Appendix — Federal Trade Commission v. Texaco Inc.

Supreme Court brief1968

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| Sage Got of We aes

Ocrosze Das, 1007

No. 1049

e TRADE Comnatssron, PEITTIONER

55 Tuxaco, Inc., An Tn B. F. ene e 0 .

oy WRIT OF OBRTIORARI TO THB UNITED STATES COURT OF.

"| APPEALS FOR THH DISTRIOT OF COLUMBIA.OIROOIT ——

INDEX: :

Page

Dediiion of 1 court of appeals (July 30, 1964) 8 af

‘ Order of Federal Trade. Commission vacating prior de-

'. , Gision and order and setting mine en remind 33

n on. A VRE TEETIS B 21

Oral argument before Federal Trade “Commision

+ (Jalp BE 4065) i eee. cee ies 3

Opinion of the Commission (January 14, 1966) eo ae *

Final order of the Commission (January 14, 1966). 94

_ Prehearing otipulasion in lieu of prehearing conference, ca

| (April 26; 1006). . . b chide: gl kee vere’ HF

| Order of court of appeals (May 2, 1966). Ams AF: 104

| Decision of the court of appeals (September 25, 1067) 106

| Judgment of the court of —_ (September 25, 1967 ). 121

Order granting oertiorari tha Eis, — —* dees | 122

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et 11 OD 1

Demon or THE Un State = Cover PPR

Mr. Milton ade 2 of ‘the’ bar

New York, pro hac vice, 7

City; with whom ‘Messrs. James O. Su

P. Lorenzen, New York City, were on th e foe ps ot titi

No. 17915. eee eee e.

Mr. Edgar E. Barton, ot the ber ot s Court of N of

New Vork, pro hac vice, by ‘special eve of ‘court, York ©

City, for petitioner in No. 17923. fi Pas

NMI. John P. Doyle, Washington, De; aio entered an .

pearance for petitioner in No. 179 ..

Mr. Alvin L. Berman, Atty, Federal Trade Con amis with

whom Messrs: James Mel. Henderson, Gen. Counsel, and Louis f

Russell Harding, Aude, Federal Trade Commission, were on the

prief, for respondent in Nos. 17915 and 17923. 45

Before nan om Mose amn den he or

— — wont Juden: er

Tengo, Ine. Gormerly The Texes Company) and:Thé R F.

Goodrich Company have filed: separate’ petitions for teview of

an order of the Federal. Trade. Commission which was issued

* 15, e eee cen ee ee

opinion iis ;

On: e 11 oe asa c bre 0 e eee

least as early 8.1980, the Federal ‘Trade Commission issued

a complaint against: the pétitibnéts chiyging'them with violat-

ing Section 5 of oe Fedearl — —ůͤ— Ast, SUS.

845, by engaging i unfarr methods of v en in interstate

3 Specifbaky, dhe Object of the Cunmissidn’s attack -

the iniplenkenbation Bf a contract between the ¹]⁰)⁰

— = aioe into m. 1040 in which ee

— — 0

; 5 2 f

return for a commission to promote the sale of Goodrich tires,

batteries and accessories (TBA) to its thousands of dealers in

its petroleum products It was alleged that Texaco has entered

into a similar tract with Firestone, Tire & Rubber Company.

set 5 76d 5

hated by it.” The 3 Goodrich and Texaco

under the commission gontract „the ¢

Ae ee, BC

1 = Of Si

‘Heechtially, the complaint ab ALL Temes e

~ © $hrough economid pressure, ‘distribtite Goodrich THA and

thus unfairly and. onlawfully. prevents Goodrich’s competitors

1 from gelling TRA to Tera noutlet B 71 Hin ET id 8101

7 Answers by the companies placed the essential allegstibns of

the complaint in issue, after whinh-evitlentiary héaringm were

. Sonduetel over a period bi neatly; three years.) They weresdon- -

-_. puded December 10, 1958. The dxsithiner; in hia initial decision

fesued October 2 , found fh Goddrich hab ——

anythint to ſoree Texaed otutlets to buy ate pr du; th

was neitherchargs nor proof

Texaco to restrain competition; Gad eal ee caaniienionid

by it under the contract were for substantial services rendered

= by Taxnooin prompting theaale of its produeta- Acebedingly the

es initial deticion of: Ocbobér 28, 1950, ditmissed-the complaint :

Against Gondric ttt abo oft to 8 U 26

Wach ene Teese, thé exieminer found that the cantraste

between Pena and im dealers do net déetain any provision

wmanirins the letter 10 purchase oly Goedrich TBA. He said

eo — in based: om: mab

' . 7 a 4 at: . oe . c — 2 7 a wt 4 5 *, ‘ 15 digit AT

Gy AO Beit Be asd ey ieee bor mage Sep eam ee

_ athe dap ir — 5

cient to foros ita dealers ta reser ee 3

~ ‘The exantiner found however tag? at dont ed f

21 4 é 3 ae. Ff. ae bg gs a WhO

(Jo <5. Lscragjaba: Bai ces /

NN to, this, the examiner's initial decision of October 23,

1959, ordered, Tego to aasep and desist from oogreing its deal-

| — — 6

85 Wie

Commission did nat aqt on the initial deeision o£ O¢taber 28,

1959, until March 9, 4961, On that day it handed down an opin-

fon. in, which r ee eee

Goodrich but also ound

N e that Ness haf ui mekent essen power

over its wholesale and retail petroleum distributors to

caüss them to purchase substantial anus OF spon-

a eee ee e ee eee

* 1215 4

| Proceeding | boch ies epi that, Texineo had oontroliig

economic power over its dealers, “even eee use of overt

| ies,” the Commission said.

e e the detéemination xf whether Lees erer.

P oleae Sindee whe sane Cua tal Weearonepet ;

aithough-five other former dealers and-54 active lers exited by Texaco

9 aaa ase naman Decarammeraam atlas Ces —

ut such . coi 2 5 , . 2

eee air ture ob ma equally ily fective,

4595 ate ebe i thie iets dba hen, i tbe éeatity orf per-

‘I tioular method of disttibuting TBA used by reepdndente.

‘A key fact in Harney competitive effects of te-

: — TBA Manes may use. Whether the Sales

commission . between Firestone: and Texaco

and Goodrich and Texacb ure unlawful must depend,

therefore, upbn the characteristies and the competitive

offscte of these sales commission ‘agreements. For reasons

vet forth hereinafter, we conclude that this case must be

remanded in order that market data may be introduced

to show the competitive effects of Texaco’s sales commis-

sion, agreements. with Goodrich and Firestone upon

competing suppliers of he nr eee at

the manufacturing wholesale and retail lev *

„ Having thus conclided that the legality’ of the 9 7 com-

mission agreements depends upon “the “hinracterigtite* and

the ‘competitive effects” of 2 ee: ‘the sCuaneniattion

closed its opinion by saying:

0 _: “However, the Net k in ea case ddl 866 contain

„este OE the sales commission “contracts at the:1 wann

: a JU be 7 — 4% illi «6 5 en. ee Mas ry

— e Yt 7 ity Peet ned

Tue “charanteristies” othe aerements were of cones fay — 0

the Galen whe r b .

. —

dedision was flled by the

power over “ita dealers to, cause. them, to..purchase,

amounts of sponsored. TBA, even, without he, ubs cf cer:

tactics. He concluded that orf H ats

— loser 189 tov sssehaasbennd AMO

4 hearing examiner under the terms of the Commissions —

“opinion and order al ren and, is the somipetitive ee

+ of tie sales, aun een plan used by” Goer wits :

The Texas’ . ther ‘Texaco’s'exerdine of

: : in fa Oe Gre tar Pie.

commission eontrabts have Sufi.

ect to constitute an unfair method :

The examiner mar of the “only issue left lor lu ba.

sideration” by concluding: that en f

Mis e bak e.

The use of the sales commision. plan ‘of distribution

of TBA by the respondents, The Tesag Company. and 7

The B. F. Goodrich Company as herein found, has

tendency and capacity to res its eee

petition in the sale of TBA, products itute

unfair method of competition opel a0 aI ‘et and

5 practice in commerce within the intent and | meaning of

: Section 5 of the Federal Trade Commission Act”; 0

n Ge e C8 antage of e

nomie control whith Teraeg had over ite ds fers, and

ee. oe 6 ,

— a ao sian veer ll

idle . ——

at from chen m. De new and

111 tablished Texseo, dy dauging them 10 purehase

2 1 91 mich a vi Bad 5 4 J

, Babghentigh nander of quch: Lexang dealern n

‘Aldhough ius mild the fret tänte demised Gossrich, and had

merely dered Teneo to ease and dedist ont the ecererve

practices he had found from the testimony of five ex-deatérs,

this time the examiner entered a broad order us to both respond-

. ents: He ordered Texaco to ceane and desist from entering into

: „5775788. ansepeter mpeior o

veives anything of value in connection with the le of TBA to

ita dealers. The examiner ordered Goodrich to cease and desist

froma operating, under ita dontract with Texaco and prohibited

it froma entering into a similar contract with eme meer.

—. 4 * of) “tie 86 . 10 11017 *

Ze W 2 of March on 961. B,wagenterd by « Com-

n Kin and Commissioners

„„ mmissi

f . ne

uber of tt Oe of the sets of the 1

ird he hab fey hort ine od

eee 2

Seierdingto< prerelease nied tae ty us Contin ae 0

2 Te er- let ae r es ne

#4, 2 72

8 6

a! Betitien Mo righ N

ola r by

tte Robinson-Putman Act) and other ‘unfair’ uta, prao-

tides, and methods i 2 by the

| Federal Trade Commission At.

e vb 0d er her

Goodrich, and Firestone. ajax

| * SiO eee 20 G

W il es bee h fei leone de Comm

mission; some have been decided by the Commission

and are in the courts on appeal. You; may be sure that

the Commission will continue and, to the extent that

inoreased funds and efficiency permit, will mcrease its

efforts to promote fair competition in your industry.”

The Commission denied the motion that it determine Chair-

man Dizon to be disqualified, and he declined to withdraw from

: Instead, he teok part in the entry of the order of

1963, more than two years after the remand, which

| the exathiner’s initial decision and order of Septem-

7 74005 whieh, as we have seen, was adverse to Texaco and

Goodrich’ and which is now under review. Before turning to the

question whether the order of April 15, 1963, was tupported |

by thie’ Héootd, we consider the propriety af Chairman Dixon's

in that

n "Will & C v. Securities and Exchange Comm’n,

2g, ce ee Ae Commission, three days after

r ia

95 \

In this Case, a disinterested reader of Chairman Dixon's

Speech could hardly fa le N

measure decided in advance that Texaco had violated the Act.

e, e, br, Ain administrative hearing of such impor-

not only with every element of fairness but with the very

z rn 4 7

abpearance of complete fairness. Only thus can the

12 sua

the

i Conducting a quasi-adjudicatory: proceeding

the basic requirement of due process.” |. =

. §

important as that in the Amos Treat case, and haa perhaps

Wen greater, potential consequences. We conclude’ that Chair-

man Dixon’s participation in the hearing amounted in the

‘cumstances to @ denial of due process which invalidated the

eview. If that were the only infirmity in the order,

eine to remiand the ses to the Coramission

npbo Fousiderstion in which Chairman Dixon does not

ius CoE carey made helore the matter was sub-

n but while it was before the examines,

istrative hearing in the présent ease was certainly,

idy coneluded that Texaco and:

tee Board's view." Universal ches ers N VL. R. B., 340 TS.

474, 487-8, e 1 Viewed in

th way we are convinced ' that. the order | ae ia :

not supported by substantial évidence on th aban pe 1 as a whole ‘ke

a eee e , ei d the ae

decision and order: of | September

ification. In it, the or

RED EIR RA LUE Cahoon a

“matters officially noticed ‘by the examiner on | remand

were improperly admitted both because they are in-

appropriate objects for official notiee and because re-

-spondents were afforded mnaddoquate opportunity: to

rebut them.

At is not necessary to pass upon ‘the correctness of

these contentions, since the Commission excludes from

its present decision any reliance upon the challenged

evidence. It finds that the other.\evitlence of record

„ amply supports the 5 the order of the

hearing examiner. The legal principles relevant to this a

decision need not be reexamined here because they are .

. set forth at length: in the opinions of the Commission

- in Goodyear Tire & Rubber Co., et al., Docket 6486;

March 9, 1961; and Firestone Tire & Rubber Co, et al., |

Docket 6487, March 9, ; eR Ae

N Thus j in ifs sideration of the: reviséd initial ‘dedi: and

order, the Co: n expressly disclaimed any reliance upon

the evidence in ms after remand, and held that the evi-

' dence or record 'yefore the remand “amply supports the con-

clugions, and order of the hearing examiner. This was the

same record which the Commission on March 9, 1961, had said

“does not contain sufficient market data to enable the Com-

mission to assess the competitive effects of the sales ion

method of distributing TBA employed: by these respond ts.“

But, in successfully resisting an action in the District Court

by Texaco and Goodrich ‘to enjoin the remand, the new Com-

mission contended. that it “needed additional evidence.in order

ees _se-deside the iaques presented.” It asserted. that the opinion of

‘ R ðVv d my ehéreen, the

b only membexsof the Commission a4 constituted on April 18, 1968, who had

participated in the remand ot March 9, 1961, did not coricar “for the reason

. ˙ n e teat

een e e. * oF

~ .

yan? sicher 7

mer Com oe Lever |

. the ker. did. not an süch a the petitioners

_ in-viokntiowof iret hen Commission Act

ow the: begis of that’ redérd. It adopted the examiners’ revised

order prohibited Goodrich from entering intd sales com-

mission eee with Ternéb or any other marketing oil

oompaty, atid prohibited Tex froth entering in to such agree-

ments with Goodrich or any other rubber“ company or tire

‘manufacturer, er aay e, bun Ot ° ‘ties, batteries or

sevsesories, 11 10155 10 ,

= dee al il in a hs posi-

nent fires; k vigorously: assertéd (as the former COimission

ö remanded the procseding) that it could not

d against the ‘petitioners ‘without, additional evidente as to

_ ‘the competitive effects’ of the sales oo 1 dontracts; then,

2 —— A e 1 the Lan d any

W opel Pinon 51 r

site conclusions from thie same record as to whether unfair

ee er ata on eee their wees been

3 1 — ——ũ war yartetun ey

eee

0 7 * —

3% r. CFE oy

ee as

~ 7 — ae

5 no ate

ug ;

Vera wo 27 Pas 72 . 2 N. 5 :

PY, (3 . 8 Abs 1 4 = TS

a 2 set Riu, Oe aM / .

pier 2 * eta Fe vite N „

as a whole ee fein: x 0 sion, The 2

it ot velo is ee

ee wn from the can between, We aud -

5 er has 8 325 At economic power over.

thé latter to force et to pi 2 vole sponsored TRA. And

it did not say. (for aah rook, . could

in W e 70 8 P

cont tinge pati mje oie? * nal at! A

sion found. Indeed e ee a fi tha

; policy, announced to all its salesmen cee

is that it thas heither. ‘the right nor. 4 mae to. e

dealer or to influences him he peo mer.

chan ndise e 0 wig ; pend

Lesh itt

without the nde of cometre neee or

sg ns No. 6.15 the ee

= a e sale eM ende Wha! on Chath

7 THA 3 „

fact that Texaco.is 6 nt corporation the dealers are in

| A e 15 ee

e, the evi is to the contrary, We hold, therefore, that

45 W erred in concluding that Texaco has sufficient

en Ne Wes te oe ook ‘without the use of coercive

cause. them to buy substantial quantities of Good-

rich TBA: We have already noted that the Commission did not

find coercive tactics had been used, and that the record as a

whole demonstrates the oontrar.

From its, unwarranted assumption ‘that Texaco had such

economic power, the Commission, proceeded to the conetusion

that the question whether the exercise of that power in Good-

rich's behalf amounts to an unfair method of competition de-

_ pends on the “competitive effects” of the sales commission

agreements. It said that Texaco’s controlling economic power

is a “Key f vin evaluating the competitive effects of the sales

commission contracts. Thus, the Commission itself said that

the supposed need to examine the “competitive effects was

due entirely to its conclusion that Texaco not only had, but

-. exercised, controlling economic power over its dealers without

using coercive tactics. This conclusion was indeed the keystone

of the Commission’s ‘ultimate decision, without which it can-

not stand. That being’ true, our holding that there is not a sub-

stantial evidentiary basis in the record for the Commission’s

assumption that Texaco had and exercised coercive economic

power causes its conclusion based thereon to collapse.

The Commission 8 ‘sweeping * order not only condemned the

: ontract, but also held illégal any sales com-

gement be ween an oil marketing company and

a TBA supplier. This either attributes to all such oil companies

inherent controlling economic power over their dealers, or im-

E arrangements. Our view is

must be sub r sire the

Nets . An oil

I businessmen cannot bo said to demonstrate oon -

nog ie power over the latter, particularly when, as

ir “ge eee Biry

——

commission for doing 20, in srs nheomapatible Raab tas rima

business of selling petroleum products. ‘The dealers; at saat i

the situation here involved, are quite free to accept’ ei rad

the recommendation, and to handlé u different line if the ey think

it would be more acceptable to their- customers: a

Tine Comminion's oad vecer:prokibao seisnsala cihpote

sorship of TBA sales to oil marketing man yi dealers only

when the company receives compensation for the sponsorship.

The vice found by the Commission in the arrangement seems

therefore to be the payment of commissions. Yet the Commis-

sion adopted the findings of the examiner which described in

detail the services performed by Texaco under its contract with }

Goodrich and also adopted . nejusion that 75221

“The consideration for the payment aie a commission

to Texas. under the sales commission contract is based

upon substantial services rendered by Texas in promot-

a ing the sale of Goodrich ‘TRA: ‘Temsen:tledlets ‘and

distributors.”

We see nothing illegal or even uniethieal in the paymeiit of

commissions for such services, except in instances where an oil

marketing company forces its dealers through coercive tactics

or controlling economic power to bux, the sponsored. products.

Neither of those influences was proved in this case, and it may

not be presumed that either will ‘exist in futare | similar

situations.

