Samuel H. Moss, Inc. v. Federal Trade Commission
| Decision Date | 29 March 1945 |
| Docket Number | No. 136.,136. |
| Citation | 148 F.2d 378 |
| Parties | SAMUEL H. MOSS, Inc., v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry Ward Beer, of Washington, D. C. and Lewis, Marks & Kanter, of Brooklyn, N. Y., for petitioner.
Joseph J. Smith, Jr., of Washington, D. C., and W. T. Kelley, Chief Counsel, and Jno. W. Carter, Jr., both of Washington, D. C., for Federal Trade Commission.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This is an appeal from (petition to review) an order of the Federal Trade Commission directing the petitioner not to discriminate in the price of rubber stamps sold in interstate commerce. The only points which we find it necessary to discuss are whether the findings support the order; whether there was evidence to support the findings; and whether the petitioner was prevented from introducing relevant evidence. After finding that the petitioner was engaged in interstate commerce in the sale of rubber stamps, the Commission found that it had sold stamps of the same size at different prices to different customers in eight specified instances; that the discrimination so practiced had not been made "in good faith to meet an equally low price of a competitor"; and that there was "no evidence that such differences in price were based upon differences in cost of manufacture, sale or delivery resulting from the different methods or quantities in which such rubber stamps were sold and delivered to various purchasers thereof." Finally, it found that these practices had a "tendency to induce the purchase of respondent's rubber stamps by various users thereof, and have tended to and do divert trade to the respondent from its competitors." That these findings supported the order is too obvious to admit of discussion.
The case was tried in part upon a stipulation declaring that in the eight instances mentioned in the findings the respondent sold rubber stamps to some of its customers at lower prices than it was selling the same stamps to other customers. The Commission's position was that, having proved this, § 2(b), 15 U.S.C.A. § 13 (b), put upon the petitioner the burden of justifying the discrimination; and warranted the order, if it failed to do so. The petitioner did not prove affirmatively that the discrimination did not lessen competition or tend to prevent it; nor did it prove that its lower prices were only "to meet an equally low price of a competitor." On the contrary, it did not know its competitors' prices, but merely "bid low enough to get the business." This made it proper and indeed necessary for the Commission to make the findings it did. It is true that § 2(a) makes price discrimination unlawful only in case it lessens, or tends to prevent, competition with the merchant who engages in the practice; and that no doubt means that the lower price must prevent, or tend to prevent, competitors from taking business away from the merchant which they might have got, had the merchant not lowered his price below what he was charging elsewhere. But that is often hard to prove; the accuser must show that there were competitors whom the higher of the two prices would, or might, not have defeated, but who could not meet the lower. Hence Congress adopted the common device in such cases of shifting the burden of proof to anyone who sets two prices, and who probably knows why he has done so, and what has been the result. If he can prove that the lower price did not prevent or tend to prevent anyone from taking away the business; he will succeed, for the accuser will not then have brought him within the statute at all. Nevertheless he may succeed even though he fails to establish such a negative; for, although it will then appear that he has lessened, or prevented, competition, the proviso of § 2(b) will still excuse him, if he can show that his lower price did not undercut his competitors, but merely "met" their "equally low price." In short, that is a defense to the violation of § 2(a). This is as we in...
To continue reading
Request your trial
-
Maine Clean Fuels, Inc., In re
...which is seldom as much as that inevitably lost by idle bickering about irrelevancy or incompetence.'Samuel H. Moss, Inc., v. Federal Trade Commission, 148 F.2d 378, 380 (2d Cir. 1945). In National Labor Relations Board v. Remington Rand, Inc., 94 F.2d 862, 873 (2d Cir. 1938), Judge Learned......
-
Haggerty, In re
...States v. Mortimer, 118 F.2d 266 (CA2, 1940), cert. denied, 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed. 496 (1941), and Samuel H. Moss, Inc. v. FTC, 148 F.2d 378 (CA2, 1945). In the present proceedings, hearsay was relied upon in only two instances. We note, however, as the Commission noted, that, ......
-
FLM Collision Parts, Inc. v. Ford Motor Company
...7 Proof of a price differential is prima facie proof of injury to competition within the meaning of Section 2(a). Samuel H. Moss, Inc. v. F. T. C., 148 F.2d 378 (2d Cir.), cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 438 (1945). It is further held that an injury to a competitor is suff......
-
Federal Trade Commission, ANHEUSER-BUSC
...See also Federal Trade Comm. v. A. E. Staley Mfg. Co., 324 U.S. 746, 757, 65 S.Ct. 971, 976, 89 L.Ed. 1338; Samuel H. Moss, Inc., v. Federal Trade Comm., 2 Cir., 148 F.2d 378, 379; 2 Cir., 155 F.2d 1016. Compare Automatic Canteen Co. of America v. Federal Trade Comm. supra, 346 U.S. at page......