FTC Line of Business Report Litigation, In re

• Decision Date: 28 September 1978
• Docket Number: 77-1943,Nos. 77-1942,INC,77-1953,77-1947,77-1956,77-1952,DEERING-MILLIKE,77-1930 and 77-1931,77-1728,s. 77-1942
• Citation: 647 F.2d 1124
• Parties: , 1980-2 Trade Cases 63,441 DEERING MILLIKEN, INC., Appellant, v. FEDERAL TRADE COMMISSION, et al., Appellant, v. FEDERAL TRADE COMMISSION, et al. In re FTC LINE OF BUSINESS REPORT LITIGATION NL Industries, Inc., Appellant. In re FTC LINE OF BUSINESS REPORT LITIGATION Federal Trade Commission Parties, Appellants. In re FTC CORPORATE PATTERNS REPORT LITIGATION Federal Trade Commission Parties, Appellants. In re FTC LINE OF BUSINESS REPORT LITIGATION Cyclops Corporation, Appellant. In re FTC LINE OF BUSINESS REPORT LITIGATION Appellants. In re FTC CORPORATE PATTERNS REPORT LITIGATION American Cyanamid Company, et al., Appellants. In re FTC LINE OF BUSINESS REPORT LITIGATION American Cyanamid Company, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1124

647 F.2d 1124

207 U.S.App.D.C. 384, 1980-2 Trade Cases 63,441

DEERING MILLIKEN, INC., Appellant, v. FEDERAL TRADE COMMISSION, et al.

DEERING-MILLIKEN, INC., Appellant, v. FEDERAL TRADE COMMISSION, et al.

In re FTC LINE OF BUSINESS REPORT LITIGATION NL Industries,

Inc., Appellant.

In re FTC LINE OF BUSINESS REPORT LITIGATION Federal Trade

Commission Parties, Appellants.

In re FTC CORPORATE PATTERNS REPORT LITIGATION Federal Trade

Commission Parties, Appellants.

In re FTC LINE OF BUSINESS REPORT LITIGATION Cyclops

Corporation, Appellant.

In re FTC LINE OF BUSINESS REPORT LITIGATION Appellants.

In re FTC CORPORATE PATTERNS REPORT LITIGATION American

Cyanamid Company, et al., Appellants.

In re FTC LINE OF BUSINESS REPORT LITIGATION American

Cyanamid Company, et al., Appellants.

Nos. 77-1942, 77-1943, 77-1947, 77-1953, 77-1952, 77-1956,

77-1728, 77-1930 and 77-1931.

United States Court of Appeals District of Columbia Circuit.

Decided Sept. 28, 1978.

Published July 14, 1980.

Gerald P. Norton, Deputy Gen. Counsel, W. Dennis Cross, Asst. Gen. Counsel Joanne L. Levine and Thomas A. Sheehan, Attys., F.T.C., Washington, D. C., were on the motion for issuance of mandate.

Edward T. Tait, Lee A. Rau, John M. Wood and Stuart M. Gerson, Washington, D. C., were on the opposition for American Air Filter Company, et al., in No. 77-1728 and 77-1732 to the motion for issuance of mandate.

Leslie W. Jacobs, Akron, Ohio, was on the opposition for Goodyear Tire and Rubber Company, et al., in No. 77-1728 and 77-1732 to the motion for issuance of mandate.

J. Randolph Wilson, John S. Koch and Steven S. Rosenthal, Washington, D. C., were on the opposition for Air Products and Chemicals, Inc., et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Ira M. Millstein, Mark A. Jacoby and Salem M. Katsh, New York City, were on the opposition for Allegheny Ludlum Industries, Inc., et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

William Simon, Harold F. Baker, David C. Murchinson, J. Wallace Adair, John DeQ, Briggs, and Stuart H. Harris, Washington, D. C., were on the opposition for American Cyanamid Company, et al., in Nos. 77-1728, 77-1732, 77-1930 and 77-1931 to the motion for issuance of mandate.

John C. Reitz was on the opposition for American Greetings Corporation, et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Robert E. Jordan, III, Robert M. Goolrick, Washington, D. C., and Edward E. Vaill, Los Angeles, Cal., were on the opposition for Atlantic Richfield Company, et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Philip A. Lacovara and Gerald Goldman, Washington, D. C., were on the opposition for Allen-Bradley Company in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

J. Stanley Stroud, Chicago, Ill., was on the opposition for CPC International, Inc., et al., in No. 77-1728 to the motion for issuance of mandate.

John F. Graybeal and Robert D. Houser, Jr., Washington, D. C., were on the opposition for Square D Company in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Andrew S. Krulwich was on the opposition for Hoffman-LaRoche, Inc., et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Philip J. Davis, Chicago, Ill., was on the opposition for Chemetron Corporation, in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

James F. Rill, Washington, D. C., was on the opposition for Carpenter Technology Corporation, et al., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

James F. Bromley, Washington, D. C., was on the opposition for United States Gypsum Company in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Ronald P. Wertheim, Washington, D. C., was on the opposition for Ashland Oil, Inc., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Richard C. Seltzer, New York City, was on the opposition for GAF Corporation in No. 77-1728 to the motion for issuance of mandate.

Daniel K. Mayers and Neil J. King, Washington, D. C., were on the opposition for Babcock and Wilcox Company, et al., in No. 77-1728 to the motion for issuance of mandate.

