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in applications to the court for the enforcement of its orders, should print the entire record. Brief on behalf of the Commission, in opposition to the petition, was filed October 5, 1933, and the petition was denied November 6, 1933 (290 U. S. 682).

Subsequent negotiations looking toward reduction of the record proved unsuccessful, and on March 12, 1934, the Commission moved the court for leave to present the case without printing the entire record. The motion was denied April 2, 1934, in a per curiam opinion (70 F. (2d) 370), the court saying:

* *

"The court will have no occasion to resort to the record on which the findings were based, unless it be asserted by the respondent that the order is not supported by the evidence. * Upon our review, it will be our duty to ascertain whether such finding is supported by any evidence, if it be challenged. Petitioner asserts that part of the issues of fact tried in this case were determined in favor of the respondent and are no longer in issue; that there will be no occasion to consider any portion of that evidence concerning these issues. The petitioner asks to print only so much of the evidence as it relies upon to support any finding or findings which bear upon the issues to be presented to this court.

"Rule 21, subdivision 2 of this court, on application for the enforcement of an order, requires that the transcript of the entire record shall be printed, and unless the parties agree upon printing less we cannot do otherwise than require all the testimony to be printed as constituting the record for our review. Contentions are made by respondent that it would be necessary to examine it all to ascertain if there is a violation of the order to cease and desist. The one way that we can answer that inquiry is by reading the entire record and this we can only do if it is before us in the form required by our rule."

Settlement of the record for printing was subsequently negotiated between counsel and a consent decree was entered February 18, 1935, for which see page 288.

Federal Trade Commission, petitioner, v. Artloom Corporation, respondent (United States Circuit Court of Appeals, Third Circuit, No. 5072, March term, 1933).—Upon application for enforcement of an order of the Federal Trade Commission. The company, March 31, 1933, filed its answer to the application for enforcement; and on April 11, the Commission moved to strike portions of this answer not relevant to the issues of the case. Argument on the motion was postponed until final argument on the merits. The court, however, made no further reference to the motion and the order of the Commission was affirmed on January 30, 1934. For the opinion, see page 256.

E. Griffiths Hughes, Inc., petitioner, v. Federal Trade Commission, respondent (United States Circuit Court of Appeals, Second Circuit, No. 12926, October term, 1934).-Petition to review order of Federal Trade Commission. Subsequent to the filing of the petition in this case, the court, on March 12, 1934, granted petitioner's motion to dis


pense with printing of the exhibits, and denied its motion for correction of certain errata in the transcript of testimony, taking the position that the latter was a matter to be taken care of before the Commission. The Commission's order was affirmed by the court on June 3, 1935 (77 F. (2d) 886). The opinion is printed at page 300 herein.

Federal Trade Commission, petitioner, v. Hires Turner Glass Company, respondent (United States Circuit Court of Appeals, Third Circuit, No. 2591, October term, 1934).-Upon application for enforcement of an order of the Federal Trade Commission. The court said in its opinion in this case, filed July 11, 1935 (81 F. (2d) 362): "There is pending before us the respondent's motion for a writ of certiorari for diminution of the record. We are asked to order the Federal Trade Commission to certify to this court the report of the trial examiner. As we have indicated, the Commission's findings of fact are conclusive if supported by any evidence. In the absence of proof that the fact findings are not so supported, there is no substantial ground for the granting of the respondent's motion. It is accordingly denied."

For complete opinion, see page 315.

Federal Trade Commission, petitioner, v. E. J. Wallace, respondent (United States Circuit Court of Appeals, Eighth Circuit, No. 382 original, November term, 1934).-Application for enforcement of order of Federal Trade Commission. The court, on April 10, 1934, on motion of the Commission, entered an order making it unnecessary to print or otherwise reproduce the exhibits in this case "for use upon the hearing before this court of the application for enforcement of the order of said Federal Trade Commission." The result of this order was to effect a saving of some $10,000 to the Commission. On April 25, 1934, again on a motion of the Commission, the court entered an order granting leave to have the transcript printed at the Government Printing Office, Washington, instead of at St. Louis, as provided for in a previous order.

The court, on February 9, 1935, in a unanimous decision, after modifying the Commission's order so as to make it more effective, affirmed it and entered a decree of enforcement (75 F. (2d) 733). For final decision see page 280.

Edison-Bell Co., Inc., et al., D. 2223.-During the course of hearings before the Commission's trial examiner in this case, the District Court for the Southern District of New York, at the instance of counsel for the respondents, on December 20, 1935, issued a subpena directing the Commission's investigating attorney-examiner in the case to testify. On the appearance of the attorney-examiner, in response to the subpena, no application having been made to the Commission to direct him to testify (the usual course in such cases), and counsel for the Commission having objected thereto, the hearing was adjourned. Thereupon, counsel for the Commission appeared

before the district court and contended that the court did not have the power to issue the subpena, pointing out that, under section 9 of the Federal Trade Commission Act, an order of the court compelling witnesses to appear before the Commission, is to issue only in the event of contumacy or refusal to obey a subpena theretofore issued by the Commission, and also calling the court's attention to the provisions of the act relating to the making public by any employee of the Commission of any information obtained by it. The court thereupon (Dec. 23, 1935) vacated the subpena.

Englander Spring Bed Co., Inc., D. 2602.-In this case (involving the use of alleged fictitious prices), an attempt was made, under section 77-B of the National Bankruptcy Act, to halt the taking of testimony before the Commission's trial examiner.

