Brief for the Federal Trade Commission in Opposition — Chain Institute, Inc. v. Federal Trade Commission (No. 554)

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CITATIONS

Cases:

Allied Paper Mills v. Federal Trade Commission, 168

F. 2d 600, certiorari denied, 336 U.S. 918______-- 9

Bond Crown & Cork Co. v. Federal Trade Commission,

Se cs Coun had wide d «Wud e 9,11

Ethy! Gasoline € ‘orporation v. v. Fr ‘nited States, 309 U.

ES hs sens na ee sii each vilae de eaae ie endal Aah sk 0 11

Federal Trade C ommission Vv. C ement Institute, 333

Ose Meee oer ares . 9,10

Federal Trade Commission v. National Lead Co 0.,

act id vice week daca ce 6,7, 11, 12, 14, 15, 16

Fort Howard Paper Co. v. Federal Trade Commission,

156 F. 2d 899, certiorari denied, 329 U.S. 795__- -- 9

General Talking Pictures Corp. v. Western Electric Co.,

Te en a cn cecbhenaeenes g

Afilk and Ice Cream Can Institute v. Federal Trade

(omn ixsston, 152 F. 2d 478- eee con ee

National Lead Company v. Fede ral Trade Commission,

227 F. 2d 825, cross petition for certiorari denied,

ee | Sa Se a re aad aS 9

Salt Producers Ass'n v. Fede oat Trade Commission, 134

F. 2d 354- a agit ene ea et 8)

Trianale ( rer a Cable Co. v. Federal Trade Com-

miseon, 16S Fo 2d 175, affirmed sub nom. Clayton

Mark & Co. v. Federal Trade Commission, 336 U.S.

TR RG eee eye Reap on een ee a NE ap 9

United States Maltsters Ass'n. v. Federal Trade Come

ts SE Ue San a ona ks cna nadtnens siete 9

440255 o1-—-1 (1)

r

Statutes:

Clayton Act, 38 Stat. 730, as amended, 15 U.S. C. 12

et seq.: Page

Section 2 (a)... ~.--~~---=--=-+---52-8+--5"" 4

Section 3 (bh)... ...--- ------ << as esensesee 14

Federal Trade Commission Act, 38 Stat. 719, as

amended, 15 U. S. C. 45, Section 5--------------- 2,3,4

sey ores

Gu the Supreme Court of the Bnited States

OcTOBER TERM, 1957

No. 554

CHAIN INSTITUTE, INC., ET AL., PETITIONERS

v.

FEDERAL TRADE COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

. STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL TRADE COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. 29-44)

is reported at 246 F. 2d 231. The Commission’s find-

ings, conclusion and order and the dissenting opinion

of Commissioner Mason (R. 592-622) are reported at

49 F. T. C. 1041, 1069-1110.

JURISDICTION .

The judgment of the Court of Appeals (Pet. 45-46)

was entered on July 19, 1957. The petition for a writ

of certiorari was filed on October 16, 1957. The juris-

dictien—ef_this Court is invoked under 28 U.S. C.

1254 (1).

(1)

2

QUESTIONS PRESENTED

1. Whether the Commission, having found that

petitioners have long been parties to a conspiracy to

fix delivered prices, properly directed _petitioners to

cease and desist from continuing thease, pursuant to

agreement, of the delivered price: systems without

which the purposes of the conspifacy could not have

been accomplished. ra

2. Whether the Commission acted within its allow-

able discretion in directing the petitioners individually

to cease and desist. a selling any type of chain pur-

suant to a single basing point system. a freight equali-

zation system or a zone price system, having the pur-

pose or effect of systematically matching the delivered

prices of other sellers. :

STATUTE INVOLVED

Section 5 of the Federal Trade Commission Act, 38

Stat. 719, as amended, 15 U. S.C. 45, provides in

pertinent part as follows:

(a) (1) Unfair methods of competition in

commeree, and unfair or deceptive acts or prac-

tices in) commerce, are hereby declared un-

lawful.