William C. Collishaw was on the opposition for White Consolidated Industries, Inc., in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Samuel K. Abrams and Wilbur L. Fugate, Washington, D. C., were on the opposition for Cone Mills, Corporation, et al., in Nos. 77-1728 and 77-1732 to the motion for issuance and mandate.

David B. Lytle, Washington, D. C., was on the opposition for Hughes Tool Company, et al., in No. 77-1728 to the motion for issuance of mandate.

Ramsay D. Potts and Steven L. Meltzer, Washington, D. C., were on the opposition for Emerson Electric Company in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Milton Wolson, New York City, and S. White Rhyne, Jr., Washington, D. C., were on the opposition for SMC Corporation in Nos. 77-1728 and 77-1732 to the motion for issuance of mandate.

Paul J. Newlon, Victoria G. Traube and Michael A. Lampert, New York City, were on the opposition for Milliken and Company in Nos. 77-1728, 77-1732, 77-1942, 77-1943 and 77-1944 to the motion for issuance of mandate.

Fred L. Woodworth, Detroit, Mich., was on the opposition for Overhead Door Corporation, in No. 77-1728 to the motion for issuance of mandate.

Jesse P. Luton, Jr., John E. Bailey and Kevin F. Cunningham, Houston, Tex., were on the opposition for Gulf Oil Corporation in No. 77-1728 to the motion for issuance of the mandate.

Joseph W. Burns, New York City, was on the opposition for Ingersoll-Rand Company in No. 77-1728 to the motion for issuance of the mandate.

Albert R. Connelly, New York City, was on the opposition for Bethlehem Steel Corporation in Nos. 77-1728 and 77-1732 to the motion for issuance of the mandate.

Edwin S. Rockefeller and Alan M. Frey, Washington, D. C., were on the opposition for Norton Simon, Inc., in Nos. 77-1728 and 77-1732 to the motion for issuance of the mandate.

David J. Lewis, Bethesda, Md. and Elroy H. Wolff, Washington, D. C., were on the opposition for Kimberly-Clark Corporation, et al., in No. 77-1728 to the motion for issuance of the mandate.

Anthony B. Barton, New York City, was on the opposition for American Maize-Products Company in No. 77-1728 to the motion for issuance of the mandate.

Eve E. Bachrach was on the opposition for C.I.T. Financial Corporation, et al., in No. 77-1728 to the motion for issuance of the mandate.

Caswell O. Hobbs, III, Washington, D. C., was on the opposition for American Stores Company in No. 77-1732 to the motion for issuance of the mandate.

Robert J. Pope, Washington, D. C., was on the opposition for Continental Group, Inc., in No. 77-1732 to the motion for issuance of the mandate.

John T. Rafferty, New York City, was on the opposition for NL Industries, Inc. in No. 77-1947 to the motion for issuance of the mandate.

Thomas C. Morrison, New York City, was on the opposition for Johnson and Johnson in No. 77-1728 to the motion for issuance of the mandate.

Gilbert H. Weil and Robert L. Sherman, New York City, were on the opposition for Bristol-Myers Company in No. 77-1728 to the motion for issuance of the mandate.

Before BAZELON and ROBINSON, Circuit Judges, and AUBREY E. ROBINSON, Jr. ^*, United States District Judge for the District of Columbia.

ORDER

Upon consideration of the motion of the Federal Trade Commission for issuance of the mandate herein, and of the memoranda in support of and in opposition to the motion, it is, for the reasons expressed in the accompanying memorandum,

ORDERED by the Court that the motion for issuance of the mandate be and hereby is denied; and it is

Further ORDERED by the Court, sua sponte, that the District Court's orders reviewed herein be and hereby are stayed pending action by the Supreme Court of the United States upon the petitions for writs of certiorari directed to this Court's judgment of July 10, 1978.

MEMORANDUM

On July 10, 1978, we affirmed a judgment of the District Court which directed compliance with orders that the Federal Trade Commission seeks to have enforced in these companion cases. ¹ Eighteen days later, the Clerk of this court was notified that three petitions had been filed in the Supreme Court directed to our action. ² In cases wherein a petition for certiorari is presented within 21 days from the entry of judgment here, ³ it has long been the Clerk's policy to automatically withhold the mandate pending disposition of the petition. ⁴ That course he pursued in the instant litigation.

The Commission has moved for issuance of the mandate, contending that the Clerk's practice is contrary to Rule 41 of the Federal Rules of Appellate Procedure ⁵ and Rule 14(b) of the General Rules of this court. ⁶ Appellants, on the other hand, defend the practice, and indicate that they relied on it in deciding not to request that the mandate be stayed.

I

As a panel confronted with a procedural policy of general applicability, we normally would refer this problem to the full court for resolution. Since, however, a majority of our regular active judges have recused themselves from participation in these cases, ⁷ it is obviously inappropriate to solicit their guidance at this time on a question impacting the litigation so directly. ⁸ Moreover there is no need for anyone to undertake at this time a resolution of the procedural dilemma the parties have posed, for it is clear to us that were there a motion for stay of the mandate we would be obliged to grant it. We have examined the petitions for certiorari and find that the issues they tender are substantial; resultantly, we must conclude that there exists good cause to justify staying the mandate pending disposition of the petitions. We say this without any inclination toward issuance of such a stay sua sponte. Rather, our purpose is to point out that...