meaningful referent in-business usage and practice. Professor Viner, an authority on whom plaintiffs, defendants and the intervenor alike rely, has defined that phenomenon, "dumping," as " price discrimination between purchasers in different national markets" (footnote omitted). J. Viner, Dumping: A Problem in International Trade at 4 (1966 ed.). The practice itself long outdated the passage of the Antidumping Act of 1916, see id. ch. III, IV, V, which clearly implies that Congress knew whereof it wrote when it enacted the statute.
The popular title of the Act is itself a further indication that the conduct described has a meaningful business referent. An economic regulatory statute could scarcely acquire the designation of an "antidumping" act unless the business community to which the statute was addressed knew what "dumping" was.
E. THE FUNCTION OF SPECIFIC INTENT.
The narrow drafting of the statute also increases its certainty. While it clearly refers to the general practice of dumping, it in fact applies only to dumping that occurs "commonly and systematically." And even that kind of dumping, which is marked by continuity and regularity, is not proscribed by the Act unless it is undertaken with a specific, predatory, anticompetitive intent.
Significantly, in none of the various memoranda submitted by defendants in either the NUE or the Zenith cases have they given more than scant attention to the additional element of certainty incorporated into the statute by this specific intent requirement. Their approach has been to argue that the predatory intent requirement describes only a state of mind, that no violation of the Act takes place until that state of mind is accompanied by a definite course of conduct, and that the Act itself does not adequately define the prohibited course of conduct. I am not persuaded by this argument. As I read the Act, it forbids regular, continued price discrimination between purchasers in different national markets whenever the discrimination is motivated by a desire to destroy competition. This, I submit, is a more than adequate definition of the conduct proscribed by the Act. It is, furthermore, a definition that "men of common intelligence" can readily understand. See Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926).
In United States v. Ragen, 314 U.S. 513, 524, 86 L. Ed. 383, 62 S. Ct. 374 (1942), a case where the defendants assailed the constitutionality of § 145 of the Revenue Act of 1932, the Supreme Court made an observation that fully applies to the Antidumping Act of 1916: "On no construction can the statutory provisions here involved become a trap for those who act in good faith. A mind intent upon willful evasion is inconsistent with surprised innocence." A mind intent on the destruction of competition in an industry is likewise inconsistent with surprised innocence.
The foundation of defendants' position is the following proposition: "at the time that someone, whether a company or an individual, performs an act, he must have a reasonable basis for knowing whether that act was illegal or not." (Pretrial Order No. 9 at 132-33.) I accept that proposition. I simply cannot see how someone who acted with the predatory intent to destroy an industry in the United States would not have a reasonable basis for knowing that his act was illegal.
Defendants have repeatedly confused the predatory intent required by the Antidumping Act of 1916 with scienter. Predatory intent, however, is not scienter. Mr. Justice Clark pointed out the difference in United States v. National Dairy Products Corp., 372 U.S. 29, 35, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963). The predatory intent requirement of Section 3 of the Robinson-Patman Act, which is virtually the same as the predatory intent requirement of 15 U.S.C. Section 72, was more specific than the scienter provision that saved the statute attacked in Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945), from unconstitutional vagueness.
F. THE CONNALLY AND CHAMPLIN REFINING TESTS.
Defendants are certainly right when they say that the due process test of Connally v. General Construction Co., supra, is alive and well in this Circuit, for that test was cited with approval in United States v. Pennsylvania Industrial Chemical Corporation, 461 F.2d 468, 477 (3d Cir. 1972). The test itself, however, is of little help to defendants. It provides that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally, supra, 269 U.S. at 391. In the instant case I do not find that the Antidumping Act of 1916 violates "the first essential of due process of law," or, indeed, any essential of due process.
The conduct that it forbids is described in readily definable terms, and that conduct must be coupled with a specific predatory intent before the Act is violated.
Moreover, the Connally court cited with approval Mr. Chief Justice White's assertion in United States v. L. Cohen Grocery Co., 255 U.S. 81, 92, 65 L. Ed. 516, 41 S. Ct. 298 (1921), that a statute was sufficiently certain when "for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded." 269 U.S. at 391-92. That is precisely the case here. Both the language of the 1916 Antidumping Act and the subject with which it deals afford a standard that is sufficiently specific to satisfy the requirements of the Due Process Clause.
Defendants further argue, on the basis of Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 76 L. Ed. 1062, 52 S. Ct. 559 (1932), that to require them to make the calculations called for by the statute is to impose on them an intolerable burden which is itself violative of due process. This argument borders on the frivolous. The Act requires that defendants make comparatively few computations on the basis of data that is readily available to them; that is, their wholesale prices in Japan and the United States and the cost of shipping their products to the United States. The Act does not demand that defendants square the circle.
