Flotill Products, Inc. v. Federal Trade Commission

• Decision Date: 26 July 1960
• Docket Number: No. 16658.,16658.
• Parties: FLOTILL PRODUCTS, INC., Appellant, v. FEDERAL TRADE COMMISSION, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.2d 850 (1960)

FLOTILL PRODUCTS, INC., Appellant, v. FEDERAL TRADE COMMISSION, Appellee.

No. 16658.

United States Court of Appeals Ninth Circuit.

June 1, 1960.

Rehearing Denied July 26, 1960.

Jefferson E. Peyser, San Francisco, Cal., Howrey & Simon, William Simon, Washington, D. C., for appellant.

Daniel J. McCauley, Jr., General Counsel, Alan B. Hobbes, Asst. Atty. Gen., E. K. Elkins, Attorney FTC, Washington, D. C., for appellee.

Before MAGRUDER, ORR and JERTBERG, Circuit Judges.

ORR, Circuit Judge.

After what Flotill Products, Inc., hereafter Flotill, describes as a broad examination of its affairs, the Federal Trade Commission, hereafter Commission, issued its complaint charging that Flotill had violated and was violating the provisions of sections 2(c) and 2(d) of the amended Clayton Act, 15 U.S.C.A. § 13(c) and (d). Thereafter the Commission referred the case to a hearing examiner. During the course of the proceedings before the hearing examiner an application was made by counsel supporting the complaint for the issuance of a subpoena duces tecum. The subpoena was issued and Flotill, deeming it oppressive and illegally issued, refused to comply. The Commission then made application to the United States District Court for the Northern District of California, Southern Division for an order pursuant to section 9 of the Federal Trade Commission Act, 15 U.S.C.A. § 49, which reads in relevant part:

"Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in the case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof."

Flotill answered and after a hearing the district court entered the following order:

"It Is Therefore Ordered that respondent, Flotill Products, Incorporated produce the documents described in the said subpoena in items 1, 2 and 4, and as to item 3 relating only to any three trade areas, and any four customers irrespective of the trade areas specified, to be designated at a later date by petitioner, at respondent\'s place of business, before any representative of the Commission so designated by it, on ten days notice from the Commission and that the said respondent permit the inspection and copying of any such document; provided however that respondent need not produce any of the documents described in said subpoena relating solely to the sale of dietetic foods."

Items 1, 2, 3 and 4 of the subpoena read:

"1. A copy of the annual report for each year 1956, 1957, and 1958.

"2. A list of any and all products produced and/or processed by respondents during 1956, 1957, and 1958, indicating the item, type, grade, and quantity produced for each year.

"3. Such books, records, and documents, or certified tabulations thereof, as will disclose:

"(a) The names and addresses of each customer of respondents during each of the years 1956, 1957, and 1958;

"(b) The method of sale (`direct\' or `indirect\') to each customer listed in (a) and the name of the broker, if `indirect\';

"(c) The total volume of sales to each customer listed under (a), per year;

"(d) The total amount of all advertising funds, promotional allowances, etc., paid or allowed per year during 1956, 1957, and 1958

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