late commerce, from using unfair methods of competition in commerce. method used and est. To serve same hearing. Respondent to cause, etc. show Intervention alcation and good lowed on appli cause. Whenever the commission shall have reason to believe Commission to issue complaint that any such person, partnership, or corporation has when unfair been or is using any unfair method of competition in to public intercommerce, and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such per- on respondent son, partnership, or corporation a complaint stating its with notice of charges in that respect, and containing a notice of a hearing upon a day and at a place therein fixed at least. thirty days after the service of said complaint. The person, partnership, or corporation so complained of shall have right to aphave the right to appear at the place and time so fixed pear and and show cause why an order should not be entered by the commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the commission, to intervene and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be reduced to writing and filed in the office of the commission. If upon such hearing the commission shall be of the opinion that the method of competition in question is prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts, and shall stating findings, issue and cause to be served on such person, partnership, or corporation an order requiring such person, partner- on respondent. ship, or corporation to cease and desist from using such method of competition. Until a transcript of the record Modification or in such hearing shall have been filed in a circuit court of the Commission appeals of the United States, as hereinafter provided, the commission may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section. Testimony be reduced to to writing and filed. If method prohibited, Commission to make written report and to issue and serve order to cease and desist setting aside by of its order. Disobedience of Court of Appeals If such person, partnership, or corporation fails or order. Applicaneglects to obey such order of the commission while the tion to Circuit same is in effect, the commission may apply to the cir- by Commission. cuit court of appeals of the United States, within any circuit where the method of competition in question was used or where such person, partnership, or corporation resides or carries on business, for the enforcement of its order, and shall certify and file with its applica Court. Notice to Sec. 5. UNFAIR COMPETITION. COMPLAINTS, FINDINGS, AND ORDERS OF COMMISSION. APPEALS. SERVICE Continued. tion a transcript of the entire record in the proceeding, including all the testimony taken and the report and Action by order of the commission. Upon such filing of the applirespondent. De cation and transcript the court shall cause notice thereof modifying, or set to be served upon such person, partnership, or corporamission's order. tion and thereupon shall have jurisdiction of the proceed cree affirming ting aside Com findings. Conclu by testimony. additional evi able grounds for theretofore. before Commission. ing and of the question determined therein, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree affirming, modifying, or setting aside the order of the Commission's commission. The findings of the commission as to the sive if supported facts, if supported by testimony, shall be conclusive. Introduction of If either party shall apply to the court for leave to adduce dence, if reason- additional evidence, and shall show to the satisfaction failure to adduce of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the comMay be taken mission, the court may order such additional evidence to be taken before the commission and to be adduced upon the hearing in such manner and upon such terms and conCommission ditions as to the court may seem proper. The commission modified findings may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by testimony, shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of such additional Judgment and evidence. The judgment and decree of the court shall be review upon cer- final, except that the same shall be subject to review by the Supreme Court upon certiorari as provided in section two hundred and forty of the Judicial Code. may make new or by reason thereof. decree subject to tiorari, but otherwise final. Petition by re spondent to re cease and desist. Any party required by such order of the commission to view order to cease and desist from using such method of competition may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the commission be set aside. A copy To be served of such petition shall be forthwith served upon the com on Commission. mission, and thereupon the commission forthwith shall certify and file in the court a transcript of the record as hereinbefore provided. Upon the filing of the transcript Jurisdiction of Court of Appeals cation by ComCommission's the court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission as in the case same as on appliof an application by the commission for the enforcement mission, and of its order, and the findings of the commission as to the findings similarly facts, if supported by testimony, shall in like manner be conclusive. The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the