MEMORANDUM OF COURT ACTION ON MISCELLANEOUS INTERLOCUTORY MOTIONS, ETC., IN CERTAIN CASES TO WHICH THE FEDERAL TRADE COMMISSION WAS A PARTY

COMPILER'S NOTES

Federal Trade Commission, petitioner v. Non-Plate Engraving Co., Inc., respondent (United States Circuit Court of Appeals, Second Circuit, No. 11,207, October term, 1930).—Application by the Federal Trade Commission for enforcement of order. On March 2, 1931, the court, on motion of the company, issued a rule on the Commission to show cause why its application for enforcement should not be dismissed, on the ground that the company had fully complied with the order. This rule was returnable March 9, and on this date, after argument, the court denied the company's motion.

On May 4, 1931, the court handed down its per curiam decision favorable to the Commission; see page 115.

Arnold Stone Co., Inc., petitioner v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Fifth Circuit, No. 6139, October term, 1930).-Petition to review order of Federal Trade Commission. The petitioner moved the court for an order directing the Commission to file its trial examiner's report as a part of the record. The Commission, in line with its accepted practice of considering this report as a confidential document for office use only, opposed the motion and the court denied it.

The case was decided by this court on May 25, 1931. For final opinion, see page 123.

Flynn & Emrich Co., petitioner v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Fourth Circuit, No. 3142, January term, 1931).-Petition to review order of Federal Trade Commission. Petitioner asked the Commission to certify the trial examiner's report as part of the record on appeal. The Commission refused and the petitioner printed it as an addendum to the record. The court did not decide the question and did not give the report any consideration, but intimated plainly that it was a proper part of the record. Case decided October 12, 1931. See opinion at page 141.

Consolidated Book Publishers, Inc., petitioner v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Seventh Circuit, No. 4423, October term and session, 1931).-Petition

to review order of Federal Trade Commission. The court, July 8, 1931, at the instance of the Commission, entered an order granting leave to adduce additional evidence, allowing ninety days for this purpose. The application of the Commission which resulted in this order was made as a result of the decision of the Supreme Court of the United States in the Raladam case (283 U. S. 643). The evidence in question was taken during August 1931; and, based thereon, the Commission, on October 2, 1931, made and certified to the court supplemental findings of fact, which concerned the general effect of the methods employed by the Consolidated Corporation on the business of its competitors. The case was decided in favor of the Commission, November 25, 1931. For final decision, see page 152.

Royal Milling Co., et al., petitioner v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Sixth Circuit, No. 5958, October term, 1930).-Petition by Royal Milling Co. and five others to review orders of Federal Trade Commission. The Commission on July 6, 1931, filed its motion to strike portions of the petition for review for the reason that they were argumentative, extraneous to the record, etc., petitioner filing brief in opposition July 10. The motion was granted November 6, 1931, and the case decided against the Commission May 4, 1932. For opinion, see

page 180.

The court of appeals was reversed by the Supreme Court February 6, 1933, in the opinion on page 217.

Raladam Company, petitioner, v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Sixth Circuit, No. 5429).-Petition to review order of Federal Trade Commission. In the opinion in this case (42 Fed. (2d) 430, p. 432), the court said:

"Before taking up the merits, we notice a matter of practice. The record showed that the proofs were taken before a trial examiner. He acted as a master or trial judge does. He ruled upon testimony, admitting or excluding; he frequently asked questions and directed and controlled counsel; he obviously felt that responsibility was upon him for the primary decisions which would stand unless overturned; then he made his findings, which he returned to the Commission with the evidence. In making up the record for this review the Commission did not include these findings. Petitioner insists that since the statute contemplates rules of practice by the Commission, and since the Commission has made rules assigning these duties and functions to the trial examiners, and since the Commission does not ordinarily itself see the witnesses, such findings became a proper part of the record for review. In reply, it is said that, since the Commission's findings of fact must stand, if supported by any evidence, the development of the matter before the Commission in this particular is immaterial. There are no Circuit Court of Appeals rules on this subject. Lacking them, it has been held that such findings need not be included; and we think that exclusion is supported by the better reason and so we deny the motion to include;

but we direct that if the record is prepared for review by the Supreme Court, this motion to bring in the examiner's findings be included in that record."

The court decided this case June 28, 1930, against the Commission, and on May 25, 1931, the Supreme Court affirmed the lower court's decree in the opinion at page 116.

