American Chain & Cable Co. v. Federal Trade Commission
| Citation | 139 F.2d 622 |
| Decision Date | 01 January 1944 |
| Docket Number | No. 5062.,5062. |
| Parties | AMERICAN CHAIN & CABLE CO., Inc., et al. v. FEDERAL TRADE COMMISSION. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Sumner S. Kittelle, of Washington, D. C. (Feldman, Kittelle, Campbell & Ewing, of Washington, D. C., on the brief), for petitioners.
Walter B. Wooden, Asst. Chief Counsel, Federal Trade Commission, of Washington, D. C. (W. T. Kelley, Chief Counsel, Federal Trade Commission, of Washington, D. C., on the brief), for respondent.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
The petition of the American Chain & Cable Company, Inc., and other manufacturers of wire rope seeks to review a modified order of the Federal Trade Commission passed on May 25, 1943, whereby it was directed that the petitioners, who were then respondents to a complaint issued by the Commission, "do forthwith cease and desist from continuing, entering into, or carrying out any agreement, understanding, combination or conspiracy, and from continuing or co-operating in any agreed or planned common course of action, between or among any two or more of said respondents, or between any one or more of said respondents and any person, association or corporation not a party to this order, to do or perform any of the following acts or things:" (Italics supplied). The acts prohibited by the order include fixing the prices or conditions of sale of wire rope to dealers, distributors and users thereof, establishing and maintaining territorial delivered price zones, and making sales upon a delivered price basis under a zone system whereby the cost to all customers of any particular class is made identical to all destinations within a particular zone.
The Commission found that the petitioners control the production and sale of 85 per cent of the wire rope produced in the United States. They are members of the Wire Rope & Strand Manufacturers Association which was organized under a Code of Fair Competition pursuant to the National Industrial Recovery Act of 1933, 48 Stat. 195. Under the Code, list prices, discounts and classifications became uniform amongst the petitioners and a system of delivered prices was adopted on the basis of zones into which the country was divided. After the National Industrial Recovery Act was declared unconstitutional by the Supreme Court the petitioners agreed amongst themselves to co-operate in maintaining the standards set out in the Code. The Commission concluded that these practices unreasonably restrained trade and constituted unfair competition to the prejudice of the public and of competitors in violation of § 5 of the Federal Trade Commission Act, 52 Stat. 111, 15 U.S.C.A. § 45. The findings and conclusions of the Commission are not disputed; and the order of the Commission was designed to put an end to the illegal practices in which the petitioners were engaged.
The petitioners challenge only the terms of the Commission's order, particularly the words italicized in the foregoing quotation. The original order, which was passed on December 4, 1942, differed in that the preamble directed that the manufacturers "do forthwith cease and desist from entering into, continuing, co-operating in, or carrying out any common course of action, agreement, understanding, combination, or conspiracy between or among any two or more of said respondents, or between any one or more of said respondents and others not parties hereto, to do or perform any of the following acts or things:" (Italics supplied).
The order was recast in its present form after the court pointed out in Salt Producers' Ass'n v. Federal Trade Commission, 7 Cir., 134 F.2d 354, 356,...
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