Department of Justice antitrust investigations would be transmitted from the office of Mr. Hodges to the office of Mr. Kendrick. Information thus exchanged would be designated confidential. Its use would be limited to the promotion of liaison and coordination of effort of the two agencies in their antimonopoly work. Following the conference in Mr. Bergson's office, the undersigned, Mr. Kendrick and Mr. Hodges discussed and worked out details concerning the exchange of information by the two agencies. An agreement on those details was reached, as shown by the attached memorandum prepared by Mr. Kendrick. It is contemplated that the exchange of information will be undertaken immediately following dispatch by the Commission of a letter to Mr. Bergson that the arrangement worked out has the approval of the Commission. A reply from Mr. Bergson would inform the Commission that the arrangement is approved by the head of the Antitrust Division. To that end the draft of a letter to Mr. Bergson has been prepared for the signature of the Chairman. It is transmitted herewith. Respectfully submitted, JUNE 30, 1948. EVERETTE MACINTYRE, Chief, Division of Antimonopoly Trials. |