258 F.2d 673 | D.C. Cir. | 1958
Lead Opinion
Simplicity Pattern Co., Inc., petitioner herein, is engaged in the manufacture and sale of patterns widely purchased by women customers intent upon making their own garments. The case does not involve Simplicity’s competitors in the pattern field, but discrimination favoring one group of customers by the furnishing of facilities not made available to other customers on proportionally equal terms. Simplicity asks us to review and set aside the Commission’s order of March 13, 1957, that petitioner cease and desist from:
“Contracting to furnish or furnishing to any of respondent’s customers counter catalogs, cabinets or other equipment or facilities connected with the handling, sale or offering for sale of respondent’s patterns, unless such catalogs, cabinets or other equipment or facilities are available on proportionally equal terms to all customers competing with such favored customers in the sale of respondent’s patterns.”
The Commission’s complaint had contained two counts, Count I brought under § 5 of the Federal Trade Commission Act
Count II alleged violation of subsection 2(e) of the Clayton Act, as amended,
The Commission’s opinion recited Simplicity’s contention that there is no meaningful competition between the larger stores, the “Red Fronts,” and the smaller independents, the “fabric shops,” since the Red Fronts sell patterns for a profit while the fabric shops do not intend to make a profit. Rather they sell Simplicity’s patterns as a necessary incident to their sale of fabrics. The opinion then runs on:
“ ® * * Considering the circumstances appearing in the record, this argument is not wholly without merit, but we agree with the examiner’s conclusion that the two kinds of stores are in competition in the sale of respondent’s patterns. An element of rivalry exists in spite of the fact that the fabric shops sell the product primarily as an accommodation. It appears that they may not profit dollarwise in the sale of patterns alone, but they recognize the value of such business for attracting customers who may purchase other goods. The two kinds of stores are vying for the same particular markets whatever their motives may be. In our opinion this sufficiently discloses the presence of competition between them.
“[Simplicity] * * * asserts, in addition, that the cabinets have no real relationship, as the statute provides, to the ‘handling, sale, or offering for sale of such’ patterns, and that dress patterns are not a commodity within the meaning of Section 2(e). There appears to be no merit in either of these contentions or various other arguments made by [Simplicity], and each is rejected.”
The Commission confirmed the examiner’s conclusions. His findings, so far as pertinent to our review, we now paraphrase.
Simplicity, a New York corporation, is one of the largest manufacturers and distributors of dress patterns, with sales extending throughout the United States. Its patterns are sold to all customers, Red Fronts and fabric stores alike, at 60% of the labeled retail prices of 25$, 35^ and 50{f, and both groups of stores retail at those labeled prices.
Simplicity supplied to the Red Fronts, free of charge, monthly counter cata-logues which depict Simplicity’s patterns and are essential to the retail sale of patterns. Fabric stores were required to pay for such catalogues a price of $1.65 to $2 each, depending upon the binding.
Simplicity furnished to the Red Fronts, free of charge, cabinets and other equipment while fabric stores were required to purchase or rent such equipment.
Red Fronts merchandised the patterns as they do any other item, and unless the patterns can show a profit, the Red Fronts will not handle them. A prospective retail purchaser may examine a cata-logue in a small space on the counter beneath which, in a cabinet, the patterns are stored. On the other hand, tne fabric stores usually made no profit on the sale of patterns and did not expect to do so. The fabric stores handled the patterns to promote the sale of fabrics and because the customers expected this serv
He concluded, despite the differences in sales methods, that the two groups of stores compete in the sale of patterns. “It is difficult to say that two stores in the same shopping area, possibly side by side, are not in competition when they are selling the same article at the same price to essentially the same segment of the public * * * ”
“ * * * The catalogs supplied the two groups of stores are identical. While the cabinets differ materially in design and appearance, the fact remains that they serve essentially the same purpose — as a storage place for the patterns pending their sale to the public.
