Agricultural Insecticide & Fungicide Asso.

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COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC. 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 i Docket 4145. Complaint, May 129, 1940-Decision, July 24, 1942 Where numerous concerns, engaged in the manufacture and competltlve Interstate sale and distribution of various types of Insecticides, fungicides, and related Items, including such bulk or staple Items as arsenate of lead, calcium arsenate, lime sulphate, nicotine, etc., as well as patented Items; and tbe Association, of which all but two of said concerns were members; and its various officers and directors; entering into an understanding, agreement, combination, or conspiracy to restrict, restrain, and suppress competition In the sale and distribution of various. types of Insecticides, fungicides, and related Items to customers- (a) Agreed to fix and maintain unlfOTm prices, terms, and discounts at which said items were to be sold to various classes of customers, and to cooperate With each other In the enforcement and maintenance of said fixed prices, terms, and discounts by exchanging information through said Association as to prices, etc., at which said members and certain nonmembers were selling and offering their said products; and Where said members- · (b) Concertedly fixed many of the snld agreed prices on a delivered basis to certahi consumers and to various classes of dealers, includ.ing therein actual ran freight to purchasers at respective destinations but no allowance on • shipments by truck; with intent and effect of preventing differences In the delivered cost to many buyers by reason of differences ln the cost of delivery from the members' respective shipping points; (c) Entered Into agreements to fix and maintain uniform price differentials between carload and less than carload lots, and uniform discounts for payment of Invoices within certain fixed periods; and (d) Entered Into agreen;lents to fix the prices to be quoted on all government, state, and municipal bids, and to require dealers to maintain certain uniform retail prices; and t "nere said members, various individuals, officers, and directors of aforesaid .ASsociation, and others, as aforesaid, or certain of them, as the case might be, P,ursuant to and In furtherance of aforesaid general understandings, . ·etc.- · · (e) Organized said .Association to act as a clearing house for the exchange of statistical, price, and trade lntormatlon submitted by the members, including reports as to the prices, terms, and discounts at which various products were sold or offered, and advance nouc'e at. future prices; and ·(f) Attended regular meetings of the. Association at convenient locations, at . Which were discussed trade and competitive conditions and matters SUCh as use of all legal efforts to pollee filed price schedules, continuance o! the price . . 202 FEDE.RAL TRADE COMl\ITSSION DECIS·IONS Syllabus 35F.T.Cbasis, protection of prices in certain territories, withholding of ft•eight aUo'IV· .ances on shipments ft'Olll jobbet·s' stocks, etc., the naming of the minimum price for quotation on all government, state, and municipal bids, and tlle fixing of various prices and action in the interest of maintaining various price levels, and tt·ade policies, aud pt·ices to be charged were agreed on ;. and Where aforesaid Association, pursuant to said agreements, etc.- (g) Acted as a clearing house for the exchange of aforesaid information and policed reported failures to adhere,. as agreed aud uudet·stood among tile· members, to the prices re!'lpectlvely filed with it; (11) Held meetings from time to time to vote on dealet·s t<J be recognized ns distt·ibutors of products in question, ami compiled and distributed to ti:Le' members and cooperating nonmembers lists of dealers to be recognized a~> retailers und said as such to the exclusion of others, and also lists of dealers to he similarly sold by them on a whoJe;;;ale basis, and assisted in policing' thp. enforcement of the nse of flllch "distributor guides" or "white lists"; (i) Mailed out a spPclal bulletin dealing with the merchandising policy for tne industt·y, which advised that "B" and "C" buyers must be registered ,Otb. the Association, and their names added or rpjected by "mutual agreements" and reviewed by the Board of Directors at their next meeting; (J) Maintained an open price filing system whereby it relayed to the members and to cooperating nonmember concerns advance notice of immediate and future price rises and declines; and Where two member corporations, engaged in the manufacture and competitl\"e interstate sale and distribution of monohydrated copper sulphate and cer· tain other copper sulphate byproducts and specialties- (k) Agreed with other members of aforesaid Association that copper producers would sell only to a selected list of agents, and that sales were to be made In car lots to legitimate dealers and jobbers at the established price schedule only; and named a committee to submit a list of agents and proposed price schedules, and agreed thereon and established the same; 'With tendency and effect of unduly restraining and suppressing competition iO the sale and distribution of insecticides, fungicides, and related items~ o! enhancing the prices of said products and· maintaining them at artificial levels above those which would prevail under .open competition; and of tending to create a monopoly in said concerns in the ~manufacture, sale and distribution of said products:

Ileld, That such acts and practices, under the circumstances set forth, hindered and prevented price competition between said concerns .in the sale of tlle pi'Oducts in question; placed in said concerns the po~er to control and enhaJtce prices; unreasonably restrained commerce in said' products; nnd constituted unfair methods of competition in commet·ce. Before Mr. Lewis 0. Russell, trial examiner. Mr. Reuben J. Martin for the Commission.