After four years of prelininary investigalivg’ followed by

eight years of litigation, including/the remand for additional

evidence said to have been necessary but never used, the Com-

mission has not been able to show illegality in the ‘Texaco-

Goodrich contract of 1940. During that long period, the com-

panies necessarily have devoted much time and money to their

defense. Although the Commission must be allowed consider-

able leeway in developing a record, its efforts in this.case— .

fruitless after 4 dozen years have exceeded permissible limits

and have had unreasonably: harassing and oppressive. effects

upon the companies under attack. Because the Commissions

drastie orders are not supported by the record as a Whole and

because of the undue protraction of the administrative proc-

ess, we are of the opinion that this long drawn out proveeding

should now be terminated. Accordingly, the order under review

will be set aside, and the.matter will be remanded. to the Com- 3

mission with instructions to. ag the *

104

MUO GOR r ai names

ii Waseunrgron ,. Cireuit. Judge (concurring in

denting in pert}: sail cole: via lorie. J

Aire with: the maiority that

der ene she ore delays, E would remand fos fur,

| calth an Dixon's conduct, 1 would add

"only this. Federal Trace issionets, ‘like other adjudica-

on * *.* chilb and distant beige; and we shall not help

the cause of truth by acting and speaking as if they do.” * We

do not equate impartiality with utter indifference. A judge does

not deny litiganta a fair hearing by sitting in a case “after he

had expressed an opinion as to whether rertain types of con-

duct were prohibited hy law.” We dos not expect a Trade

Commissioner to be neutral on anti monopoly poliai ex

A fair hearing is denied, however, if the administrative judge;

prior to examining the evidence and findings, has indicated his

belief that named individuals er firme are violating the statute,

and the “guilt” or innocenes' of such parties depends on cer-

is part cannot restore sqpresumption of irepartiality:

wae in faet dénédis not the ie; ah adminis~

1 Bast De Nei ue mes. K nan 7 3380 ** i

SHED) takice tntist sistiaty the ee Ol7utt V United States, ee |

845 U. 8. 11, 14, O M. 18; 98 E D 21 J

* 17 10 also a

m. ele ar er Ben t Ms

2 St tie! capty weppitires eanieamin eal

ie:

rele-

eee meres bem Ser

are hi: inn thd

Goodyear Tire &. Rudder C * roa Firestone’ Tut

_ Rubber: Oe: 9 % Oper 105 eokt i Tt te’ ien

-Bection' 8(b) of this adm strübbee Prédediire Act; SUBIC:

11007 (0) (1958), provides in part tit all decisions Wh

inchide u statement of (2) findings ‘and conclusions, * n

Og 2 beret 91 Fite sa fy 1 ‘

“T@illigon, Wil end. Co. sleet and Bchon erer

* .

5 Trede ae comin, Sse

the order of the Hearing Examiner: ‘The — er —

me eue N. oe a, tye ames

W atta! . In . T. an GiB ei

76! tn te bo 29) EA 11 14 S re

vane 6

ns reasons basis heer, pon, all the material issues of

al . —— * meat ofthe Intra

- cently, get asi 2 i

e een the ground that—

There are no fin tnd no analysis here to n

ade, no of the basis on which the

„ ission exercised its expert disoretion. We are not

prepared to and the Administrative Procedure Act will

pe ngt permit us to act such adjudieatory practice.” * :

he mere citétion of earlier ‘opinidhs ‘dies not provide a

sufficient basis to understand and evaltiate ne ‘Comimission’s

decision on the facts of this ease. There are a variety’ of of facts

and findings relied on by the Commission in the Guody#or and

Firestone cases whieh cannot be readily assumed here: ‘For ex-

ample, het “Atlante ber ba ee

found that “A dealers ve orally advised by sales

officials of the oil co y that their continued status as Atlan-

tic dealers and lessees will bein jeopardy if they do not purchase

sufficient quantities of sponsored TBA.“ In Firestone the

Commission pointed to internal memoranda of the Shell Oil

Company to support the eonelusion of, coercion, In both cases

the Commission purported. to make an examination of: the

competitive effects of the sales commission plan, aaying, “Deter-

mination of illegality in this context requires an evaluation of

competitive effects resulting from respondents’ use of the sales

commission.method of distributing TBA,” Je and, in pursuing

an alternative theory of a tie-in: arrangement, purported to

make — on — and Shell’s economic Power in che

yes:

— a cna and did not affirm ‘the ‘findings of actual

irthe ‘evidence on Yeomapetitive effects: : oer. treats *

n thik. SAO ent, ed fit takai’ Ade

. ret 75 * t enable the Commission: to a me the

—— u aste, aut, 40 tent Ma ei n ex N

; — ‘Preck Lines 7. ee 118. o

e 200, 842 (1961): . sors. „r 0

e eee (A801) 1 “aistipier, ree 268 31 1

accounted tor about 54% of the total gasoline bold at: n the United States

Zi Firestone accounted for

15.8% and Goodyear 21.4%

total replacement tire a

düstributing TBA empl i. bau dhe respandente, Par:

IEmphaeis supplied.) Yount? a ant e Pe 2

on April 16} 1963, ‘the : Comimii : reviewing he. Hering

‘Examiner’s ‘remand’ decision; af his conclusions of s

statutory violation, even tho 8 from considera-

tion any new evidence add 8

Goodyear and Firestone cases, oven the Commission had

previously declined to find 8 violation on this regord, when it

remanded. sinjultaneously:with.iteformuletion and application

won bed, partoeted tn th ener eee end . te

participated in the earlier decisions and was on the

These consideratio the

whole, fails to support s finding.of a Section 5 violation, under

a proper interpretation of that section, but that, the, Co

_ gion failed to perform ite function of articulating the

and spelling out its theories. The Commission’s decision falls

short of the, standards required. for, judicial review, for. we are

unable to discern with a fair degree of certainty:the facts or

the theories relied on below.“ Under the circumstances, we

chould express no opinion on the merits. rab

In my view, we should hold simply that a ebant e know

why.» Commission acted in order to fulfill the function of

judicial review (Secretary of Agriculture v. United States, 347

U.S. 645, 748. Ct. 826, 98 L. Ed. 1015 C968) a thet bee

nessmen and other parties subject to administra tive regulation

are entitled ta an explanation of their duties and obligations.

Thus, even in the absence of the disqualification issue, we

would—in:my’view—find it necessary to remand for à proper

opinion. See Radio Station KVH Co. v. Federal Communica-_

tions Commission, 101, US. App. D.C. 164, 247 F. 2d 570 (1957).

"myn tar and Firestone the Comimission considefed such “competi-

tire effects” as division of markets between manufacturers, foreclosure of

ges, 6, — Commerce ener, Mechling, 330 Ua 867, @7

Ot. 804, 91 L. Ed. 1102 ( acest 4 Power Oo. v. Federal

Rau dent.! $34 U d or 7 W gehen

70 Por resse giver, dee ep nal Asen

order Bitit wald ni it ih Co ae

argued by ts parties. The Comilidon GAA ease ict

to prodice’s new opinion within a reasonable ee,

r acres tore pi eh at

STON ALUMS CHCl 26 1. * ON iv 7 155

mish sa ha geg 1 ar nh, det e ound pes

en the merits,’ the majority’ has done 80. Under the ctretm-

antes, I ann one te e thut in my vew te ?-

jority’s coticlasion Mat —— — 0 07 a

dotbtful. "Phe ricia) failing, athe does view, ie lack |

mberenthy ez, Bimpson v. Union Oil my

of —ͤ— . 11 848. Ol 1051, raat 20 98

tor the

Of Natron, ö

Ba 40011058) (rane, 41

Corps i 121

ahd 1 option OF the

6 . v. Federal

seta nly Tees Oe te, eee. }

02 A . ̃ — ——

“OD genteries = ‘éhodiraging ite salesmen ‘to write Bponsored

* TBA ordern without awaiting formal dealer request

110 —— BFG or Firestone salesmen (‘dou-

— sete BPG and retone patil

oO) Pakion 4: arranging ‘participating in an

Firestone advertising and promotions; and ‘permitting

—— its credit cards. Texaco

training schools are conducted at company-owned serv-

ice stations where only BFG or Firestone TBA is used.

mae

Thus, I suggest that it may well be the record as a whole

would support findings of both the existence and the utilization

of coercive economic power by Texaco over its dealers. Were

we reviewing the Hearing Examiner’s findings, and formulating

the appropriate legal theory in the first instance, I suggest that :

: we might also properly conclude that there was sufficient evi-

See I violation

tregdent dealer méetinigs af i!

——— nn 5 : orn

| what' faots ‘and

Bus aside: fromthe ace ich an, ee would be less

Aween eee it would not be p

in ais case Because of Chairman Dion's dnqualfying vont.

The delay in this case are serious But T'would not termi-

date the proceedings bebause of em! The public’ interest in

effective ‘competition’ eee

‘Texaso’s aroma yb eg et gov a i ei

, auitd-contpetitive otto necessary to 8

7 x

F. F than does Section 5 of the

Fro Act), sce u. Northern Pacific Rathoay Oo. v. United: States, 856 U.S.

. on ant —

8e Oo 1 ee 8g 8e 2 l. & 2 W f. DL 20

r e N. eme ene OC's

— a

4 etmatlar to those of the

0 Unison ur 2 tie in tl Wen G

instant ease, ue Os born v. — — #, 2d 882 (4th Cir.

. eee

ot dealer use not seem.to require a

leren ‘Td. at 888 Bee, also, the decision of the Seventh Circuit, in

en appeal front apardilal decision of the Federal ‘Trade:Co:mmission relied on

. below; Goodye: e Oe tl Pee POH 1881 F. *

IA e a Facey

ay 4 ; * 1 (ryt 4

15 x i 1. ‘ ;

on 75 „ * N ? 15 6 i fe

} — 2 N 5

vet * i oe „ «

1 1 ¢ * * e 1 Hy

. * “«

„ . * . 2 * 5

e 1 er 11 Re 4 17

* *. os »

s t 1

N ‘ 9 J 5

1 * ty 8 $ ~

a neds eft ct | 4 oye

4 eX gg res : Ri ‘

’ „ ; tuys } #2 5 5 4 RES a

aut N. * > ‘ . 4

95 An. * * te ame

5 * N * SG 8 7 Aer —.

1 NIN Let bh ali ye Od, ri 39 2

A Pde 9 17 1 N * I

N 4 . b 8 *

«| . 88

mL £ — * 2 t i 95 183 61

cathe 4 es . . 3

— ah. N 3 5

+. 2. why * * <= 4 4. fe. 3 4 $ } * é

4 * 7 te

; 8 . 3 ‘i

. . Wa * Bert cf tr

ohh P> BHD a TAT 0 >

: aay 8 ;

* . 1 :

: \

* 1 0

W. }

sear >. Sey *

theory Bit inc en i thie Om.

1c the Sherman Act (which generally ae

Ona vagen Ton 0

ral

1" i.

Solis a bann

eee e a eared ng 2401. 0

° j

miei . bere) oy

nde il Rs nd Dix Di 2 i ai ha Jest "3 Ue SER ES eRe Ee RIO O12 -

£4 te” fix (4 83413

ee ö .

John R. Reill7

Mary Gardiner: Jones

— 640

In dhe Matter ay :

* i B. F. GoobRICR Company

ml iy

—

THE TEXAS ComPany, CORPORATIONS

5 5

3 ay bad wel 4 9 2. jue done tot om

fii oa ei e aa alt N. ped ae

a4.

97711 ern

ope tte ‘3+ 4

45 vais 4

6 Rian”

On June 7, 1965, the 8 Court: vacated the . a 1

had set aside the Commission 's order to cease and desist entered

in the above-captioned proceeding, and remanded the case to

that court. with instructions to remand it immediately to the

Federal Trade Commission for further proceedings, without the

participation of Chairman Dixon, in light of Atlantic Refining

Co. v. Federal Trade Comm’n, —— U.S, —— (1965).” Pur-

suant to the mandate of the Supreme Court, the Court of Ap-

peals on June 16, 1965, remanded the case to the Commission.

In accordance with the directions of the gr Court _

- the Court of Appeals,

It is ordered that: ine’ \

(1) The Commission's decision and ele of April 15, 1963, —

in which anger — ame n be, and it hereby i ie

vacated... ve

193141 (2) The n from the hearing examiner’

N decision of September 24, 1962, are set down 8

See, generally, Note, Judicial Acceleration of the Adminis

(1968). to Relief — stained Protracted ee 72

(1968)

Process:

az L. J. *

the Court of Appeals for the District of Columbia Cirouit which 5

—

= 2

meni op Al & 1085, 9% 2100 pm. in R= 82201 the Federal

Commission ;

‘ +o: gg eee 3

utes allowed for each side, All of law and f

. sented by the appeals will bo ec by the zh On

— Cin eo

; argument most, useful if al a 2

question whether the facta c tht the presen 8 it cae

within ho Spree Cour don nh Aan d

Co. case,

atl

(3) Both sides may submit supplemental briefs w with respect

to the issues involved in the appeals, provided that « such briefs

are filed no later than August 9, 1905.

By the Commission, Commusaioners Dixon and’ MacIntyre

not E f

Fa 5

Yop pean’) 1 Josnen W. Sua,

r 0 cont Secretary.

Iaoued: June 18, 1965

| 55

| Ou Anse Bo .——

ia fans oF

(9476): NE! ‘shan Ait Gu 19655 le HLS 2111 193 20 ali”

R 1 « „enen en meat 217

Abe cy fot pir! Saher tere: AVY (ETB ed 1A with pig 131 alt 1 tO

7 ; ; . *

7 a Py 4 7

Nin Cen

q +:

„ 2 *

— , . 1 K $ 91514

t! by Se Orel Wt. 1441

N wad abil ht

2 ; boa No. CABS GHH A bas a5

ac Melt: : 62 Fi ‘ ° .

8 . 76 >} be ifs EGS ETE

| the Matter of 5

TN B. F. . a obéporation

‘Texaco, Inc, Gunmen the Tense een n corporation

—

ier od Be al ce Re

1 raat et Uns gamer ti pote

July „1965. sc

_ Met, pursuant to notice, at 3:00 p.m.

Héfore:' ' 139 3 Weipa 3 . |

E Mi he 44 ’

Jon R. Runax, Member e : 0 tel, 5

e eee bee Member; is

Ap Aen * a | . Ft tf FD

Miro am Attorney. for Respondent Texaco,

EZ Banton, ‘Attorney for hem F. Good-

Pa Jag e ‘itorney bith He Trade en

mission,

194771 The

Federal Trade See 8278 Commision is now in session.

pen ot yemand

pany,

| to each side, 3 ö h

Mr. Peter Dias is appesiriiig

ents. " SA TS EE x ae

Have you agreed on the division of time, Mr. Handler?

Ar. Handle Yoo You Had taney

Oral Argument. of Milton Handler on Behalf of Respondent

3 Taxaco, Inc.

Mr. Handler: May it please the Commission; in focusing on

the question posed by Vour Honor's order, I propose, first, to

analyze the Supreme Court’s ruling in Atlantic, with emphasis

on its precise ratio decidendi, and then to review the pertinent

facts of record in the present ease, to show that they do not

fall within the condemnatory rules laid down by the Supreme

I wish to emphasize at the outset that not a single [9478]

operative fact which resulted in the invalidation of the At-

_lantie-Goodyear sales commission plan has been proved against

Texaco and Goodrich, from which it follows that these proceed-

1 missed ; qWartittsif Lae Pes SC j

> 2 ings should be i

What is it that was held et es me 1

The Supreme Court took pains to make clear tliat it did not

regard the sales commission plan as per se unlawful. Indeed, the

Solicitor General expressly disclaimed on all [sic] argument

„It is the oi] company’s power atid ‘overt acts towards

89 555 e eng ari

in 3 fi ex cet BE 0G ye 795 * ae hse ovis

to buy the sponsored TBA with den titi

a effects. 202! 0 411. .

F220 deiled Use vate

| completely removed hy pat of the onion dealing wit

the matter of relief. : i e SEO |

Dee eben mr

be no question of the propriety of forbidding stich plans;'and , -

pret nh td 3

er 2 * Cr

But the whole Point of part 5 was to justify the breadth

of the order precisely because it was not limited to the ane

held unlawful, to wit, the coercive use of the plan.

Atlantic had strenuously urged that the gtder should enjoin

only the use of overt: coercive tacties. This argument was re-

jeoted- not because noncoertive use of the plan was itself a

violation of law—it was rejected. because of a settled principle

of administrative law that permits an agéncy to forbid lawful

oonduet which it-deems necessary for effective relief. i

” Justice Clark makes this point abundantly cleat on page 14

opionion that to enjoin the. use of overt coercive ‘guation was

_ insufficient: We think it was justified in this conclusion, The

long existence of the plan itself; coupled with the eoereive acts

practiced by the Atlantic Company pursuant to it, warranted

[9480] a decision to i more.” And I underscore ‘the words

to require more..

When all you do is ‘forbid the unlawful conduet, you .

ously are not requiring more. at 0

It is quite sign d 1 do not know whether Your

Honors are,familiar with, transcript of the oral argument before

- . thie United States Supreme Court—it is quite significant that on

oral argument, when closely questioned by various members of

the Supreme Court, Government counsel. was explicit that the

Government was not claiming the sales commission arrange-

ment 8 was mst ge: unlawful, that it was not nee the

al — noted alee einen 525110 = 82, 56

Serben 65 of ‘the transcript of the aral ergument, before the

i ae as.agked to, find the Atlantio-Goodye

7 W. ear

ale commission, agreement, unlawful, because of the coareian, -

aie — 98 Two the posses-

sion and exercise. of economic Per, over dealers to force them

do purchase the sponsored TB TBA. Three —antieompetitive effect.

„ is noteworthy chat on each of these three three aategpries of

here.. rity

Limite Your Honors io eg with me'the Supreme Court’

deseriptian of, Atlantic s coercive. tactic at page 8 of the slip

opinion, the second full paragraph, just/-sbeve the Raman

Numeral II. Ye IB eer igs

ae 5 “The Comission stressed the opidense hom that

Atlantib dealers have been orilly’ advised by sales offi-

cials of the oil compan, that their ‘continued status us

1105 „ e ho of ompany th be in jeo they

a bee eee ais ae f e fe, titer,

0 ber inte nd ni oti ne

to ** ie pt ry 115 199 1 =

Nee „na cotarbiuas't

Mr. Handler: 80, per dens ol the dealers hy namber

one dollar or more of the sponsored TBA. 20 per cent, ber

ber, 1 nenen mes bo

Your Honors— . 1 on

.; Commissioner Reilly: Nr. ‘Handler, what about tha oondlu-

sion, of dhe Hearing Bxnminer-ntheeonclusion of the Hearing

Examinerota the effect ‘Texaod dealers did induee 104831

the parehage of Den Ahrouth eperdion? ?)?)

Mr. Handler: That Siding was never affirmed by: the prior

_ Commissions that satten this matter, and as I will demonstrate

in 2. minute, the Court: of Appeals, after serutinizintz this reo-

ord, caane to the eanelusion that i a RR

on sabetantiveevidenes supporting.that conclusion:

AI can say is that the Examiner was completely Wrong.

Now, Vour eee bites — —

had bean ed, acd that he rood aa whe dean he

aids eis of serve tintin vm ven proved in an,

base p. 708. ct eels 25 Sutayba Woe tet 810

the independence of the dealers,’

whelmingly Leaps ioe )

9 inet

(9484) “iin other words, the bet Odtirt of nppienle was tit 7

relying merely upon a paper declarstion of poliey—it was red |

ing upon the proofs in this record ‘that the the practice of Tees

pees ye e sve Jeet

exacn’s to bir re

the recommendation and to haddle & different line if they think

it would be tare sesoptable to thir ace Page c

I could stop here on thé issue oféoercion,:but thervare'addi- -

tional facta which I believe you wald want me to cf do your

attention. 99 290 AAP

— Ehmnan: Mr. Handler; b are not arguing

that we are precluded from finding that dull coercive tactics

were used.

