Citations
- 210 F. Supp. 67
Full opinion text
WILLIAM B. JONES, District Judge.
This is an action to review and set aside alleged illegal orders of the Federal Trade Commission, for a declaratory judgment and a permanent injunction.
Plaintiff has moved for a summary judgment and defendants have moved to dismiss or in the alternative for a summary judgment. The complaint, motion papers, including affidavits and exhibits, and the statement of material facts as to which there is no genuine issue, filed pursuant to this Court’s Local Civil Rule 9(h), present the following facts for the Court’s consideration:
Defendant Federal Trade Commission instituted an investigation in 1956 concerning plaintiff’s purchase of plumbing fixtures. That investigation included a study of the practices of UniversalRundle Corporation in making sales of plumbing fixtures to plaintiff as well as to other purchasers. On August 4, 1960, defendant Commission issued a complaint charging plaintiff with violation of section 2(f) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(f), by unlawfully inducing or receiving discriminatory prices in the purchase of certain plumbing fixtures. It was filed in FTC Docket No. 8069. On the same date, defendant Commission issued a complaint against the seller, Universal-Rundle Corporation, of such fixtures, which complaint alleged that such plumbing fixtures were sold at discriminatory prices to plaintiff as well as to other purchasers in violation of Section 2(a) of the amended Clayton Act, 15 U.S.C. § 13(a). That complaint was filed in FTC Docket No. 8070.
Defendant Buttle was assigned as the Hearing Examiner to conduct adjudicative proceedings in both Docket No. 8069 and Docket No. 8070. Plaintiff filed its answer to the complaint in Docket 8069 on March 17, 1961. Plaintiff denied that it had violated Section 2(f) of the Clayton Act as charged by the Commission and it stated two separate defenses to the complaint and prayed that the complaint be dismissed. On October 4, 1961 the Hearing Examiner held a joint prehearing conference. Thereafter, Commission counsel, who were “in support of the complaint,” filed a motion to dismiss the complaint against plaintiff. As reasons for such motion, it was stated that Docket 8069 was a companion case to that of Universal-Rundle Corporation (Docket 8070) and that, since a consent agreement had been executed in the latter proceeding which would result in dismissal of that portion of the complaint charging Universal-Rundle with discriminating in favor of plaintiff, proof of probable injury to competition sufficient to meet the requirements of the Clayton Act would be unavailable. No objection having been made, the Hearing Examiner made an Initial Decision granting the motion to dismiss the charges against the plaintiff. The Initial Decision was filed on May 24, 1962 and was served on plaintiff on June 1, 1962.
On May 24,1962, the Hearing Examiner also filed an Initial Decision in Docket No. 8070 dismissing that portion of the charges against Universal-Rundle Corporation which asserted the grant of unlawful discriminatory prices to plaintiff.
Defendant Commission, on June 26, 1962, conducted a review of the two Initial Decisions ■ and it disapproved both Decisions. The Commission caused minute entries to be made directing that the Decisions be vacated and ordering that both cases be remanded to the Hearing Examiner for further expedited proceedings. On July 3, 1962 the Secretary of the Commission entered formal Commission orders confirming the June 26, 1962 minute entries. A written notice of defendant Commission’s order vacating the Hearing Examiner’s Initial Decision in Docket 8069 was mailed to plaintiff on July 5, 1962.
On July 18,1962, the Hearing Examiner, acting pursuant to the Commission’s order, entered in Docket 8069 an order setting a pre-hearing conference and scheduling hearings. September 27,1962 was the