“True, there is no showing of competitive injtiry. But this, as the examiner, understands, is not required in a proceeding under Section 2(e). Given the element of jurisdiction, it appears that a prima facie case is established when it is shown that a seller is supplying to one customer facilities for use in the resale of the seller’s products, and not supplying such facilities to the competitor of the favored customer on proportionally equal terms. In short, Section 2(e) appears to be a per se statute, requiring no proof of competitive injury.”
Part I
We agree that, for the purpose of establishing a prima facie case, there was discrimination favoring the Red Fronts, since there is substantial support in the record as a whole that Simplicity furnished to them catalogues and cabinets free of charge while the fabric shops were required to buy or rent the identical or similar facilities.
“Petitioners thus furnished a service connected with the sale or offering for sale of a commodity upon terms not accorded to other purchasers. * * * It is enough if the discrimination be made in favor of one who is a purchaser and denied to another purchaser or other purchasers of the commodity.”4 (Emphasis supplied.)
We agree that the Red Fronts and the fabric stores, operating in the same cities and in the same shopping area, often side by side, were competitors, purchasing from Simplicity at the same price and then at like prices retailing the identical product to substantially the same segment of the public.
We agree that there was no showing of competitive injury, and that no such proof was required
Thus, without more, on the facts so far treated, a “prima-facie case” within the meaning of § 2(b) may be made out which comes squarely within the interdiction of § 2(e). But Congress has said, in effect, having in mind the purposes of the Robinson-Patman Act, there may be discrimination such as has been discussed — unless justification can be shown. Congress has not enacted § 2(e) in isolation — the interdiction does not stand alone. Accordingly, while a prima facie § 2(e) case may be developed even without a showing of competitive injury, Congress clearly contemplated situations might arise for which justification may exist. It specifically provided for such an exigency in § 2(b) which, in pertinent part, reads:
“(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in * * * facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to is*679 sue an order terminating the discrimination: Provided, however, That nothing [herein] contained * * * shall prevent a seller rebutting the prima-facie case thus made by showing that his * * * furnishing of * * * facilities to any purchaser or purchasers was made in good faith to meet * * * the * * * ^facilities furnished by a competitor.
We see from the first clause that when a prima facie case has been made of discrimination attributable to the furnishing of facilities, an order terminating the discrimination may be issued “unless , justification shall be affirmatively shown” by the seller. Whether customers or competitors are involved as to the first portion of § 2(b), clearly that justification must be a legal justification, one which dispels that unlawfulness which the purpose of the Act and the public interest require to be suppressed. Then, it is further spelled out in the proviso that if a competitor shall lawfully furnish fácil-ities, a seller may rebut a charge of discrimination by showing he has furnished facilities in a good faith effort to provide like facilities. This must be so, for neither the Commission nor the courts could countenance the unlawful furnishing of facilities by one charged under § 2(e) in order to meet like unlawful conduct of a competitor.
Part II
Here Simplicity sought and procured a ruling that no evidence of “cost justification” could have any effect on the examiner. The latter had already con-eluded, in effect, that the per se violation, established as he found, was impervious to any such defense. He thus reflected the position of the Commission as put in its brief, that “Congress has already determined that the practice covered by Section 2(e) has the tendency and capacity to injure competition, and injury to competition is not a matter to be litigated in any particular case, either as a part of the case in chief, or as a matter of rebuttal.”
The Commission has asked that we not consider this clear error on the ground that the point had not been saved of record. Had Simplicity not raised the “cost justification” issue, we agree we would be so precluded and we have repeatedly so held.
From the very outset, and persistently asserted throughout the proceedings, was Simplicity’s claim that “cost justification” was available as a' defense. The point was not only briefed and argued by both sides, but was passed upon by the Commission. Petitioner’s answer to the original complaint, in pertinent part read:
“Respondent denies that the value of any service or facility furnished to any one customer or group of customers and not furnished to other customers exceeds the difference in the costs of manufacture, sale, or delivery resulting from the differing methods or quantities in which such products are sold, distiibuted, or delivered to such respec^ve customers.
