Maryland Baking Co. v. Federal Trade Com'n
| Decision Date | 08 April 1957 |
| Docket Number | No. 7292.,7292. |
| Citation | 243 F.2d 716 |
| Parties | The MARYLAND BAKING COMPANY, a Corporation, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William Simon, Washington, D. C. (Robert L. Wald, Washington, D. C., and David Gerber, Baltimore, Md., on brief), for petitioner.
Robert B. Dawkins, Asst. General Counsel, Federal Trade Commission, Washington, D. C. (Earl W. Kintner, General Counsel, Alvin L. Berman and Gerald Harwood, Attorneys, Federal Trade Commission, Washington, D. C., on brief), for respondent.
Before PARKER, Chief Judge, SOPER, Circuit Judge, and HOFFMAN, District Judge.
This is a petition by the Maryland Baking Company, Inc., to set aside an order of the Federal Trade Commission, which found that the company had engaged in price discrimination in violation of section 2(a) of the Clayton Act as amended, 15 U.S.C.A. § 13(a). The discrimination found was a price cut of about 25% on a particular type of ice cream cone in the limited area in which a small competitor operated, while maintaining higher prices in other areas where petitioner operated but the small competitor did not. While this finding is challenged by petitioner, it is amply sustained by the record. There is evidence that the price cut was initiated for the purpose of driving the competitor out of business and that it deprived the competitor of its normal channel of distribution through jobbers with the loss to the competitor of about half its volume of business in the product in question. The contention that petitioner's actions did not affect competition, and that the matter involved was a private business dispute not affecting the public interest, is so lacking in merit as not to warrant discussion. The Commission entered the following order:
"It is ordered that respondent The Maryland Baking Company, a corporation, and its officers, representatives, agents and employees, directly or through any corporate or other device, in connection with the sale or distribution of ice cream cones in commerce, as `Commerce\' is defined in the aforesaid Clayton Act, do forthwith cease and desist from discriminating, directly or indirectly, in the price of such products of like grade and quality, by selling ice cream cones to any purchaser at higher prices than the prices charged any other purchaser engaged in the same line of commerce where, in the sale of said cones to such purchaser charged the lower price, respondent The Maryland Baking Company is in competition with another seller."
The baking company complains of the order because it was not limited to the particular type of ice cream cone which was the subject of the price cut and to the area in which the price cut occurred. It is clear, however, that the Commission was acting well within its power in making the order sufficiently broad to prevent evasion and proscribe unfair trade practices of the same general kind as that in which the company had been found guilty of engaging. P. Lorillard Co. v. Federal Trade Comm., 4 Cir., 186 F.2d 52, 58, 59; Hershey Chocolate Corp. v. Federal Trade Comm., 3 Cir., 121 F.2d 968, 970; Moog Industries, Inc., v. Federal Trade Comm., 8 Cir., 238 F.2d 43, 52-53. As to territorial extent, the company, having been found guilty of a flagrant violation of the act, was properly required to cease and desist from such practices in all areas in which it was doing business. "When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed." International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20. See also Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 72 S.Ct. 800, 96 L.Ed. 1081; Federal Trade Comm. v. National Lead Co., U.S., 77 S.Ct. 502, 509; and Moog Industries, Inc., v. Federal Trade Comm., supra.
The petitioner complains that the Commission did not include in the order provisos excepting from its prohibition the matters excepted by the provisos contained in subsections 2(a) and 2(b) of the Clayton Act, 15 U.S.C.A. § 13(a) and (b).1 The Commission says, however, that these are implicit in its order; and this is unquestionably correct. Moog Industries, Inc., v. Federal Trade Commission, supra; ...
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