307 F.2d 188 | D.C. Cir. | 1962
Lead Opinion
This is an appeal from orders of the District Court directing appellant, Moore Business Forms, Inc., to comply with the demands of a subpoena duces tecum issued by the Federal Trade Commission pursuant to § 9 of the Federal Trade Commission Act, 38 Stat. 722, 15 U.S.C.A. § 49.
On March 13, 1958, the Commission issued a complaint charging appellant with violating § 2(a) of the Clayton Act, as amended by the Robinson-Pat-man Act, 49 Stat. 1526, 15 U.S.C.A. § 13(a), by discriminating in price “between different purchasers of its business forms products of like grade and quality.” Hearings in connection with this complaint were held over a period of time and, in November 1960, the instant subpoena was issued. Appellant immediately moved to quash the subpoena and the Hearing Examiner grant
Appellant is engaged in the business of manufacturing and selling business forms. To make a case against appellant under its complaint, the Commission must show, among other matters, that appellant discriminated among its customers in pricing and selling its business forms of like grade and quality. It is appellant’s position that the information sought by the subpoena is irrelevant to a determination of this issue. Appellant’s argument reduces itself to this: That the information requested is information showing the total amount of price concessions given by appellant in connection with the aggregate sales of all of its business forms; that business forms are not fungible; and that not all of its forms are of like grade and quality. Therefore, it is contended, the requested information would be meaningless to a showing of discrimination in price as to forms of like grade and quality.
Counsel has ably briefed and argued appellant’s case. However, we are of the opinion that the orders of the District Court must be affirmed.
This matter is still pending at the administrative level. Since the Commission has not as yet ruled on the question as to whether or not all of appellant’s forms are of like grade and quality, we do not think we should anticipate the Commission’s determination by passing on that question here. Accordingly, when we place the instant subpoena alongside the Commission’s complaint, we cannot say that the requested information is plainly irrelevant to the charges contained in the complaint. Civil Aeronautics Board v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852 (1957), reversing per curiam, 237 F.2d 359 (9th Cir. 1956); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943).
Affirmed.
Concurrence Opinion
(concurring).
I think the opinion correctly asserts that when the challenged subpoena is ranged with the complaint we “can not” say that information as to price concessions is plainly irrelevant to the charge set forth in Paragraph Five of the complaint. The uncontroverted affidavit of counsel for the appellant makes a strong case for possible oppression and hardship.
Since we do not have findings by the District Judge, we “can not” assume that he expected anything less than full compliance with the exact terms of the .specifications. I would not give the order such sweep but I vote to affirm on the ground that compliance with specifications 6 and 7 will be deemed adequate if the appellant supplies the required information in the form in which it has been kept in appellant’s records.
. Cf. Hunt Foods and Industries, Inc. v. F. T. C., 286 F.2d 803, 810 (9 Cir. 1960), cert. denied, 365 U.S. 877, 81 S.Ct. 1027, 6 L.Ed.2d 190 (1961).