The case was set for trial in New York City on April 29, 1936, and the respondent so notified. Respondent thereupon, under provisions of the Bankruptcy Act, applied to the District Court for the Southern District of New York for a capital reorganization, and obtained a stay of all proceedings then pending against it. Relying on the stay order, respondent's principal officers disregarded the Commission's subpenas requiring their appearance at the scheduled hearing.

The Commission's attorney, questioning the applicability of the stay order to Commission proceedings, called the case for hearing at the time set. The respondent obtained an adjournment, ostensibly for the purpose of securing from the court a construction of the order which would specifically include in its prohibitions any proceedings instituted by the Commission. Instead, the respondent applied for an injunction to restrain the Commission and its attorney from further action in the premises.

The Commission filed a cross-bill, praying that the stay order be decreed to exempt from its terms any proceeding on behalf of the Commission; that the application for injunction be disallowed, and that the officers theretofore subpenaed be directed summarily to appear and testify. The prayers of the cross-bill were allowed, and an order entered in all respects in conformity thereto.

Viscose Co., et al., D. 2161.-During the course of hearings and after several postponements granted at the respondents' request, certain witnesses refused, on the ground of ill health, to respond to subpenas duces tecum issued by the Commission. Thereupon the Commission applied to and obtained from the United States Court for the Southern District of New York, on January 29, 1936, orders compelling these witnesses to appear before the Commission's trial examiner on February 5, 1936, to testify and produce the desired documents.

The witnesses, on February 4, obtained a stay until February 14, to enable them to undergo medical examination. On February 7, on motion of Commission counsel, the stay was modified, and the court ordered the witnesses to submit themselves to a committee of doctors for examination between February 14 and 21. The report of the doctors was filed February 24, pronouncing the witnesses able to testify.

A further motion by the Commission was granted March 3, and the court compelled the witnesses to testify on March 18, 1936, before the trial examiner.

National Optical Stores Co., et al., D. 3143.-This case involved various alleged misrepresentations with reference to optical goods. It had been set down for the taking of testimony on December 2, 1937, before a trial examiner of the Commission. On November 30, 1937, counsel for the several respondents filed with the District Court of the United States for the Northern District of Illinois their motion for a temporary injunction, alleging, inter alia, that their business was purely intrastate and that the Commission, therefore, was without jurisdiction to hold hearings in pursuance of the charges set forth in its complaint.

The Commission countered with a motion to dismiss the bill of complaint. Its motion was sustained and the injunction proceedings dismissed December 3, 1937.



(U. S. Circuit Court of Appeals, Seventh Circuit. October 28, 1930) Nos. 4318, 4336

[44 F. (2d) 763]


Retention of customer's business through price discrimination is not justifiable, unless volume justified discrimination or discounts were granted to meet competition (Clayton Act, § 2 [15 U. S. C. A., § 13]).


Manufacturer has burden to establish justification for price discrimination (Clayton Act, § 2 [15 U. S. C. A., § 13]).


In action for damages resulting from price discrimination, whether defendant in good faith allowed lower price because of [764] volume held for jury under evidence (Clayton Act, § 2 [15 U. S. C. A., § 13]).


Whether price discrimination substantially lessened competition held for jury under evidence showing effect on business of favored customer (Clayton Act, § 2 [15 U. S. C. A., § 13]).

Evidence tended to show that immediately after execution of contract between defendant and favored customer and during period of five years thereafter such customer's business had increased approximately 300 per cent, and that its increase was much more rapid than that of similar businesses throughout country during same period of years.


Defendant having discriminated in price resulting in lessening of competition to plaintiff's damage cannot contend that damages are too remote, speculative, and uncertain (Clayton Act, § 2 [15 U. S. C. A., § 13]).


Circumstantial evidence supplemented by inferences deducible would support recovery of substantial damages in action based on alleged price discrimination (Clayton Act, § 2 [15 U. S. C. A., § 13]).


In action for damages resulting from alleged price discrimination, issue involving amount of damages held for jury under evidence (Clayton Act, §§ 2, 4 [15 U. S. C. A., §§ 13, 15]).

Evidence showed that immediately after execution of contract between defendant and favorable customer plaintiff lost money in branch of business in competition with such customer. Evidence further tended to show that for period of five years prior to such time plaintiff was conducting its business at profit, but that after contract retailers who had previously purchased goods from plaintiff purchased them from favored customer because it was underbidding plaintiff.


In action for damages resulting from alleged price discrimination, evidence showing secrecy surrounding defendant's contract with favored customer held admissible as tending to impeach good faith.

Defendant contended that discriminations were made in good faith to meet competition, and that they were due to favored customer's larger purchases.


In action for damages resulting from alleged price discrimination, evidence showing defendant represented uniformity in price held admissible.

Evidence complained of tended to show that there was no necessity for giving price reductions, and that in fact such practice between defendant and its larger customers did not exist.


In action for damages resulting from alleged price discrimination, proof of losses by others engaged in business similar to plaintiff's held admissible. 11. MONOPOLIES.

Transactions involving price discriminations in sale of cans to packer engaged in large business held in interstate commerce, rendering price discriminations unlawful, if not justified (Clayton Act, § 2 [15 U. S. C. A., § 13]).

Manufacturer of cans under contract with packer doing large business delivered part of supply outside state and part within state. Contract made no distinction between intrastate and interstate sales, but covered one entire transaction. Packer intended to use cans to receive foods which it sold in competition with other packers in interstate commerce.


Plaintiff's reasonable attorneys' fees on defendant's appeal in suit for damages resulting from alleged price discrimination held chargeable as part of costs (Clayton Act, §§ 2, 4 [15 U. S. C. A., §§ 13, 15]).

(The syllabus was taken from 44 F. (2d) 763)

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