STANDARD CONTAINER MFRS.'ASS'N v. Federal T. Com'n, 9523.

Citation119 F.2d 262
Decision Date23 April 1941
Docket NumberNo. 9523.,9523.
PartiesSTANDARD CONTAINER MANUFACTURERS' ASS'N, Inc., et al. v. FEDERAL TRADE COMMISSION.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

F. C. Hillyer, of Jacksonville, Fla., and Haywood H. Hillyer, Jr., of New Orleans, La., for petitioners.

W. T. Kelley, Chief Counsel, Federal Trade Commission, Edw. W. Thomerson, and James W. Nichol, Sp. Attys., Federal Trade Commission, and Martin A. Morrison, Asst. Chief Counsel, Federal Trade Commission, all of Washington, D. C., for respondent.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Petitioners, a trade association, its members, former members and officers, sue to set aside a cease and desist order of the Commission.1 They complain of the order as invalid in whole and in part; in whole as without support in the evidence and indefinite, arbitrary and unreasonable; in part as beyond its jurisdiction, as to eighteen of the petitioners, because engaged wholly in intrastate commerce, and as to four, because almost entirely so engaged. They pray; that it be set aside and dismissed in whole, or in the alternative; that it be set aside and dismissed as to eighteen of the petitioners engaged wholly in intrastate commerce; four engaged mainly so; six, which have gone out of business; and one, which is now in bankruptcy; and that if not dismissed in whole, it be modified and restricted.

The commission, replying to the jurisdictional point, insists that the proceeding is one against the Association, its members and officers, to prevent and prohibit the continuance of a conspiracy to fix prices in interstate commerce, and that its jurisdiction extends over all of the parties to the agreement, though some of them are engaged wholly in intrastate commerce. As to the claim that the order should be set aside as to those who have ceased doing business, and have taken bankruptcy, and they should be dismissed from the proceeding, the commission insists; that it is settled law that the order takes effect and is affirmed, or its affirmance is denied, not in accordance with the situation existing at the time of the hearing here, but at the time the proceeding was had before it; and that the fact that some of the respondents to the proceeding have, since its institution, gone out of business, or taken bankruptcy, is not a ground for setting the order aside.

Finally, it insists that each and every one of the findings has full support in the evidence and the order is definite, reasonable and responsive thereto. No novel proceeding this, but a more or less commonplace one, the principles, controlling the question before us for decision are well settled by the authorities, and we need not concern ourselves with elaborating upon them. It is sufficient to say that if the commission has jurisdiction, that is, if the practices it investigates and reprobates are in and not merely affecting interstate commerce, Federal Trade Commission v. Bunte Bros., 61 S.Ct. 580, 85 L.Ed. ___, and its findings are responsive to the complaint and supported by evidence, its order may not be set aside if it is responsive to and within the scope of the findings.

If, as petitioners seem to assume, the complaint were directed against, and the findings and order were as to, practices, exclusively in intrastate commerce, the proceeding would be beyond the jurisdiction of the commission and would have to be dismissed. But, it is not such a proceeding. The complaint charges, the evidence shows, and the findings establish, agreements and practices to control prices, and business practices in interstate commerce, entered into and jointly engaged in by members of a trade association, some of which are engaged intrastate, some in interstate commerce, and some in both, but all in the same general business of selling containers, and all alike interested in controlling, fixing or regulating prices and practices therein. In such a situation, the commission has authority not over prices fixed and practices carried on without agreement in the State, but over agreements made in the state to control and affect prices and practices both intra and interstate. It is hardly necessary to cite authorities for this view. Some which may be cited are: Federal Trade Comm. v. Standard Educational Society, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141; National Harness Ass'n v. Federal Trade Comm., 6 Cir., 268 F. 705; International Art Co. v. Federal Trade Comm., 7 Cir., 109 F.2d 393; Chamber of Commerce v. Federal Trade Comm., 8 Cir., 13 F.2d 673.

Rejecting the contention of the petitioners then, that the proceeding as to some of them has to do merely with commerce intrastate, and is beyond the jurisdiction of the commission, we proceed to a consideration of the other points, made against the order. The first of these, that some of the petitioners have gone out of business or have taken bankruptcy, may be disposed of by simply saying that the order is not retrospective, but wholly prospective in operation, and if these petitioners are really out of business to stay, they can take no harm from it. But questions of harm aside, they were in business when the proceeding was properly begun against, and jurisdiction properly obtained over, them; that jurisdiction was not lost by their going out of business or taking bankruptcy; and these facts furnish no ground for setting the order aside.

We come then to the merits of the case, whether the evidence sufficiently supports the Board's conclusions, that the Association and all its members have been guilty of unfair trade practices, in endeavoring, by concert of action to raise prices, or otherwise affect prices and practices, or whether only some, or none of them have been.

In the beginning it must be stated that petitioner's contention that action under agreement to raise prices is not in itself an unfair practice, that it must also appear that prices are unreasonably affected by the action, will not stand up under the authorities. It is settled law that it is not for those, who, by concert, artificially raise prices, to determine what point is within and what beyond the bounds of reason. The law prohibits price fixing agreements, and all kinds of agreements to...

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    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 Febrero 1962
    ...of § 5. F. T. C. v. Beech-Nut Packing Co., supra, 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882; Standard Container Manufacturers' Ass'n v. F. T. C., 5 Cir., 119 F.2d 262. Of course there are unique problems in the application of § 5 of the Federal Trade Commission Act to the buye......
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    • 17 Abril 1957
    ...94 L.Ed. 1067. 22 Perma-Maid Co. v. Federal Trade Commission, 6 Cir., 1941, 121 F.2d 282, 284-285; Standard Container Mfrs' Ass'n v. Federal Trade Commission, 5 Cir., 1941, 119 F.2d 262, 265; Philip P. Park, Inc. v. Federal Trade Commission, 9 Cir., 1943, 136 F.2d 428, 430; Consolidated Roy......
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    ...Ind. v. FTC, 102 F.2d 716, 718 (9th Cir. 1939). This is sufficient to fix jurisdiction in the FTC. E. g., Standard Container Mfr's Ass'n v. FTC, 119 F.2d 262, 265 (5th Cir. 1941). Petitioners contend, however, that we should ignore the Alaskan sales as a valid basis of jurisdiction by appli......
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