The opinion of the court was delivered by: HIGGINBOTHAM, J.
National Union Electric Corporation filed the first of these two antitrust actions, here consolidated for co-ordinated pretrial proceedings pursuant to 28 U.S.C. § 1407, in the District of New Jersey on December 21, 1970. In Count I of its complaint, it charged defendants with violations of the Antidumping Act of 1916, 15 U.S.C. § 72. Soon thereafter, certain defendants
moved to dismiss Count I on the ground that the Act in question is void for vagueness and therefore violative of the Due Process Clause of the Fifth Amendment. The matter was fully briefed, then argued before the Honorable Robert Shaw on January 10, 1972. As of November 25, 1974, however, the issue had not been decided. The delay was caused in large part by the deaths of Judge Shaw and of his successor as Judge in this case, the Honorable John J. Kitchen.
On September 20, 1974, in the Eastern District of Pennsylvania, Zenith Radio Corporation filed the second of these actions. With the exception of the particular goods involved, the allegations in Count VII of its complaint are virtually identical to those in Count I of the NUE complaint.
On November 25, 1974, the Judicial Panel on Multidistrict Litigation transferred the NUE action from the District of New Jersey to the Eastern District of Pennsylvania so that its pretrial proceedings might be co-ordinated with those in the Zenith action.
On January 2, 1975, certain of the defendants
in the Zenith action filed a motion to dismiss Count VII of the Zenith complaint on the same ground that the NUE defendants had raised with respect to Count I in that action. Once again, opposing counsel briefed the issue, which was then argued before this Court on February 18, 1975.
In both cases, the Government intervened pursuant to 28 U.S.C. § 2403 for the sole purpose of defending the constitutionality of the Antidumping Act of 1916, submitted briefs, and participated in oral argument.
Having been fully briefed and argued in both the NUE and Zenith cases, the issue of the constitutionality of the Antidumping Act of 1916 is now ripe for decision. For reasons that will hereinafter appear, I have concluded that the Act gives potential defendants fair warning that their conduct may violate its prohibitions. Since the Act is sufficiently specific to withstand constitutional scrutiny, defendants' motions to dismiss Count I of the NUE complaint and Count VII of the Zenith complaint must be denied.
A. PRELIMINARY CONSIDERATIONS.
In the instant motions, defendants attack the constitutionality of § 801 of the Revenue Act of 1916, commonly known as the Antidumping Act of 1916, 15 U.S.C. § 72. Defendants allege that the statute in question, because of its vagueness, is in irreconcilable conflict with the due process requirements of the Fifth Amendment to the Constitution of the United States.
In pertinent part, the challenged statute reads as follows:
"§ 72. Importation or sale of articles at less than market value or wholesale price.
Though this statute has been in effect for almost sixty years, it has not yet been judicially interpreted. The sole reported opinion dealing with an action brought under the statute, H. Wagner and Adler Co. v. Mali, 74 F.2d 666 (2d Cir. 1935), addresses itself to a discovery motion. Defense counsel has represented that, according to the relevant court records, this case was settled by stipulation on July 30, 1935. The instant matter thus presents an issue of first impression.
B. THE VOID FOR VAGUENESS DOCTRINE.
Defendants base their challenge to the constitutionality of the Antidumping Act of 1916 on the doctrine of void for vagueness.
At the core of the doctrine is the principle that "criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963); see United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954). Though plaintiffs here seek a civil remedy, the Antidumping Act of 1916 is also a criminal statute. The same language on which plaintiffs ground their civil claim describes the criminal conduct forbidden by the Act. I need not now decide whether the same statutory language can be constitutionally valid as civil legislation, but unconstitutionally vague if applied in a criminal case. In the instant matter, I give the defendants the benefit of the doubt, and apply to the Antidumping Act of 1916 the void for vagueness test as it has been used to determine the validity of criminal statutes. Certainly, if the Act is constitutionally valid as a criminal statute, it would be constitutionally valid as a civil statute too.
Even though they may properly invoke the void for vagueness doctrine, defendants here carry a heavy burden, for a strong presumption of validity attaches to an Act of Congress. United States v. Carolene Products Co., 304 U.S. 144, 152, 82 L. Ed. 1234, 58 S. Ct. 778 (1938). The courts will consistently seek an interpretation which supports the constitutionality of Congressional legislation. United States v. Rumely, 345 U.S. 41, 47, 97 L. Ed. 770, 73 S. Ct. 543 (1953). An Act of Congress will not be summarily invalidated as vague simply because it is difficult to determine whether certain marginal offenses fall within its language. Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S. Ct. 703, 95 L. Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 7, 91 L. Ed. 1877, 67 S. Ct. 1538 (1947). A Congressional statute need not meet impossible standards of specificity. Jordan v. DeGeorge, supra, 341 U.S. at 231; United States v. Petrillo, supra, 332 U.S. at 7. Nor must it itemize with particularity every possible variety of conduct that it proscribes. United States v. Harriss, 347 U.S. 612, 618, 98 L. Ed. 989, 74 S. Ct. 808 (1954). Given the inevitable limits on the specificity that Congress can build into a statute, a court can demand "no more than a reasonable degree of certainty" from an Act of Congress. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 96 L. Ed. 367, 72 S. Ct. 329 (1952). "Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Id.
The defendants have insisted that a statute which permits a private treble damage action is retrospective and penal, and should be more strictly construed than a regulatory statute which is prospective and remedial. I do not reach this question of statutory construction, because I am convinced that a treble damage statute, no matter what its relation to so-called "remedial" statutes, is not to be more strictly construed than a criminal statute. In United States v. National Dairy Products Corporation, 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963), the case which controls my decision here, the Supreme Court did construe a criminal statute, § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, and sustained its constitutionality against a vagueness challenge. I decline to use a more exacting standard of scrutiny here.
The United States Court of Appeals for the Second Circuit spoke to this very issue in the context of the vagueness doctrine in Kreutz v. Durning, 69 F.2d 802 (2d Cir. 1934), when it upheld the constitutionality of an analogous statute, the Antidumping Act of 1921, 19 U.S.C. § 160 et seq., which had been attacked as ...