Abex Corporation v. FTC
Decision Date | 08 January 1970 |
Docket Number | No. 18815.,18815. |
Citation | 420 F.2d 928 |
Parties | ABEX CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. |
Court | U.S. Court of Appeals — Sixth Circuit |
Earl W. Kintner, and George Ronald Kucik, Washington, D. C., for petitioner; Ralph S. Cunningham, Jr., Mark R. Joelson, Jack L. Lahr, George R. Kucik, James P. Mercurio, Washington, D. C., on brief; Carson M. Glass, Washington, D. C., Murray S. Monroe, Cincinnati, Ohio, of counsel.
Frederick H. Mayer, Atty., F. T. C., Washington, D. C., for respondent; John V. Buffington, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, F. T. C., Washington, D. C., on brief.
Before WEICK and EDWARDS, Circuit Judges, and BROOKS,* District Judge.
Petitioner Abex Corporation seeks this court's vacation of a divestiture order and the dismissal of a complaint filed before the Federal Trade Commission (FTC). The complaint alleged that Abex had violated the antimonopoly provisions of Section 7 of the amended Clayton Act, 15 U.S.C. § 18 (1964), by acquisition of the S. K. Wellman Company. The FTC, after hearings, held that the acquisition was unlawful and entered a divestiture order and an injunction against future acquisitions of the same nature.
Petitioner presents three claims: 1) The FTC order defining a "submarket" of sintered metal friction materials is not supported by substantial evidence. 2) The FTC order in finding anticompetitive effect of the acquisition is not supported by substantial evidence. 3) The injunction entered by the FTC is over broad.
Abex Corporation is the successor name to American Brake Shoe Company. On April 16, 1963, American Brake Shoe, a large conglomerate which manufactures railroad products, hydraulics, castings and friction materials merged with the S. K. Wellman Company. Wellman at the time manufactured only one line of products; these were sintered metal friction materials for clutches, brakes and transmissions for heavy duty equipment and machinery. Wellman's principal customers had been aircraft companies, mining companies and the like.
Prior to the merger, American Brake Shoe sought Commission approval for its purchase of Wellman. After 13 months, American Brake Shoe proceeded with the merger without receiving such approval.
At the hearing before the FTC Examiner, Abex insisted and offered evidence tending to prove that sintered friction materials were only a small part of a large competitive field which included both "organic" friction materials (asbestos brakes, etc.) and metal friction materials. The Trial Examiner made findings of violation of Section 7 of the Clayton Act by Abex's acquisition of Wellman on two different bases — first, assuming that all friction materials constituted the overall market (or "universe") and second, assuming that sintered metal friction materials constituted a valid submarket. The FTC specifically held that sintered friction materials constituted a valid submarket and declined to consider the wider "universe" for which Abex argued. The FTC affirmed the findings of the Examiner as to the anticompetitive effect of the acquisition and ordered divestiture and a 10-year injunction against similar acquisitions.
Both the Examiner and the Commission cited and relied on an analysis of the sintered metal friction material market which tended to show that Abex, by its acquisition of Wellman, moved from third to a dominant first place in the market.
The Commission's opinion on this score said:
As to the first appellate issue concerning whether sintered metal friction materials were a valid submarket, Abex appears to us to rely more upon theory than upon economic realities. In essence, it asserts that any clutch or braking device which currently uses sintered metal friction could be so designed as to supplant sintered metal friction by organic or other metal friction. But the record is singularly devoid of any testimony that indicates that any such competition exists as a practical matter.
There is evidence from which the FTC could have concluded that sintered metal friction devices are up to 40% more expensive than organic and hence are used in specialty applications which through heavy use wear out organic friction devices too quickly.
In its 1960 annual report petitioner said:
Petitioner's 1958 annual report had been even more specific about the special quality of sintered metal:
Petitioner's 1961 annual report provides this comparison between the functions of organic and sintered metal friction materials:
The record also contains detailed expert testimony concerning the functional and economic differences between sintered metal friction materials and organic friction materials, as well as similarly detailed testimony concerning the differences in methodology and plant equipment required to produce them.
Seven indicia of a valid submarket are set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962):
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