* * * * *

(6) The commission is hereby empowered

and directed to prevent persons, partnerships,

or corporations, * * * from using unfair meth-

ods of competition in commerce and unfair or

deceptive acts or practices In commerce,

(hb) Whenever the Commission shall have

reason to believe that any stich persen, partner-

ship. or corporation has been or is using any

unfair method of competition " * * at) shall

eT ree

3

issue and serve upon such person, partner-

ship, or corporation a complaint. stating its

charges in that respect, and containing a notice

of a hearing * * * * * * Tf upon such hear-

ing the Commission shall be of the opinion

that the method of competition or the act. or

practice in question is prohibited by this Act,

it shall make a report in writing in which it

shall state its findings as te the facts, and shall

issue and cause to be served on such person,

partnerhip, or corporation an order requiring

such person, partnership, or corporation to

cease and desist from using such method of

competition or such aet or practice, * * *

{e) Any person, partnership, or corporation

required by an grder of the Commission to

cease and desist from using any method of

competition or act or practice may obtain a

review of such order in the circuit court of

appeals of the United States, within any circuit

Where the method of competition or the act or

practice in question was used or where such

person, partnership, or corporation resides or

carries on business * * *,) The findings of the

Commission as to the facts, if supported by evt-

denee, shall be conclusive, * * *

STATEMENT

The Commission's amended complaint (R. 41-79)

Was issued in 1945 (R. 79). It charged in Count I

(R. 41-71), under whieh the order Wasgissued, that

petitioners had violated Section 5 of. the Federal

Trade Commission Act by combining and conspiring

to restrain and suppress competition in the sale of

three types of chain, and that this was accomplished

4

primarily by agreeing upon published mill prices and

by charging the same delivered price to buyers at any

given location through the use as to ‘‘welded chain’”’

of a single basing point delivered price system, as to

“‘weldless chain’”’ of a freight equalization delivered

price system, and as to ‘‘tire chain’’ of a zone deliv-

ered price system (R. 52-55, 64-71). It charged that

petitioners had ‘tagreed to fix and maintain, and have

fixed, maintained and made effective identical deliv-

ered price quotations’’ to buyers at any given location

in the United States (R. 52), and that the use by each

petitioner of the three delivered price systems had -

‘**prevented the principles and forces of competition

from making and determining their respective price

quotations” (R. 53). It charged that each seller of

chain had emploved the three delivered price systems

with knowledge that each other seller “simultaneously

does likewise’? (R. 64), and that this was done ‘for

the purpose and with the effect’? of “matching” de-

livered prices on all types of chain (CR. 65-69).

Count IL of the amended complaint (RR. 72-78), dis-

missed by the Commission (R. 652), charged that peti-

tioners had sold theur chain at discriminatory prices

in Violation of Section 2 (a) of the Clayton Aet (15

U.S.C. 13 (a)).

After an extensive hearing, the Commission made

detailed findings of fact (R. 592-652), and concluded

that petitioners’ agreements and understandings, and

their acts pursuant thereto, violated Section 5 (R.

652), and issued its order to cease and desist (R.

653-657). mR

-#

7)

The Commission found that the petitioners. sell

“substantially all the welded chain, weldless chain

’ ?

including sash and kindred chain, and tire chain

produced in the United States’? (R. 603)." They

agreed with each other to sell chain at uniform de-

livered prices (R. 649-650). Each manufacturer, for

the purpose and with the effect of matching delivered

prices with other manufacturers at all destinations

and thus eliminating competition, determined its de-

livered prices as to welded chain by the use of the

Pittsburgh’ plus delivered price system, as to weldless

chain by the use of a freight equalization delivered

price system under which every point of manufacture

is a basing point, and as to tire chain by the use of

a one-zone delivered price system: (R. 604-9),

Petitioners do not contest the evidentiary support

for the Commission's finding of an agreement to fix

basie prices. They do contend, though the court below

held to the contrary (Pet. 38), that there was no sup-

port for the Commission’s finding (R. 650-651) that

the delivered price systems, without which the pur-

Poses of the -CONSplracy could not have heen accom-

plished, were used pursuant to agreement (Pet. 7).

Petitioners contest the validity only of Subpara-

vraph (6) of the first ordering paragraph and the

‘While the case was pending in the Court of Appeals Re-

public Steel Corporation, not a party to the Commission pro-

ceeding, purchased the assets of five affiliated corporate manu-

facturers of chain which were parties, and the Court. pursuant

to motion and with the Commission's consent (Pet. 47-52),

dismissed the petition to review as to these five corporations

(Pet, 53-34).

* The Commission found that since the commencement of the

proceeding two petitioners had ceased using this system (R.

605).