Mr. Handler: No. This record is béford'jou, and you ate free

to makb those findings comaporting with the requirementa of

the —B Prodsduss Act; lind the devisions'of ti

courte—namely; the findings must be by reliable,

substantiakevidence, taking the reoord ss a w. ole

‘Commissioner Eman: But you recognise that the Supreme

Court ‘and:the Commission itself have in effect wiped the slate

clean, 60 far as the prior rulings are eoneerned—s majority of

. forthe ‘first time this’ record, de

Mr. Handler: It Your Heng will péemtt tnd; m5 1 10485)

restate what I said with! slight: amendment. Tou are free,

under the mandate of thé Supreme Court, to the Grouit Court

of Appeals ‘and the mandate of the. Court of Appeals

to you to m ππνπj,jũ this record in light of the Atlantio ese

$s VVV

— Yer aud if the facts do not support md e

woul? support finditg of cobreiem t 1) bab Paau ed Dal

Now, let me bring to your atten 5 ‘hein oni

“a

coercion: matier in addition t0 the referenses that T md io.

the opinions of the Court of Appeals. Ma PUES

Firet—and I do not believe that you knew about this; and a

‘hence I am taking the time to call it to your attention. Counsél ;

for the Commission at the trial, at Joint Appendix 23538-that

is the printed record specifically diselaimed that he was

charging respondents with ooercion. This was towards the end

of the trial. He solemnly asserted this to the Hearing Examiner.

_ Second—the Commission, on the first appeal, unlike what it

did in Atlantic and Shell, did not make an explicit: finding of

coercion in this case. The findings, when you ‘examine these

ere eee soto a gs res pie pce e

BO.

19486] Thitd, dene io one additional fant: whidy'P dais 60

advert to. Texaco has 38,000 dealers. If any of them had been

required against his will to handle the sponsored TBA, there

should have been no difficulty in obtaining such evidende. Not

a single dealer was called to the stand to give sueli evidence.

- Buti respondents put plenty of dealers on who gave the con-

trary evidence—that they were not coerced and they were not

required to handle the sponsored’ TBA, es ey

free to handle any products they sew St: a tgs 2

. — —

cont out questionnaires to determine whether the dealers were

forced to handle Goodrich and Firestone TBA. How do we

know this? We know this because a Texaco distributor received

one such questionnaire. The questionnaire plus the distribu-

te- s answer wag introduted into evidence by Texaco.

e moved for a disclosure of alf tlie answers to the ques-

r stastd sso-ntnke: thie tatenaia .

, e eee ee 31 of HHH ,

“ . iwhty, Ocmarniesiéy'cowtsel) being

possessed of the facts negating epercion; ‘expressly disclaimed —

before the Examiner: ang claim of. coercion’ against Teraoo.

Anti I refer to that doit. Appendix, JAX: 429; where Your

Hondrs will find the tert of ‘the letter written by Cotnmission

pounsel to various Texaco distributors and dealers —Specifcally

asking them whether they were foreed to handle TBA. And

Wau Honors) 9487] know that if He had received favorable |

responses, he would put nnn

give wach testimony. This he did neon rofbash «ll

«1 Now, the, mecond factual ares, stteseed ‘in: the Supreme

Court 's opinion is the posiessign and exercise. of ¢oomomic

— — dealers to 1 — deere wee

Rol e Mi on 1.2 in .

— Elman: Mr, Handler; am Lime in thinks

ing that 38 to your. first point, about_coercion, when you use :

the word fevencion’’ -you sxe thinking of what the Supreme

Court on page.J0 of the slip opinion, characterised as tates

and aver threate.of peprienbr-that, kind of orion? 91100

M. Handler] mean eoersion in the legal sense, yes...

— ‘Commissioner Riman: Ia a strict laghl ih ol

Mx. Handler: That is corrnet. ip wus αννονôñp̊ g or:

Commissioner Elman: Not the kind of utilization of coercive

| superior, ohm power dial een ‘thel’ton¢urring

opinie 0649 Yo 7128-41 e495!) O00.28 val o

"Met, Kisodlen:, aril qi fsitthee. J: dink cemognipe an die

tinetion: between that which is oer and that which’ is not

evercive. But I do recognize that cbertive tactics dan be ex-

mee beet You age Spey eerie Seat

a eourse of oonduet ! 91909 tort 9% Hubi Yes

here is no evidence f „

or however you define it. n nus vrenιπ¹bονe u ofhaad oi oort °

: 25255———

Danis ods ind’ Ani

Mr. Handler: However you do it. Tou metimis can he

doy somebody ho has iriferinr bowen But: the mere

et shah yon hawe supetie nowet: doce meren vu are

re D Ain

—

: Mott rend the Guptents Court dpinion

＋ szorlr. Mich binow od .so2nnges?

Mr. Handle: — Bitty st ae whe reridaes dois e ovine

4 a

wir

2 e, terer.

tk 7. 45191 45

ra 4 115

Done |

What bat of th en 11

115 ehen

3 8 ik An b

gue

2 1 ; F 2 , — > j 9 0. 19 > 1 1

ot Hoi 36 “gas ody 2: $f ti eg dann, stato 10 0 le ab

ain jicbset tag of . ceogel. ta 4 tanta

ae a ene nns f yw the ee bund

Of POX rev!

ve MS ete | OP

dtu N 122 . 2 0 A 91 the

177. Puy (Ti 2112

ANC ey aan? oF

Oru tour

Bb sHonsorec

5 42 ‘ 1

i tic “a

, 7717

ve df

Coad a 1281 2 2715 * po

ne a i 5 . 1 5

a te rior aioe erte *

0 8

ele 12 2 9

N 55

API Men

* 2 180

nat * .

—

> acs

° >

t, 21 1 12 5

ee e e

IK dee TG OT 175 1113

7 —

b ie 11 of 6 PaO 7 . f

a 8 1 : efit” Spat BEY, 7759 He ing

eM gu ö e ene Ac sal el gabe

1121 2 2 oa » 1 AY * 1 0 — 1 40

2 ta gte de

- they. etc | ABE TERY MADE nk

without any interf ace Whats gad

10 which Le amg ee

, a .

cae ohe

progr: eie nein ee Slash ae vets,

gral te — — ef illegality u tee .

rtrd pou of adver competi facts in Atte

i 2 — 1 Ne

dade 3 any 72A.

10 ges

i remanded |

5 Sate rod egit Wha teh. ene

ee thé Supreme’ Coutt' found a casi aivaton

a . Fe

DNN A ; sahil ie, N *

ee e

2 u

| : TAPERS eee ECURE me vas 5 Fadler dp un-

att 9 e ae,

: 5 7 r

90 * 8 : 3 iC IP bergan data level

a 2 r 3 n N

— —— 1 a. 2 8 a 2 baw > E 4 * =

, ; ts ; ae: "s tee 1

= 2 = 2 1 * it * 7 Pi K * * = a4

tS RAS 3s ee S ee 2 * cae ea * N

2 mat tee . 2

* * * * *

Full. ime fo cing Porn 2 OWES RE fal ation in

5 Bat i 1 5 ae salon tues) 1 2100 “ait . i

lein

setts ba 1

8 ‘ef iw 20 “alt, *

a an toad e ontavbs to 3

wee.

8 | 38

Commissioner Ant Phat micht wow e

would not have an to do with ti and bat

HI An; Wik. Hise

Commissioner Jones: Suppose mes _

coercive inthe ie i TONGS —

Mr. Handler: Where there was full ia feng var elii-

nated Atlantic outlets om purctiksers 6f the Various

accéssories. You do not at bere that, here. Deen the Com-

1 mission found in the, first decision we had beer og

closure of the small e 8 E

the time is Past n

Na stitute

_ lf Your Honors p cove

4 con ten!

2 1 1 Jo TA * 3 79 7 — N f

° “peti woegband of est S mont iadine 0} 2 — adi soo! of 2

—

no coercion, an avin evapo and.no anticom 1

Jn Wel bee fluro of prof. bla long pending tities

of the cam-

rin ogi Tena ned Goodrich

According to the clock ¥ Honors tia

eker ee 1 i

Thank you very : * a

Commissioner Mr Barton. ' |

N Oral Arguinent of Edgar ' BZ. Sie es

a ae Behalf of Respondent B. F. Goodrich Company

"42 724;

e againgt At é 1

ee eee cord.

its 0 sion Jemen

meta ir. Ke e wet

ka iy the broad remedy, oes Wa a

wrong.

5 He his sleo demonstrated, Tsu submit e ls aw

fails to prove any such coercion by Texaco

eee ee. bee ee

2 If 2 a 2 2 te 2 15 15 55 e

w See tof gocrion, again, e Court relies fairly

heavily, on its Simpeon. opini inion, Union Oil. And there, as I un-

eee ee

aie same kind ‘ot coercion that

en it talked about e b

88 3

in th if e ö a yt t

simply sit back and passively .

accrue to it from the Ae 7

ances with the aid of 5

ion that is a natural

2 ee e e e i

1506. 7 .

a Again, at 1507 The eee e dn RC a

2 8 bee b ee HU ita full

‘3 13 7 7 and uti 7

rit > ie ft 232% 5 Sar

\ oan

— BA 2907

7 775 2

. TS e cA

“oh ab ord

adage eh fogs hel

wi e act that ars

‘establishes the

: the

omic jus on fe B. F. Géodrich sales

n nts with Texao a, other [9500] oil

* 2 Let me e

Ts it your ele this i ai a a pone pou fon tho ‘the

use, your words, flowed. from the bc pre

"exaco with the service station—that. the

of the contract, you | would still not be, involved in

"Me. Barton: I don’t think, Your Honor, that there is vine

from w. hich the Commission can find that what legally consti-

. tie cern flows from the Telationsbip between Texaco and

ts, dealers.

he N - ei want to get to that specifically —

here in absolute absence of sny kind of coereion flowing from |

* 5 i 0 ler Jones: ‘Boy you 70 would eat your ‘contract and

coi nd coercior n by Texaco .

cts Of costcion 7 7 sa 40, ni Ra Yaa. 7

* Auntze,

op es

„Ceed e u What

—— ———

eerdianasbieh used hy. 1 G 1 a

MIt. Barton: No Lam neteaying ee ee ARIE am net Saving that

you have ta find; the same thing; But you Erne the renord

and find nonedithe thigiggrn) ii, i 9% it de 1491 U.

e —— st 70 810

„Hit had been the rule that ‘they, were holding that.a sales

commission plan wae illegal per b. none: of thatparh of Juakion:

a Clarkis-opinitua abouts operaidn would “hatve; liens in AD¥ HAY, -

relevant to his conclusion. . FP

Ly 8 7

| 40

eridens:

| berger ett ‘of bun- ou at:

< eee uo? iP o os bag etasuts

devote tds eatike tine to it: They require’ :

ing, advice and assistance. 11% Bid OF Jd: :

To illestes thy at ep enaeton with inter a

ich is geared’ to selling ahne TBA

7 e ic io pista Hf gi i tnid? I: notiaff al,

A EI 110197909 10 Jon a ud bοανν,au noi οο Ei Aq toa D

ody dauoids 0 Proves oi bast voz did be vorq era

: J, with 9 larg * 18

. e ay ial

= 2 Ar 992 stati

zem ,

eg al fe

rit 25 ann

7 * 2

‘ “ip 1

519 55 init

110 welt sab oH. 0 5 Hk

g Ti . ¥s

— *) 11 8 a 5 14 eae |

at pack “onder ah

in 1 0 itt ends the c

a a 0 that 100 a : 1 Assi .

tes Section 50 ert ‘Trade mmission Act.

5 iis eat 8 5 Fed dent ‘with what’ was

found in the Atlantic récord Which Ted the Stpretie Court; the

wm ority of rt, 10 e

| be ' cee de ea nce

= in mn TBA. ate not

deine.

eomttisiion plans

that period Of 30

1 Se of the

ene ollar or ;

‘thon th sponsore — 70 ee e ee BOF ER 8

is Plan e e e, service stittion Genies, .

CO, Fpl Gosdrich Com 0 e It has not been

d of antico eiter on anybody else Tt is a

15 00 1 bee hu st 20 0

50 cs J. A. ern e e, 1

eren Aa

4 W 82 88 988 ; 2 Le . NRE sd

into the station :

, a ret

. aut ex 5

the dealers mere mis DIR. OF n,

M Barton: Well na. ano rer; yhat he consedug

‘of your-holding that a perfectly, redgonable. businers Fee

chip has to be terminated is going te She, T do ve

a crystal ball em which J san determing: wilt bane

| But what Iam referring to is hat thee hind }

are given us by; Texaco are not. kindy of re

in Atlantic to be paid for by — 3

e a 4

1 11 181 N Ky er 2

did a lot more.

ita hexe den

t eis t

Sigl.

* 2 1 2 o

Slate o Aw 118 $

Sr tT a ei:

230 391

8 225 „

total comm sion, Texaco

prethe > Court — at 1500, "The 0

in cope eee

dh de eagle e.

errec dd Hey Have eee rs une

ding oF aniog at boisitmtat od O ved qid-

bn 5 easier ean have cap U ‘whl not

teili 12711

ene: ke hice li ry zuch Pi 97 enirisiss (mB 1 tach w seh. :

0 , ahr ana adaptive who is pot

| . “IES

* * rot bisg ado} ital.

eee e eee, iam Le

rather B. F. Goodrich: and- im #t he eee e,

‘ Gapdaich franchds „inn z Hod acids 1 20% HOH 41 .

- dealecasigmed up in a r mon th, P ied before.thedateah ths —

hesritiy oft siott 2a0i7182 be tines yasyenos writ edd, HW [eRMee

and Derag fortnrdestthe nameto D „ee of avosssiaaybs.

e tat of the tte is that dente Texaco hon hott

legitimate services which it renders. ° Fao yederent-o!

„Commissioner Jones: You said some ofthese small s«théns

did not want TBA. This 30 per cent figure-—is that 30-perudént

of all the ¢tationsor'all thd landing mo) A180

Mr. Barton: 1 did not say the smaller id not wan ee

TBA. said that when there is not Tiere = corde ante :

corpatty;\the Healers donot have the nin to how

some 8,000 of titel genere wie Dee from: emma Bud che

br veh : therevord, and:THonetithiak there

ersehen tu) af {evi %%% UO d Feat ddgiiod

thé record h tiecneaise O igacel wsdotesimare)

OH a 3s f OTE, tS 57

4 Lihoo.): SA bn

e if do tire company recived ‘services from the oreo:

any of M Bere mee eee hie iv pakdto ay the

" idee cen "got nien 211g was juodtiv.qu bowie 4 —

ce elbe; Rey: S8 ff a baskress see, Ib has been

„ ad 0 Goodeiel t be under hie. type d 1

arrange ers caunged Jedt zi toiisut adj lo gent a

Mr. Barton ein Orvise they wu riot

per cent. f 27 heey AO nditada 9 Ks

on GiduaruieniainbesBeily nde thererainythinigde the satord to in-

— ——— with:-Texebo prict

to the consignment? . bn, asoietos atomitive!

es zan Baittome: Nesthiereia nobis. 1105 7 fe Win nie

to Mowe Ae ceili ais-sitind tis coq ? er „% dar heh.

[9514] ComihisdiéneriElmadn::To what EAtent was. this att er-

ehrensenf, sof! ncaa t v. ‘You hib I. HOẽ“wlf A

Hh Brune 2 ei sed? asde tedidire TART

~ ommmiasioner dima n ti Torwhatvextént-didothe See ten

teen Tenne Goodticl provide: for-exelaswit¥? f°. | |

Mr: Berton: No provitiok for exelusivity-wheledevar: 2 ocic>

rr Tera r en have made the iaꝗ f

; year the next day hf «oiteossp rr ot hh

. Audit fnet ditt Indeet-they:mede-the-ssme-

agreement. with Hirestoha and 0 1950 made the same gere- |

. —— ei! ru Lei 99. 198 or. us a! att? al

—

. er dc

tate r ey

1 0 5 * * 92 2

* — —

re b en omi Hb met ae

: Commissioner Jones: Temp ‘salesmen reeeived imm,

a: sions? 255 55 5

Mn. Berton:Terago —

company if they ‘bought feomenyvons-a these putten ᷑

one of those tire companien , e cA ee

Taxseo sponsored? rod ET ng u

[9515] Mr: Barton: 8⁰ . a that is

trube dt 1: 4 K. of 2 ane Ait — ott I: 20 f. root

_ three? 8 ite Oe! OWA ii wok *

Mr. Barton: De you. mesh Aang e

Commissioner Elman : Goodrigh Ente nid a

Mr. Barton: No, no. 7 id not. 2, 90 per gent

is all ‘sponsored lines, , bil 485 eld eee £5 (tae) é

Jones: Witz

salesmen ? Do they get a commission? ©

N. dia, en conan

in connection with vine tonite hy the Tea 7 0 2

Cee Janey: a a -ogrenastoed. fo tothe enlesman in.

some way? dew giatt nen bs 214 d 11 egii ty. bat 11 71 N

NM. Barton; No, ir i not. I em eure it ee piu.

ns 46 1 „ in Atlantis it man tonic;

nA eigne)

my: iy: Mr N e ee e ie

85 21 ip ve 2 5 * ie Sushila 80 . 2 ait.

pone youn gio

851 10 cb 8 ff

V ou anid t

ow the ang er, te shat. Me will

ö 8 * ‘i ee il Bid wn 10 bn eget.

eed ald gtsgun oe add 100 gan bo A 10 fl AN...

295-464—08-——_4 ;

0 BL TAW208 a ofl ‘bout stoosib. need

; é : . . 6 ;

120 8 ps zeit.

* .

9 7 : 48

— Ray ih Doyo tn wins erat

iod -yorus ti Ted

‘Mr. “ere ‘What pe oLAAQIN9 TY: Mods } ie S110 |

«38 Oobticikioner! : What perddntage-desntring thet the

that-was

— — o holst. ULE |

Mir. Barton: Well, the record has some figures in h tht et

thin majurity 0g. the TBA’ snd by Texned seryite ‘stations,

much less, is sponsored. 22 71¹1

i Commissioner Elman: Is there & finding oblan of this big the |

Poor j Lei Bite of 90 i- itt.

