Federal Trade Commission Proceedings and Section 5 of the Clayton Act: Application and Implications

Although the primary responsibility for the enforcement of the antitrust laws falls upon governmental agencies, Congress has recognized the effectiveness of the private suit for damages as a deterrent and has sought to encourage such actions by providing for the recovery of treble damages by an injured party. To assist the private litigant, whose problem of proof is formidable, Congress enacted section 5(a) of the Clayton Act, which allows the introduction, as prima facie evidence of an antitrust violation, of a prior judgment or decree obtained by the Government. As a further aid to private litigants, section 5(b) provides for the tolling of the applicable statute of limitations during the pendency of a civil or criminal action by the Government founded upon the same violation alleged in the private suit. For more than fifty years, the only type of government proceeding that suspended the statute of limitations was a Justice Department action to enforce the antitrust laws. In the recent case of Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., however, the United States Supreme Court held that proceedings instituted by the Federal Trade Commission are also within the scope of section 5(b) of the Clayton Act. It is the purpose of this note to consider the implications of the Minnesota Mining decision for the future application of section 5 to private actions