6

third ordering paragraph of the Commission’s cease

and desist order (R. 653-657), both of which deal with

the three delivered price systems. Subparagraph (6)

of the first ordering paragraph prohibits petitioners -

from entering into or carrying out any planned com-

mon course of action, agreement or conspiracy to

(R. 655)—

Quote or sell chain or chain products at

prices calculated or determined pursuant to or

in accordance with the single basing point de-

livered-price system, the freight equalization

delivered-price system, or the zone delivered-

price system; or quote or sell chain or

chain products at prices calculated or deter-

mined pursuant to or in accordance with any

other plan or system which results in identical

price quotations or prices for chain or chain

products at points of quotation or sale or to

particular purchasers by any two or more sell-

ers of chain or chain products using such plan

or system or which prevents purchasers from

finding any advantage in price in dealing with

one or more as against another seller.

The third ordering paragraph is identical in plan with

the order reviewed by this court in Federal Trade

Commission Vv. National Lead Co., 352 U.S. 419, 423.

It requires each manufacturer petitioner to cease and

desist from (R. 656-657) —

quoting or selling chain or chain products at

prices calculated or determined pursuant to or

in accordance with a single basing point deliv-

ered-price system, a freight equalization deliv-

ered-price system, or a zone delivered-price

system, for the purpose or with the effect of sys-

tematically matching the delivered-price quota-

tions or the delivered prices of other sellers of

chain or chain products and thereby preventing

purchasers from finding any advantage im. price

in dealing with one or more sellers as against

another. :

The majority of the Commission did not issue a

separate opinion to accompany its findings. In the

National Lead case, which was decided by the Com-

mission a little more than a month before the decision

in this case, the Commission ‘filed a lengthy opinion,

prepared by Commissioner Mead, setting forth im de-

tail the necessity for the provision in order to break

up the conspiracy (49 F. TT. C. 875-889). Comunis-

sioner Mason filed a dissenting opinion in that case

(id., S89-907). Commissioner Mason also filed a dis-

senting opinion in this case (R. 658-059), incorpor-

ating a portion of his opinion in the National Lead

case (R. 659-662). He said that it was his belief that

the third ordering paragraph was improperly included

for the reasons he had objected to with respect to the

Inclusion of the comparable provision in the Nationa!

Lead order.

A Motion for rehearing Was filed with the Commis:

sion and was denied (R. 663-065). The motion did not

allege any change in fact or law, and the Commission

denied it on the ground that it was largely predicated

upon a change in membership of the Commission fol-

lowing the decision (R. 665-667). At the time of the

order denying the motion Commissioner Mead was the

only remaining member of the Commission who had

voted with the majority in issuing the order to cease

and desist (R. 665). He filed a concurring opinion on

447255 St——w2

s

the motion, stating in detail the reasons the third

ordering paragraph had been ineluded in the order

(R. 668-674). His opinion stated that the prohibition

Was “necessary for effective relief from the conspiracy

in whieh the respondents [petitioners | have engaged.”

and that the Conmnnission “had the duty to determine

the remedy necessary to suppress and instire against

a revival of the trade-restraining conspiracy” CR.

HOO): that “we considered a number of factors” in de-

tenmining the remedy: that “A majority of the Com-

inission Was of the opinion that an effective order”

R. 669-670) must prohibit not only the future

use oof the delivered-price systems pursuant to con-

spiracy, “but mast alse prohibit the individual use of

a particular delivered pricing system or method’ for

the purpose or with the effect of svstematically mateh-

ine delivered prices of other selleas (R. 870);

that “Such a prohibition was necessary * * * to make

the order fully effective against the trade-restraimins

couspirey. OR. 670) and that ‘tan order merely pre-

hibitine the combination may well be a useless

vesture’” CR. O71). ; '

The Conrt oof Appeals unanimously affirmed the

Commission's findings, conclusion and order in every

respect,

ARGUMENT

1. The Commission, having found that) petitioners

for many vears had been parties te a price-fixing

conspiracy, the existence of which is not contested,

‘Some of the exhibits upon whieh the Commission relied in

part in finding the existence of a conspiracy were dated ii L987

(Ro 612 613, 628-630). antedating the Conunission’s. order, ts

sued in 1953 OR. 657). by sixteen vears.

9

had the duty to prohibit the further use pursuant te

agreement of the methods by which identity of deliv:

ered prices is accomplished. Delivered price systems.

