Federal Trade Commission v. International Paper Company, A Corporation, 241 F.2d 372, 2d Cir. (1956)
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Scribd Government DocsFederal Trade Commission v. International Paper Company, A Corporation, 241 F.2d 372, 2d Cir. (1956)
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Scribd Government Docs241 F.
2d 372
FEDERAL TRADE COMMISSION, Petitioner,
v.
INTERNATIONAL PAPER COMPANY, a corporation,
Respondent.
No. 24409.
United States Court of Appeals Second Circuit.
Argued December 14, 1956.
Decided December 14, 1956.
Earl W. Kintner, Gen. Counsel, Robert B. Dawkins, Asst. Gen. Counsel,
John T. Loughlin, Asst. to the Gen. Counsel, James E. Corkey, Atty.,
Washington, D. C., for Federal Trade Commission, petitioner.
Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for
respondent, Theodore Kiendl, George A. Brownell, John F. Rollins, New
York City, and Edward F. Howrey, Washington, D. C., of counsel.
Before SWAN, MEDINA and WATERMAN, Circuit Judges.
PER CURIAM.
When this petition came on for oral argument on December 14, 1956, it was
dismissed from the bench for lack of jurisdiction, with the statement that a
written opinion would be handed down later.
The petition was filed November 27, 1956 and the respondent's answer on
December 11. Without going into greater detail it will suffice to say that the
petition alleges in substance that on November 5, 1956 the stockholders of
International Paper Company, a New York corporation, and the stockholders of
two Missouri corporations, Long-Bell Lumber Corporation and Long-Bell
Lumber Company, voted upon and approved a plan of merger; that on
November 6, 1956 the Federal Trade Commission filed a complaint charging
that International by acquisition of the two Long-Bell companies had violated
section 7 of the amended Clayton Act, 15 U.S.C.A. 18, in that such
acquisition may substantially lessen competition or tend to create a monopoly
as more particularly specified in the complaint; and that if the Commission,
after hearings, should find that section 7 has been violated and should order
International to divest itself of stock and assets acquired, "it will be impossible
to separate the acquired assets from those which are the joint result of the
combined operations and the assets of International," if action contemplated by
the respondent with respect to the acquired companies is allowed to occur. The
prayer for injunctive relief in substance asks that the status quo be maintained
until conclusion of the administrative proceeding.
3
The Clayton Act contains a scheme of dual enforcement. United States v. W. T.
Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303. Section 7 of the
Act, and certain other sections not here relevant, may be enforced either by
cease and desist orders of the Commission, 15 U.S.C.A. 21, or by suits in
equity instituted by the several district attorneys in their respective districts,
under the direction of the Attorney General, 15 U.S.C.A. 25. United States
Alkali Export Ass'n v. United States, 325 U.S. 196, 208, 65 S.Ct. 1120, 89
L.Ed. 1554. Individuals may also have injunctive relief against threatened loss
or damage by a violation of the anti-trust laws under the same conditions and
principles as govern the granting of injunctions by courts of equity, that is to
say, district courts, 15 U.S.C.A. 26. These specific provisions as to who may
seek injunctive relief, and in what courts, imply that the Commission itself is
not authorized to do so. This implication is required by the statutory provisions
of 15 U.S.C.A. 21, under which a court of appeals acquires jurisdiction to
review an order of the Commission only after the administrative proceeding has
been concluded and a transcript of the record therein filed with the court.1 The
Commission's findings of fact, if supported by substantial evidence, are
conclusive upon the court, and if either party shows grounds for adducing
additional evidence, the court may order it to be taken before the Commission.
The Clayton Act clearly recognizes that a court of appeals has no fact finding
powers, and that if an injunction is to be obtained by a United States Attorney
or a private litigant it must be sought in a U. S. District Court under sections 25
or 26 of Title 15, U.S.C.A. Nor did this legislation contemplate applications by
the Commission for interlocutory relief by way of injunction to maintain the
status quo during the pendency of a proceeding before the Commission.
Relying upon Board of Governors of Federal Reserve System v. Transamerica
Corp., 9 Cir., 184 F.2d 311, the Commission argues that authority for it to seek
an injunction here may be implied from the "all writs" section, 28 U. S.C.
1651(a), which authorizes the Courts of Appeals to issue any writ "necessary or
appropriate in aid of their respective jurisdictions." But, since the pattern of
enforcement adopted by the Congress in the Clayton Act makes clear that the
Commission was not intended to have such authority, the "all writs" section
cannot be invoked to circumvent this limitation. And, if the Commission has no
authority to seek an injunction, it is clear we have no power to grant it such
relief. With all due respect to our brethren of the Ninth Circuit, we are therefore
constrained to disagree with the conclusion arrived at in the Transamerica
case. 2
5
Action dismissed.
Notes:
1
Cf. Federal Power Comm. v. Metropolitan Edison Co., 304 U.S. 375, 58 S. Ct.
963, 82 L.Ed. 1408; In re National Labor Relations Board, 304 U.S. 486, 58
S.Ct. 1001, 82 L.Ed. 1482
It may well be that the Third Circuit in the recent Farm Journal case, D. 6388,
also disagreed with the Transamerica case, but, as no opinion was written, the
precise ground on which the Third Circuit refused to grant the requested
injunction does not appear
