Ruberoid Co. v. Federal Trade Commission

substantially permitted testify-to were in' the -letter same facts as stated T do not find that the rejected,

which was prejudiced the'defendant. TRADE

RUBEROID CO. v. FEDERAL COMMISSION. 149, Docket 21667. No. Cyrus Austin, City (Austin York Appeals Court United States Malkan, City, of New York Circuit. Second brief), petitioner. Aug. 14, Decided Carter, Jr., Atty., W. Trade Federal Jno. Commission, Washington, (W,. C.D. Counsel, Kelley, Gen. W. James Cassedy, Counsel, Asst.- Gen. Federal Commission, Washington,

Trade D. respondent. brief), HAND, Before L. AUGUSTUS N. Judges.1 HAND, PER CURIAM. appeal When this decid was first

ed, affirmed; our mandate “Order en now forcement Petitioner 'by to have us amend our striking any therefrom reference enforcement. original appeal, petitioner In the sought, provided by 15 U.S.C.A. an order of the Federal Trade (“FTC”) by limiting scope inserting therein certain defenses provided Clayton amended, seq. order, 12 et based upon Clayton Act, violations of the supra, entered after had been at which Though introduced evidence. order, attempted to set at any that, rest doubts in a subsequent proceeding an as order, serted violation of the if it should arise different circumstances from originally those that caused the FTC to issue would be able to introduce its defense evidence that the complained permitted "conduct of was exceptions Qayton contained in the submission. 1. On written 295 original con- deny its not that tioner did This, understood we as amended. itself as there was uneon- violated the Act and petitioner duct substantially all position, was its practice has evidence that the brief tradicted FTC, the close The desired. the has not which FTC been abandoned on he order appeal, that the asked finding. Under such circumstances citing made a granted, that enforcement and en- as directed much of our mandate 15 U.S. so request authority premature and forcement of the order was such a directs 45(c) which C.A. § should be stricken. of an order petitioner review if a Act, 15 FTC the violation of on a So ordered. to have seq., et and fails 41 U.S.C.A. § (dissenting). Judge only no such is Not order set aside. such 21 which in 15 U.S.C.A. provision found § regret the modification now ordered of review petitioner a seek permits request, or previous opinion at the our on a violation FTC based of the an order petitioner afterthought, of the on rehear amended, but it is Clayton Act as fragmentize ing; con for it tends to and a obtain cannot the FTC settled postpone and ultimate ad fuse decision order directing enforcement decree gain no judication to the actual one. Clayton Act in the absence the for, issued Delay in was reason of the order showing that a of the Federal Trade Commis the reforms imminent, F. T. C. v. is occurred or has a chief which one sion 450; F. Cir., C. 150 F.2d Herzog, 2 direct and immediate effectiveness or Cir., Balme, 23 F.2d 2 v. sought ders where review was not and 72 affirmance, immediate Cir., Brands, 1007; Standard F. T. C. v. brought before the court for re orders Respondent asks that we 45(c), ,§ (g), (l). view. U.S.C.A. brief paragraph Through closing some mischance treat the this was not enforcement of its petition for carried over terms to cases a cross under the propriety arguendo the Accepting 1-7, note, Sherman order. U.S.C.A. §§ unconvincing manoeuvre, find we of such where the Commission itself sought en why, upon a forcement, cross- 21; FTC’s reasons the U.S.C.A. we have required to make the thought ap not more ancient law there showing threatened violation of plicable. Herzog, Cir., C. v. petitioned Brands, for en F.2d cf. T. C. v. Standard it must order as Cir., 189 F.2d True, where there is no been dis various cases have forcement. granted cussion the issue. Herzog case where the courts have cited to appears not support to have won definitive order when a of an attempt possibly outside the circuit order failed light re-examination but, prior deserves in no case to the one aside beyond cited.1. But us, determine, cases hereinafter can before substantial in the objected statutory difference to such a mandate. word indicated, present proceeding,2 as to the two forms of we have As Cir., may per 8 grape Co., Cir., 75 F.2d