Fyr-Fyter Company

Text (OCR of the scan at left; may contain errors)

IN THE :MATTER OF FYR-FYTER COMPANY ET AL.

COMPLAINT AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 15 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket 2352. Complaint, Apr. 4, 1935-order, Sept. 12, 1985 Consent order requiring respondent corporations, their officers, etc., in connection with the sale and offer of tlre extinguishing equipment and suppiles in interstate commerce, and subject to the exception from such order of any lawful action taken in regard to patented articles or under license agreements relating thereto, to cease and desist from doing and performing, by understanding, agreement, or combination among themselves or between or among any two or more of them, or with others, acting directly by or through the respondents, the following acts and things, namely- (a) Fixing prices at which said commodities are to be sold; (b) .Agreeing that none of them singly will solicit the customers of another respondent or quote them prices lower than those at the time being quoted such customers by the respondent supplying them; (c) Refusing to continue to sell tire extinguishing equipment and supplies t<l' distributors, jobbers, and dealers who wlll not agree with them not to sell such fire extinguishing equipment and supplies at prices less than those fixed by said respondents ;

(d) Refusing to sell such equipment and supplies to all distributors, jobbers, and dealers who sell same, purchased from respondents, at prices lower than the prices 80 fixed by them :

(e) .Agreeing upon prices to be bid where competitive bids are called for by industrial and governmental users of respondents' fire extinguishing equipment and supplies; or (f) Procuring withdrawal and cancellation of bids called for by Industrial and governmental users of respondents' fire extinguishing equipment and supplies in cases where such bids so withdrawn are at prices for such fire extinguishing equipment and supplies less than those fixed by respondents: and Dismissing complaint against the individual respondents for the reason that the order against the corporate respondents, their officers, employees and agents adequately and effectively restores free and open competition between and among all of the respondents engaged In selling fire extinguisher equipment and supplies in interstate commerce. Mr. P. 0. J{olinski for the Commission.

Chadbourne, Hunt, Jaeckel & Brown, of New York City, for respondents, along with whom Darby & Darby, of New York City, also appeared for 'Valter Kidde & Co., Inc. Co:rtrPLAINT Pursuant to the provisions of an Act of Congress entitled "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes", the F.ederal Trade Commission, Complaint 21F. T. C. having reason to believe that each and all the parties named in the caption 1 hereof, hereinafter referred to as respondents, have been and nqw are using unfair methods of competition in commerce, as • "commerce" is defined in said act, and it appearing to the Commis-- ,sion that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint and states its charges in that respect as follows:

PARAGRAPH 1. Respondent Fyr-Fyter Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Ohio, with its principal office and place of business at Dayton, Ohio.

Respondent Buffalo Fire Appliance Corporation is a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its principal office and place .of business at Buffalo, N. Y.

Respondent 1\f.iller-Peerless Manufacturing Comp~ny is a corpora· tion organized, existing, and doing business under and by virtue of the laws of the State of Illinois, with its principal office and place •of business at Chicago, Ill.

Respondent Badger Fire Extinguisher Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Massachusetts, with its principal office and place .of business at Boston, 1\fass.

Respondent Knight & Thomas, Inc., is a corporation organized, -existing, and doing business under and by virtue of the laws of the State of Maine, with its principal office and place of business at Boston, Mass.

Respondent American LaFrance & Foamite Industries Corpora· tion is a corporation organized, existing, and doing business under .and by virtue of the laws of the State of New York, with its princi· pal office and place of business at Elmira, N.Y. Respondent Pyrene Manufacturing Company is a corporation or· ,ganized, existing, and doing business under and by virtue of the laws .of the State of Dela.ware, with its principal office and place of business at Newark, N. J.

Respondent 'Valter Kidde & Company, Inc., is a corporation or· ganized, existing, and doing business under and by virtue of the laws of the State of New York, with its principal office and place of business at New York City. · Respondent Fyrout Corporation is a corporation organized, exist· ing and doing business under and by virtue of the laws of the State of California, with its principal office and place of business at New York, N.Y.

1 Respondents referred to and named In the caption of the complaint proper but omitted .as published for the sake of brevity are set forth In Paragraph 1. FYR-FYTER CO. ET AL. 259 257 Complaint Respondent Fyr-Freeze, Inc., is a corporation organized, existingt and doing business under and by virtue of the laws of the State of New York, with its principal office and place of business at New York, N.Y.

Respondent C-0-Two Fire Equipment Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its principal office and place of business at Newark, N.J.

Respondent '\Vil-X-Mfg. Corporation is a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its principal office and place of business at Brooklyn, N. Y.

Respondent '\V. D. Allen Manufacturing Company is a corporation organized, existing, and doing business under and by virtue of thelaws of the State of Illinois, with its principal office and place of business at Chicago, Ill.

Respondent Phister Manufacturing Company is a corporation organized, existing, and doi:.:g business under and by virtue of the laws of the State of Ohio, with its principal office and place of business at Cincinnati, Ohio.