Where used as a part of a seheme to fix prices ane

restrain trade, have many times been prohibited by

the Commission in conspiracy orders which regularly

have been affirmed by this Court and by courts of

appeals.” Hence, the petition fails in this respect te

present a question of federal law which has not been

decided by this Court. And to the extent petitioners

request further review of the evidence and inferences

to be drawn therefrom, certiorari: clearly is not war-

‘ranted. General Talking Pictures Corp. \. Westeri

Flectrice Co,, 304 U.S. 175, 178.

Moreover petitioners misconceive the basis for the

Commission's finding that the three delivered price

svstems were emploved pursuant to agreement ¢ Pet.

23-25). The findings of conspiracy were not based on

?

hSonele bsisinie pron delivered price <Vstelmn: Vontted Ntittes

Malesters desnw ve Federal Trade Cammission. loz FL 2d dei

(CON. Ty: freight equalization basing potit delivered price

svstern: Mh aid Lee Cream Can lustitute vo Federal Qrond.

Commission, U2 FL 2d 498 (CL ALT): Bond Crown & Cork Cn

Ve Bedeia Trade Commission, VW F.2d 974 (CL NL 4d zone

delivered price >Vsteni: Nalt Producers Assn. vv. Federal Typical

Commission, ISA FL 2d Sob OC. ALT) Bort Howard, Paper Co.

f Fedeval Trine CO MINsion, 15 F. 2d Soo { Be A. Gis opr

torart denied, 329 UL S. T9532 Aid Paper Milly vo Federal

Prade Commission, 16S F.2d 6000 (CL OAL 7). certiorari denied

336 ae, S. O1s: National Lead Com pany Be Fy te ral Tr q/. Coan

mission, 220 BL 2d 825 (CL ALT). cross: petition for certiorar

denied, 551 U.S. 964: multiple basing point delivered price

system: Federal Trade Conumission vo Cement Fnxtrteut.. AI

. S&S. 6R3> Triangle Conduit & Cable Co. ve Federal Trad

Comission, WS F.2d 105 (CL ALT). affirmed sub nom. Clhiyton

Vark del ov. Federal Trade Con mission, X36 VS. O56.

10

!

conscious parallel action but on voluminous evidence

of agreement. The Commission found that there wes

substantial evidence that “‘present and future prices

* * * were discussed antl agreed upon”? on the

occasion of meetings of petitioner Chain Institute,

Ine, the trade association (CR. 609-617); that

pursuant to agreement published mill prices were

identical at all times (R. 639-641) 7 that a evstem of

cheeking on the maintenance of delivered prices wes

fostered and earvied out by the Postitute CR. 61s

HYS): that correspondence between petitioners showed

the existence of an agreement to fix delivered prices

OR. 628-632): that successful efforts to standardize

anid simplify: products, which aided pree fixing, were

continuously carried on through the Tnstionte OR,

H32-O37): that freight rates on welded cham from

Pittsburgh te destinations througheut the United

States were cooperatively compiled and used by peti

tioners and that the compilation Was “het intended to

serve any need for feeight rate. for shippime pur-

poses but was designed for use un computing ile-

livered prices * * "OR. 687-639): that delivered

prices on all types of chain have been. “'wenerally un

form OR. 4D) ds a result of “'the use of idéntieal

pricitig sVstenis or Jnethods * * "°° CR. 641-042).

The Commissiott plainly Was entitled to find on this

record, where the delivered price systems maifitain

Hnifermity of price, that the svstems were used pur-

‘siant te agreement. As the Court of Appeals held,

eiting Federal Trade Commission vo Cement Tnsti-

fate, SOQ TLS. O83, the evidence supports the Com-

Hiission’s finding “that the delivered pricing methous

11

used by petitioners in connection with and in further-

ance of their cooperative and collusive efforts to fix

or stabilize prices for chain were necessarily an in-

herent and indispensable part of the conspiracy”’

(Pet. 38).- And the fact that the systems had been

used historically in the industry since its inception

is inconclusive because it is clear that they were used

by agreement and understanding for the purpose and

with the effect of eliminating price competition. As

the Commission found, the purpose of arriving at

identical delivered prices sould not have been accom-

plished without the use of these systems (R. 650) .°

The Commission did not exceed its authority, there-

fore, by ordering petitioners to discontinue the use

pursuant to conspiracy of the methods of pricing and

selling chain that in the past have been the means by

which the unlawful restraints upon trade were

accomplished.”

