Agricultural Insecticide & Fungicide Ass'N

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

IN THE 11ATTER OF AGRICULTURAL INSECTICIDE & FUNGICIDE ASSOCIATION ET AL ..

MODIFIED CEASE AND DESIST ORDER Docket 4145. Order, June 8, 1944 Order, pursuant to provisions of section 5 (i) of the Federal Trade Commission Act, and in accordance with decrees below referred to, in proceeding in question, in which original order issued on July 24, 1942 in Agricultural Insecticide & Fungicide Association et al., Docket 4145, 35 F. T. C. 201, and in which Circuit Court of Appeals for the Second Circuit, on December 23, 1943 in Phelps Dodge Refining Corp. et al. v. Federal Trade Commission, 139 F. (2d) 393, 37 F. T. C. 828, unconditionally affirmed the Commission's order as to the six petitioning corporate respondents, and reversed it as to petitioner Demmon, and thereafter on February 21, 1944 entered decrees in accordance with stipulation entered into by the Commission with the petitioning respondents only- Modifying, as to said petitioning respondents named, said order, which required respondents therein enjoined, in connection with offer, etc., in commerce, of agricultural insecticides, fungicides, and related chemicals and items for similar usage, to cease and desist from entering into, continuing, directing, instigating, or cooperating in, "any common course of action," mutual agreement, etc., to fix, establish or maintain prices, whether on a delivered basis or otherwise, etc., or to make use of the various other practices as there specified; so that as to aforesaid named respondents the above quoted words are changed to read "cooperating in any agreed or planned common course of action"; and Dismissing complaint as to respondent Demmon. . ORDER 11odifying ORDER To CEASE AND Desist This proceeding having been heard by the Federal Trade Commission Upon the complaint of the Commission, the answers thereto of the several r~spondents named in the caption hereof, and certain stipulations of additional facts, and respondents having expressly waived all intervening procedure and hearing as to the facts and consented that the Commission !Uay, without any further intervening procedure, make and enter its find- Ings as to the facts, its conclusion based thereon, and its order disposing of the proceeding, and the Commission having made its findings as to the facts and conclusion that said respondents have violated the provisions of the Federal Trade Commission Act, and having entered its cease and desist order herein on July 24, 1942; and, thereafter, the respondents, Phelps Dodge Refining Corporation, Tennessee Corporation, American Cyanamid & Chemical Corporation, John Powell & Company, Inc., Southern Acid & Sulphur Company, Inc., Stauffer Chemical Company, Inc., and R. Earl Demmon, having filed in the United States Circuit Court of. Appeals for the Second Circuit their petitions for a review of the Com- Ililssion's said order to cease and desist, entered on July· 24, 1942; and, tAhereafter, on December 23, 1943, the said United States Circuit Court of .appeals for the Second Circuit having unconditionally affirmed the Com-_ Inission's said order to cease and desist as to the said respondents, Phelps Order 38 F. T. C.

Dodge Refining Corporation, Tennessee Corporation, American Cyanamid & Chemical Corporation, John Powell & Company, Inc., Southern Acid & Sulphur Company, Inc., and Stauffer Chemical Company, Inc., and having reversed the Commission's said order as to the respondent, R. Earl Demmon; and, thereafter a stipulation having been entered into by the Commission, with the petitioning respondents only, that the Commission's said order of July 24, 1942, should be modified to the extent that the language "cooperating in any common course of action" appearing in the Commission's said order to cease and desist entered on July 24, 1942, should be changed to read" cooperating in any agreed or planned common course of action," and thereafter decrees to this effect having been entered on February 21, 1944, with respect to the said petitioners only; now, therefore, in conformity with the decrees entered by the United States Circuit Court for the Second Circuit, It is ordered, That as to the respondents, Phelps Dodge Refining Corporation, Tennessee Corporation, American Cyanamid & Chemical Corporation, John Powell & Company, Inc., Southern Acid & Sulphur Company, Inc., and Stauffer Chemical Company, Inc., the Commission's said order to cease and desist heretofore entered on July 24, 1942, be and the same hereby is amended and modified to the extent that the language "cooperating in any common course of action" appearing therein be, and the same hereby is changed so as to read "cooperating in any agreed or planned common course of action." · · It is further ordered, That the said complaint as to the respondent, R. Earl Demmon be, and the same hereby is dismissed. It is further ordered, That the Commission's said order to cease and desist as entered herein on July 24, 1942, be and the same hereby is ratified and confirmed in all other respects save and, except as herein modified. Note: The original order (reported with the complaint and findings in 35 F. T. C. 201), follows:

ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answers of the respondents, and a stipulation as to the facts entered into between the respondents herein (except Antiseptic Products Co., Fred L. Lavanburg Co., Lucas Im-Tone Co., Allegheny Chemical Corporation, and Pittsburgh Plate Glass Co.) and W. T. Kelley, chief counsel for the Commission, which provides, among other things, that the said Commission may proceed upon said statement of facts to make its report stating its findings as to the facts (including inferences which it may draw from the said stipulated facts) and its conclusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the filing of briefs, and which waives the filing of a report upon the evidence by the trial. examiner; and the Commission having made its findings as to the facts and conclusion that said respondents have violated the provisions of the Federal Trade Commission Act.