Respondent Harker Manufacturing Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Ohio, with its principal office and place of business at Cincinnati, Ohio.

Respondent The General Fire Truck Corporation is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Missouri, with its principal office and place of business at St. Louis, Mo.

Respondent Elkhart Brass Mfg. Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Indiana, with its principal office and place of business at Elkhart, Ind.

Respondent George ·w. Diener Manufacturing Company is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Illinois, with its principal office and place of business at Chicago, Ill.

Respondents G. R. Stephens, A. 0. Boniface, and '\V. J. Parke:t are respectively chairman, secretary, impartial agency, and members of the Code Authority for the Fire Extinguishing Appliance Manufacturing Industry. Respondents B. F. Allnutt, A. H. Blackett, Dana Estes, R. C. Iddings, E. E. O'Neill, and E. G. Weed are members of the Code Authority for the Fire Extinguishing Appliance Manufacturing Industry, with its principal office located in New Yorkt N.Y.

Complaint 21 F. T. C. PAn. 2. The corporation respondents named in paragraph 1 hereto are now and since their organization have been engaged in the manu· facture at their respective manufacturing plants of fire extinguishing equipment and supplies, and in the sale thereof throughout the various States of the United States, the territories thereof and the District of Columbia. In the course and conduct of their businesses said corporation respondents named in paragraph 1 hereof, for more than three years last past, have caused, and still cause such .fire extinguishing equipment and supplies when sold by them, to be transported in interstate commerce from their respective places of business to, into, and through various States of the United States other than the States in which they respectively have their factories .and places of business, to the purchasers in such Qther States to whom .such fire extinguishing equipment and supplies are and have been .sold.

In the course and conduct of their aforesaid respective businesses, corporation respondents named, but for the matters and things hereinafter set out, would be naturally and normally in competition with each other in price, and otherwise are in such competition with other individuals, partnerships, and corporations engaged in the manu· facture and sale, or purchase, sale, and distribution of fire extinguish· ing equipment and supplies in interstate commerce. The corporation respondents named, constitute a large and irn· portant part of the manufacturers, distributors, and dealers in fire extinguishing equipment and supplies manufactured and sold in the United States. The amount of fire extinguishing equipment and supplies manufactured and sold by said corporation respond· ents, constitutes, and at all times since February 1932 has constituted, approximately 85 per cent of all fire extinguishing equipment and supplies manufactured and sold fn the United States. PAR. 3. In February 1932, or thereabouts, the respondents named in paragraph 1 hereof, for the purpose of eliminating price corn· petition among themselves entered into, have since carried out, and are still carrying out an agreement, combination, understanding, .and conspiracy among thelll€lelves to fix and maintain, and by which they have fixed and maintained uniform prices to be exacted by them from their purchasers of fire extinguishing equipment and supplies 11nd thus to fix the price of fire extinguishing equipment and supplies .entering into interstate commerce. Pursuant to and for the purpose {)f carryiung out the aforesaid agreement, combination, understand· ing and conspiracy, the respondents have, among other things, done the following:

FYR-FYTER CO. ET AL. 261 257 Complaint (a) By agreement among themselves have fixed and main· tained, and still fix and maintain uniform prices for fire ex· tinguishing equipment and supplies sold by them and by each of them.

(b) Agreed that none of said respondents singly would solicit the customers of another respondent nor quote them prices lower than those at the time being quoted such customers by the respondent supplying them.

(c) Refused to continue to sell fire extinguishing equipment and supplies to distributors, jobbers, and dealers· who would not agree with them not to sell such fire extinguishing equipment and supplies at prices less than those fixed by said respondents. (d) Refused to sell fire extinguishing equipment and supplies to all distributors, jopbers, and dealers who sold such fire ex· tinguishing equipment and supplies purchased from said re· spondents at prices for such fire extinguishing equipment and supplies less than those so fixed by the said respondents. (e) Agreed upon prices to be bid where competitive bids were called for by industrial and governmental users of respondents' fire extinguishing equipment and supplies. {f) Procured withdrawal and cancellation of bids called for by industrial and governmental users of respondents' fire ex· tinguishing equipment and supplies in cases where such bids so withdrawn were at prices for such fire extinguishing equipment and supplies less than those fixed by respondents. (g) Used other and similar methods and means designed to suppress and prevent price competition among those engaged in the fire extinguishing equipment and supply business in the United States.