2. The Commission's authority in a conspiracy case

to limit the individual use of a delivered price

system, Where necessary to destroy the impetus of

the conspiracy, was settled by the Court's decision i

Fv eral Toade Commission vo National Lead Co., 352

Two Courts of Appesls have said that “it. taxes our

credulity. to bebewe. as argued. that) petitioners employed this

[freight equalizaty a] svsten: without any agreement or plan

among themselves.” Wik and Lee Cream Can Institute vy. Fed-

eral Trade Commission, We F. vd 47s, 481-482 (CL ALT):

Bond Crown & Cork Co. v. Federal Trade Commission, 176 F.

vd OTH WNO CCL AL A), |

*The Court held in Fithy? Gasoline Corporation vy. United

States, 300 TLS. 436, 461. that the lower cenrt: “properly

suppressed the means by which the unlawful restraint was

“achieved.” See also Federal Trade Conmission vy. National

Lead Ca. 392 US. 419, 450.

v

12

U. S. 419. Petitioners acknowledge this, but argue

that for various reasons the decision in National

Lead is not controlling here."

It is asserted that since the third ordering para-

graph here limits the use of three delivered price

systems, as opposed to the limitation of the use of

one such system in National Lead, it is too broad

(Pet. 12-15). It is apparent that the National Lead

order related only to the zone delivered price system

because that was the only system used pursuant to

conspiracy in the sale of lead pigments. The order

here appHes to the three systems because in the sale

of chain petitioners pursuant to conspiracy have used

ail three systems. The Court of Appeals, in holding

that the Commission made an allowable judgment in

its choice of the remedy necessary in order effectively

to bring to an end the past unlawful practices, reeog-

nized that the order properly guarded against inter-

changing, as among the three types of chain, the

systems previously used, thus perpetuating the re-

straints of trade at which the order is directed (Pet.

_¢

39)."

* Petitioners’ argument that) the pricing systems anteceded

the conspiracy and agreement and therefore have an inde-

pendent legitimate economic basis (Pet. 1 12) Is discussed at

page TL. sapere,

“The posstble interchange of preoimy systems used / may

already have occurred as to welded chain. Petitioners say

they believe that “the normal and lawful purpose and ‘eétlect

of any delivered pricing method” is systematically to mateh

delivered prices of competitors (Pet. 13). They advise that

the Pittsburgh plus system “is generally regarded as out-

moded,” and that “counsel are informed that the Pittsburgh

Plus method is no longer used by any of the petitioners” (Pet.

11, n. 36). They do not inform the Court as te the method

. : . : : : ;

by which welded chain is currently priced, ;

f

{

| ad

i"

13

Contrary to petitioners’ contention (Pet. 19-21),

the Commission did consider the necessity for the

remedy selected.” Commissioner Mead, in’ his con-

curring opinion on the motion for rehearing, said

that the Commission had fully considered the neces-

sity for the third ordering paragraph (R. 668-674).

He said that “we considered a number of factors” in

determining the necessity of providing a remedy

“to suppress and insure against a revival of the trade-

restraining conspiracy” CR. 669). He also said that

“A majority of the Commission was of the opinion

that an effeetive order” must prohibit the individual

use of the three delivered price systetus “for the

purpose or with the effect of svstematically jiateh-

ing”’ delivered prices of other sellers of chain CR.

669-670). There is no basis, therefore, for petitianers’

contention that the Conmimission gave no consideration

to the necessity of the remedy.

*The petitions ss specifically argue against the order as it

applies to the sone m\steta used oan the sale of tire claon ¢Pet.

1 160. Under this svstem: the petitioners” published mulb prices

are, pursiiant to agreement, identieal and the cham i sold at ail

delivery Point: rao the Uonated States at these published prices,

the seller paying the frerht. Clon. uidike chewing: gum and

erarettes (Pret, IQyoiss heavs commodity, The uVerige cost of

delivery of tire chain te all destinations in the United States

Isabout Ste porcent of the published price (Pet. dey fn ary. As

in tho eases erted in footnote de page Yo sion the Federal

Trade Cosmisston found that this system was part of the un-

lawfal practice. The court below: found that the Commission

had a basis intthe record for such a finding and had not abused

its discretion in forbidding future use of the system. Under

these cireumestanees there is no ground for review by thi: Court,

' Petitioners also argue that the Conmunission gave no con-

sideration to the economic effects of the order, having contended

throughout this proceeding that the order requires them to sell

14

Except that it applies to more than one delivered

price system, the order here is to be interpreted in

exactly the manner this Court interpreted the Na-

tional Lead order. The order does not require fo. b.

mill selling and “delivered pricing per se is not banned

by the order” (352 U.S. at 425)." 0 As the Court said

in National Lead, “delivered zone pricing violates the

order only when two conditions: are present: (1)

identical prices with competitors (2) resulting from

zone delivered pricing’? (352 U.S. at 426). So, here,

the order will be violated only if) “systematically

matching’ prices result) from oa single basing point,

freight equalization, or zone delivered) price system.