F. T. v.C. of extra-circuit Good 1. Lack changing haps with the connected bo C. v. Baltimore Works, 4 Cir., early heavy Paint Color trend, burden from an Morrissey, F. T. C. to show violation of its Butterick Education C. v. Standard Under tnrough Society, down such rule what the can cases, even before amendment various present to obtain maneuver is lit placed in substance bur which indeed. tle that he to show den Compare doing questioned longer para acts 3d right person asserting graph, neglects to do so. such or “If fails obey (italics such order” supplied) National Silver Wallace, apply Commission a court of F. T. C. v. logical there a certain (what- difference 102 F.2d 763. And the cases ever the realities) the in Group between B.E. Muller & affirmatively case where Quality Bakers against delinquent C., action and where America v. F. T. review, petitions for thus Carter Corp. C., Carburetor v. F. T. validity of his own conduct Great Atlantic & Pacific invalidity and the C., Cir., 667, of the Commission action. Tea Co. v. So consistently the cases have ruled that in 380, certiorari 625, denied 308 U.S. 60 S.Ct. ripe the latter case the matter is for full 84 Moreover, L.Ed. Supreme decision, and that two at the granted bites Court itself has un cherry necessary are not before a violator circumstances, der like both on cross- duly punished. petition, order can be Co., Staley Mfg. F. T. C. v. A. E. 746, 760, 971, U.S. 65 S.Ct. 89 L.Ed. proposition in of this The cases 1338, below, Mfg. Staley A. E. many important are too too to be dis C., Cir., 221, 222, or, ground that we think their missed appears, petition. without such perchance inade of the issue discussion C., Institute, T. v. Cement appears U.S. quate. principle to apply also 68 S.Ct. 92 L.Ed. 1009. cross-peti whether for the cases tioned In view this weight number and hereinafter, Group or whether cited in authority, petitioner had indeed hardihood not, Group in the cases cited in it has issue; to raise the and our decision herein Group cases in promote must confusion in view of our Arden, Inc., C., Cir., Elizabeth T. rulings.3 earlier very least, At the since 132, certiorari denied 331 U.S. the Act ambiguous is at most on our exact 91 L.Ed. South S.Ct. point, we have a permitting choice us to gate C., Cir., Brokerage v. F. follow the cases in the newer and more certiorari denied U.S. procedure, direct rather choosing than to S.Ct. L.Ed. Modern Mar up practice merely tie commission with Service v. keting repetitious hearings which can do even the 970; Signode Strapping Steel good except for the everlast- C., 4 132F.2d Webb-Crawford Co. of mischance from a surfeit proceedings.4 judicial I would deny Bros. Oliver v. F. 4 Cir., petition. peals for enforcement of its with time in 1946 there was paragraph, beginning, “Any par- “ap- discount to “wholesalers” 4th. still by required ty Orleans, such order plicators” the Commis- claimed to * ** competitive and desist from cease . “because conditions” —a sion. charged” may obviously productive dispute obtain a court violation re- un- by filing continuing by supportable view and unless settled find- til filing transcript, ings. record the Commission “the court 4. One indeed wonder how much of jurisdiction affirm, shall have the same usable law the aside, the order of the Com- secured. The Commission has referred * * * as in mission the dase of unreported decisions of ours several ** * plication upheld contempt proceed- ' where we have order.” ings top of affirm- without enforcement Although any way venturing I do not ance, view as and the wisdom a viola- determinative, opinion might feel that do of Pelion on Ossa well tion lack seriously, suggestion moderately in Üie A court even seem doubtful. dignity might gag jealous uneontradicted evidence “that own well practice, planned overlooking tioner’s had been abandoned.” at violently merely This controverted of affirmance because own order mystic evidence, As I Commission. read the the two laeked words: the effect that was to while the war did “Enforcement bring changes” yet “radical about

Case Details

Case Name: Ruberoid Co. v. Federal Trade Commission

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 14, 1951

Citation: 191 F.2d 294

Docket Number: 149, Docket 21667

Court Abbreviation: 2d Cir.