Algoma Lumber Co., et al., petitioners, v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Ninth Circuit, No. 6716).-Petition to review order of Federal Trade Commission. Motion to amend order allowing filing of petition for review, etc. An ex-parte order was made in this matter requiring the inclusion in the record to be certified by the Commission of a copy of its trial examiner's report. The court, on March 7, 1932, granted the motion of the Commission to amend the order by striking out this requirement. For opinion, see page 158. (56 F. (2d) 774).

Federal Trade Commission, petitioner, v. Paramount FamousLasky Corp., Adoph Zukor and Jesse L. Laskey, respondents (United States Circuit Court of Appeals, Second Circuit, No. 10,118, October term, 1930).-Application for enforcement of cease and desist order by the Federal Trade Commission. The record in this case, one of the largest ever before the Commission, comprised more than 17,000 pages of testimony and extensive exhibits consisting of more than 15,000 additional pages, a total of over 32,000 pages. By the rules of court, the burden of printing fell upon the Commission. The size of the record was one of the considerations which led the Commission to agree that the issue might be confined to paragraph 2 of the order relating to "block booking"; as a result of this decision considerable time was devoted to negotiations looking to the elimination of such of the testimony and exhibits as was irrelevant to the point at issue. By the eliminations referred to, the record was reduced to some 2,000 pages.

On March 9, 1931, the court granted the motions of the Commission: (1) For leave to amend its application for enforcement so as to limit the issue to paragraph 2, relating to "block booking"; and (2) for an order directing a revision and condensation of the transcript, the establishment of such revision and condensation as the record of the evidence, and that the Commission cause to be printed only such record. The case was decided April 4, 1932. For opinion, see page 161.

The Arrow-Hart & Hegeman Electric Company, petitioner, v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Second Circuit, No. 12,309).-Petition to review order of Federal Trade Commission. Motion by petitioner for an order directing the respondent to amplify the record. Motion by respondent to strike out part of record. In its per curiam opinion in this case (January 30, 1933, 63 F. (2d) 108), the court said:

66* * * The respondent has not certified to this court as part of the transcript of the record, the trial examiner's report upon the facts

or the petitioner's exceptions thereto, claiming that it is not properly part of the transcript under sec. 11 of the Clayton Act

*

are

"Paragraphs 2 and 3 of rule 21 of this court make reference to the filing of records by the Federal Trade Commission and do not require the reports of the trial examiners or exceptions filed thereto to be printed. Nor does par. 4, rule 13 of this court so require. That section refers only to appeals and records from district courts and has no reference to certification of transcripts from the Federal Trade Commission. Such records are covered exclusively by rule 21. The Commission's report referred to in the Clayton Act * its order, the testimony and the pleadings. They are to be certified to this court when a review is sought by a petition for enforcement or a petition for review. But the statute contains no requirements that the trial examiner's report or the exceptions thereto be a part thereof. Such report seems to be prescribed by the rules of practice adopted by the Commission under the general statutory power. Fed. Trade Comm. Act, 38 Stat. 721, sec. 6 (g), 15 U. S. C. A. sec. 46. These reports are for the assistance of the Commission and are kept in the files of the Commission for reference. The review and the findings thereon, the statute provides, is for the Commission and not the trial examiners. The reports of the trial examiners are not binding upon one charged with violation of the act. Indeed, the act does not require the Commission to employ examiners to proceed with hearings or to make reports; it authorizes the Commission to employ examiners among other officers. * *The statute authorizes such examiners to administer oaths and affirmations, examine witnesses, and receive evidence. * * * This is not exclusive authority, but discretionary. We assume that the examiner's reports are used as of some assistance to the Commission, but the result or conclusions of the Commission, we must assume, are found in the findings adopted by it."

*

The motion of respondent (the Commission) was granted and that of petitioner denied. For entire opinion, see page 211.

Federal Trade Commission, petitioner, v. Inecto, Inc., respondent (United States Circuit Court of Appeals, Second Circuit, No. 12,811, October term, 1932).—Application for the enforcement of an order of the Federal Trade Commission.

At the instance of the Commission, the court, on June 15, 1933, signed an order providing for the elimination of nonessential portions of the record before printing. Respondent questioned the power of the court to enter such an order and moved to vacate it. The court, on July 11, denied the motion and afterwards signed an order extending for thirty days the time within which the Commission should prepare and serve upon the respondent a memorandum presenting its views as to what revision and condensation of the record should be made. The Commission served its memorandum on August 11.

The respondent filed with the Supreme Court of the United States, on September 12, 1933, its petition for writ of certiorari to review the action of the lower court in entering the order (supra) providing for condensation of the record, asserting that the court had acted in excess of its powers, in that its rules provided that the Commission,