G. THE NATIONAL DAIRY PRODUCTS PRECEDENT.
The most instructive case in the entire area of vagueness challenges to federal economic regulatory legislation, and the case which controls my decision here, is United States v. National Dairy Products Corporation, supra. Defendants there were indicted under, inter alia, § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, which makes it a crime to sell goods at "unreasonably low prices for the purpose of destroying competition or eliminating a competitor." The district court sustained defendants' attack on the constitutionality of the statute, and dismissed the § 3 counts. The Supreme Court reversed.
Mr. Justice Clark, writing for the majority, said that sales "below cost" without a legitimate commercial objective were sales at "unreasonably low prices" for the purposes of § 3, and were proscribed by that section if made in order to destroy competition. Relying on Screws v. United States, supra, he held that the additional element of predatory intent provided "further definition of the proscribed conduct." 372 U.S. at 35, 83 S. Ct. at 599. Indeed, Section 3 gave even more specific notice than the statute upheld in Screws, for it made elements of the crime not only "the intent to achieve a result. . . but also the act. . . done in furtherance of that design or purpose." Id. He concluded that "the necessary specificity of warning is afforded when, as here, separate, though related, statutory elements of prohibited activity come to focus on one course of conduct." Id.
The rationale of National Dairy Products is fully applicable to the instant case. There, Mr. Justice Clark acknowledged that "cost" was subject to differing calculations, and expressly declined to reach the issue of which method of cost calculation should be employed. The Court nevertheless held that the statutory prohibition of sales at "unreasonably low prices" could embrace sales "below cost," and that this prohibition, when read with the requirement of predatory intent, gave the defendants adequate warning that their conduct was illegal. The instant case is even more compelling, because the phrase "actual market value or wholesale price," under attack here, is considerably more definite than "cost." When read with the Act's requirement of specific intent, it too gives potential defendants fair warning that their conduct is illegal. As a result, the Antidumping Act of 1916 is not, as defendants allege, void for vagueness; it fully satisfies the requirements of the Due Process Clause of the Fifth Amendment.
Defendants here, like the defendants in National Dairy Products, rely primarily on United States v. L. Cohen Grocery Co., supra. Cohen Grocery, however, was found inapposite in National Dairy Products; it is similarly inapposite here. The Act challenged for vagueness in Cohen Grocery proscribed "any unjust or unreasonable rate or charge," and the charge in the indictment there merely echoed the language of the statute. As a result, the Court found that no "specific or definite" act had been either proscribed by the Act or alleged in the indictment. 255 U.S. at 89, 49 S. Ct. at 300. That is not the case here. The Antidumping Act of 1916 not only describes with ample specificity the conduct it forbids, but also adds the further clarifying element of predatory intent. In Cohen Grocery, moreover, the standard established by the challenged statute "was without a meaningful referent in business practice or usage." National Dairy Products, supra, 372 U.S. at 36, 83 S. Ct. at 599. Again, that is not the case here, for the conduct proscribed by the Act does have a "meaningful referent in business practice or usage," the phenomenon of "dumping." Defendants' reliance on Cohen Grocery is clearly misplaced.
The same is true of their reliance on cases which sustained void-for-vagueness challenges to statutes on First Amendment grounds. Mr. Justice Clark distinguished those cases in National Dairy Products; they are also distinguishable here. In the context of the First Amendment, a vague statute may deter constitutionally protected conduct. See NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). That is not the case here, for the Antidumping Act of 1916, like § 3 of the Robinson-Patman Act, "is directed only at conduct designed to destroy competition, activity which is neither constitutionally protected nor socially desirable." National Dairy Products, supra, 372 U.S. at 36, 83 S. Ct. at 600. The First Amendment vagueness cases are no more helpful to defendants here than Cohen Grocery, and Cohen Grocery is no help at all.
In light of these considerations, "[a] finding of unconstitutional uncertainty . . . would be a negation of experience and common sense." United States v. Ragen, supra, 314 U.S. at 524. Accordingly, I hold that the Antidumping Act of 1916 is not unconstitutionally vague.
Until these motions were briefed and argued, I had never before witnessed at close range a Dionysian intoxication with the creation of intellectual chaos and confusion where none need exist. Defendants' written and oral arguments have amply filled that prior gap in my experience. Throughout the proceedings on these motions, defense counsel have sought earnestly to prove themselves the Lamont Cranstons
of our common profession, that is, lawyers endowed with a singular ability to cloud men's minds. Their efforts, however, have ended in failure. For the reasons set forth above, I find that the Antidumping Act of 1916, which prohibits systematic price discrimination between purchasers in different national markets when the discrimination is practiced with a predatory intent, gives potential defendants adequate notice of the conduct it proscribes. The Act thus survives the constitutional scrutiny mandated by the Due Process Clause of the Fifth Amendment. Defendants' motions to dismiss Count I of the NUE complaint and Count VII of the Zenith complaint are therefore denied.
A. Leon Higginbotham
AND NOW, this day of April, 1975, it is hereby ORDERED and DECREED that the Motions of defendants to Dismiss Count I of the NUE Complaint and Count VII of the Zenith Complaint are DENIED.
BY THE COURT:
A. Leon Higginbotham