Jon bi 3 ils 911 5004 ) O11 OF. HOTTE ud: 117

eur Commissioner Elman: ‘Hedid napadl bon acorn, l „

Barter? Phis in inthe Feeoitt that the Beaminer dd lot

make findings on it. dizi s.ipgy todtoCk $f irsaeataz

— . N

missipöh when urztint ‘your berets If you

— the: ee I h eL . 913 tot Virago |

Mr. Barton: We will be very specifie ba it. dia notes ai:

Now? tite Supreme Court pbin tet to the fact that Govdydar

8 4 Atlantic with detailed reports from which“ Atlatitie

could determine the! eraot umount bf ‘sponsored “prodicts

purchased by dich Atlan tie retail outet. se olasituio)

Commissioner Elman: Nou haus ubdut ‘dhe ‘tmiritite lett,

Mr. Bartéay! doe i en UL : Illis Hh õο, ij

Mr. Barton: All right. Al. le 1 toa {5 da 1 OAL 11 8 Jit 4)

——— tts“ to 0 100 055 ö loe if Diba)

3 womie ten ‘both! rand

Goodrich. e 19 In a ui Tal lob s i ö HO.

co alen -t9l d

Mr. Barton: Fre mean that the sales commission plan has

__ been dissontinued, the answer's no. 5

> 4 @ « : ith agin 3 ‘ — 5 } 97 = 72 1. 2 2 i : 5

ee OF e ee; ft a ty s

A 7 el j * N on 5 bs Oe A 3 Sf

Lun ee ee e dee eee yank st tats

1 ane fois 5

a Rae ae ar 10 Tap ,

Boyes 7280 2 wey

War

ee ths Ute wa — — 2 118801

md overt certib. 1 thought tha

there’ i! nue vl,

paren mr Hoe Zi bh -

toercich er overt er-

Miresis of reprisal’

. ——— Aid tt page 100 uf the blip op.

inne bodo Maidiat it sanevbhs

$48 Guck 2 I ey, be the opinie ef!

bo. mre —— to, tor

anak: ndissich,Al;

5 tio 947.

„ = 2 ne 25 paige gt —

72 e bi Oo ‘

apie bel pid na

* ‘

2 94 H. a 11 “ai iste tt

8 ee Se i N gt STE record,

; 5 ; N * 1903 24

ota’ 118088 . A

77 * 4 Se Seventh Cr dit ünding ‘that’

Thin i 2 1 ID Pp

32 err Nee

Woung mmoamg

1495 bea Ni Dae

5 215 by the Süprette

. the” have ait? te

1 le EI Ji a pve Aale

* cee 6 a *

4 peace

faye 7 . 20 eien

; 39735 Jen „ nigra

5 r Jones: 3 he a tt 8 ;

1 225

Lire

ste #

“not ane all through this thing. But I think I can

you thut th

sible plodanig type of cor ubtivity. 05 tiloasd oT

not trie and not present in this ¢ase.

ists ai

Hen haa beet: e 10 doithoon) Ano zi Ge 5111.

Nef, Dias 1 ain Satiefred OF Matz e, sir As Testy, We ne

ti Ge is vert Wöreien in äs. %%% tT

Let's take the very rst Ttelif which thé’ Oourtw:conbidered

40 be che Catnpoflents of THE Bales’ obi misblolt system, and that

is Me Sdchner hotite. ction OF FOU matt $0 to anmeyvivs le

Now, this may not be the erade; dverd type, but; it is ‘the

8 into it, the Texan people advise him that

uwe have an instance of the mu b Been

veel Deford’ he ‘edt’ his ‘wiatiowLithe runder

a rief. ο.

fn th ta factually

ra - Is bs 1 ‘

Hees sun I hun 451:

Will. — 711

el ort

int

111

. Teg PERSE

5 7 n * * 223 — , ‘4 7

product, 12, 1 An 1 3944 nit phy 17 U. DR 5275

Ihe Texaco instrustzon, : incidentally, on the opening of

. J 22 " — 4 2 r : $

[952410 new, statign ie ne felt... #4)

f *

: account, and that

herbe requested to conta t the One Veit BLT ne.

dude benefit of thie--Go ‘geod

eee fe git 5-H ase eid asi

ROGER, 5

MBG! is1 odd 01. ,h

anch bo did not have

nh ai 1 νν. 501 bas sit jon

is significanto: «)) bw 9 10 fH ports. lud paceman 0

will bivef it and there has aw bebe are 0

Bui there e da of

| 60 las about figurel

eee

2 0801 to Nag 193201 odd mi boẽmͥ n yoilt And)

That js not to. e tied bare ee, stations. .

2 . une

OL Yo Wand!.

= sr no BA feral nd — —

Also, Nate dhe are net beommended or not dedepted

b Nrestone are :

chrrying' Goodrich or Firestone TRA But altinantety ithere

a 1 nd was developed there was tno ther Goodrich büp-

ply point either a stores or ffanchise operator ond ting or un-

- ether swithin's block of tiiis station, or it wag a tiny town:that

oerteintyväbldinot support mote than two distributors of an

38571 B 170 bins ~DbODEHE TROY * Sew.

Nowy that, too an unknown figurel;butitdeinifent ob life

thes Goodrich in ether worde n 1 hoteccept

Wo doindt knbwisrhat- thao: — ist: Wechawe Sith 40 get ;

‘some_breakdown, ‘but those figures are hard to get. isis +:

Along that ine I am not. implying: thint-réspondents/‘e-

; fosedtb. give tile figures The:case was: brougl o in 1950) And I

tt it is significant to note that the override comihissiin plan

5 eee eee

5 or not they had changed dver from purchase and resale, and

the record only shows that prior to 1940 Goodrieh had been—

Fam sorry. Dernveo had been expeiithefiting' with different

forms of TA supply, and in 1940 fiitally? devised and entered

into theagreenientwith Goodfich providing for the sale of com-

mission contracts. Anck I think, if you will keep that in mind

you will understand why the evidenes in the Atlantie Gobdye

f eren ende ie Comes te the Grade crest type

of edervion:>:*: ih wi demise else LEP ao) anti dp

* Gerdes. Atlantis donitnenced their operation m- (0828)

think they negotiated in the latter part of 1950, es

- the ituin dotuaity-commencedin Match of 1061. Pho f A

: . think I bave mentioned béfere, aud in

f January of 1086, but obviously dur investigation started earlier.

2 n

ache ee +) Sidigaegrati Ser

adw eg Ris sig} OLE! Lig?

Be,"

the | 8

from . e ie

of that. ee

2 5 Le been * as fer as seer ets Hi

resale, or at least, aa far as, we ve know they were

nae 4 5 0 80 you have a ‘brand-new fresh pre ras 2 insofar 3s

Atlantic-Good was concerned that merely y by the pas ae

time we could n hope to match i in the. Texaco-Goodri

situation. 2 27

But again, iin ino i ik a

nga 22 nn

i it ant 1. Seawe ¢

ol the street, Firestone on the other. Not quite thet bed.

But von don b have that here. **. 8

been eee Fe ere

no matter where. the sales are made, who is makin t them, or

how many are selling to them. var Stas 3

The record does show thant Gi mies rubber Wr . 3

, They: are sponsored. And 1 think eyen that in itself b

suspect. N

Certaiply if an operator has any. ‘sense at all, he, 1 auppose,

would buy the popular brands of any: products. In Texaco, if a

Teasee chooses Firestone or Goodri Goodrich or U.S. Bore ee we fo

not, know. where that, is going, to ee are, collect

217 4 eed Segre bree: $57

Bo = .

at ‘with any hale?

would love to do, 5

geration

vas,

nmis

* es *

‘was 2 en

"ere le

* * 4

red ; tart

5 . : os

* 5 a 4“ >

Pe oo a : 7

eer ee : > . —

— —

geta the 10 percent.

market if you have nonexclusive sales commission &

}

I 53 N x 80 . : . 8

a eki ge inhi

8 5 N tae , Pex sree ahr |

er "ft. des for ay brand bf PBA: wae

ant te their service stations, that a

0 e abet be ba Pe And 60 on the one

a er

hand they would have you believe that everything. they do, all

the encot

puragéement they give their dealers, and all the jdeas

thend for Meer stocking and selling TBA applies

if that is the ease, it seems ds though Firestone and

Goodrich’ are & couple of philanthropists. They do not have to

do that tly, But J do not believe that for a minute.

think the e chit ae thie 188 for Firestone’ and

Gre js mee thin bunting license, hie 18 f e se

e Geir Le Eee ak ae a

“all inthe world that they are being paid for. Because—Mr.

does most of the selling. A least

be sid that one minute I think the next he faid something

else. 9 fit: io

But the fact is and. the record shows that Mr. Hoban, their

a presid t, general f merchandising said, We,

vice ent, general manager o

„ actually do the selling. We rely on Texaco. for

ossi) soniething else—they keep thé people stirréd up during

the year- or some other such thing, “But we, Goodrich, actually

do the selling.” And then when you read the testimony of Mr.

— , who was questioned along these lines, he is a Good-

＋T¹

Le it i hard tell who ie doing what fo whom and who *

dner Elman: wat happens to the idea of a pt

a e en e ba pliers? The dealers of a par-

ef 0 115 econ = eae, radon i |

MBA

3 i 8 H

aot. * *

e 31 . fo Set “te = Fore ieee OURS 4 a

tances I do not basta ve Wo.

1 find < me de * ters wi 3. re pre 13

: 2 e i el p I.

5 37 Te tess ver 7 3 4 e

84,20

ments with these seven groupe?”

[9532] Mr. Dias: 3

Commissioner Reilly:

be * r e

W: Wat ol bStithe you Are iil ane |

not ee and, J de, ed by wt

to give T Gen in d bit waere 10. th k they would

with dhe cpt ee chin Atl antic, 60 2570

dealers wanted f st iy put... r

Co ier Reilly: ern ey hy a it am

and. they were using &. their ‘qoonomic power over eir deale

to force the: dealers to, take on of thoes, at Si Snpe e

e i Te that all ‘ight, or ‘ig that wrong?

1 „Dias N 7220 ow, 1 don't think I 18 e

| K e Bnd e *

von abou t different rubber con or examp

you are touching on just about e i hat! is in the busi-

eee e son ven dan e ne

Commissioner Jones: How many did they have in this case?

Mr., Dias: They have tt tt We s ae é [ off with Nen.

and Firestone, We know about those two, And then later [0583

they started an arrangement with US. ant eae a

‘Commissioner Jones: oe agar in te record on, we m- .

— —

81 Hs

Are n

el Commissioner Elman; There are two i in that case and three

dan Mr. 8 Well, two. in each as as they started off, but

ee a Reilly: In the Atlantic case, were not the Fire-

stone and Goc dyear territories d divided?

y divided territories in that case.

Mr. Dias: IT.

issioner Reilly: ‘So in effet in a given area there was

only one?

Mr. Diag. That is correct, that is correct. So that you had

an entirely different situation there in that respect. But again,

as I say, at is à matter of degree, because in a situation of that

sort you have added to your nonsponsored sellers of TBA prod-

ucts—you also have one who nominally is a sponsored product,

nd not sponsored i in that particular area. And that! is a situation

in that case.

Commissioner Elman: well do you think that we could: ade

make—we could properly make i in this case the same conelu-

sion that was made in the Aflantic-Goodyear case, where the

Supreme Court, said that the Commission was well justified in

concluding that, Goch sr had in effect l a W

A Pas, 140 . see

Commissioner Elman; 15 bas Goodrich in effect patho

de lines ol TBA e Wen-

one ye

the fact aay vee

it do

: usar 2. ti, 1

. produc! 5

5 . ON *

if vine 2 *

At Wee 2

ow meni

let me just 2 back one sar

Tera d dors pot — .

operators. It

leaséd—many of 5 0 ot

But in a the!

here is Texaco, 9 lospee of

they inten 0 pore other way...

Roe age vant oe) pe +

t 7a / 0 aa Ke fc

t roperty is the domit

V BEOMRST eA

si 14 a my 5 j 0 i of

was | ister aor ) KACO | pits. 9 8

ee . i So’ 1 =

: e fe it hey

9.80 Te 1 tat on thirty day notice either at

‘ a ee 1 — 5 .

12212

les xl 8 nis 1575 pits et 70 chet

; 2 sien and Sales 4 greem g

; LANE 1

* 5 8 e

. 1. cnr si ‘And i tena |

1850 etrolew. ater

eto

Wee

10 e

are goi to have scaptive market. If you have 4éaptvé malket

68K s how 50 sell e tpietaase

Commissioner Reilly: You would not prese

resale Plan whéte the gasoline refiner pi tires froin aight

to ten fe. battery 3 water ref eden }

they had etoriemié power över their station: e ary

Mr. Dias: Well, if T my in ad u, a my own persona) ;

pie goed we: had the authority, if ‘Wwe peal write che

git a f 4a leg Off

Seen Etta: ‘You e ‘that opportunity,

ae se "You con make suggestions, ‘but 3

ing Pies Oe iA” AR!

i — Dias. 1 Gould. be my out chat n e

should de dt of TBA en,, 0 aa 4

Commissfoner Reiny: How shout dé problem: that Justice

G I Arto aac ifn rah Bor ed

ut of if to refining or

2 or * hs ton ined Lin See

"Mei Tan ht Mtn Gelb eS oe

As T *féeall’ Were ate wre comp ‘and Snell

American ons VAR oa 0 721 (I

Mr. Dias: There are e total n de due n mne. ;

1 1 e 2 vee b T seni U lere.

than. , 10 ils oni 5 „ust nox os N00 rol dne ö

Mr. Dias: Gr a8 ove Porn gt a:

- Commissioner’ Reilly: We have the advantege af having

heard weeks tos

+ — — We know thes game oil 6rd do

game, retailers, without any kind of, string

just sell them. There dre Jobben and there, are cher ions

distributora, other kinds of distributor. IN

_ Now; suppose-you have an oil company like that, Austens,

body who sells gasoline to an independent businessman

a rbteil seller of gasoline.; Now, is Goodrich to he on

entering into a sales commission arrangement likethat. .

Mr. Dias: Since I was ignorant of any other method of selling

this--khe Supreme Court has said this order in Atlant

year, as they see it, does not preclude Goodyear, from entering

into an arrangement with an od company that does pot haye the

same tyhe 1 oF, Whatever, 4H a

type then a AH ou oNrieuet ti i Io pee

: And they said, thet they. wo

come back in and a us to change the order, eb ee ee

tba advantage that if we, are going to white gn order---te jen

; ® an Wanne ad

Mr. Did: Do I have any recommendation?̃ .4i44,1/

— edie en 10% A H HH el ave

{9642} Mr. Dias: I would say leave it im: I thin hät-

* ibi

Mir. Dias: You know, I.

| Gobdrieh j,

Pexsco e long . beiin uffn dmtheir

win ll Alem. — 1h 5 b bluoda 100 to sd? dad Gt.

. nm 75 17 |

2 dae mch

=o ete

ita aon 431 4 28 cis =

n woh es comminaion plan would :

if. your find either ons of these two. ither oercion

* 9 — r

Nebizity, YOu . „uu would then find * n dt 97

«Mbt Dies: i thet g. ——

this Hom chor 1 get: Bg she By? ab ou nee bor

lia , 1 Igy oy) 212

„1 don't understand whet he has to af

Iota aj a ster vay to 108 wadto

bi } . © hat * ˖ 2 it

— De

— f " dood ‘iin 1s GBA

i 25 e oak,

a .

411

e oothbe

0 tee 9 . Ti}

a m 700

10 3

in in lis record. Bat I take ity

dirt 1 PILE Boi OW iy

= — 5

ef te these point —

4 , 71 Anm fa to MVE A

domi!

me An OAR ex

. Ind n

aod wn ;

5 aos IBY od 10 viitasup ous ot eee Jo 109500

e ee e ee eee

Nn ee Tan wt the vide ily eldde

— —— ——̃ —

von. Bit dertainly they cord . nos

min Jones: The Polly wa ttiat you could ndt

charge nonsponsored. PILI ASI ah, ao 10 so 10 LO

66 ; $5 > (

tothe deen And if shat: wee.poliey---in other. words, I don’t

know. whet. it hed 70 be repented: sighifcantiy, after wariove

court actions—significant court actions.

Nagpber two, I den’t.know why, and the mem dose. not

show why they were not shown to dealers. . oe eae

Commissioner Reilly : Did you present eny evidenoe aa 10

the relative. positions in g gaa.station or in a dealer s station 1

the relative. positions of. sponsored and nenaponsared TBA |

8. Jr. De: 3 ‘We had testimony along this line—and. this may

dot be eampletely in answer to your question—for eum le.

227 tegen A lr ale 5

deslerz in his area, 89 Texace in his area, he only knew —

al ene Mat did not qr or Firestone. Now, that

does not go to the quantity of the various. products. in the

[954$} statien.

Reilly: Abat i is * infosmasion. But

. the thing thet I was interested in was this: For instanee, is the

ttery or apeensary: in the back room/

„Mr. Dias: Well, we bave one instanoe in Chicago that I can

recall offhand. Again, thia wee one of respondent's witnesses, .

a Mr. Who was a Goodrich distributor. He testified

ren figures, teo, are significant hs estimated that,

I believe; 75 pe ent of the dealers in his anes carried Tena 0

„ ‘dealers partied either Goodrich ot Firestone, and in the stations :

to whom ho sd, Goodrich products, some of them also bought

. Firestone but kept those in the back room. That's the testi-

mony of one of tespondents’ witnesses...

— Mr, Barton referred to the testimony of 59 dealers that were

used. in the defense by Goodrich, and he has urged you to read

their testimony.J, ean do nothing more than urge yeu to read

| their testimony: mand. These 50 dealers came from various

_ scattered locations. throughout the eountry. We joked about it

many a time I eould see thein arm in arm going from the West

Coast to the East Coast losking for, these. dealere, and they

cane up wick 5d. I think you will find when you auabe the

evidence: thet what they. produced. was not much. ig ap

have from small towns, there were

- other Texace stations or thay had d were: im —

ö undes fo 1 9 323 ghd e Fi. Aud nne vie gl: oh mat ten nik

ba» 1 ae * ms ee + 84 RN

pipearha eee he *—9ν 9e ad! 1b BOS af, oe 15 TOK * yd

. er :

— — Ot thein own Dale WU

veloped evidence of the obervive power; . ae 1

‘Down in hot Dallas in the summer

they wanted to interview these p ple he deal.

ers up and said, “We would ike 0 int u eme dow?

to the office, so they went do mm. r eee Ati rg

- Now, 5. de comment on he denne Arte

to'rély, on the Seventh Circuit, where they clsimed at be |

dealer ‘testimony introduced. in the Atlantic’ ase where 13

dealers were intraduced—aAtlantic claimed that that. was not

sufficient. . ² be Ramen: roy K

- Commissioner Elman: What page is that?

Mr. Dias: That is at 401. That in 381 Fed, Da 64 401: ‘The

Seventh Circuit said, We disagree. The evidehoe relating to

overt coercion tactics, although not extenarve must be d= ee

ered with the testimony of the witnesses representing compet-

ing suppliers to the effect that the dealers felt thatiif they did

not carry spo TBA they risked reprisals. Aloe to be con-

sidered are the ‘tactics of Atlantic: stleamet: und the

gurveillanee of the so-called phantom custonter inspectors”.

Now, and let me continue, Moreover, it should bei noted

that the Examiner in considering the testimotty.of the dealers

who testified for Atlantic recognized that these witnesses were

under considerable pressure because they were naturally [9550}

interested in not jeopardizing the renewal of their leages.””