Following oral argument on Simplicity’s motion to dismiss which the examiner granted as to Count I and denied as to Count II, he set a conference for the simplication of issues. The transcript of proceedings then held, made Part of the record- showed an announcement by the examiner that my views are definite and my thought at the preserd; ^me js that cost justification in a case ^is kind in not available as a defense. An excerpted colloquy is revealing.
The Act has not defined “justification,” as used in § 2(b), where, as we have observed, the first clause permits justification to be “affirmatively shown”
Conversely, it seems equally clear that the _ proportionally equal terms reference m § 2(e) is not a complete answer, for there could be no discrimination, having in mind the purposes of the Act, if all buyers of goods for resale may obtain services or facilities connected therewith on proportionally equal TTr terms. We understand Simplicity to be entitled to undertake to prove m terms of its costs of sale and delivery as related to the differing methods of sale and distribution by the two groups that the facilities were so provided, with § 2 (e) in mind, that “cost justification” under the circumstances here may affirmatively be shown in order to dispel the charge of unlawful discrimination. In short, we look to § 2(b) as affording two separate and distinct grounds upon which “justification” may rest, one, such as was considered in Elizabeth Arden, Inc., v. Federal Trade Commission, supra note 5, arising under the § 2(b) proviso, and another such as may be developed here under the first clause of § 2(b). In the § 2(b) proviso situation presented in the Elizabeth Arden case, the court’s recital noted at page 133 of 156 F.2d that the seller was out “to beat and not to meet” its competitors. Here no competitors are involved, but only a claim of discrimination as between the two classes of customers. Congress certainly never wrote with its varying facets only to haye entlre gection conditioned . to situations arising under the proviso, n Congress, we think, must have intended that the justification to be shown under ^ firgt dause Qf § 2(b) as to a § 2(e> , charge of discrimination m facilities furnishedto various customers, was to depend upon the facts m a particular case. That the term may include a cost justification which Simplicity desired to establish seems clear enough.
Here the catalogues were apparently identical. The cabinets, while designed to contain patterns for ready reference* were markedly different. The Red Fronts sold patterns at a counter space, some 14 by 14 inches, just large enough to place a catalogue on the counter. The patterns were stored in cabinets or boxes under the counter. But the fabric stores desired “rather expensive, well appearing, nice looking articles of furniture
It seems clear that the examiner felt bound by his understanding that § 2(e) constituted a per se statute where violation automatically followed from proof that the furnishing of facilities to one group was discriminatory if another group, to serve its own ends, bought and paid for catalogues and cabinets. No evidence of “cost justification” for the different treatment, he said, could rebut his conclusion which the Commission seems to have shared. We are satisfied that the Act proscribes only such discrimination as is inimical to the public interest. If a cost justification can be shown which dispels the complaint of such discrimination, Simplicity is entitled under the first clause of § 2(b) to SO forward with such proof,
Of course the burden of proof of justification rests upon Simplicity,
Here the Commission as a practical fact would have us bar all evidence of cost justification, whatever it may be. We think the Court in its reading of the Act has pointed the way.
. 52 Stat. 111 (1938), 15 U.S.C.A. § 45 (1952).
. 38 Stat. 730 (1914), as amended by the Robinson-Patman Act, 49 Stat. 1526
“It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale * * by * * * furnishing * * * any services or facilities connected with the * * * sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.”
. As to Count I, the examiner had noted, “The record seems clearly to be without any substantial evidence warranting a finding of injury to competition,” as between the Red Fronts and the fabric stores. The Government had already conceded before the examiner that no competitive injury had been shown as to pattern manufacturers competing with Simplicity. As to Count II, we will demonstrate first our agreement that a prima facie case was made out. But the Examiner’s understanding of the effect of such proof failed to give effect to Section 2(b), the first clause of which, applicable here, expressly permits proof of “justification,” infra, Part II.