Scandrett, Tuttle & Olw1aire, of New York City, and Covingtort, Burltng, Rublee, Acheson & Shorb, of 'Vashington, D. C., for Agri· cultural Insecticide & Fungicide Assn., L. S. Hitchner and June C. Heitzman! the latter also appearing,'along with- Mr. T'homaJJ J. McDowell, of Cleveland, Ohio, for H. D. 1Vhittlesey, Acme White Lead & Color Wo.rks, Lucas Kil-Tone Co., and Sherwin~ W'illiams Co., Inc.;

AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 203 201 Complaint Franchot, Runals, Cohen, Taylor &! Rickert, of Niagara Falls, 1f. Y., for J. B. Cary and Niagara Sprayer and Chemical Co., Inc.; lVhite &! Case, of New York City, for J. H. Boyd and Commercial Chemical Co.;

Mr. Arthwr W. Rilnke, of New York City, for R. E. Demmon, John Powell & Co., Inc., and Stauffer Chemical Co., Inc.; Mr. Robert F. Vaughan, of Louisville, Ky., for G. F. Leonard and Tobacco By-Products & Chemical Corporation; Mr. Henry C. Little, of New York City, for American Cyanamid &Chemical Corporation;

lVood', Moll<Jy &! France, of New York City, for Chipman Chemical Co., Inc. ; and . illr. John lV. Eckelberry, of 'Vilmington, Del., for E. I. dupont de 1felnours & Co., Inc.

Mr. Feliw T. Smith, of San Francisco, Calif., for A. J. Flebut and California Spray-Chemical Corporation. ' Sulliman &! Cromwell, of New York City, for G. E. Riches and A.lnerican Agricultural Chemical Co.

Mr. Calvin A. Campbell, of Midland, Mich., for Dow Chemical Co. lJtr. Lelaru!A Hazard and Mr. Joseph 1'. Owens, of Pittsburgh, Pa., for Pittsburgh Plate Glass Co., Corona Chemical Division. lJtr. JuJien D. Goell and Levin, Rosmarin &! Schwartz, of New 'York City, for Ansbacher-Siegle Corporation. · lVillk-te, Owen, Otis, Farr & Gallagher, of New York City, for General Chemical Co. ·· · . Reeves, Todd, El;y &! Beaty, of New York City, for Phelps Dodge nefining Corporation. . Guggenheimer, Untermyer & Goodrich., of vVashington, D. C., and ' Ou.ggenheimer & Untermyer, of New York· City, for Tennessee Corporation.

Compl.\INT Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal 'rrade Commission .having reason to believe that the corporations, ~associations, firms, and individuals named in the caption hereof, here- Inafter referred to as respondents, have been and are now using unfair methods of competition in commerce, as commerce is defined in said ~ct, and it appearing to the said Commissi9n that a· proceeding by lt in respect thereof would be in the public interest, h~reby issues its eornplaint stating its charges in that respect as follows: · • ~ARAGRAPH 1. The respondent, Agricultural Insecticide & Fungi- Clde Association is a corporation organized and e_existing ·under the. 204 FEDE-RAL TRADE COMMISSION DE.CISiiONS Complaint 35F. T.C.

laws of the .State of New Jersey with its principal office and place of business located at 285 Madison Avenue in the city of New York, N. y, The membership of said respondent, Agricultural Insecticide & Fungi· cide Association is composed of individuals, partnerships, and corpo· rations who are engaged in the manufacture and sale of chemicals, paints, fertilizers, various types of insecticides and fungid.des, and related items. Said respondent is hereinafter referred to for con· venience as "respondent association."