The Examiner made the same finding in this case. The phan- :

| om customer inspector is one element miseing the only ele-

ment missing. We did not have anybody in Texaco—they did

not employ. a “phantom; inspector,” But they did. in- =

apect, And they did keep them surveillance.

rr rr

men to n but and look around; the station and see whether or

not they were carrying TBA.’ |

Now, that is a sort of a form of a lish, They did not go

in to see if they were carrying n They went in to

de if they were carrying sponsored. 1 amount othe mse

L Qptaghissioner Reil: There nothing i ur i tho

Atlantis ene. af a list of nonoompli 5 505

Mr. Dias: I don't quite go slong wi Waa Fo Nerf, where :

incidentally the inoidenos of to the pr wos very:

sored: TRAA one point Wee a there is in the re-

— eee man to the effect

A, aod L thick We See

like 51 whe did not carry TBA at alk, But the list. of; not

carrying sponsored TBA was sent to the home; af 5:7) 5 «45

[0551] |- When: tespondents put in tlieir defense ae bea

in about five:df those dealers One is this Mr. Bailey. Aud the .

names f the-other four eschpe mb. otα⁰, ⁰⁰õο,ÿ¾.—iñe e tats

But thé s, atid!wubstance of ite töstimony of 3

dealers some of tllem mdst of them was chat ‘they! were iy 7"

small, isolated areas; dt hey were the: only denler in town, r

that Goddtich br Firestone supply Poin its Wers Hear Heim!

. OT Aa TB ghey, 1 ve teoee Hot Abie! to develop the:

fale number of Texaco dealers dhe were in fart nominated to

and aevepted by th rubber companies. Those figures were not

88 pointed out, gursuant to the sales vom

do not approve'stas

ona oonfliet with éxisting distribution oft 918° batsbr

1 —— wé put in bur case we in fület dic

uss only abbut 8 or Hie. dealers. But as I mentioned before we

used something like 20 independent distributors; or distributor

of inidependent-«nonspdnasored: HA, and used just abput all

tlg sales fore, 80 we / had totabof ene old ain Top

; resentiig seine 20 distritsutors: A} nisi, tore b

| During ‘the eroed-examiniation: end “OF these witnesses de-

spondénts made a great point of developing the fact that there

were other Sellerb of nomsponsored TBA the area Hnd yet

would yuu believe it. wheni they pat in their defense) they did

not produce one siligle distributor] ,n ful br othe,ide. The

onh:-auedéssful ‘distributor ' thet they put on owerestwoe who

19552 Uhu ppendd to: e er e EBAS ‘They

were very successful, AAT hooanoge HINTEN l?

0 On the UueHon f- Mins Jones) you abked: about pSiniilis-

sions one ME f TRA Ig is a fact in this cast) unlike thie

Atlantze Oobd ear ease; the salesmen; ‘Texaco salesmen} do not

e ee a perten of en e

; cs Uf! ty

on their sales, and incre&aing sales; not dalyüf gasoline prodavts

bat‘o? TBA prodicts épdnsored TBA products: In other words,

it te part of the wei tofla for deterthixtingowhether oF nit they ure

RFV ii

7 art A0 1

6 > ali have a note on e Beate

ait a enue) polyp dea ot Sad Vf feel. Heis IHG

[9553] <0 G@eedrich: believes that. it shotid not be inaluded in

‘ this orders I think that this record is very clear that whithér or

not Goodrich goes out with a whip an its hand and helps Texaet

salesmen or other personnel to push TBA products, that ther

nevertheless are well aware bf hüt ät is that avetiuying: And

Think the best erample of that is the fact that the sales cbin-

mission itself is limited to outlets whieh handle Tenaeo gasoline

extlusively, or a hundred per cent. Ggodrich and the Firestone

agreements are somewhat similar thers is just that variance.

One talks in terms if ghundeed: r a

éxolusively.: ::: “slisttia vino! 11 „van! ii;

Cominissioner: Jonés ‘There aren't split stations in the

industry? ; ume. teneteeimad) ~~

— Dias: Very fete. Iidhink ‘yOu: nisuld:Gnd.eome in tural

areas But as long as the standard station during the Standard

Station case, he Coutt thegg iqundst waatiown Ager auth per

cent.. ;

° Ogmininaioneit Jones: Then What in the.significance: te you

. — — e

that use exclusively Texaco gas? „n

Mr. Dias: Because if Texaco u the, — that

Goodrich would have us believe it is, there would be no reason.

why Texaco could: not sell their produtt to-a.Conoco|station

or a Shell station: If their salesmieniere that adept at selling

Goodrich TBA products, why not pay the salesman {9554} the

oommissin or Texaco the comniission for this great aalesman-

ship, no matter where they all it. But it must be to a Service

station that in e . Lice spies gasoline

3 9 H,p＋ oh H

— are — hich Goodrich — — 8

dohtrolling interest in: And it ems back from tha very original

contract in 1940, where they talk in terms of percentage if

Texaco owned 51 per cent of the station, then they would pay

them a ion.

In other words, there was always that superior or eeonomic

ekgroun is an important element in the sales commis-

The ue U es . Ut Mella v Cod The same

ee, te ee

Ohio Oil the sitwation is identical, I believe, in that, as well as

Conooo. And then three others in which they have oil

Commissioner Jones: What is the evidence in the record as

to the relationship with d its service stations?

Mr. Dias: Well, we have the We have—they contain

the same type of housekeeping provision, short-term loan of

ec ent. 0 N

Mr. Dias: Credit cards. We have the testimony of one en-

dealer who testified as to the extreme pressure put upon 6665

him to buy Goodrich when Conceo decided to en ter into a sales

commision arrangement. Yet the testimony of various compet-

ing supphers—suppliers of competing TBA products who ten-

tified that they had extreme difficulty, similar, almost identicad

to the Teaaed situntion, in getting into the Conoco stations.

Commissioner Jones: Do you have that kind of testimany

for Texaco, too, competing TBA dealers? :

Mr. Dias: Yes, we have these 20-——20 competing suppliers of

écompetimg TBA products, as represented by some 40 of their

salesmen.

Commissioner Jones: What other oi] companies were in this?

Mr. Dias: There was Jenney, up in the New England State,

Shell American Petroleum, and Emblem Oil Company.

Commissioner Jones: What do you have in the record on

Jenney and Emblem?

Mr; Dins: Very little. We have statistics in other words,

the amount of sates-—I think that is about all.

Commissioner Jones: What is the basis on —— are

We have here, in my opinion, ——— be:ithe

opesstion of the plan as 40 Conoce. We have overwhebning

bn een Texaco: arrangement. And i

2871 1 yes etedvy OGL hi ono

think 9886) that we bers ts hhiah' ant te etnaining cn

com def ne 2 the Atlanta

Ton will analy of thee mae

* 4 I 2 HH αν ol is 2 Mel

Mr. Dias: —— .

There is very little. But again in ptinéetion one oil

com 1 — —

to Hots the Gb dc inant Ve ene or-

pen ee . f Yaad Ohh in ters of N station will

have to deal with us ande deres pein pe: and he

will recommend our produet. 4861. ute t

Commissioner Jones: bene, Wen América 5

Mr. Dias: That was Shell Ameriran-. all Al

* Ceramissionet Jones: nt 95 Pod Fead Wei us Seprehe

N een will enable us declare the contracts with

and J#tiney.’ for e covered By the

Atlantic pase ost pavesidser

Nf” Diab: Peng bay u ue. 19 od l at lf

‘Cothrhissioner Jones; What element, 1 he opin

Mr. Dias: Well, I think the fact this ‘Coniminsion has

found an illeg arrangement in connection “with ‘thd Tera

situation. I voti ‘cain find the satme thing’ on’ the evittefiee

i ite’ e : D-believe tinder that situation I de

not think we have to p r try eech and every tuen 198571

arrangement. 10 %% Drin „ SO as Ie

Commiscionier Reilly: The Sübvene Own debi us put Gis

G on the TBA oom „ show that ‘they, haue

ther Arrangements are

Mr. Dias: That tit te different dan ce that hye been

declared’ inegal. 1 believe that is true.

Commissioner Jes: Wie evi do de, lt m oe

thabwenytling? « un luci n % neh «

Mr. Dias: Abe n nine you meant nen ii biens

Commissioner Jones: ves.

Mr. Dias: — ef adnjetttio-s-

„ Commissioner Reilly: Do you think the Supreme Court is

putting the burden on the TBA company, % change the order

ee nce tenon ie at et et ne

case retonh

Mr. Dias: I think more than:likely in the trial of thie cise.

~» Unless’ you. es. er

the matter. Hs ULAR (LO sn io 2

: Commissioner Eiman: 3 —

Bay At

e eee eee A .

Mr. Handler: ‘it please Your Honors,

2 e

‘You a. drum en are required ‘by! A *

[0 on armen ps il a gig Has pa pets

room behind me, are and were ve at any |

They are not a, captiye audience. The distinction is the,

factor requirement. There is a appear when Pe A

requirement on the part of the desler to buy, i

Commissioner Jones: How about an inducement? _

Mr. Handler: There is no: captive, market, when, the dealer

is fea, thie record extabliahes, to buy of Refrain, fm RAYE.

Indwoement——. if gw ins 10040

Commissioner Jones: Take the credit, card thing, which

troubles me.

Mr. Handler: The credit card wos ingorrtctly, ated.

Commissioner Jones: "Aren't you plying the petally hy 90%

eee e So ida

Mr. Handler; eee

aco.eredit card can be used for n ‘TBA

on the regular basis of regular tA Texaco sreiit gard

cannot be used for nonsponsored is

instalment basis, with — . over a lon eriod «

tine, Thar a.» good eee soon fn hit MEER, HP

penalty, 700

Now, inducement is e by ü the ie Armename 15 5

19559] — Sle

— 2 —-—-—-—

ground, or to seek an intermediate position.

Now, if the Supreme Court oi the United States had wanted

to ‘held that gales: commission vis unlatyful Where there are

terminable Jeades between an / [conifpany and ite dealers, it

would not have: bees ‘areidlieght mitten fot-istodmyaimnid Ye

It did not say so. genug

AH the United States Supieme! Court: wanted ter hald that

sales commissibn is imlawful,' where there existe the type of re-

lationship that obtains between an oil company and ite dealers,

ou vie, vow daaedT : nami t9n0ie2icnmo’)

fe a edhe san Th Supreme Count ia nat of the 7

English langue. % 0 ach En svriasioncs ü

E aay: of these btsiid: grounds:

2 Ema to: Youur Honors: hom page 70 uff he Opinient where

Justice Clark says the bert, of it, and he) then rise the

basis upon‘ chich he resta his decision. one n dt T

think-+I may be wrong the notion that there wn, Ithi — }

expressed by the Seventh Circuit, in: that ease, that the

who buys from a major refiner is not a real independent. bysi-

ec gS pn ——— :

about ‘inducements to someone who is relationship to. yeu is

that of an economic serf, it ia not quite e seme a8 (9560)

inducement as between equals... ae donn bsiwestag.« tc

Mr. Handler: Thave is disagree avish Mou ni er.

spect to both aspecta of your observation. f 10 aval douherg

First; if you will turn to page 13 the, Courts not- using

Nee eee 8 ö

an, Vour Honors are no going ansume that

. e eee

The Supreme Court did not say that this faot in and of itself

was conclusive. It would have been a very simple thing to have

said ‘that. It did not hold that you canndt have sales éointiis-

sion where ‘you have terminable leases, ‘Itihualogised—it skid

the Conimiiesion analogized the situation th a tie- in

Take the man who owns a patent; His customers do not even

have a ‘short-terin lease. He has power. If he hus a valuable

patent—take eolor television. You have the power to impose

full line foreing or tie-in: But there is no violation of law unless

you ‘abtually 'tmpote the eondition chat you: bay: hs en

product in order to obtain the first.’

There is great disparity of ebene powel- chere ut open

a Lens. A men could ‘build his entire business on the purchase

of a patented product and tomorrow find he cannot buy that

patelited product: Thete fs no -conipulsion ‘to sell the patented

1 It is not the mers existenbe of power: It is the exercise

e eee was the; core ‘of the decision before ‘the

AU, iii no! etal 4)

Now tH ft che Papin of tcl att eapaBte’ bot

ve i fale eee whether you define it ag Gover or

overt:“expittes or imphed whether fou: intibly % from J ehen

of of dealing g, whether you imply it from relationships, You still

. cdereion:'Tt is 8 legal concept. [9562] You must find

that the b Pinar ee to their will.

Teepe a — And

ebercion 266 Gish. ou. sift

. riches abet ot mesh tat

s OF ite affairs: ” *

coy Tou bare got ta prove

1 ndes And thé fact that we are 6 bit

e is not

FOS ty eR

oft is nod tHe kite ‘available’ for thet

Ayo i DinA E ares

eur tes ng rete! difficylt task—Hete is the sise of

n tive’ visi e ee

Bing ‘take’ ence Word te WS

Dont var ean ates :

| creditcard tution wasnt atte by Mr *

¢dareiniysitantion was not-né ethitedl br Me pes agree,

the statements that he made with respect to our eh e

power, our ‘sete are: unsupporéed by ip ie ras, and will

coves that in nur., ü aco , eee nisi,

I want to end with this one very eletnntarmrmum une 1151100

said dat gilt i personal. It ie very. Deskin ating {9008 ) to

* friend cosstantiy refers tothe Seventh: rot

opinion for facts. Those are facts in 4 different case. The proof =

of the pudding is in the eating. If we had this power, if we

abused this power, if we compelled, if we coerced, if this rela-

tionship in and of itself had the effect indicated, if the termina-

ble leases would be à conelusive fact, why is it-that this record

will establish that Goodrich, which is bound by the order

that has been issued so far, sold not more than 10 per cent of

the Texaco outlets? What kind of power. is that? What kind

of farming out of power is it? What kind of aiding and abetting 1

e ee “is

I tell Your onors that you will not find in this reoord sup-

port for the view that the Texaco dealer is anything other than

what he himself testifies to be; and that [if] he is an independ-

ent dealer who buys in accordance with his own dictates, and

not the dictates of any master. He is not a serf. 8

Commissioner Elman: Mr. Handler, if the Commission should

conclude that there is a violation on this reebrd and the findings

of faot made on this record support the same conclusions of

law as were reached in the Atlantic-Goodyear tase, would you

and Mr. r

order to be entered?

Mr. Handler: We will be delighted to do that, Your Honor.

[9564] Commissioner : And if there are to b any

changes from the order that was upheld by the Supreme Court

in that case that you wish to urge, would you urge them und ö

give supporting reasons in the recordꝰ “a

Mr. Handler: We would be pleased to do so. Lan ged you

are asking us, because I would not want you to imply from the

fact that we deal with the order that we in any wise lack con-

fidence, (a) in our interpretation of the Supreme Court pinion,

and (b) our analysis of the facts.

Commissioner Elman: Well, my request does not imply we .

have reached any conclusion on the merits. |

Mr. Dias: Will we have n time on this?

— ishing’ welk the onder provides. . the

10 Of 3051291 dtiw hben ad tads einomalesa of

Mr. Dias: ‘Will we be Ale 40 answer each other? VO

Commissioner Elman: You can make such. ane t the

Commistion an you ned. % „ oF ta:

901 erm deen pn, the Ou Argument the

— — — Hνν boon vas tad |

on otT .sces tasteTtib a ou eters) oe 6 AT an, 103 naleitie

an di Ar, id ha enn giti oft of 2? bnd ads to

—

29 941 7171 71 ‘ae 50 oO” 11 Henn * 1775565 aT hasty

nig ods ti tie tool oad hed toettte Lae 0 audeno!

198001 A ed ni IN 18 9% 422 Od Bol 510 2 9) gla

7 1

„ hm eo: hit whorthood stadt Hilde Lew

1 $1199 7908 OF ems nose tou Do- n oe H, wood end tacts

. * — ‘ 7 , + . 7 4 * — 5 A hed

* iA tated SIBCT VE toro ty 7 ae te J] Seteltin r ott

27 tarts lte natbte ie al Net 19M Mi 20 SU Nh i

Lili iet viniiaes ond of siqong squat of Mai

} ft, ¢ f i

1e 172990 2 „ bad ton Wl Aes 3 She fi f Var i

5 pa g N

ald wodto itte 21 n T oft int cots u ni.

hirogalitt an 4! ad 1 12 ff: fy 48 si ate Mite those ac 61

tg AY 23 wh ane at Atign denen at avud u tas

Liye ia (4b h ete tus bo “SRI tt d

5 ;

1 4 * n 27 7 7 „ K 1

AQIS 1612271616106. „ 7 YW 114 7 1 rf icy A

: a j 1 1 — * ' 71 —

Hbf! od3 ba bros sid ,ẽiaνν gators iat tiie

io atoizilstoy see Gil Monte Trost 414 ag ob2 |

. 7 N Fei * , 1 “Ae 7 ‘ „ {> „*

0 Don gan HD- 117,61 14496917 : 7 62

‘ N 7 7 { , Jai aten at bicep

gf! f Ws e SOT = J 1977. 117141 14 bi;

“bewine a a3 brio

,: i 1 ‘ ‘ 7 . 1 *

„106 11 yf recat yd +32 yf. 4% wits oc 1417 417, 8 Eeel Tere is f 1

＋ 2 ¢ ‘rr 7 * , * N *

95 oT ITH ‘yt 1. 7 Ti „ f t gte 1 57 012i Fu

D amciqn] engt nn tet tolyto ods dott eye in

Beas mtodt awit no, big, .outy of HI 1707 F „ e i a

P enen meters Porm 11 wise

wo balg ung F ioe ob of Ho od blaow f ¹ttẽ¾ i

“adj WT si 71. fat 0% de 7 570 779 12229 f 522 Beer .

Aol e in if on n ashio oft , lech eee

eig DH att to 1 701 En TO e n vt

* f a- odd to viz Ala ret id) Lge,

ax viqett ton 2 t2aupot itt fis I ne de Hον.

atria addy no cio eo fc Ne e

©sirly ao amid BI vid on (iE ett .

fA).

Ker :

a ieiII. > — oncaeid unh ee M

1e ene — 2.0 Sl 2 Salt sch

H du ‘ertsifettoD Art HN

id UNITED pray neger .

10 Quiyvine sot aaayhoo) Bas Ae ie te — BA Bs don pi

notte PAF 0

71 och sotesisuao). adT 2susersyrys - iOipahintos “eal ee

100 has , anα,ẽ&ͤꝑ̃att ) 10 noitstiotriag

* g Pit ci N22 K. BRO) enn hovfaiva bed arrdal

. i ibe ye ads 40 ii ots ti

eto2zcet 4113 103 .bohuisnos asad

se Viva snomeenge HDðLrii˖ẽỹ

nT eib. Assis bite no.

DE STO Sth Sito ae tad bag sitet ai fy?

LS Tree 9 blub wann a5 .

