Shulton, Inc. v. Federal Trade Commission, 13508.
Decision Date | 12 July 1962 |
Docket Number | No. 13508.,13508. |
Parties | SHULTON, INC., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. |
Court | U.S. Court of Appeals — Seventh Circuit |
David C. Murchison, Washington, D. C., Howrey, Simon, Baker & Murchison, Washington, D. C., Richard L. Perry, Washington, D. C., for petitioner.
J. B. Truly, Asst. Gen. Counsel, James Mc.I. Henderson, Gen. Counsel, Jno. W. Carter, Jr., Atty., Federal Trade Commission, Washington, D. C., for respondent.
Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.
On Petition for Rehearing or for Modification of Opinion and Judgment July 12, 1962.
Shulton, Inc., seeks to set aside an order to cease and desist issued by a hearing examiner of respondent, Federal Trade Commission, and adopted by a three to two vote of the Commission.
Petitioner was charged with violation of Section 2(d)1 of the Clayton Act, as amended by the Robinson-Patman Act. In the course of the proceedings, the hearing examiner ruled as a matter of law that petitioner would not be permitted to prove that petitioner's payments to one of its customers, as an allowance for advertising furnished by that customer (such payments not being made available on proportionally equal terms to other competitive customers) were made individually and in good faith to meet payments of a competitor, pursuant to Section 2(b) of the Robinson-Patman Act.2
The hearing examiner based his ruling on the Commission's holdings in prior cases that the meeting competition defense of Subsection (b) was not available in a Subsection (d) proceedings.
At that time, no court of appeals had ruled on this question. Since then, on November 22, 1961, the U. S. Court of Appeals for the District of Columbia Circuit has decided Appeal No. 16123, Exquisite Form Brassiere, Inc., a corporation, Petitioner v. Federal Trade Commission, Respondent, 301 F.2d 499, wherein the Court held:
We agree with this reasoning. The Subsection (b) defense was available to...
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