Par, 4. On and shortly prior to December 5, 1933, respondents, under color of authority of th~ Code of Fair Competition for the Fire Extinguishing Appliance Manufacturing Industry, approved November 4, 1933, by the President pursuant to the provisions of Title I of an Act of Congress approved June 16, 1933, entitled "An Act to encourage national industrial recovery, to foster fair com· petition, and to provide for the construction of certain useful public Works, and for other purposes", agreed among themselves in an assumed and pretended compliance with said Code, to fix and main· tain uniform prices for fire extinguishing equipment sold by them, and have since that date continued to sell, at fixed uniform prices such fire extinguishing equipment; that by virtue of such agreement Under the guise and pretense of compliance with aforesaid Code, 262 FEDERAL TRADE COl\Il\IISSION DECISIONS Order 21 F.T.C.

competition in price in the sale of fire extinguishing equipment has been suppressed, eliminated and destroyed; that said Code of Fair Competition for the Fire Extinguishing Appliance Manufacturing Industry as approved by the Pre.sident on November 4, 1933, does not authorize price fixing, and was not designed to authorize or permit price fixing by mutual agreement, understanding, or any method whatsoever; and said Code of Fair Competition specifically prohibits monopolies or monopolistic practices, and the elimination, or oppression of, and discrimination against small enterprises. PAR. 5. The combination and conspiracy so entered into and car· ried on by said respondents and the acts and things done there· under and pursuant thereto, as hereinabove alleged, resulted and results in the suppression and prevention of competition between and among them and in the enhanceme!J.t of prices to the using public; in depriving the purchasing and consuming public of ad· vantages in price, service and other considerations which they would receive and enjoy under conditions of normal and unobstructed, or free and fair, competition in said trade and industry; in oppression and discrimination against small business enterprises which were or are engaged in manufacturing, selling and distributing fire extin· guishing equipment and supplies; and are monopolistic practices and methods of competition which are unfair, and they constitute unfair methods of competition in commerce within the intent and meaning, and in violation of Section 5 of said Act approved Septem· her 26, 1914, entitled "An Act to create a Federal Trade Commis· sion, to define its powers and duties, and for other purposes". ORDER TO CEASE AND DESIST The Commission, having the above matter under consideration and the respondents having filed consent answers under the Rules of Practice of the Commission, wherein said respondents, although in· sisting that all things done by them were warranted by the code for this industry formulated and approved under the National Indus· trial Recovery Act, and therefore done in good faith, nevertheless waive hearing on the charges set forth in the complaint and consent that the Commission may make, enter, issue and serve upon them, without hearing, without evidence, and without findings as to the facts, an order to cease and desist from the methods of competi· tion alleged in the complaint.

And the Commission having duly considered the complaint and such answers, and being fully advised in the premises- FYR-FYTER CO. ET AL. 263 257 Order It is now ordered, That said corporate respondents, Fyr-Fyter Company, Buffalo Fire Appliance Corporation, Miller-Peerless -Manufacturing Company, Badger Fire Extinguisher Company, Knight & Thomas, Inc., American LaFrance & Foamite Industries Corporation, Pyrene Manufacturing Company, '\Valter Kidde & Company, Inc., Fyrout Corporation, Fyr-Freeze, Inc., C-O-Two Fire Equipment Company, '\Vil-X-Mfg. Corporation, '\V. D. Allen Manufacturing Company, Phister Manufacturing Company, Harker Manufacturing Company, The General· Fire Truck Corporation, Elkhart Brass Mfg. Company, George vV. Diener Manufacturing Company, their officers, agents, representatives and employees, forthwith cease and desist, in connection with the business of selling and offering for sale fire extinguishing equipment and supplies, in interstate commerce, from doing and performing, by understanding, agreement, or combination among themselves or between or among any two or more of them, or with others, acting directly or by or through the respondent, the following acts and things: (1) Fixing prices, at which said commodities would be sold. (2) Agreeing that none of said respondents singly will solicit the customers of another respondent nor quote them prices lower than those at the time being quoted such customers by the respondent supplying them.

(3) Refusing to continue to sell fire extinguishing equipment and supplies to distributors, jobbers, and dealers who will not agree with them not to sell such fire extinguishing equipment and supplies at prices less than those fixed by said respondents. {4) Refusing to sell fire extinguishing equipment and supplies to all distributors, jobbers, and dealers who sell such fire extinguishing equipment and supplies purchased from said respondents at prices for such fire extinguishing equipment and supplies less than those so fixed by the said respondents. (5) Agreeing upon prices to be bid where competitive bids are called for by industrial and governmental users of respondents' fire extinguishing equipment and supplies. (6) Procuring withdrawal and cancellation of bids called for by industrial and governmental users of respondents' fire extinguishing equipment and supplies in cases where such bids so withdrawn are at prices for such fire extinguishing equipment and supplies less than those fixed by respondents. And provided that the prohibition of this order shall not apply to any lawful action taken in regard to patented articles or under license agreements relating thereto.

Order 21F.T.C.

It is fwrther ordered, That the complaint herein be and the same hereby is dismissed against the individual respondents for the reason that the order against the corporate respondents, their officers, em· ployees, and agents adequately and effectively restores free and open competition between and among all of the respondents engaged in selling fire extinguisher equipment and supplies in interstate com· merce.

It is fwrther ordered, That within 60 days from the date of the service of this order upon said respondents, they shall file with the Commission a report in writing setting forth in detail the manner and form in which this order has been complied with. WHITE CROSS LABORATORIER, INC. 265 Complaint