By Commissioner Elman: —

b cat « 0 tale *

0 e ul Aon ne

of 2 7 7 7 +

fs 17 as 17

‘ 5

. 18 11789

9457 92 7 *

N ne des .

aA; ti 504 1

FOM. pe we 7

; a

ate” Acid tir

‘eeu

Nen 7 tg

antic pan Lo.

Ba Pit toh eb yl estate ee Rey Oe

en Sisttif os 10 noi 10 vutibeif *

Nil 1 Mett Ji bestenT 2.198) erin 190%

Dr De bt o eric tr ¢

—— tafe oedechytiirw wets

. ‘qpuilinnta semeiak onan

—— of Chitwan Dixon aid Commie ‘Mac

Intyre, has reviewed afre A the : peding

in the licht of the l

'_have concluded, for the reasons set ff

{, Commission agreement involved here. iis ‘ita Kune

, operation and effect, rom the dhe nend unlaw

ful in Atlantic, and that an order rm i bythe

_ Supreme Gouin dt der enter ee, va

eis ey

Dr A

TEC 9

SOMIBIESION. DL

17 Hom

ths U LY

acy bres eed 1 2

7, irpetone and

770 i 1 wen. 126 17 ‘the wag dt bape RL. 410

56 , WET. . 9 one ee Wolle eie :

nig 905 Meint N 505 2 p

ars 5 4 U 7 ö ‘ 2 — ii ; . :

U 3 2 aA ns USC bets SiN eS 4 ro: <i

compar a Over eoere actes to force. their dealers

‘ 0 Ar des ey 2G ' VR ME Rag 0 ely . 2 kre?

: 1. 4 : ne 3 — 2 — = aM yes 2 . 4 3

‘ Db me gponsq red FURDE On 22 : 72241 ut

Deen . * 10 1 ‘ B

* MJ ng 7010 *

Commis or peciac. iv dedime 10 K ts 0 ich upon

a finding of coercion or to limit its orders to injunt tidne gast

_ coercive: tactics. Instead, : it Ju be unicorn <daerae to :

gasoline dealers

es "iste glais fh vik — 606g 4

7 /

a> ru

* N J 1 .

ubstantial quantities of sponanred, — abe ide.

of ovirt Obertibe tacties. 5 +) (GBBT CNG 40

e MR RO IE — ie

‘dn eal — J

itedl fit:(68 Fr SA Sein

the actual operation of the sales ona isi0 pin in theeontett eee

ofthe economic telationship: between-the-ail Sdinpeny and its

. by :

‘ 2 — 8 ;

overt, 5

Der. Hs Fs ie! De

455 5 i erde

E jf least, , 0 hh Boe

tat benden

by. Allan . 2 ase, pn

Having made 1 ‘ihe: Copamieniott mac —

— aaah Uf chm

| 25.6666

—

80 4

Merceallectedd wust hot insubstantial“ nde Atlantie nad end

about $50 million in sponsored TBA products during the period

12501960 (88 F. P.O; at 350-66). In Gbourich the Commammon

outlets; which „e eintilar' to ä — in

Goodyear. The: amount of commerce’ affected in Goodrich was

considerably more substantial than that in Goodyear in the

five-year period: 1952. 1056 Texaeo sold more than $245 million

in sponsored TBA, almost five times as much as was invalved

ene 4

data“ eee tolq „ln

man : evidence ahi Berit

ae relent e e

e oi

. Bense ‘ta’ thowd' pfevigushy entered 5 Gear ka Pre

stone. "Ai apie es gait ae Wo th Cee .

time, the composition of the Commission Hack ch

ö nf Of thle mene rh; r AndktsoH) N oho

0 atec earlier decision Tétisined

hin. second appeal thé Cothiniition,

* ene 2 a the Sonata chiail-

ire equal ily spite 7 7 hic

Ath | po ty 7.6 Gch

or 1 Keil 1863). be to

An 7 a vt ot

ordéted' that ther ebtnblaint be 'disrnineed.

en 712 tte 4! Wy

5 75 — soit |

8 Ibn, f are

Saat Bera ES 5%, nich

a 1 » roses

25 =

of ha iit Mone ew

of Goodrich —— — a —

Texaco dealers are quite frve t ancept aq

pany's recommandatien“ —— — 1

note (da 763). „nag fio odt g eta

[ease The fondanieh tal premise: ther ying die tonclusion

the Curt of . in

— for the S demctusle that Derhoo has

controlling economic power ee its dealers” and Wat Tex-

ands * ‘with {tts P dealers do tict give tied? 48 an infer-

enge tint 1¢ dd (Ido at-762.) Tn the cburt'eview, the F promo-

tidnal Scr Viel perforined by Terade Gale indistinguishable

trot, nu no N lawful than, ‘eotiventional’ sstesmantship to

1 “purchasers. ort i sa0criig eagrtiand

50 THe apiprosch: conflicted with that of thé Deurt-of Appeals

for the Seventy Orrcuit; lich affirmed the Coministin’:'s order

m Goodyear.’ Bor the Seventh ‘Cireuit che starting point for

any tealisti¢ a ed of the nature and competitive effect of

an oil bompany’s “resommen dations” under che made commis-

ston plait wae the eboribmic power whirh the pil company pos-

sessed over its dealers and which derived from the vontractual

relationship between them. In, ite Nam he — megs

the eeonamio power Atlantic

dealers” (331 F. 2d.at, 400), fs png 5 e coher

eit! upon poercive tactics Rather, Sade Ne ily ie

ae 1. 4 Rubber bo. “py daa v 40% Hen ote Hoes’

* The Seventh. Circuit — —

2 r

f ’ P ae er F ps4 = a ene ; 4 . be , 82 * N t 8

he pee die er ot Bali

* =: 5

8 snp 8

et eh

685

—

that. power. could be. fund in the, “lease and equipm Joan

Lontract with their ahert term and, —

Abia.) Viewed in the eontaxt n the Service

station dealer is mom of an economig serf than ——

free te putehasp the TBA of hie ehoiee.” (lind.) Reaching an,

opposite conshusion fram. thes of the District, of ee

perp nit — Seventh, Circvit- held (id. 46. 401): N

SARL RARPY Poet te chüse it dealers! bo — Ane

00d r Frestene TBA dods not depend upon vert

dete Methods: The totality of fünts surroanding the

_ relationship between the oil company bd the dealers

poimta do one pomelusion.; the pil company is able toexert

dbufßcient osonnmin power oven ite « alers s that for al

preurtival purposes: they ane ‘to. rr neee .

TBA “avale: hy aa! N TNC Att. 2.1 HG

a a fe fal aht cays. eh ie ma Buenoe over ita dealers to pur.

: 6 A shart. of forge; threat, or intimida-

— that itanay:reqommend high. quality TBA

0 ida-dealbeny and thet such action: serves 4 legitimate

business purpose in the promotion of the sale ef gasoline.

„Nis wald ele pennen, mu ent except forthe

debe nei dependent upon the oi] company. In

that zetting, reepmmendation is tantamount, to com ·

mand. Cowert: practices are as efficient, as overt action.

. Sopbistachted: methods ci preesuring the dealers into

rnit ep red TBA a Paes Sennen cove-

2 naateandepérs threats.”

mite Lug zan efi 1% le

Atlantic bee pd fl he diene

e two es ad upoh nhrrow fabthal distine-

77 7

ae es naif ‘frdmed Ue asus presented: by

_ Both, sapen in identigal, Pron een ani the Seer ne

„ % ysifiell-="suimetgnre’) oft

is unfair method of dompetition, in violation af

5 r r

eee eee

2 ty decks og. aris * g

ial yp lesiege 87 93 275

ok tina ets 81 Wang

ech ee l .

fe 9 Hi ‘a es, 4 ome or 46 Ai

: ’ Ne pile 7 57 17 ith

our dectston upon it.

| Goodyear; (1). pepe

blier 1155 oi] company.

be 55

n major runder bomb. et arid g mater oll Segen to sitet

to an nt under which the'dil domi puny, in rev

6 Sponser the gels of me fudder

el Sen poche in oft conapaniytsretail dexlers.”*

E 0s lt to gang

15 boch oases the. ö

reflected by 125 Sen i i Seve

N his

pendence upon, and subservience:

purchase substantial quanti es i he ont ove

(2) the promotional services: whic e 1 80 compan

ligated’ to, and dick, perform under .

ment constituted the exercise of that Power fol tlie benefit of of

the spondorec 0 ‘supplier and (8) ad a restilt, the effect of

i on’ Plan igfike that of a/tylig abreemenit, fore-

non-spo — ö

ma ech werfen bil cdthbahny” y stealer ign tenn

i): $3

19461]. The Supreme Save ari the “Atlantic: Goodyear |

case for the purpose of rago ‘apparent, conflict” with

Texaco (381 U.S. at 363), The Courts d the Seventh Cir-

cuit’s.decision, and a week later, vacated the judgment of the

District of Columbia Circuit. in cane. and ordęred that the

case be remanded to the Commission for r reconsideration i in light

of the decision i in Atlantic (V. Tr. 05 *. Texaco, Ine. 881 P. 8. 27

ot! fA 4j, i

„We turn 8 to the threshold question in this ne pro-

eceding: What light is cast by the Supreme Nee in

Atlantit upon the appropriate disposition, of this case

Reading its opinion againet the background, set forth ghore,

we can draw only one conclusion: In upholding the Seventh

Circuit, and Commission decisiong, the Suppemp Court approved

their broad rationale, rejected the approach taken by the Dis

tzict of Columbia Circuit in this ng, and enunciated,» rule

which transcends the confines of the partiouler. facts involved

—— TT

e Inc, supra, ‘Petition ter a Wait of Gertiogari to the

ted, States Court of Abpeals' for the District of Columbia: Circuit, p. 2:

. Refning Oo. Y N. T. Oi, spre; Brie? ‘for the Dea ‘Trade Com-

— ot one og ee 7017 gtr YW Si eae dary ee

; fring Co. v. „rn. Federal Trade Commis

sion, pp. rr “ier supra, ‘Petition for a Writ of Cer

tiotari, pp 16-10. ‘

ae,

‘ : — —

Be 4.

gest the Perle ie oversive Practieeg agers

vate the, restraint imposed by the sales. commission plan, it is

the nil Nee over its begat Be andy of shat

45 a ana pe dealers), ‘tang 10 not. 150 as

| eee e

en an contracts wi

“su

Inion, 55.57 88. 13 (1064),

and we need not oad repeat that discussion here. -

It must also — remembered that Atlantic controlled the

H gasolin fhe id en c fe wholeaalére and dealers

23 1 a an de | al 80 ’

> roy 4 * Ine, 37 VS. 38, 45

' text, “threats: aad coercive 11 W Hol-

stered agra which resulted from this economic power

(id. at 369). The Court viewed the oil company’s aggressive and

vigorous salesmanship, in carrying out the sales commission

plan, ‘wholly apart from any boereive tactics; as an exertion

l the p persulidion that is a natural incident’ of its economic

pb Fae i at 308) rather than ‘as the “recommendations” of

jectꝰ tem

edith, the Court accepted the Commission's anid the

obntradt, it; which obligated — to st: power over

ale al he ond — Po, a

t was im yim mie Under the sales

ihc ‘the'r 2 antl Tetuco

ow), the i company, without 5 80 any investment in de

tribiation’d facilities or ‘TBA inventory, and ae *

the TRA supplier oi the burden of sales, distribwtion, and serv-

ieev is nevertheless paid large commissions for its promotional

eflorta. Aocordingly,. the Court found that- it, is difficult to

escape the conclusion that there would: have been little point

in paying substantial commissions to oil companies were it not

for their ability: to exert. power over their: wholesplers,.and . |

dealers (id. at 376). 3 lait totuo ®

A in upholding the Gomantimion’s |

onder prohibiting outright the use of the sales commission plan

by Atlantie and Goodyear, was also affirming the rationale

Eren the Commission's decision; which ‘Wea: Count de

Ameo. (id. at 361): 5 b..

„The Commission Seiter the doused . :

“to be symptomatic of à more fundamental restraint of

trade and found the sales-commission plan Megul in it-

delf as ‘a classic example of the use of economic ‘power in

50 one market to destroy competition in another |

market 8 * 99:9 [Emphasis supplied} 110

At the same ‘time the Supreme Court dispelled )

tin e by the Cennet hres Len it

ceeding. An assessrnent of the competitive 1 Becta of tt I

commission plan does not require an analysis of “marl ot 0 data.”

Since the testimony only al what was ese essentially im- |

plicit, in the relationhip between the oil a Tra deal-

com-

ers—that the oil company’s

mission poten the compa et effe

Spo! suppliers evr

by the gil company’s pays dealer farther rtm nalys

la It is sufficient to ; 2 d eee

portion of commerce is affected

£9464]. To be sure, the Supreme Court took note of the strik

: in Atlantic of both the extreme abuses at-

Atlantis use ef the salea-eommigsion.plan, and the

dramstio effectiveness of the plan in foreclosing nonsponsored '

0 “he Court waid ft this regard {id at 71): 2110 Ani:

n — oe

paid re extensive economic

— — wit

TBA suppliers from the Atlantic’ servite station market: Atian-

tic’ wala the first case before the Court involving a challenge to

the sales commission plan it presented for review a Commis-

sion decision: whose rationals would render unlawful the sales

commission plans theinselves, whenever used by major oil and

rubber ‘companies. The Court; therefore, made a careful exam-

ination of the entire record to assess the “economic and business

stuff out of which these arrangements emerge”, so ds to deter-

mine whether they are naked restraints of trade with no pur-

pose except stifling of competition” and whether “they may be

too dangerous to sanction” (White Motor Co. v. United States,

372 US: 253; 263): But, like the Commission, the Court

looked upon the dramatic aspects of Atlantic as “symptomatic”

of a broader problem. Having examined, as reflected by the

record in Atlantic, the dangers presented by sales œmmission

plans, them essentially anti-competitive character, and the vivid

demonstration of the abuses which may attend their use, the

Court eonoluded more generally that the sales commigsion plan

itself amount Is] to a device that permits suppliers of tires,

batteries and accessories, through the use of oil company power,

to effectively sew up lange markets” and, as Such, could not. be

defended even though it might be an efficient and economic

method of “dsteibution' (381 U.S. at 371). Consequently, the

Court's ultimate concern was not limited to the sales commis-

sion plan it Miezen Atlantic, but was rather with “the *

fect on commerce that 1 result from the widespread

commiss ie by. faajor. oil com-

entered itd ‘bales ems von plans a6 W Seating

aer eompainies“Goodrich; Firestone and, under an agree-

— eee

effect. We think it enough that the Commissfon found that a not insubetan-

dN e e ef e M f. 1

A 2 7 oF * 7. 7 4 .

F. T. C., ‘eupra, Brief of Petitioner The Atlantic Refining Company, pp. 81-82,

57, n. 48.

e lt Sen ge tot other me BN

The service station dealer outlets dees Wy tls de de.

mission plans conatitꝭ DL eee

‘the same time only the largest rubber cot re.

Senger plane, & fact which’ WO aper e ati Ne”

Commission's finding in Atlantic that siialler TBA sippiiers

are unable to utilize the sales commission arrangement (8

F. T. C. at 307)? Given the Court's yiew of the fundamentally

anticompetitive character of the sles’ commission plan ‘when

be dect pcg sree Aare rato ons ve

proliferation of these plans between major oil companies and

major rubber companies constitutes in itself an acute danger for

competition. It was in this context that the Court, looking

beyond Atlantic, and the sperifi¢’ facts involved there, coneluded

that generally the use of the sales commission plan by major

oil companies and major rubber companies, whatever its eo- -

nomic advantages, is a practice “too dangerous to sanction”, -

_» This conclusion is buttressed as much by what the Court did,

4 by wind it anid: The Courtꝰ's affirmance of the Commission's

order prohibiting outright the use of sales cominission plans hy

Atlantie and Goodyear not only, between. themselves but. with

other companies had broad competitive conaequenoes in both

the TBA and petroleum markets. If the Court’s decision were

to be read as limiting the. Commission in its evnduation of other |

in-

sales commission plans to the specific factual ei

Wed in Atlantic; ons major oil and one major rubber com-

cpartiye action e e aging im

its major pecan fsa Sake mee psa free to u.

„ ao") asi pla?

[9466] .. tax Geneltooeanatien

eS een

commission plans proxiding

sponsorship. to promote their TBA $8 t ca

ers, Net, Goodyear could not ask Tera Lei . 6

exace hes uo propensity tq use. coercive tactics

in petorming its other sales commission, plans)-to perform i

— e af apa edt 1

ment in, distributional A inventory, 1 8 5

stantial commissions for the sale 0 e Sag

stations. Atlantic, a major oil company but s

n a e e eee equip;

* Court

in Atlantic also render Texaco deal eee

to, and depen N exaoo; and its commission

require Texaco, to perform, the same kind of vigorous e

tional campaign ny ene T q bax only-Atlantic and

4 ty ml enen n Die: wpuldl Gis

nat only, create a joes, competitive imbalance among; the

leading firms of the two. indystries, it would be ae and

ineq

„The Supremip Court ‘waa informed of the harmafui aed. anom-

slous consequence. of a rule confi „

Atlantic. We fn find nothing wh: would permit us to read

19467 the Court's en read orn rz

ing, as sanctioning such results. 1 1

a ede ie r pcg Sue's 10 Tesbs dond ‘the Ocürt:

. A

e conftict unresolved, would - an anomsious situation

which hone, mao — and — Sealed

prohibited ͤ — wü TO) “A681

PPO. vi rue, Inc, 861 U. eo fn Wo Cee» 5

e order in of the two cases ap MIE Si aie

11 22 20 ee times larger 1 10 1

— Hero, one. it eee e Hanth

Beene Comeeny,

dt THEI bigs VR di tig DP elner R. *

cots it dobyboud ue dur?

