Citations
- 291 F.2d 833
Full opinion text
LEONARD P. MOORE, Circuit Judge.
Petitioner, Swanee Paper Corporation (Swanee), seeks to review a cease and desist order issued by the Federal Trade Commission (Commission) after proceedings in which Swanee was found to have violated Section 2(d) of the Clayton Act,- as amended, 15 U.S.C.A. § 13 (d). These proceedings were conducted upon a- stipulation of facts with annexed exhibits which were submitted by the parties to the hearing examiner.
The dispute arose out of a series of arrangements involving Swanee, a manufacturer of paper products; The Grand Union Company (Grand Union), a customer of Swanee operating a number of retail food stores; and Douglas Leigh, Inc. (Leigh), the owner and operator of a “spectacular” advertising sign located in the Times Square area of New York City. This sign contained panels for stationary displays, and a panel (known as the “Epok Panel”) which consisted of a bank of timed electric lamps against a black background, used for projection and display of animated advertisements.
On August 6, 1952, Grand Union accepted a proposal by Leigh offering “the use and occupancy of our combined electric spectacular and animated display located at 1552-1554 Broadway.” In return, Grand Union agreed to pay to Leigh $50.00 and to secure “the agreement and consents of fifteen (15) participating advertisers to use the south panel animated part of the display * * for advertising on this display.” These “participating advertisers” each were to pay Leigh $1,000 per month for the use of the Epok Panel for seventy-five per cent of its operating time. The remaining twenty-five per cent was reserved for advertising of Grand Union or its designates; one stationary panel was to be used for advertising by Grand Union; and the remaining space was to be developed in accordance with layout and copy plans prepared by Leigh for the approval of Grand Union. No design, layout or copy could be used on any portion of the display without the approval in writing by Grand Union. The term of the agreement was one year with Grand Union having the option to renew for two additional one-year periods. On August 20, 1953, the agreement was renewed and modified to the extent of increasing the number of participating advertisers from 15 to 20, eliminating Grand Union’s twenty-five per cent participation on the Epok Panel, and requiring the payment to Grand Union of five per cent of the monthly' rental paid by the first 15 participating advertisers and all of the rentals paid by the additional 5 participants. On December 13, 1954, the agreement was again renewed and Grand Union was given an option to renew, one year at a time, through 1960.
Following conferences, conversations and correspondence between its representatives and those of Grand Union and Leigh, Swanee,