Oregon-Washington Plywood Co. v. FEDERAL TRADE COM'N

• Decision Date: 24 January 1952
• Docket Number: No. 12774,12788-12790,12798-12800,12801.,12797,12791-12793,12802,12774
• Citation: 194 F.2d 48
• Parties: OREGON-WASHINGTON PLYWOOD CO. v. FEDERAL TRADE COMMISSION and 12 other titles.
• Court: U.S. Court of Appeals — Ninth Circuit

194 F.2d 48 (1952)

OREGON-WASHINGTON PLYWOOD CO. v. FEDERAL TRADE COMMISSION and 12 other titles.

Nos. 12774, 12791-12793, 12798-12800, 12802, 12788-12790, 12797, 12801.

United States Court of Appeals Ninth Circuit.

January 24, 1952.

George J. Perkins, Portland, Or., E. N. Eisenhower, Chas. D. Hunter, Jr., James V. Ramsdell, Henry C. Perkins, all of Tacoma, Wash., Skeel, McKelvy, Henke, Evenson & Uhlmann, McMicken, Rupp & Schweppe, Alfred J. Schweppe, M. A. Marquis, John N. Rupp, all of Seattle, Wash., Krause, Hirsch, Levin & Heilpern and Raymond T. Heilpern, all of New York City, J. E. Nolan, Tacoma, Wash., Briggs, Gilbert, Morton, Kyle & Macartney and J. Neil Morton, all of St. Paul, Minn., Sabin & Marlarkey, Robert L. Sabin, and Howard H. Campbell, all of Portland, Or. and Owen P. Hughes and Neal, Bonneville & Hughes, all of Tacoma, Wash., for petitioners.

W. T. Kelley, Gen. Counsel, James W. Cassedy, Asst. Gen. Counsel, Alan B. Hobbes, Attorney, Fed. Tr. Com., all of Washington, D. C., for respondent.

Before STEPHENS, HEALY, and BONE, Circuit Judges.

HEALY, Circuit Judge.

This matter is before us upon petitions to review and set aside cease and desist orders issued in proceedings by the Federal Trade Commission on complaints charging petitioners with engaging jointly in acts hindering and restraining competition in interstate commerce in certain lumber products, in violation of § 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45 (a). Before the Commission there were two groups, against whom separate complaints were lodged, one referred to as the "Plywood" group, the other as the "Door" group, the members of which operate in the state of Oregon or Washington or both. So far as material here the Commission's complaints were the same in each case, and the answers interposed by the two groups were substantially identical.

The complaint as against the members of the Plywood group was initiated March 1, 1948, and was amended May 19, 1949. That as against the Door group was issued February 26, 1948, and was amended August 8, 1949. Details of the complaints need not be gone into. They alleged in paragraph Seven thereof that the parties named had jointly engaged in the unlawful activities charged "since prior to January 1936," in the Plywood case, and "since January, 1938" in the Door case, down to the date of the complaint.

Shortly subsequent to the issuance of the amended complaints in 1949, the petitioners filed their answers. These recite that in order to expedite the proceeding and to prevent disorganization consequent upon litigation, etc., the petitioners, answering the amended complaint, "state that they admit all of the material allegations of fact set forth in said complaint, provided this admission be taken to mean that the understanding, agreement, combination, conspiracy and planned common course of action alleged in paragraph Seven of the amended complaint existed and continued only for a substantial part of the period of time charged in the amended complaint, to wit, for a substantial part of the period between May, 1935, to August 1, 1941, and not otherwise, and, except to the extent of such admission, deny all of the material allegations of fact set forth in the complaint, and waive all intervening procedure and further hearing as to the said facts.

"Any and all admissions of fact made by respondents herein are made solely for the purpose of this proceeding, the enforcement or review thereof in the Circuit Court of Appeals, and for any review in the Supreme Court of the United States, or for any other proceeding in enforcement of the order to be entered herein, or to recover any penalty for violation thereof which may be brought or instituted by virtue of the authority contained in the Federal Trade Commission Act as amended, and for no other purpose, but reserving the right of a hearing with oral argument and filing of briefs before the Commission as to what order, if any, should be issued upon the facts hereby admitted." The above is from the answer of the Plywood group. The verbiage is the same in the answer of the Door group save as to the period of time covered by the admitted violations. This is alleged to have been "from January 1, 1938, to November 29, 1941."

No evidence was taken in the proceedings. On September 30, 1949, after the filing of the answers, the trial examiner entered an "order closing reception of evidence and all other proceedings before trial examiner." Thereafter briefs were filed and oral argument had before the Commission. In October 1950 the Commission made findings and entered the cease and desist orders in question.

The position of the petitioners is simply that no cease and desist order of any kind should have been entered against them in view of their uncoerced discontinuance of the illegal activities long prior to the initiation of the complaints. In each instance the period is in excess of six years. The Commission, on the other hand, declines to concede that the activities were discontinued. It relies on the rule that a conspiracy once shown to exist is presumed to continue until its abandonment is shown, and it says that, in the absence of affirmative proof to the contrary, it is to be presumed that the petitioners have continued to pursue the objectionable practices they admit once having followed. Whether this is a valid argument in the state of the record is a matter we will consider in a moment.

The Commission did not in terms find that the unlawful combination or practices had persisted beyond the period admitted. To the contrary paragraph Seven of the findings, in conformity with the answers, states that the illegal...