Hr in haworiod AAL. Ehn enoiiste sid} fit:

In our ien thie: Supitese Coltrt david bs d estb butt

pels tlie conel uon that the Texaco Goh plan is un uiviair

method of competition and that Texabo And Goodrich ahbuld

Be prohibited, ax were Atiantiéb and Goodyeaty from erfor-

ing or enteting into any other ‘miles cohunission'plang:‘The

Courts bontern for the datigam whieh ddervwod Trem h wide 8

spread use of ‘the sales cdmmmston plan is espedially relevant

here. As has been pointed out, Texaco is considerably larger.

than Atlantic. Its service station dealers constitute an‘ even

more Significant TBA market Stations operated by Teracb's

lessse dealers and contract dealers 9468 ‘constituted ©

16.5% of the service stations in the United Stations in the year

1955. In that year, Tenade had approximately ain dme 46

many’ contract and lessee dealers in Atlantic

Moreover, as we have noted, im Atlantic en

Atlantie dediets of ‘Goodyear and Firestone: products for'the

six-year period dun 1960-June 1956 amounted’ to about $50

million! Goodrich 4nd Firestone sold: almost: $60 million, in

TBA products to Texaco dealers in the year 1056 dione. In the

five-year period 1952-1956, the sales of the sponsored Godd-

rich and Firestone dun to Texaco amounted to r anal

$245 million: ” MA e

The eco, e of Tera ae is no different

toin thet df Atlantic dealers: Thus Tesco lessee dealers, wha

constitute the most important segment of service station TBA

otitlets,; have the same kind of short term teases, renewable on

a yeir-t0-year besis and terminable at year’s end upon ten days

notice of either party: These leases contain the same kind of

general housekeeping” requirements concerning the stations

use, maintenance and appearance which, if breached, can re-

bull in immediate dancellation by Texaco without notice te the

lessed. The Wandern have 1. Nr 2 Fern, investment

0 Tey

ts 177 Mr Hf 4 nn 555 1

OS OMe ¢ 80

in ‘their stations, at times, on Hunds borrowed from ‘Texaco.

ontract dealers’, bo own their stations or lease them from

third parties, nevertheless lese their pumps and other equip

went Front Texaco, Bech lesser: and contract dealers purchase

their gasoline pursuant to an Agreement of Sale“, preseribing

annual minimum and maximum purchases at eurrent, Texaco

to-yenr basa, bel aging f end upon thirty day’ note,

and .nittomatically cancelled” if a lessee dealer's lee is

terminated. a

In these cent the - cobsietitiparactynntaah:’ given. 8

TRA: supplier whose products are sponsored by. Texaeo. need

[9469} hardly depend upon the use of overtly coercive tacti wef

Here, as in Atlantic, Texaco promotional efforts in

f ing cut ita enleb comminhion sgredenent with-Cloodrioh and Mire-

stone constitute a foreeful exertise of its economic power over

ita dealers: Its consequence is to impress upon ‘Texaco dealers,

through constant repetition ‘and in)a’ variety of ways, that

Texaco, whose favor the dealer must court, bas a strong intereat

g in their pur¢haseof the spored TBA products. baa

Even before he dealer has been accepted, Tennoo begins ite

cantpaign on behalf af the sponsored TBA. products. Texaco

‘personnel, whem interviewing prospective dealers for new or

established service stations, advised them of the importance of

TBA, recommending the TBA products of Goodrich and Fire-

stone. Once the dealer is selected, and before he opens his sta-

tion, rende frequently informs Goodrich and Firestone of ti 5

prospective opening station, affording Goodrich and Tire

stone ‘a headstart over corfipetitors.in the. initiation of their

| own tales campaign on behalf. of their products. Thereafter,

Texno often with the direct assistance and participation of the

rubber ‘companies, maintains a continuous campaign designed

to induos the dealer to: purchase the sponsored: TBA produets:

Dealer meetings and training courses designed to edyeate-the

dealer in thé use of TBA’ products ttilize ‘the products of the

sponsored companies, Texaco participatesin the sponded com-

88 * —— 8

f N 1 3 e A 8 bent 10 lis 4 ie

as the sp Products, And, ‘perhaps most, tee.

tive of all, ek ee ona cr a

ta Sonat le e re pa

9 8 5

ee ten

| most mee involved in _— the orion TBA préduste:

. a

slp play arto! rl in he aay deal

thes n of arhether, the dealer’

{9470} device, pointing arg at si

ee dernen.

e en

iio off jure

< * ¢

‘é 11. 0

‘ . “yy

i supplier phic ns 5

0 . 2 22

NN 1 * 5

147

rer coving CRRA Toe te

11 N . * 7 1 .

10 * le I VAS . 1 21 2 a ee

A b Tactup ;

* . 70 2 ‘ 5 wear Ar

; 5 en iy 1 5

1 a8 ?

J é „

df .

ee and ö dondemns te

, 82 75

. pian. And ‘white! thle attanivig ‘Chil eas

ee Oe ade TEA See pom pee

11 A ＋

2 Presended by the sales commüissiom fans here- un In

i in heir capacity for bindering competition Between

sponsored and non-sponsored TBA suppliers. A devied whith

may enhances the’ eee TRA Up-

phier is evi Smaller conipetitars cunhot ded on 'the

aß it ern leaves these few e “toi

for scores to the Teratg sepviee |

7 teMG wake sho abs Nn fone 1 2 908 vd Nin

* 224 Ri enn no bob sys 11

— — Re

ional

eat Be

these

. & *

nomie sr devil ta a Tan 2

a — — —e them; Any affirming the

Seventh Circuit’s decision in Atlantic, the Supreme Court re-

2 Wu ene 4178 K 1 41 l 1 snotad :

IV.

7 eqn &

"We think that orders against bo 3

. tical with the orders against Atlititic aid Gook

affirmed by the Supreme Court, ve ar

Texaco should clearly be enjoined terirgpistéior per-

forming any sales commission plan. park gre ce 8

year, it was “no silent or inactive partnerin lei tation

of the sales-commission plan” (381 US. at 5

„the sales commission plan berg da — 1 „

joint EH in Which the missive power of a major-rabber-eom-

Hany thd a major oil'conipany is united» to the ‘djsavantage

f'n ‘eonspetitors;' Behind the’ ‘ofthe rubbet

company’& TBA producteGéodrichinow. n

plans with five othéndil companies Continental Sin- Nineri·

van denne Obie Of arid Bmblen, Its sales cn plans

e ee ee

2 There Stee — record to indicate that

wib fide de not ai have: the Kind of eobrimie

power iby Tetaco' overt itd dear We Would ust: be

- justified in concluding that any oF:4hesecothds iplank!ianlike -

Goodrich’s plan with Texaco, was not an attempt fo. buy; the

economic power of the oil | company over its — in order to :

i prohibits Good

ing into or carrying out any sdles-conmissidit

rich ‘should! come! fr wN With face ¢

eee aj 99 217 to ) S908 18% 175 dF AF)

ts January , 1088. U od bluo a1” soled botstizedue ai gai

2 ard lash & 95 Wieni viauorgiv bivew asmzslee O0 TI 23

ee Fovar Ono or zx g. maol wikis

16480 oak L nuery 14, 1900) ee

on! UNITED STATES OF AMERICA vor)

"paren Pes Ton Conn

naa "asi Dn, i 5 da she pe

‘ - : 1122 Denn GAT Hr

bee Pom} eleison,

1 i Dia ite, der sisted Fane 16, 1965, ‘the Chait of hewoie

for the District of Columbia Circuit remanded. this case to the

Cominission for further proceedings in ‘conformity’ with. the

opinion of the Supreme Court herein dated June 7, 1966. Pur-

. susht thereto, the Commission heard otal argument aad re-

ceived: written briefs, and fully considered, on the basis of the

: entire record, all questions of fact and law presented by the! p-

peals from: the hearing. examiner's, revised, initial deuision of

September 24-1962. ee ee ee ;

means Ce ene, 4 „ fy PAY

+--+?

Tea ordered thi: D eee tt

aa 432-44 . n: 45 5 . . * i

ke ial decision Eh ln 10

. thereby is, modified as follows:

a 194511 0 Findings 10(b),' 32; 33 24, and conclusion 75

Stricken. piii lio ven lito

„2 The fires sentence of finding B; is deleted, andthe follow-

ing in substituted: therefor): Tires, batteries, and accessories

ae hove kane: and integral port pf the business mpera:

: ene Texaco dealer, and in particular vg

8 Texseg’ sleet denies E goizzisuno’) bas aovid BETA.)

(3). The last sentence of finding 20 is deleted aid lie fo Hor:

nig ia substituted therefor: It would be unimul fol expect that

_ hadi toby wherever igh wih wha Toa rae 5

Ation of —

aue

1555 al

Piet contracts wi — other er j \

smaller local concerns. Shell-American an Jenney

erally with customers selling at thé‘rétail

level, hut — —

andi Aistrit tors.”

(5) The second sentence in Endig 30 fy deleted? unh W fol-

- lowing is substituted therefor: “From aifines to the end of 1955,

the number of Conoco leased stati increased from 1,138 to

1,765.2”

(6) The last sentence of finding 31, and th ie biel:

ately below, are deleted, and the following substituted therefor:

“Outlets of the additional oil companies having sales commis-

sion r ee 1

follows:

19452 n

e 12-81-53 12-31-64 1281-65

Conoco: . „ 1061 1212 1508

er eee ieee

Jen . 188 201

Emblem 30 2 25

„ 185876 2201 229598 5

(7) The first sentence of conclusion 5 is ae and the

following is substituted therefor: practically all of the repre-

sentatives of the competitors of Goodrich called as witnesses

testified generally that they had difficulty in selling TBA to

Texaco stations and testified specifically as to the reasons given

by certain Texaco dealers for not buying or eee TBA

items. 77 1 B :

t 1 7 *

The hearing 5 revised initial decision of —

ber 24, 1962, as hereinabove modified and supplemented by the

accompanying opinion, and the order contained in said revised

initial decision be, and they hereby are, a este ö

. Sion and order of the Commission. 7 ‘

: 295-454 —68——_T

1 ; .

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7 ; i . 74 tae

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“~ nd 7 . 7 os

— ‘ 144 190 4 1247 1

. *

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vs * 5 „ rere Monts

hs +t ν un . — ee wal are 3

suet hin faite Vo. 20061 adem een,

= *

ä P

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fom Nenn 4 a ein nig!

ein a n s et.. Sine a b

Bei 2 ip Ap Be Cour spprowal, eG b berbn l). 5. 2

= and 9200 ve hope ines, |

* ° 5

. dures, . r 31 U poe bets Betis eat f

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1 e * — 151 VR: 72971

if 1 rf * 7 2 — MAYS te 2 2 ee, ae — 1771

— Tne rine rere wig TED 8.

„ *

2 5

—

The parties, nung met e agréement

ig — Texaco W r

chat the issues on re-

—

habe ae 5 — Gommaigsion’s Order jean istand, under the

ee Court’s decision in

A Ramm Co. Tedenal Trade Commissidn, 381 US.

357 (1965); and, in any event, whether: that portion of the

Order enjoining coercion „ ios of the foes Sint Tee 2

acd did not coeres ite dealt Purchase sponsored TBA (as

ee Gourean See eee proceeding); am and

2. Whether Téxaco and BFG are correct in maintaining that

(a) The Order, and the opinions, findings and —

upon whit 4s based, are arbitrary, G cious, not in accord -

ance with law, without statutory authority, unsupported by re-

liable, competent, probative or substantial evidence, unwar-

ranted by the facts and founded upon erroneous inferences,

incompatible with the-rédord’ as a Whole, céntlary ‘to the Su-

E in the. Atlantic case, and were entered

— —

3 3 — the mandates of

the ker Court and of this Court in this matter.

e Corpmis ion has wholl pares te if aha te fie

of 45 5 7 N 7 — 0

inform ving courts hüd the p 40 f ah quate and

proper statement of ite fin dings and conclusions as othe i al

and factual basis for its ord all as required by statute and

necessary to due process; .

(e) Since the Commission 3 excluded from its con-

c e during the remand hear-

ings in 19 Mendd aince this left! before it but th prior

0 ha he ob e ee ene,

* 0 — —— N

en dian 2 is tee )

Gondeish or — — i

teen: Goodrich 5

a0 or. tau agreements constitate pry un-

Lcicmelhatlel ayapetiion ——

tien in violation of Section 5; of the Federal Trade Comitniasion

Abet. In Particulér there is no substantial, probative, éompétent

or reliable evidence of (a) edercidn; (b) the existense of and/or

the einployment of étonomic power by Texaco to‘omise'Texends

dealers involuntarily to purchase gabéstantial amounts'of TBA;

(c):the:existenge bf and/or employment of eoonomic ‘phwer by

any other oil-ebmpany having sdles cin srrangetmerté

_ with BRG to cause theit! dealers, in voluntarily to purchase subs

stantial amounts of THA and (d) eee

oF any injury to competition: Bs!

(f) The record ieffirmativety e

— of distributing — by Texaco und BFG

000

an attempt to mondpolize or a cdnspirazy to trade

in TBA; does not involve tie · in br exclusive de is not an

rel

practise in commerce in ‘violation of Section 5 of the Federal

Trade Commission Act and in not in violxtion of any law:

eee eee eee

: n beses pit wis e Tetasd % BY

a inet ed en by. the Commision ‘Wl: Soak

: denten ah He ead tof. ‘ombounT re nelühab!.

-RRdpirdias the Feder rute Combiisdida; ook 7 —

/ with the isgues as stated by peitioners, It believes:

|” SBviedn tobe ds follows tom “ e dt ci oh odT yoo

. bel Weiler it is at unfeie meshod ef eonanceiion, 0

tich wf Beete 5 vf me Fedora Trade! Commission Abt, Tor a

~ ‘eublBaoeontpany tommtey ito u MN eit iti u öl Bom.

Fanny pebsesing ontroting edonontid power over Ee desers

under eb the eibbompahyy in return tur a e pH-.

tes the Ales 6% t den the rubber Sn pauiy'& rode

To.the extent thet qychtions miy be raised und urgeedh pb.

tisiiers, this famieowall indlude;:emter u, Cd) e to

whothtr Tena Eno. ddes possess centrolliiig eon po- ]

. mae ay Pane AE

7 n an sliture aled sea tine erg

— TBA. “fi isitequity „ Fr ae 2

» ~ty:Witether the Pa RE ry sa A divice

- Of ed «This Ns wil inclaGéithe quelitiei of whether; hav:

CC ¢omumiction agree ffient’ bet ween :peti-

tioners Herend ke sand: The B. F.Geadrich Company vitisted

- Section, 5, the Genishission abused tits-chiberetion: bry alot Hel

prdadbiting, the petitioners from wn dr Having sudh'an .

benden withceach ohen but: by isles prohibiting dach peti: -

tioner am en toring: inte /o ‘penforbing tatty sity similar ate

5 need oven. Mal bus 05 exo gi

sion comply n the = al sre Court and oa

72 mb 149

F "4 2 7 d 4 a

0 a : 7 n ° .

* * roc eV ebete: sit 1200 N

3 14 he Ss SN = Rese 4 +g: 1 ‘ K a . J ad

* 2 * 8 3 ~ a 4 * 48

t 2 raf . orn ion.

. ¥>e< 2tOiecde>s Sb. 0 i ~ s% oa : . x 8

2 :

eas Dre 5 e

=> Sag

- 49919 ce Wh I torid 15 in i 91 — lan, exguoisis oq H. 8

he ron or tig

Ne Pulitgs | opiniona.and,

place heave reliance . d 2

dence, necessitating the designation of substantial portions of

the record in the joint appendix i e of this

Court.

February 1964, on the. prior.

Ltn ( ee 135 herr)

| t 4 — 1 together with a

supplement ee tein ear of those relevant

aie ae to the af

‘| extend i into thesethher.

Rule ue of 8 —

spectfully des

ing schedule neg it is believ:

. 5 * 1 . 2 *

* . * ot

* 2 .

> mk N *

. 3 er Oe.

: nag 2

ii Hi. nod dui eure rde

* *

te 0 tor

wine

ä de

Fortunately, a substan iat’ 5. Pee * of the“ record has been

printed in a single joint sapendix an this Court in or about

ore this Court in this

rdingly, all parties stip-

legal papers ter the filing of said 1964

eee me rnd eripendix on

this appeal. mae 0

The parties are undef 4: Weit Dt Agb 0

sion in the un ppenats those papers and ther

materials deer nia : 7

material and héfp 15 sing of the petitions.

It is e e thet ,

printed in 1. Petitlöbers pot brief pursu-

ant to the ee set, forth, for, he consideration

and approval of this

The parties further stipulate and agree that the respondent |

may file a singis Riel.

Inasmuch as td brief sil of the parties will

ies, in accordance with

agree, and hereby re-

Frowah for the following brief-

, will not delay the assignment.

of the appeals for oral argument:

1. The petitioners shall file their appeal briefs not later than

June 30, 1966.

2. The e respondent : shall file ite answering brief, whigh may be

in typewritten or mimeographed form, not later than August

18, 1960, with — brief to be filed eo August 20,

1966.

, may

— écenseript — NOt |

extent that weh portion thay be material to: mone

uuderstood that 4 of thé ecutd thus referred to will

a be printed in a tal joint appendix if ne Court di.

Teota'the name to lista’ ifaw ais! es gd aos!

2 ° : . 7 1 é

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2.5. ts Respeetiflly, aru itte

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posi! bad fer 2 POLIS LIAO

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ee ba an P.O: “Aires ” i .

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aay der 207717 RRM 99 alt

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sit] OG

, | (May 118800

. ; UNITED STATER cownT ad ‘ABPEALS

Fon = Durner rar Caveat Cracurr,

toa de / September Term, 1965

—

No: 20068 |

A. ee para wennn

1 a Feveilil’ us cist, ‘RESPONDENT

809. 900% hag

111107 3 11 4 1101

2 B. F. mne ComMPARY, PETITIONER

rat u. (i 7 g.

Fepititt Th eben, RESPONDENT

Before: Tamm, Circuit Judge in Chambers. ö ae

Counsel for the parties in the above-entitled cases having

———— submitted their stipulation pursuant to Rule 38(k) of the Gen-

_ eral Rules of this fon and the stipulation having been con-

sidered, the stipulation is approved, except as hereinafter

provided, and it is

Further ordered that the stipulation shall control f urther pro-

° ceedings in these cases unless modified by further order of this

ö court, and that the stipulation dnd this order shall be printed

in the joint appendix herein, and it is

_ Further ordered, sua sponte, that the above-entitled cases are

* consolidated for all purposes, ant? that the joint appendix filed

by the in cases numbered /7, 915 and 17,923 shall be

treated part of the _ ee in the above-entitled

- 5 168 0

Faelle, ordered that tie dises for ting ine belets dg Nu

appendit ef the Paitied ts HN as fell:

Petitioners’ briefs.shgl be- filed on or before June 23,

Responden i céneelidated brief shall be filed on or be-

fore August 2, 1966. 8 i

Petitioners’ reply briefs, if any, and the joint appendix

of the parties shall be filed on or before August 22, 1966.

The parties muy de ther briefe ity pewtitten or mimeo-

graphed form, provided that the printed briefs and joint ap-

pendix shall be filed on or bank auer 22, 1966.

Referenoes to. dhe record aH ᷑intz in the brief of the parties

may, if the parties so desire, be to the page numbers in the orig-

inal record certified to this court, provided that in the printing

of the joint appendix there shall be set forth, in addition to the

consecutive fer ing of the Pages of ‘tid joni Gppendix, the

original record page numbers in bold type and indented in #

ittätrner fe Gal e der it dohvenient för the court tö toute

the pages referred tg in the briefs... N

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TIB. ia eee eee ere

~ ve’

iy il. T lr 5

Petitions to Review an Order of the. Federal Trade Commission .

7 4 Decided September 25, 1967 * A

Before — Chief Judge, Wnaun K. Mrs, Senior

Circuit Judge, and Bunarn, Circuit Judge.