Petitioners can comply with the order by competing

instead of agreeing upon base prices, Tt will remain

lawful to meet in good faith the lower prices of a

competitor, no matter what system of delivered pric-

Ing is used. Here. as in National Tead, 3 Section 2 Cb)

of the Clayton Aet is fully applicable. As this Court

foo. bo milk In this connection the record shows that under

the conspiraey eons of the comphunt they requested the Tlear-

ing Evniiiner to tind that an order requiring foo. bo mall selling

would be economically disastrous Qpar. Tac} ) af petitioners’

proposed tinedings, RooOods. waned excepted to the examiner's re-

fusal to tauke the finding cexeeption TS. Ro Soe). “Phe Com-

Hiission ~pecitionlly ruled pon ane denied the eXception (PR

ST4STS. je | :

The Court of Appeals-eecognized that the order «oes not

pers ergy the use of any delivered: price svstent saving

(Pet, 38: “Tf this paragr: aph of the order of the € omimils-

sion were to ro given the effect of depriving each of the peti.

tioners of every luwfnl and practical method of independently

and honestly selling its products at delivered prices, and thus

preventing it) from engaging in nationwide competition, we

would consider the paragraph invalid.”

15

stated (352 U.S. 419, at 426-427, 431), it is read into

every Commission order and the particular type of

order, like the order here in question, ‘“‘was not in-

tended to and does not: proliibit or interfere with

independent delivered * * * pricing per se. Nor does

it prohibit the practice of the absorption of actual

freight as such in order to foster competition.”

As to the duration of the third ordering paragraph,

the order here is temporary in the same sense the

order in National Lead was temporary. There the

Court said: “When and if competition is restored and

the individual prohibition is no longer necessary, the

Commission expressed its intention, upon application,

to vacate the * * * provision of its erder’ (225 U.S.

at 424-425). So, here, Commissioner Mead said in his

opinion on the motien for rehearing (R. 671-672) :

If, after competition Is restored in the indius-

try, any of the respondents can make a proper

showing that this prohibition or anycother pro-

hibition in the ‘order is no longer necessary or

desirable, the Commission, of Mrse, will at

that time take such action as may be, appro-

priate in the light of the tacts and the law.

Petitioners also eontend, as was contended in Na-

tional Lead, that due process Was denied beeause they

had te opportunity. to argue before the Commission

the validity. of the third ordering paragraph (Pet.

22-25). Heres as there, the insertion of the paragraph

“was nothing more than a mode of implementation,

selected by the Commission, to enforce its findings of

Vielatrons of the Net (352 UL S. at-427). The Com-

Srnisston ds charged by the Federal Trade Comunission

16

Act with fashioning the remedy. Since the reason-

ableness of the remedy depends upon the nature of

the violation and the means adopted to accomplish it,

the entire proceeding with respect to the violation is

in substance a hearing on the remedy. Due process

does not require a compartmentalization of the pro-

ceedings.

The Court of Appeals heid that the Commission did

not act arbitrarily or abuse its discretion by including

the third ordering paragraph in the order (Pet. 40-

41). Since this Court held in National Lead that the

Commission’s selection of an identical remedy had a

‘*reasonable relation to the unlawful practices found

to exist”? (352 U. S. at 428), the petition presents no

question of importance that has not been settled by

the Court.

| CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

J. LEE RANKIN,

Solicitor General.

Victor R. HANSEN,

Assistant Attorney General.

CHarLes H. Weston,”

Attorney.

EarL W. KINTNER,

General Counsel,

JAMES E. CorkKFy,

Assistant General Counsel,

J. B. TRuiy,

Attorney,

Federal Trade Commission.

NOVEMBER 1957.

U S GOVERNMENT PRINTING OFFic Eg. 1987