Armand Co. v. Federal Trade Commission
| Decision Date | 02 July 1936 |
| Docket Number | No. 195.,195. |
| Parties | ARMAND CO., Inc., et al. v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry Ward Beer, of New York City, for the motion.
Martin A. Morrison, of Washington, D. C., opposed.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
We have already once decided this motion without opinion, and we now state our reasons in the hope that this at least may end the matter. The argument is based upon the notion that the "cease and desist" order of the Commission was a nullity because of the departure, or variance, between it and the complaint on which the Commission heard the cause. Apparently it is also supposed that our order affirming it was likewise a nullity, though before us at least there was a controversy to be decided, however void the order reviewed. Passing that question and before addressing ourselves to the first point, we must state the facts. The complaint was against the Armand Company and some of its officers and a number of wholesale and retail druggists, all named as respondents. The company was selling toilet articles manufactured by secret processes through wholesale and retail druggists, both those named as respondents, and others; and the sixth article alleged that the respondents named were "engaged in a conspiracy, common understanding, combination and agreement with and among themselves and * * * dealers not specifically named as respondents * * * to monopolize and unduly * * * to restrain the interstate business * * * of respondents and of the aforesaid dealers not specifically named * * * and in accordance with * * * said conspiracy * * * the respondents and those referred to above as dealers not specifically named * * * have monopolized and unduly * * * restrained the interstate trade * * * of themselves and their competitors." This was alleged to have been done (a) by selling the Armand Company's products at retail prices fixed by agreement, higher than would have prevailed except for the conspiracy; (b) by refusing to sell them at all to dealers who were not druggists; and (c) by refusing to sell them to those wholesalers or retailers who did not sell at prices fixed by the Armand Company. The complaint then alleged a number of overt acts in execution of this conspiracy, nine done by the company, and seven by the wholesalers and retailers. The respondents answered, much testimony was taken, and elaborate findings of fact were made, the upshot of which was that the company exacted contracts of wholesalers and retailers by which they were to maintain retail prices. There was no finding that a conspiracy had existed. Upon these findings the Commission entered a "cease and desist" order, (1) forbidding only the Armand Company and its officers (1) to procure "from wholesale or retail dealers contracts * * * that respondent's products * * * are to be resold * * * at prices specified," and (2) to procure from wholesalers "contracts * * * that Armand products are not to be resold by such wholesalers to price-cutting retail dealers." The proceeding was dismissed as to the wholesalers and retailers, named as respondents.
We assume arguendo, although this is not a criminal prosecution, that the rule does not apply which governs civil conspiracies at common law; that is, that the allegation of conspiracy is merely inducement, and that the gist of the wrong is the acts done in furtherance of the common plan. Lewis Invisible Stitch Machine Co. v. Columbia Blindstitch Machine Corp., 80 F.(2d) 862 (C.C.A.2). Yet even upon a direct review of convictions for criminal conspiracies it is not a fatal variance to allege a single conspiracy of three and prove two conspiracies of two each, to which one of the conspirators is in each case not a party. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. A fortiori it is not such to allege a conspiracy of three or more and prove one of less members, or of more. Yet these are all cases of departure and show that it is immaterial to prove a different criminal agreement from that alleged, when the defendants are not prejudiced by the variance. Moreover, while it is true that a man may not be convicted on an indictment for conspiracy, if it appear that there was no other party to the transaction, it is not necessary that...
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