. Corn Products Refining Co. v. Federal Trade Commission, 1945, 324 U.S. 726, 744, 65 S.Ct. 961, 970, 89 L.Ed. 1320.
. Elizabeth Arden, Inc., v. Federal Trade Commission, 2 Cir., 1946, 156 F.2d 132, certiorari denied 1947, 331 U.S. 806, 67 S.Ct. 1189, 91 L.Ed. 1828; Elizabeth Arden Sales Corporation v. Gus Blass Co., 8 Cir., 1945, 150 F.2d 988, 161 A.L.R. 370, certiorari denied 1945, 326 U.S. 773, 66 S.Ct. 231, 90 L.Ed. 467.
. ‘‘The statute is aimed at discrimination by supplying facilities or services to a purchaser not accorded to others. * Corn Products Refining Co. v. Federal Trade Commission, supra note 4; Corn Products Refining Co. v. Federal Trade Commission, 7 Cir., 1944, 144 F.2d 211, 219; Elizabeth Arden, Inc., v. Federal Trade Commission, supra note 5, 156 F. 2d at page 185.
. Cf. Federal Trade Commission v. Horton Salt Co., 1948, 334 U.S. 37, 46, 68 S.Ct. 822, 92 L.Ed. 1196, a § 2(a) ease to be sure, which nevertheless reflects the spirit of the legislation.
. Cf. Elizabeth Arden Sales Corporation v. Gus Blass Co., supra note 5, 150 F. 2d at pages 995, 996. The proviso portion of § 2(b) is not here involved, it may bo observed in passing.
. The Commission relies upon § 2(c) cases which have no hearing whatever upon our problem. Sec. 2(b) specifically provides for rebuttal by way of justification where the alleged discrimination among customers arises from the furnishing of facilities. No such provision is related to § 2(c) violations. Cf. Oliver Bros, v. Federal Trade Commission, 4 Cir., 1939, 102 F.2d 763; Wobb-Crawford Co. v. Federal Trade Commission, 5 Cir., 1940, 109 F.2d 268, certiorari denied 1940, 310 U.S. 638, 60 S.Ct. 1080, 84 L. Ed. 1406.
. See, e. g., Barclay Home Products, Inc., v. Federal Trade Commission, 1957, 100 U.S.App.D.C. 46, 241 F.2d 451, cer-tiorari denied 1957, 354 U.S. 942, 77 S. Ct. 1399, 1 L.Ed.2d 1537; Albertson v. Federal Communications Commission, 1957, 100 U.S.App.D.C. 103, 106, 243 F.2d 209, 212, and cases cited in both.
. Judge, that if evidence were offered and Mr. Smith would not object and it would be received in evidence on cost justification, that you would still not hold it was a defense to an answer under 2(e) ?
_ “Hearing Examiner Pack: Yes, sir. That is correct. I don’t understand that the failure to object would affect the law in any way and if the evidence _ should be received, and if I should continue to entertain the views which I now hold, it seems to me the evidence would simply have to be disregarded in the decision of the case. I do not understand that reception of the evidence into the record, even without objection, would make any difference insofar as the law is concerned.
“Mr. Simon: For the purpose of this record, Judge, may the record show that you would hold that it was not a defense to an action under 2(e) ?
“Hearing Examiner Pack: Yes, sir.”
