Second Circuit Holds that Nationwide Service Provision of the Clayton Act Is Only Available Where the Section's Sepcific Venue Provision Is Satisfied
The Second Circuit in Daniel v. American Bd. of Emergency Medicine, --- F.3d ----, 2005 WL 2470530 (2d Cir. Oct 07, 2005), has weighed in on an issue that currently divides the circuits: whether service of process (and personal jurisdiction) is available under Section 12 of the Clayton Act (15 U.S.C. § 22) only in cases satisfying the section's specific venue provision or regardless how venue is established. The court in Daniel opted for the former interpretation.
Here's an excerpt:
Our sister circuits are split over the proper interpretation of the venue and process provisions of Section 12. The Third and Ninth Circuits hold that Section 12's service of process provision is "independent of and does not require satisfaction of" the section's venue provision. In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 297 (3d Cir.2004); see Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1179- 80 (9th Cir.2004) (holding that, "under Section 12 of the Clayton Act, the existence of personal jurisdiction over an antitrust defendant does not depend upon there being proper venue in that court"); Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1408-13 (9th Cir.1989) (rejecting argument that antitrust plaintiff must satisfy Section 12's venue provision to avail itself of its worldwide service of process authorization). The District of Columbia Circuit, however, holds that "[t]he language of the statute is plain, and its meaning seems clear: ... [I]nvocation of the nationwide service clause rests on satisfying the venue provision." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C.Cir.2000). We have acknowledged this split, without ourselves deciding the issue. See In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207 (2d Cir.2003).
Not insignificantly, however, this court was among the first to consider the relationship between the venue and service provisions of Section 12 of the Clayton Act. Over forty years ago, in Goldlawr, Inc. v. Heiman, we noted that the two parts of Section 12 were so closely related that "the extraterritorial service privilege is given only when the other requirements [pertaining to venue] are satisfied," 288 F.2d 579, 581 (2d Cir.1961) (emphasis added), rev'd on other grounds, 369 U.S. 463 (1962). Because Goldlawr 's observation was not necessary to the court's ruling, it constitutes dictum that does not specifically control this case. Nevertheless, we recognize that the influence of Goldlawr's dictum has been significant. When the D.C. Circuit construed the service of process provision of Section 12 to depend on satisfaction of the section's venue provision, it specifically cited Goldlawr and emphasized that, "[o]n the question of the meaning of Section 12, we align ourselves with the position taken by the Second Circuit." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d at 1351. Today, we bring the process full circle, joining the D.C. Circuit in concluding that the plain language of Section 12 indicates that its service of process provision applies (and, therefore, establishes personal jurisdiction) only in cases in which its venue provision is satisfied.