It is orde?·ed, That said respondent, Agricultural Insecticide & Fungicide Association, its officers, agents, and employees; the following respondent corporations, The Acme White Lead and Color Works, The American Agricultural Chemical Co., The American Cyanamid and Chemical Cor- AGRICULTURAL INSECTICIDE & FUNGICIDE ASS'N ET AL. 611 609 Order \ poration, The American Nicotine Co., Inc., The California s·pray-Chem- Ical Corporation, The Chipman Chemical Co., Inc., George W. Cole and Co., Inc., The Hercules Glue Co., Ltd. (a corporation trading under the name of Colloidal Products Corporation), The Commercial Chemical Co., Derris, Inc., Dow Chemical Co., E. I. dupont de Nemours & Co., Inc., The Latimer-Goodwin Chemical Co., The Niagara Sprayer and Chemical Co., Inc., The Nicotine Production Corporation, John Powell & Co., Inc., The Sherwin-Williams Co., Inc., The Southern Acid & Sulphur Co.·, Inc., The Stauffer Chemical Co., Inc., The Tobacco By-Products and Chemical Corporation, The J. W. Woolfolk Co., Ansbacher-Siegle Corporation, General Cheinical Co., Phelps Dodge Refining Corporation, and Ten- !J.essee Corporation, their officers, agents, and employees; and the following Individual respondents, R. N. Chipman, L. S. Hitchner, June C. Heitzman, H. D. Whittlesey, H. P. Mansfield, J. B. Cary, J. H. Boyd, A. J. Flebut, R. E. Demmon, G. F. Leonard, G. E. Riches, and J. M. Taylor, ~general partner, and E. P. Brown and E. W. Parker, special partners, trad- Ing as Taylor Chemical Works, Ltd., and their respective representatives, a~ents, and employees, in connection with the offering for sale or sale and distribution of agricultural insecticides, fungicides, and related chemicals and items for similar uses in commerce as "commerce" is defined in the Yederal Trade Commission Act, do forthwith cease and desist from enter- ~ng into, continuing, carrying out, directing, instigating, or cooperating I~, any common course bf action, mutual agreement, understanding, combmation, or conspiracy between and among any two or more of said respondents, with or without the cooperation of others not parties hereto, for the purpose, or with the tendency or effect, of fixing the prices for, or of restricting, restraining, or eliminating competition in, the sale in said com- !llerce of agricultural insecticides, fungicides, or related chemicals and I~ems for similar uses, and from doing any of the following acts and practices pursuant thereto. . 1. Fixing, establishing, or maintaining the prices, whether on a delivered basis or otherwise, or the charges at which the products of said respondents are to be sold or offered for sale, or fixing, establishing, or maintaining any method of pricing which deprives buyers of opportunity to obtain more favorable terms from one respondent corporation than from another, or fixing, establishing, or maintaining any discounts, terms, or conditions of sale.

2. Adhering to any price list compiled or distributed by or on behalf of any of the said respondents. ,, 3. Imposing, or attempting or threatening to impose, any penalty on, or. coercing, Qr attempting to coerce by any means, any manufacturer who f~Ils or refuses to adhere to or adopt charges, discounts, terms or conditions of sale, prices, or pricing methods fixed or established by said respondents. · 4. Exchanging, distributing, or relaying among respondent members or.through respondent Association or any other medium or central agency, Pnce lists or other information showing current or future prices or current or future terms or conditions of sale .

. 5. Determining or attempting to determine by any means, either directly or indirectly, which purchasers shall be recognized as jobbers of, or. as retail dealers in, and thus entitled to certain price differentials on, said products manufactured and sold or offered for sale by said respondents.

Order 38 F. T. C.

' . 6. Furnishing to the respondent Association, or to any other central medium or agency, any list or lists of jobbers or retail dealers or any classification of customers as jobbers or retail dealers and thus entitled to certain price differentials on products sold or offered for sale by any of the said respondents.

7. Compiling or distributing in any manner, either directly or indirectly, between and among any of the respondents, lists of names or classifications of dealers or users who are to be sold by any of said respondents.

8. Holding or participating in any meetings, discussions, or exchanges of information concerning proposed or future prices, terms or conditions of sale, or concerning any actual or proposed recognition or Classification as jobber or retail dealer of any customer to whom the products of any of said respondents are sold or offered for sale.

9. Taking any action for the purpose, or with the effect, of preventing or hindering any dealer or user or any class of dealers or users from obtaining the products manufactured by the respondents, or any of them, at such prices and terms as may be satisfactory between the individual buyer and seller. . 10. Continuing or resuming by tacit and common consent among two or more respondents, any practice herein forbidden when such continuation or resumption results in purchasers being prevented from obtaining more favorable prices, terms, or conditions of sale from one of respondent corporations than from the others.

It is further ordered, That the complaint herein be, and it hereby is dismissed as to the following named respondents: Antiseptic Products Co., Fred L. Lavanburg Co., Lucas Kil-Tone Co.l Allegheny Chemical Corporation, and Pittsburgh Plate Glass Co. · It is further ordered, That the respondents shall, within 60 days after service upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with this order.

THE PRIME MANUFACTURING CO. 613 Complaint