Clarke v. Federal Trade Commission, No. 9948.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHANEY, STEPHENS, and HEALY, Circuit
Citation128 F.2d 542
PartiesCLARKE v. FEDERAL TRADE COMMISSION.
Docket NumberNo. 9948.
Decision Date29 May 1942

128 F.2d 542 (1942)

CLARKE
v.
FEDERAL TRADE COMMISSION.

No. 9948.

Circuit Court of Appeals, Ninth Circuit.

May 29, 1942.


Oliver O. Clark and Robert A. Smith, both of Los Angeles, Cal., for appellant.

W. T. Kelley, Chief Counsel, Federal Trade Commission, Martin A. Morrison, Asst. Chief Counsel, Joseph J. Smith, Jr., Asst. Chief Counsel, Merle P. Lyon and James W. Nichol, Sp. Attys., Federal Trade Commission, all of Washington, D. C., for appellee.

Before HANEY, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The Federal Trade Commission issued a formal complaint charging appellant with unfair and deceptive practices in commerce1 in the advertising of a drug called Boncquet Tablets. Appellant answered the complaint and appeared at the hearing in response to a subpoena, but declined to answer any questions put to him. Thereupon the Commission, proceeding under § 9 of the Federal Trade Commission Act, 15 U.S.C.A. § 49,2 obtained from the district court an order requiring him to answer all relevant and material questions. Appellant appeared before the Commission's trial examiner in response to the order, but upon being questioned in that connection he refused to state the quantitative analysis or proportions of the various ingredients used in the manufacture of his tablets, contending that the information was a trade secret which he was not obliged to reveal.

Subsequently there was a contempt proceeding in the district court pursuant to an order to show cause; and after notice and hearing the court again directed appellant to appear as a witness in the proceeding and specifically to answer the question "What are the proportions of the different ingredients in the product Boncquet Tablets?" On the resumption of the hearing before the examiner, appellant appeared but declined to answer the question. Thereupon, on application of the Commission, the district court ordered appellant to show cause why he should not be adjudged in contempt; and after hearing he was held in contempt of the previous orders and was committed until he should purge himself

128 F.2d 543
thereof. From this order adjudging him in contempt appellant prosecutes this appeal, alleging that the court was in error in requiring him to testify concerning the proportions of the ingredients used in his compound

At the outset the query presents itself whether, upon this appeal from the order adjudging him in contempt, the appellant may question the propriety of the order requiring him to testify. If the latter order was itself appealable — that is to say, if it was a "final decision" within the meaning of § 128 of the Judicial Code, 28 U.S.C.A. § 2253 — then it is reviewable only upon direct appeal. It may not be attacked collaterally for mere error or reviewed upon an appeal from the subsequent order adjudging the party in contempt. 5 C.J.S., Appeal and Error, § 1496, p. 153; 17 C.J.S., Contempt, § 14, p. 19; Howat v. Kansas, 258 U.S. 181, 189, 190, 42 S.Ct. 277, 66 L. Ed. 550; Brougham v. Oceanic Steam Navigation Co., 2 Cir., 205 F. 857,...

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9 practice notes
  • FTC v. Guignon, No. 18716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 6, 1968
    ...no reference to paragraph four. Flotill Products, Inc. v. F. T. C., 278 F.2d 850, 851 (9th Cir. 1960); Clarke v. Federal Trade Commission, 128 F.2d 542 n. 2 (9th Cir. 1942); F. T. C. v. Green, 252 F.Supp. 153, 155 (S.D.N.Y.1966); Federal Trade Commission v. Menzies, 145 F.Supp. 164, 167 (D.......
  • Penfield Co of California v. Securities Exchange Commission, No. 453
    • United States
    • United States Supreme Court
    • March 31, 1947
    ...See note 8. And see text infra preceding note 20. 10 28 U.S.C.A. § 225, 28 U.S.C.A. § 225; see Clarke v. Federal Trade Commission, 9 Cir., 128 F.2d 542; Lamb v. Cramer, 285 U.S. 217, 220, 52 S.Ct. 315, 76 L.Ed. 715. 11 The principal contention in this respect is based on § 268 of the Judici......
  • Kemp v. Gay, No. 90-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 1, 1991
    ...States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 419-20, 62 L.Ed. 950 (1918)). 2 We previously recognized this distinction in Clarke v. FTC, 128 F.2d 542, 543 (D.C.Cir.1942). 3 In Cobbledick the order at issue, denying a motion to quash a grand jury subpoena, was not final or appealable. 4 This hol......
  • Penfield Co. of Cal. v. Securities and Exch. Com'n, No. 10487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 8, 1944
    ...said in disposing of the main contention of appellant is mere dictum. Subsequently, in Clarke v. Federal Trade Commission, 9 Cir., 1942, 128 F.2d 542 this court, not questioning the assumption apparently made by both parties that the Ellis case still governed with respect to administrative ......
  • Request a trial to view additional results
9 cases
  • FTC v. Guignon, No. 18716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 6, 1968
    ...no reference to paragraph four. Flotill Products, Inc. v. F. T. C., 278 F.2d 850, 851 (9th Cir. 1960); Clarke v. Federal Trade Commission, 128 F.2d 542 n. 2 (9th Cir. 1942); F. T. C. v. Green, 252 F.Supp. 153, 155 (S.D.N.Y.1966); Federal Trade Commission v. Menzies, 145 F.Supp. 164, 167 (D.......
  • Penfield Co of California v. Securities Exchange Commission, No. 453
    • United States
    • United States Supreme Court
    • March 31, 1947
    ...See note 8. And see text infra preceding note 20. 10 28 U.S.C.A. § 225, 28 U.S.C.A. § 225; see Clarke v. Federal Trade Commission, 9 Cir., 128 F.2d 542; Lamb v. Cramer, 285 U.S. 217, 220, 52 S.Ct. 315, 76 L.Ed. 715. 11 The principal contention in this respect is based on § 268 of the Judici......
  • Kemp v. Gay, No. 90-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 1, 1991
    ...States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 419-20, 62 L.Ed. 950 (1918)). 2 We previously recognized this distinction in Clarke v. FTC, 128 F.2d 542, 543 (D.C.Cir.1942). 3 In Cobbledick the order at issue, denying a motion to quash a grand jury subpoena, was not final or appealable. 4 This hol......
  • Penfield Co. of Cal. v. Securities and Exch. Com'n, No. 10487.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 8, 1944
    ...said in disposing of the main contention of appellant is mere dictum. Subsequently, in Clarke v. Federal Trade Commission, 9 Cir., 1942, 128 F.2d 542 this court, not questioning the assumption apparently made by both parties that the Ellis case still governed with respect to administrative ......
  • Request a trial to view additional results

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