UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 14, 1951
THE RUBEROID CO.
FEDERAL TRADE COMMISSION
Before L. Hand, Augustus N. Hand and Clark, Circuit Judges.
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. § 13 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 unable to introduce in its defense evidence that the conduct complained of was permitted by exceptions contained in the Clayton 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 be 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, cert. den. 277 U.S. 598; 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 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 uncontradicted 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.
CLARK, Circuit Judge: I regret the modification now ordered in our previous opinion at the request, or afterthought, of the petitioner on rehearing; for it tends to fragmentize and confuse decision and postpone ultimate adjudication to the actual gain of no one. Delay in enforcement was a reason for the reforms of the Federal Trade Commission Act of 1938, of which a chief one was direct and immediate effectiveness of orders where review was not sought and immediate enforcement, on affirmance, of orders brought before the court for review. 15 U.S.C. § 45(c), (g), and (l). Through some mischance this was not carried over in terms to cases under the Sherman Act where the Commission itself sought enforcement, 15 U.S.C. § 21; and we have thought the more ancient law there applicable. F.T.C. v. Herzog, 2 Cir., 150 F.2d 450; cf. F.T.C. v. Standard Brands, 2 Cir., 189 F.2d 510, where there is no discussion of the issue. The Herzog case appears not to have won definitive support outside the circuit and possibly the point deserves reexamination in the light of the cases hereinafter cited.*fn1 But beyond the substantial difference in the statutory wording as to the two forms of proceeding,*fn2 there is a certain logical difference (whatever the practical realities) between the case where the Commission affirmatively seeks action against a delinquent and where a respondent petitions for review, thus affirming the validity of his own conduct and the invalidity of the Commission action. So the cases have consistently ruled that in the latter case the matter is ripe for full decision, and that two bites at the same cherry are not necessary before a violator of a duly affirmed order can be punished.
The cases in support of this proposition are too many and too important to be dismissed on the ground that we think their discussion of the issue perchance inadequate. The principle appears to apply also whether the Commission has cross-petitioned for enforcement, as in the cases cited in Group 1 hereinafter, or whether it has not, as in the cases cited in Group 2. See, e.g., the following cases in Group 1: Elizabeth Arden, Inc. v. F.T.C., 2 Cir., 156 F.2d 132, certiorari denied 331 U.S. 806; Southgate Brokerage Co. v. F.T.C., 4 Cir., 150 F.2d 607, certiorari denied 326 U.S. 774; Modern Marketing Service v. F.T.C., 7 Cir., 149 F.2d 970; Signode Steel Strapping Co. v. F.T.C., 4 Cir., 132 F.2d 48; Webb-Crawford Co. v. F.T.C., 5 Cir., 109 F.2d 268, certiorari denied 310 U.S. 638; Oliver Bros. v. F.T.C., 4 Cir., 102 F.2d 763. And the following cases in Group 2: E. B. Muller & Co. v. F.T.C., 6 Cir., 142 F.2d 511; Quality Bakers of America v. F.T.C., 1 Cir., 114 F.2d 393; Carter Carburetor Corp. v. F.T.C., 8 Cir., 112 F.2d 722; Great Atlantic & Pacific Tea Co. v. F.T.C., 3 Cir., 106 F.2d 667, certiorari denied 308 U.S. 625. Moreover, the Supreme Court itself has granted enforcement under like circumstances, both on cross-petition, F.T.C. v. A. E. Staley Mfg. Co., 324 U.S. 746, 760 (cf. below, A. E. Staley Mfg. Co. v. F.T.C., 7 Cir., 144 F.2d 221, 222), or, so far as appears, without such petition, F.T.C. v. Cement Institute, 33 U.S. 683, 730.
In view of this number and weight of authority, petitioner had indeed hardihood to raise the issue; and our decision herein must promote confusion in view of our earlier rulings.*fn3 At the very least, since the Act is at most ambiguous on our exact point, we have a choice permitting us to follow the cases in the newer and more direct procedure, rather than choosing to tie up commission practice with merely repetitious hearings which can do even the petitioner no good except for the everlasting hope of mischance from a surfeit of judicial proceedings.*fn4 I would deny the petition.