PAn. 2. The follqwing named individuals are or have been officers of said respondent Agricultural Insecticide & Fungicide Association and are named as respondents herein both in their individual~ capaci· ties and as officers o£ said Agricultural Insecticide & Fungicide Associ· ation: R. N. Chipman, % Chipman Chemical Co., Inc., Bound Brook, N. J., chairman of the board of directors; L. S. Hitchner, 285 Madi· son Avenue, New York, N. Y., president and treasurer; June C. Heitzman, 285 Madison Avenue, New York, N. Y., secretary. The following named individuals are or have been members of the ·board of directors of said respondent Agricultural Insecticide & . Fungicide Association and are named as respondents herein both in their individual capacities and as members o£ the board of directors of said respondent association; R. N. Chipman, % Chipman Chemical Co., Inc., Bound Brook, N.J.; H. D. Whittlesey, % Sherwin-Williams Co., Inc., Cleveland, Ohio; H. P. Mansfield, % E. I. dupont de Nemours & Co., Inc., Wilmington, Del.; J. B. Cary, o/o Niagal'll , Sprayer and Chemical Co., Inc., Middleport, N. Y.; J. H. Boyd % Commercial Chemical Co., Memphis, Tenn.; ·A. J. Flebut, o/o Cali· fornia Spray-Chemical Corporation, Lucas & Ortho Way, Richmond, ' Calif.; R. E. Demmon, % Stauffer Chemical Co., Inc., 420 Lexington Avenue, New York, N. Y.; G. F. Leonard, o/o Tobacco By-Products and Chemical Corporation, Columbia Building, Louisville, Ky.; G, E. Riches, % Amei:ican Agricultural Chemical Co., 50 Church Street, New York, N. 'Y.; and L. S. Hitchner, 285 Madison Avenue, New' York, N. Y. Said respondents are hereinafter referred to for con· venience as "officer and director respondents." par. 3. The membership o£ said respondent Agricultural Insecticide. & Fungicide Association varies from time to time and it is therefore impractical to specifically name all of said members as respondents herein. The following named corporations and partnerships are representative of the whole membership of said respondent associo.· tion and are named as respondents herein individually and severally and as members of said respondent association; and as representatives . of all members of said respondent association as a. class, including · those not herein specifically named who are also made respondents AGRICULTURAL INSECTICIDE &; FUNGICIDE ASSO, Ell' AL. 205 201 Complaint herein; Acme White Lead and Color Works, a corporation, 8250 St. Aubin, Detroit, Mich.; American Agricultural Chemical Co., a. corporation, 50 Church Street, New York, N.Y.; American Cyanamid and Chemical Corporation, a corporation, 30 Rockefeller Plaza, New 'fork, N. Y., American Nicotine Co., Inc., Henderson, Ky.; The Antiseptic Products Co., a corporation, 3101-3119 Walnut Street, Denver, Colo.; Califomia Spray-Chemical Corporation, Lucas & ~rtho Way, Richmond, Calif.; Chipman Chemical Co., Inc., Bound rook, N. J.; George W. Cole & Co., Inc., New York, N. Y.; Hercules ~lue Co., Ltd., a corporation trading as Colloidal Products Corpora· tlon, 2598 Taylor Street, San Francisco, Calif.; Commercial Chemi- ~1 Co., a corporation, Memphis, Tenn.; Derris,Inc., 79 Wall Street, i, ew York, N. Y.; Dow Chemical Co., a. co~poration, Midland, ~ich.; .c., I. dupont de Nemours & Co., Inc., W1lmmgton, Del.; The Labmer- ~oodwin Chemical Co., a corporation, Grand Junction, Colo.; Fred \; Lavan burg Co., a corporation, 105 Bedford A venue, Brooklyn, ..~. Y.; Lucas Kil-Tone Co., a corporation, 322 Race Street, Phila- ~lphia, Pa.; Niagara Sprayer and Chemical Co., Inc., Middleport, ..~. Y.; Nicotine Production Corporation, Inc., Clarksville, Tenn.; John Powell & Co., Inc., 114 E. Thirty-second Street, New York, ~. Y.; Sherwin-Williams Co., Inc., Cleveland, Ohio; Southern Acid & Sulphur Co., Inc., Rialto Building, St. Louis, Mo.; Stauffer Chemical Co., Inc., 420 Lexington Avenue, New York, N. Y.; J. M. Taylor, ~: P. Brown and E. W. Parker, partners, trading as Taylo~ Chemical . vvorks, Ltd., Aberdeen, N. C.; Tobacco By-Products and Chemical Corporation, Columbia Building, Louisville, Ky.; The J. W. 'Woolfolk Co., a corporation, Fort Valley, Ga.; and Pittsburg Plate Glass 1j, ~..~.,Corona Chemical Division a corporation, 235 E. Pittsburg Ave., ~v.ulwaukee, Wis. Said respondents are hereinafter referred to for convenience as "respondent members."