. Of course a proffer ordinarily is contemplated by the Commission’s rules, 16 C.F.R. 3.15(c) (3) (Supp.1956). Here, where the examiner and the Commission itself had equated the establishment of a prima facie case with a conclusive determination of violation, it would seem to have been futile to have taken the time and to have incurred the expense of establishing cost justification where the point was deemod foreclosed. In any event, briefed and argued as it was> the point was fuUy before the Commission and tlle purpose of the rule was met. If cotdd be said under the circumstances that there was a failure of compliance with the rule, the Commission seems to have waived it. Its opinion recites:
“Respondent argues principally that 2 (e) should be read in conjunction with other subsections of Section 2 so as to permit the introduction of evidence relating to cost justification which is provided for in 2(a). We cannot concur in this argument. ‘Congress validly made the decision that conduct coming within the more definite standard of (e) was unlawful. We see no reason why the lim-Rations contained in (a), or their equivalent, should be read into (e).’ Elizabeth Arden, Inc., v. Federal Trade Commission [2 Cir.], 156 F.2d 132.”
. Judge Burger lias authorized me to note his conviction that Congress intended not to create an unrebuttable presumption but sought actually to prohibit only such discrimination as produced a eompetitive injury, and certainly never intended to bar discrimination which might have a beneficial effect as promoting sales by and among competitors. He points to two sources to demonstrate the basis for his more comprehensive view, viz.: (a) American Law Institute, Price Discrimination and Related Problems Under the Robinson-Patman Act (1953) at 134-115: “There seems to bo little logic in making disproportionate but bona fide allowances or services to competing purehasers (which may not amount to a discrimination in price) create, in ef-feet, a conclusive presumption of injurious effect upon competition, whereas the charge of different prices to competing purchasers is only prima facie evidence of such injury”; (b) Report of the Attorney General’s Nat’l Committee Study the Antitrust Laws (1935) at 191-192: “[T]he Committee disapproves the present disparity in the statutory consequences which attach to economically equivalent business practices. * * * Antitrust enforcement should not be complicated by diverse legal consequences solely dependent on whether a discriminatory concession masquerades as * * * ‘allowance’, or ‘service’ rather than a naked quotation in price. For, as the Supreme Court has recognized, in any reasonable implementation of antitrust objectives ‘the crucial fact is the impact of the particular practice on eompetition, not the label it carries.’ ” (Emphasis added.) Cf. Chicago Sugar Co. v. American Sugar Refining Co., 7 Cir., 1949, 176 F.2d 1, certiorari denied 1950, 338 U.S. 948, 70 S.Ct. 486, 94 L. Ed. 584.
. Simplicity’s brief before the Commission noted: “Display is an element in this effort and, generally, three or more superior quality pattern cabinets were prominently displayed. Uusually these were 4-drawer, aE steel, cabinets with roEer bearing drawers — somewhat like modern office fihng cabinets with simulated mahogany and light colored wood finishes.” The record does not show whether or not these cabinets, apparently adapted to the orderly filing of various types of patterns, frequently changing, were purchased to satisfy the partieular decor of the fabric store customer, nor whether or not SimpEcity sold them at cost as a matter of service to fabric store customers. Simplicity insisted that it could not be expected “to furnish free cabinets, costing several hundred doEars, to a prospective smaEer customer on whose business it could not expect to earn that profit during many years.” It argued that such differences in treatment as might exist “could weE have been cost justified had the Examiner permitted Simplicity to do so.”
Automatic Canteen Co. of America v. F. T. C., 1953,346 U.S. 61, 77, 73 S.Ct. 1017, 97 L.Ed. 1454; Federal Trade Commission v. Morton Salt Co., 1948, 334 U.S.37, 68 S.Ct. 822, 92 L.Ed. 1196.
. Cf. Automatic Canteen Co. of America v. F. T. C., supra note 15, 346 U.S. at page 78, 73 S.Ct. at page 1026. The Court of Appeals had read the “apparently careful choice of language” as not “meaningless.” See, idem, 7 Cir., 1952, 194 F.2d 433, 438 .
. Id., 346 U.S. at page 71, 73 S.Ct at page 1023.
. 346 U.S. at page 78, 73 S.Ct. at page 1026; and see the Court’s note 17, Id., 348 U.S. at page 75, 73 S.Ct. at page 1025, a reference to § 2(b) is to the procedural language preceding the pro
, 19. Essential fairness is the keynote, 346 U.S. at pages 78 81, 73 S.Ct. at pages 1026-1028.