commission shall be exclusive. conclusive. Jurisdiction of Court exclusive. Such proceedings in the circuit court of appeals shall, Proceedings to have precedence be given precedence over other cases pending therein, over other cases. and shall be in every way expedited. No order of the commission or judgment of the court to enforce the same shall in any wise relieve or absolve any person, partnership, or corporation from any liability under the antitrust not affected. acts. Liability under antitrust acts mission's com and other proc esses. Personal; or At office or place of busi Complaints, orders, and other processes of the commis- Service of Comsion under this section may be served by anyone duly plaints, orders, authorized by the commission, either (a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the corporation to be served; or (b) by leaving a copy thereof at the principal office or place of business of such person, ness; or partnership, or corporation; or (c) by registering and By registered mailing a copy thereof addressed to such person, partnership, or corporation at his or its principal office or place of business. The verified return by the person so Verified return serving said complaint, order, or other process setting ing, and return forth the manner of said service shall be proof of the proof of service. same, and the return post-office receipt for said complaint, order, or other process registered and mailed as aforesaid shall be proof of the service of the same. ANNOTATIONS. 2, 3. "Unfair methods of competi- 2, 3. "Unfair methods of competition "-In general. In particular cases. (Reference to pars. 9-25.) Commercial bribery. (Reference to pars. 9, 10.) Conspiracies or combina- False and misleading ad- tion "-Continued. Free goods as inducement to purchase. (Reference to par. 14.) Full line forcing. (Reference to pars. 15-21.) Misbranding or mislabeling-Quality or composition-Commission jurisdiction. (Reference to to 62.) par. mail. by person serv post-office receipt, 12, 13. 14. 15-21. 22. 23. 24, 25. ties. Money and gratui Conspiracies or combinations to punish or coerce objectionable competitors. False and misleading advertising Disparaging or misrepresenting competitors' prices and/or products. (Reference to par. 12.) Misrepresenting methods used. (Reference to par. 12.) Free goods as inducement to purchase. Full line forcing. Misbranding or mislabeling-Quality or composition-Nondeception of trade. Resale price maintenance. Tying or exclusive contracts or leases. Constitutionality-As attempting to regulate intra as well inter state commerce. (Reference to pars. 28, 29.) 26-32. as As combining or delegating legislative, executive, and judicial powers. As violating due process and just compensation provisions. (Reference to pars. 26-32.) Court's powers. Effect of court decision passing on practice in private litigation. Substantial doubt. Tendencies of practices. 52-55. Pleading. 56-63. Scope in general. 66 64-66. That the findings of fact, if supported by testimony, shall be conclusive." 67. Unincorporated voluntary association not directly engaged in business Proceeding against. "UNFAIR METHODS OF COMPETITION "-IN GENERAL. See also post, pars. 43-51, 56–63. 2." The words unfair method of competition' are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the Commission, ultimately to determine as a matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals, because characterized by deception, bad faith, fraud, or oppression, or as against public policy, because of their dangerous tendency unduly to hinder competition or create monopoly. The Act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade." McReynolds, J., in Fed eral Trade Commission v. Gratz, June 7, 1920, 253 U. S., 421, 427, 40 Sup. Ct. 572, 575. (See case also in Vol. II of Commission's Decisions, p. 564 at p. 569, or in 1920 "Acts from which the Commission," etc., p. 98 at p. 103.) 3." Instead of undertaking to define what practices should be deemed unfair, as had been done in earlier legislation, the Act left the determination to the Commission. Experience with existing laws had taught that definition, being necessarily rigid, would prove embarrassing and. if rigorously applied, might involve great hardship. Methods of competition which would be unfair in one industry, under certain circumstances, might, when adopted in another industry, or even in the same industry, under different circumstances, be entirely unobjectionable. Furthermore, an enumeration, however comprehensive, of existing methods of unfair competition must necessarily soon prove incomplete, as with new conditions constantly arising novel unfair methods would be devised and developed. * * * Recognizing that the question whether a method of competitive practice was unfair would ordinarily depend upon special facts, Congress imposed upon the Commission the duty of finding the facts; and it declared that findings of fact so made (if duly supported by evidence) were to be taken as final. The question of whether the method of competition pursued could, on those facts, reasonably be held by the Commission to constitute an unfair method of competition, being a question of law, was necessarily left open to review by the court." Brandeis, J., dissenting in Federal Trade Commission V. Gratz, 88097-22- -2 |