Bono, Circuit Judge: Eleven years after the issuance of a

complaint and sixteen years after an investigation was initi-

ated,’ this case returns to us from the Federal Trade Commis- .

sion for the second time; in the interim, following our prior re-

view, the 8 Court remanded for further consideration.

See Texaco, Inc. v. F. T. C., 118 US. App. D.C. 366, 336 F. 2d

754 (1964), remanded, 381 US. 739 (1965).

* In 1960 the Federal Trade Commission brought proceedings

against major oil and rubber companies, simultaneously insti-

tuted by substantially identical te, alleging as an un-

ful v seat ited by Section 5; of the

Federal Tra ae t,t thd of & 5 15 prongs Lind (1946) |

Abeebbes bangen ü) dee

sales of — —

—

8375 e ae

5715 5 fa dd rf 1 7 74 2

ce 10 . 5 uae 0

0 Oomph ng.

* As :

e tan 2 — chaleur.

em Par erer PEER, paste ee actos.

466 N De 5 Als ott hun, (Aer diy) PME HS

eae 2 ef! SEL ee AL bag ai 61

—

| memantine evidence! earlier

i HT ‘po;

bee n nes the san miele decision thin Cour

7 haa lore — * Nur ros!

(ibirendn | 7 one tiv the! bearing

. . * re 0 — 2

re.

i Sa et 7

it ; .

the re ne Sn LG ee

Bo Be (708 Co 1964), and the alleged niet between this

tng the Seventh Crit was aera the pein for

ae Aegis vet f*

V ‘ ite . \ * 40

en 1 Bi ia met DDE 4 nd, 1610 At: ip iA Bids Pie *

1 e 0 1 itp lt. 1! 1 1 . Anf fre i u ot iy: — ams

Ka Tert rt 2 THe — 2 243 or tafe AF 3 slots ts. Or 14

* 25 — —— |

ABRs mat e Lite

Sharan ion, at

A edge edt 0

ben 5 —— teen in Gourd,

— a erktente op .

1 0 0 Or

. Dreteen

d Setting H Search ‘oa her he P. 5.

— Oe ead N 0. 298; mie

: e oft orks ie bt. caseest off diu bai

In Januney, 1066; deen g ented aoe fled

ah’ os on, chick 8 the wert of wid appeal "Phd eee

F. rü an e289 h an Wil. at motes

" — . — —

en aner metdd et

Goodrich, as were Atlantie and Goodye 7

dee ee eee eu de.

S 91h 2

2 ‘The Cammiaion ts hel that

‘products; and. (3). the a, conte stem has

Goodrich enn iser competitive advantage. o abel fine

ad. nian, ORR CAY WRAL BOT te af ORT Aart) bine >

herring ‘been! eee did not qurticipate 1 Ota .

Comin msioners n val pervtietpa fed

in the opinion and order now under review. N of n nn

‘tiajpeting were queinbéravef the 1061 ‘Cétintaton whic diredted the xa m-

mer te take andi enn evidente on the ‘comspetitiv’ -<fiects-et „e e

neee eee AF! oe te: alt Arina tat! a ton ate 21

ente 2 (1% Mat the Gisele on of the

Oo ie e latest order entered agamat Y is not justi-

fied vn the'Yeedrd ar ee is eros us In t

* . — — . —

—— —Ä— Gipouit interpreted the

‘Atle ‘Rationale A based on *

oh enh depending on Nad the after cae |

fs men re bas bite. aren 20 .doMboo

aha iar en pcg over

: its dealers; A Aal G. 0

Be 1 (by) exéroise of that power over ite dealers;)." 1

art een (e) antitompétitive: effects: of ene

e pp 480 e 449004

US. 1902 (196 : fade oe

4535 i te Supe

view

‘iso betes Wil Aine view at th

Se 85

) 5 772565 i rer But dic

Peal

Bra pen Woer

i tas — — 238 W rys ae “fs (th onions Str Pitt’ felekio: wht at

on conrpetition ot nem form of éconemic activity..

it will not declare tant activity. illegal per se. Whtin Riot Dene anne

J *

| am tated that when ft bas had ne bre oppor ;

—

Oe ay + Wee A Ain ee —— 0 .) I 4 95 :

he re .

ie patter

ne 0 5 fl af i a 3 tt — f

‘ * ‘dev i 8

* gon trol, de eee

5 * e, O *

Ern

bay ees 7 5 e

** septs e. el fa: Alle N F 55 r conclusion bate’ 254

ee 2440 466 dd duch öh 5 — ,

N al vat ade or nol oi ie *

* * * *

— a ü | . *

5 ° 5 5 . | ie, | n

age through the woof ane abt term dst and enuiment

Den e Ipdge 5 a ee

e dee. ae 5 — TANG va

i dur eater 2 eee, e wl et ;

f ee

thik outack ‘that nochn anid’ By

tic beat mts Aiud

nvsince the rer nd alters that Sac

an no thing fron the der fe" Bogens

, $ the basic rule that à finditig’ of coercion is.

ent * 4 determination’ of ex

bad tdi aie eiaing oF 6 |

at 10 the “Atlantic o ‘the Set Cirevit’s sustaining

Fes 6 Coniinission’s findings ot coercion were not appealed.

‘But,’ in Spite’ of this lack of chattenge By Atlantis utid by the

in both vases, the. Supreme Court in Atlantic did

not ignore record evidence of Atlantie'8 eoereive conduct. In-

deed, that Court was well aware that the ‘egercion Was found

to have permeated che entire Atlantic program, containinaling

even . ec sont e tin Aiwa 10

Te ion at Atlantic ‘oéteton: merely a6.

| ‘qravated. the restraint. imposed: by i — ere

N Wa not 80 Fe e Sen ne cotieludied

| én

Sait ai ast Te 1

tered inte b —

ir, a 11. ¢ PEAS : i ee 7 7

of the Atlante opinion: n there is some eee vi 7overt

ae ee Oe

Le 1

7 4 3 1

* n te . : . 8

ae | cn M 17 4 1 111 vee a 4 2

7 491 alice fi Ble

"tha esti emphi 3 > — 8

We have difficult, neil

the fact of 4 leg in 15 ie Ase.

ann g contractui Arrangement.

geen the oil company and f rs in and out 5

. ‘giving rise to controlling ene pone aaf er are te

ane without any coercion ‘constituted ‘nlawful‘exer- -

eise of ‘such power, there would have been nothing to remand.

The Supréme Court could have simply reversed and b —

the Commission 's order,

Ot bourse we realize us did Fudge Wisdont in i Shell, ‘hag th

“Companys tse of its ecpnomia pqwer through the sales Som: |

mission plan to cause its dealers td buy s ed TBA even in

the absence of overt coercion" eam bonstitute an unfair method, 7

of competition and a violation of section 5, Shell: at 482-83

femphasis added J. The Commission also recognizes this. and)

therefore argues that each of the non · Odereive re-

~ ferred to in Atlantic are present in equal degree in this case.

The Commission argues that the references to thes ti

in Atlantic soe 0 conclusion that even the non- 0 er i

Someones odio

N 2.2 ai

1 former de testified to th e contre.

134;

tain a finding of e res pesetions A sah otis: than. 50 presen

Jn, light of all this we do not read. Atlante 15 onelude, that

slit nan eee 15 Det 7555 *

— lantic’s conduet, » characte 965

Nees ul ee economic power in a eon

god: ~ de. ‘sa at DS, * 5710 75 few, ST will

and wholesalers. to. buy.

. (1) Sales Practices. dee dae,

was to instruot its salesmen to urge dealers to Fer-

‘i tepresent Goodyear, and to “cooperate } ith and:

in its efforts to promote an ‘increase

Er sale by Atlantic dealers of Goodyear produets.

381 US. at 365. The Commission - characterizes the evidence

here as substantially identical. Yet the Examiner was satisfied

that Texaco policy, since at least 1948 | has been to permit each

dealer to choose whatever brand TBA be near =e

The Commission ae argues that; “on each visit, the

ers, to write up sponsored TBA orders,”

but the Commiggion itself in the order presently under review.

struck the Examiner’s finding that Texaco “salesmen were en-

couraged by [Texaco] management to write up orders for spon-

sored TBA without waiting for a forinal request from a dealer.”

(2) Dual Solicitation and Advance N atification. In Atlantic

there was a regtilar practice oft

( Aouble teaming” solicitation of. Atlantic Catlett by rep-

resentatives of both companies to convert them to Good-

year products. They were to call on the dealers together, .

x2 take stock orders, furnish initial price lists and project

future quotas of 1 of ——— products.

———

6 “Ti nn

ny's selling personnel ‘are expected to become familiar

with ga —ů Inventory Guide Systems and TBA merchan-

—

ad and the merchandising 1 But it should be

y under Soak oe wit conden equal’ assistance to all dealers in

E ‘and u ass Gir e HIN ec ae er

ae K

* n

F — brand and px

sey fa 7

See bas cm mtn tw

i ce sree — rethain unchanged.

115 N

381 U.8 at 368 een lee pee eee e .

ele

tentnintz“ and advunee * nOtids to thé tte Cpu

nies tät a new station ‘wae about to becéme operuble wert

isolated and spOrutie practises! fot à regular or even frequent

practise as was the case with’ Atlantic's operations: They ap-

peared in Atlantic in the context of Axi entire system designed

ty overtly oberoe ite dealers: Wale du not tie dete OF the nerd

before us!:

3) Dedler Policing and Crédit Cards. In Atlantie thes Supreme

Court was confronted with evidenced that Atlantis imposed *

quotas on dealers and effeetively policed the by the use of a

reporting system of Pufehases and sales of TBA. In the original

appeal to this Court, tie Commission donténded that the quota

atid poliing system were als used by ‘Texaco. In the present

appeal the Conimiission has retreated fret Wiis poertief. As to

cretlit card policy the Examiner carefully distinguis ed the

Atlantic record from the instant record and significantly found

that Texaco n dener to ee een, TBA

on its credit cards 1

(4) Geographical Supply Poitee. 15 Atteste Oebdyger fequbed

that Atlantic assign its dealers tö a single point of TBA supply:

This ¢evgraphical division of supply points is not present in out

feeord and, indetd, the’ Examiner found that as to. |

TRA Edles, ‘och ‘dealer did not buy éxelusively from, and ws

not nlite? tö, ‘any ‘partioulée wapply: point ‘but “was free “to

deal with any source he chose!

These few examples ee ee be

tween the Atlantic record and this case. On the basis of the

recotd before us e cannot conclude that Texaco exploited its

service station market illegally for the benefit of itself and

Goodrich. In short, we do not find that Texaco used its con-

economic power to comet its. dealers to fue at eyo

5 Anticompetitive Effects ek .

. .

9 3 eee 5

woe

cnt woes Daa aa — koe eg —

66— a ee Oe

1107

adverse — effects. on: 8 As we hawe

previously noted, the first; Commission remand of the ene to.

the. Examiner. in 1961 was because. of, the need for additional,

evidence on the issue of anticompetitive. effects. We have.

further noted that no such evidence was forthcoming. In our

prior review of this cage we also found eee arſtioam-

petitive effects was lacking.

The Commission urges the ene

the essence of the Atlantic holding on anticompetitive effants;

(i) Extensive ‘economic analysis of the competitive

A effect based on examination of the entire TBA market is

unnecessary:

(2) Evideace. 7 tRialt jestifiention tn benefit to

the parties concerned is immaterial, 11165

(3) It is sufficient when the Commission finds. that

| substantial portion of commerce is affected.

This, of course, explains dhe Conimiasibn poaition chat the nA

system is an “inherently anticompetitive” device from which

“competitive injury must result.” This is simply a renewed inti-

mation of a per se rule in Atlantic and needs little discussion

since we have already rejected that reading. It is true, of course,

that the guidelines suggested by the Commission are referred to

in the Atlantic opinion, ¢.g., 381 US. at 370-37], But it is also

true, as Judge Wisdom pointed out in his discussion of these

guidelines, that the Court in Atlantic looked to the full record

for examples of anticompetitive effects. 360 F. ad 95 53: Seton

the Court was very clear on this point: ut GRP

The anticompetitive elfate of! this program 1 — 8

on thé record and render unnecessary extensive eco-

een ee

Wa is

381 US. at 371. ane

Bearing in mind he Fifth Cireuit’s caveat of an a be-

tween a discussion of anticompetitive effects and the exercise

of dominant economic power, ee e i tho

„

turing, 2 tires

— 0 Kod, of ce ie e e

oxymg that the pe of competition at these levele—interbrand

onan e beer Q ath ITED lob M. = iat —

1 yt?

vals

and, Competition. i. os. vilgqua LAT 3

l g the TBA eee eg.

service outlets, the manufacturers may suffer injury, To that

extent. producers’: e sep ke ene

| r ane as.

lantic the Court found a cladsi¢ division of territories between

Goodyear ' and Firestone, the ty manufacturers inyolved:

“Firestone and Goodyear were excluded from selling to Atlan-

ties dealers in each other's territories 881 US. at 370. Flow-.

ing direetly from this was the further adverse effeet that Atlan-

tie dealetn could only: buy atith peices designated e

to whom: the territory had: been allocated, ibid. Finally, chere

was little doubt but ‘that. the combination of these and other

practices in the Atlantic, record, including the resort to overt

coercion, had the drastic anticompetitive effect of almost com-

pletely foreclosing the market to Atlantic's .own retailers and

wholesalers: who. desired. to sell brands other than sponsored

products and to. wholésalers and manufacturers of oe

brands with similar desires.

We have earlier noted the fact that the record before us

devoid of evidence disclosing any form of territorial ive

Bethe e tas kat e urfacture

competing TBA suppliers to the efféet that ni sponsored TBA

could not be sold’ ib Detach desde bovatae of Wie dae m.

deretanding that! they wers required to purchase sponsored

TBA. The Commisdohttérroborates this testiniony with “rep-

resentative evidenue” tliat in certain’ Texaco districts the per-

céiitagé bf déalers who carried spored TBA: ranges from

70% tor 89% ‘This evidenvé and these figures were rejected by

2 the: Exariiner in his original decision and by the first Com-

chain haa

on. The Examiner's modification of this posi-

don, wbich as we noted was made with no new evidence, was

Affirnied by the sedond Commission decision, and this Court

rejected those findings on the prior appeal as unsupported in

the record. Nothing has developed to change our view; and in-

deed on ‘remand the Commission has stricken the Examinér’s

. eared ea RO

to a statement that “praé-

of competing suppliers

pn orc sieaitG- all OF harstrationetett ren of the soutpetitdes HÄ—2——

dé withesees testified” that they were foreclosed: from the

r Wesimply cannot regard this as

representative; such a conclusion is not supported by sub-

stantial ‘evidénce; except in isolated instances which were gen-

erally contradicted by overwhelming: rebuttal evidente. Nor

cai dre apt the Commission view that the rebuttal testimony

is be discown tad because witnestes are under pfenzure from

Texas, A finding of preasate on witbses before a tribuhal is

Hot one to be lightly inferred and ought not be made without

evidenée of some kind; e e CIC AE

this score.

11 iérabrand Competitu °°

10 mt tin ra

roe

ee: ry iE

. 24 at 206. a ; (IST LIS WW od i ete 7 14

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2” iy 7 + 2 . 0

5 . Pre 43 1 2 A Atle 0 te 177 °

55 <a tit? ; heat * VA ‘ 4

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ence Ww * 7 T ANTICOMHen tive ect.

0 * * 92 2 5 4 . 15 48 2 4 6

\ a Aine 5 he Gra ona Pm On

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4 Wen 2 e * 5 . 1

commerce is me rat A tian ~ }

* -~ 4

there. is nothing, obecure. or. ambigu

on an absence of cru especially where the remand 7

directs a further inquiry for relevant evidence. And we find no

basis for treating the Atlantic case as carrying the test of quan-

_ titative substantiality to the brink of extremism by a strained

literalism. Indeed, we- are inclined to believe that the Commis-

sion views the situation, as the Commission opinion and brief

candidly concede, as one in which it would be arbitrary and

inequitable to bar Atlantic and Shell, who are very much like

— —

~ 2

Texaco in broad outline, from use of the sales commission plan

while permitting Texaco to continue its operation. We agree

that it would be inequitable, and indeed a dereliction of the

Commissions obligations, provided that all three were guilty |

of substantially equal violations of section 5. But simply be-

cause Texaco is in the same line of business does not mean it

must suffer the pain of the misdeeds of other oil companies; this

would indeed by [sic] guilt by association. We conclude that the

record simply does not support a finding that Texaco violated

the Act. We therefore hold that while the record shows Texaco

indeed has dominant economic power, it is fatally deficient on

the crucial issues of exercise of that power and subsequent

anticompetitive effects. 21

e ; CONCLUSION. ä

One course available to us would be to remand this case

once again to the Commission to permit it to develop addi-

tional evidence for the record ** but the Commission and Exam-

iner have had abundant opportunity—and direct mandate—to

do this in the past and have not done so. We think the time

has now come to terminate these protracted proceedings and

dismiss the complaint. We recognize that the Commission’s

„ren in a remand to the Commission for further proceedings it would

have been imperative to make dear our View that the coercion aspect of the

order las no basis in law, or the record. Since we have twice

Commission ’

determined there is no basis that Texaco overtly coerced any substantial

nummer of dealers or that a pattern of coercion existed, the provistons of _

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0 rA OSS ARBRE 21 21

Txxaco, Ini, PETITIONER |

okt A A oa. ‘i

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S * cyte N i: 500 2 öl b

In B, 7 ‘Cobos Concedes ee i

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8 SC gi n ond io Ali

"United States Court bf Appeals for the Disstibbok Cetisiabla

Circuit; filed September 25, 1967; Nathan J. Paulson, clérk).

On Petitions to Review an Order of the Federal Trade Com-

mission. :

Before: Bazelon, Chief Ju ilbur K. Miller, Senior Cir-

cuit Judge, and Burger, Ci it Judge.

These cases came on to be heard on the record from the

Féderal Trade Commission, and were argued by counsel. —

On consideration whereof, it is ordered and adjudged by this

court that the order of the Federal Trade Commission on re- ‘

view in these cases is set aside, and these cases are hereby

remanded to the Federal Trade Commission with directions to

Per Cireuit Judge Burcer.

Narain J. Pavtson,

: Clerk of the United Stetes Court of Appesls

See Dat A epee CeO.

ichn Lerrarutm cue dy. u bed erte

* No. 010 Hrober, Perm. J 9672

Frorrar Trane, Corgncission, PETITIONER

＋ *

7) te — „.

1.1 v. 1 OAL I

; Tuc, Inc., r u.

M Nee Au sansa

Order allowing certigrari—Biled March 11, 1968

The petition herein for a A of Cound United

edie ery roe rh ia Circuit

is granted.

And it is further ordered that, she duly certißied copy of the

transcript of the proceedings below which accompanied the

eee erento eee

af) aki 1131

147 nige!

i n

. IH *

„ sosagk. to Nuo zotnie boa] ot % 410

M9) de 00 lo Nn ! wt

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.