Ruberoid Co. v. Federal Trade Commission

191 F.2d 294, 1951 U.S. App. LEXIS 4066, 1951 Trade Cas. (CCH) 62,910

Opinions

PER CURIAM.

When this appeal was first decided, our mandate was “Order affirmed; enforcement granted.” Petitioner now seeks to have us amend our mandate 'by striking therefrom any reference to enforcement. In the original appeal, petitioner sought, as provided by 15 U.S.C.A. § 21, to have us modify an order of the Federal Trade Commission (“FTC”) by limiting its scope and by inserting therein certain defenses provided by the Clayton Act, as amended, 15 U.S.C.A. § 12 et seq. The order, based upon violations of the Clayton Act, supra, had been entered after a hearing at which petitioner introduced no evidence. Though affirming the order, we attempted to set at rest any doubts petitioner had that, in a subsequent proceeding based upon an asserted violation of the order, if it should arise under different circumstances from those that originally caused the FTC to issue the order, the petitioner would be able to introduce in its defense evidence that the "conduct complained of was permitted by exceptions contained in the Qayton Act itself as amended. This, as we understood its position, was substantially all petitioner desired. The FTC, at the close of its brief on appeal, asked that the order he affirmed and that enforcement be granted, citing as authority for the latter request 15 U.S.C.A. § 45(c) which directs such a mandate if a petitioner seeks review of an order based on a violation of the FTC Act, 15 U.S.C.A. § 41 et seq., and fails to have such order set aside. Not only is no such provision found in 15 U.S.C.A. § 21 which permits a petitioner to seek review of an order of the FTC based on a violation of the Clayton Act as amended, but it is settled that the FTC cannot obtain a decree directing enforcement of an order issued under the Clayton Act in the absence of showing that a violation of the order has occurred or is imminent, F. T. C. v. Herzog, 2 Cir., 150 F.2d 450; F. T. C. v. Balme, 2 Cir., 23 F.2d 615, certiorari denied 277 U.S. 598, 48 S.Ct. 560, 72 L.Ed. 1007; F. T. C. v. Standard Brands, 2 Cir., 189 F.2d 510. Respondent asks that we treat the closing paragraph of its brief as a cross petition for enforcement of its order. Accepting arguendo the propriety of such a manoeuvre, we find unconvincing the FTC’s reasons why, upon a cross-petition, it is not required to make the same showing of a threatened violation of its order as it must had it petitioned for enforcement. True, various cases have been cited to us where the courts have granted enforcement of an order when a petitioner has failed in its attempt to have the order set aside but, in no case prior to the one before us, so far as we can determine, has the petitioner objected to such a mandate. As we have indicated, the present petitioner did not deny that its original conduct violated the Act and there was uneontradicted evidence that the practice has been abandoned on which the FTC has not made a finding. Under such circumstances so much of our mandate as directed enforcement of the order was premature and should be stricken.

So ordered.