. Oral argument yielded no adequately explanatory answer to our question based upon a not entirely hypothetical case: can it be said as a matter of law that § 2(e) reaches as discriminatory, the rental or sale of vending machines to an industrial group which pays an appropriate charge therefor, while a drug store chain would refuse the machines even if furnished gratis? We took as illustrative an interstate purveyor of foodstuffs, coffee and soft drinks which are sold, wholesale, at identical prices per item, to industrial establishments, gasoline stations, on the one hand, and to a chain of drug stores on the other. The latter desires no vending machine clientele, it wants counter customers who while in the “drug” store, also may buy other goods, cameras, summer chairs, cutlery and what not. The profits from such sales make up for “loss leader” counter business, and the drug chain is free from the necessity of maintaining kitchens to prepare and trucks to distribute the foods and beverages. The industrial group wants to serve its patrons and to keep its employees on the job not leaving the premises for a coffee break. The purveyor could not have met the costs of providing vending machines for the gas stations except for it8 larg0 volume sales to the drug chain. The charges to the consuming public are the same in each case.
The Purveyor is interested in selling its foodstuffs and beverages. ^ Its costs in making available the vending machines, with whatever capital is locked up in the venture, are an expense involved in its business, in meeting the particulm Peenliar demands of two typos of customers for its goods, one group which desires a facility of a particular type, and another which will not have the facility under any circumstances. Both classes ol- customers, at prices both are willing to pay’ Purchase from the purveyor precisely what they want, the foods and beverages they desire to resell. We find ?,afs . 08 unable to perceive that the . discrimination has the slightest meaningful resemblance to the purposes of “le iycr1' or to any ev^s 11 was designed to Prevenl-
Dissenting Opinion
(dissenting).
The disposition of this case turns on the meaning to be given to Section 2(b) of the Clayton Act, as amended. That section permits one against whom a pri-ma facie case is made to show “justification” for his conduct. But that expression is not left undefined. Far from being all-inconclusive, it in fact covers rather narrow ground. The “justification” referred to in Section 2(b) must he that described in the meeting-competition proviso to that section,
The Simplicity Company makes no contention that it has furnished cabinets and catalogs on proportionally equal terms to the Red Fronts and the fabric stores. Presumably if it afforded facilities on proportionally equal terms the Commission would not object. But Simplicity cannot refuse proportional equality and then argue that its refusal is justified by cost differentials — a defense available in a case brought under Section 2(a), but not in one brought under Section 2(e). As a practical matter, “cost justification” in the present context can only mean that Simplicity may “justify” its actions by showing that many of its fabric store customers do not pay their bills, or are unprofitable to deal with because of small volume, or some similar reason. Such factors may explain Simplicity’s desire to discriminate against them in favor of bigger and more profitable accounts, but I see no evidence that Congress has decreed that factors of that sort shall be viewed as legal justification, Quite the contrary, as I see it. In fact, Section 2(e) of the Act becomes almost meaningless if such defenses are to be ál-lowed to prevail.
i would therefore affirm the Commis-ion’s cease and desist order.
. “Provided, however, That nothing [herein] * * * contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.”
. See Elizabeth Arden, Inc., v. Federal Trade Commission, 2 Cir., 1946, 156 F.2d 132, 135, certiorari denied 1947, 331 U.S. 806, 67 S.Ct. 1189, 91 L.Ed. 1828; Oliver Bios., Inc., v. Federal Trade Commission, 4 Cir., 1939, 102 F.2d 763, 767; Great Atlantic & Pacific Tea Co. v. Federal Trade Commission, 3 Cir., 1939, 106 F.2d 667, 675-677, certiorari denied 1940, 308 U.S. 625, 60 S.Ct. 380, 84 L.Ed. 521.