Drath v. Federal Trade Commission, 13303.

Citation239 F.2d 452,99 US App. DC 289
Decision Date13 December 1956
Docket NumberNo. 13303.,13303.
PartiesCarl DRATH, t/a Broadway Gift Company, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Horace J. Donnelly, Jr., Washington, D. C., with whom Mr. Arthur V. Sullivan, Jr., Boston, Mass., was on the brief, for petitioner.

Mr. J. B. Truly, Attorney, Federal Trade Commission, pro hac vice, by special leave of Court, with whom Mr. Robert B. Dawkins, Assistant General Counsel, Federal Trade Commission, was on the brief, for respondent.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 666.

WILBUR K. MILLER, Circuit Judge.

Carl Drath petitions for review of the Federal Trade Commission's order that he cease and desist from

"1. Supplying to or placing in the hands of others pull cards, push cards or any other devices which are designed or intended to be used in the sale or distribution of respondent\'s merchandise to the public by means of a game of chance, gift enterprise or lottery scheme.
"2. Selling or otherwise disposing of any merchandise by means of a game of chance, gift enterprise or lottery scheme."

Attending in obedience to a subpoena, Draft testified at the hearing which preceded the order. He said he had sent thousands of push cards and pull tab catalogues, "just as a sales stimulus," to persons on his mailing lists, some of whom ordered merchandise which he shipped to them. He insisted he knew nothing of what the recipients did with the push cards and other devices he sent them, and argues here that the practices interdicted by the Commission are not unfair within the meaning of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. As we said in the Seymour Sales case,1 the argument comes too late, as the contrary has long been established. Federal Trade Commission v. Keppel & Bro., 1934, 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Cf. Hamilton Mfg. Co. v. Federal Trade Commission, 1952, 90 U.S.App.D.C. 169, 194 F.2d 346; U. S. Printing & Novelty Co. v. Federal Trade Commission, 92 U. S.App.D.C. 298, 204 F.2d 737, certiorari denied 1953, 346 U.S. 830, 74 S.Ct. 52, 98 L.Ed. 354.

Drath further contends the cease and desist order should be set aside because the Commission unlawfully based it upon his testimony — without which, he says, the evidence was insufficient to support the order — in view of the immunity granted by § 9 of the Act, 15 U.S.C. § 49, which reads as follows:

"* * * No person shall be excused from attending and testifying or from producing documentary evidence before the commission or in obedience to the subpoena of the commission on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it: Provided, That no natural person so
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10 cases
  • Federal Trade Commission v. Flotill Products, Inc
    • United States
    • U.S. Supreme Court
    • December 4, 1967
    ...(or at least a quorum of three members) * * *.' Three courts of appeals have expressed appeal of the rule. See Drath v. FTC, 99 U.S.App.D.C. 289, 239 F.2d 452; Atlantic Refining Co. v. FTC, 344 F.2d 599 (C.A.6th Cir.); LaPeyre v. FTC, 366 F.2d 117 (C.A.5th Cir.). However, both the Fifth and......
  • Marco Sales Company v. FTC
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 16, 1971
    ...(7th Cir. 1958); James v. FTC, 253 F.2d 78 (7th Cir.), cert. denied, 358 U.S. 821, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958); Drath v. FTC, 99 U.S.App. D.C. 289, 239 F.2d 452 (1956), cert. denied, 353 U.S. 917, 77 S.Ct. 666, 1 L.Ed.2d 664 (1957); Seymour Sales Co. v. FTC, 94 U.S.App.D.C. 403, 216 F.......
  • Sec. & Exch. Comm'n v. Kokesh
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 23, 2016
    ...recognized for some time that such an order is “purely remedial and preventative,” and not a penalty or forfeiture. Drath v. F.T.C. , 239 F.2d 452, 454 (D.C. Cir. 1956) (internal quotation marks omitted); see id. (“One is not prosecuted by being told to desist from illegal conduct, nor does......
  • Atlantic Refining Company v. FTC
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 12, 1965
    ...of three members.1 We believe this rule is within the Commission's power to make and is wholly valid. Drath v. Federal Trade Commission, 99 U.S.App.D.C. 289, 239 F.2d 452 (1956), cert. denied, 353 U.S. 917, 77 S.Ct. 666, 1 L.Ed.2d 664 (1957). The record amply supports the conclusions of the......
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