PAR. 4. Respondent, Allegheny Chemical Corporation, is a. cor- J:loration organized and existing under the laws of the State of Dela- \\'are and maintains its principal office and place of business at 3lS ~orth Sixth Street in the city of Reading, within the State of Pennsylvania. "'-, . Respondent, Ansbacher-Siegle Corporation, is a corporation organlZed and existing under the laws of the State of New York and maint8·ains its principal office and place of business at 810 North Seventh treet, in the city of Brooklyn, within the State of New York. Respondent, General Chemical Co., is a. corporation 'organized and lltisting under the laws of the State of New York and maintains its lll'incipal office and place of business at 40 Rector Street in the city at New York within the State of New York. · IS09U9"'-43-vol. 811---16 206 FEDERAL TRADE COl\IMISSION DE.CISION'S Complaint 3:JF.'J'.C. Phelps Dodge Refining Corporation, is a corporation organized and existing under the laws of the State of New York and maintains its principal office and place of business at 40 'Vnll Street, in the city of New York, within the State of New York.

Respondent, Tennessee Corporation, is a corporation organized and existing under the laws of the State of New York and maintains its principal office and place of business at 61 Broadway, in the city of New York, within the State of New York.

All of said respondents mentioned in this paragraph have coop· erated with the other respondents in the acts and things hereinafter more particularly described and set forth, and are hereinafter refer· red to for convenience as "cooperating respondents." P.AR. 5. All of said respondent members hereinbefore set out in paragraph 3 and said cooperating J:respondents· hereinbefore set out in paragraph 4, saw and pxcept respondents Phelps Dodge Refining Corporation and Tetmessee Corporation have been for n1ore than 2 years last past and are now engaged in the manufacture and distribution of chemicals, fertilizers, various types of insecticides and fungicides, and related items which the said respective respondent members and said cooperating rpspondents sell to their respective customers located in the various States of the United States and in the District of Columbia, causing said products, when sold, to be transported from the State of location of the respective respondent members and cooperating respondents to the purchasers thereof located at various points in the several States of the United States other than the State of the origin of such shipments and in the Dis· trict of Columbia. Except for.the acts and practices engaged in bY said respondent members ·and said cooperating respondents as here· inafter set forth, said respondent members and said cooperating respondents would be in free, open, and active competition with each other in the sale and distribution of their respective products in com· merce between and among the several States of the United States· There has been and now is a course of interstate trade and commerce in said products between said respondent members and said cooperat· ing respondents and dealers in said products located throughout the several States of the United States and in the District of Columbia· At all times mentioned herein said respondent members and said coop· erating respondents have been in competition with other corporations, partnerships and individuals likewise engaged in the manufacture and sale in interstate commerce of chemicals, fertilizers, various types of insecticides and fungicides, .and related items. AGRICULTURAL INSECTICIDE & FUXGICIDE ASSO. E;T AL. 207 201 Complaint PAR~ 6. Said respondents, Phelps Dodge Refining Corporation and 'I'ennessee Corporation, have been for more than two years last past and are now engaged in the manufactm·e and distribution of monohydrated copper sulphate and certain other copper byproducts and !<pecialties which the said respondents sell to their respective customers located in the various States of the United States and in the· District of Columbia, causing said products, when sold, to be trans- Ported from the State of the location of the respective respondents to the purchasers thereof located at various points in tlie several States of the United States other than the State of origin of such shipments and in the District of Columbia. Except for the acts and Practices engaged in by said respondents hereinafter set forth, said respondents would be in free, active and open competition with each 11ther in the sale and distribution of their respective products in con:unerce between anrl among the sevl:'rnl States of the Unih•d States. '!here has been and now is a course of inte.rstate trade and commerce tn said products between said respondents and dealers in said prod- ~lcts located throughout the several Sta-tes of the United States and tn the District of Columbia. At nll t inws nwntioned hl:'rPin said t·respondents have been in competition with other corporations, partn~rships, imd individuals likewise engaged in the manufacture and d.tstribution in inth:,;tate commerce of monohydrah•d copper :,;nlphate nnu certain other copper byproducts and specialties. PAR. 7. Said respondent members acting in cooperation with each Gther and with the said cooperating respondents and through and in coop~rat.ion with said r~spondent association for more than 2_ years last past and particularly since on or about October 1, 1936, have l'lltered into an understanding, agreement, cmnbination or conspiracy ltrnong themselves and .with and through said respondent association lllld with said cooperating respondents to restrict, restrain, and sup- Press competition in the sale and distribution of chemicals, various types o:f insecticides and fungicides, and related items to customers located throughout the several States of the United States and in the District of Columbia as aforesaid by agreeing to fix and maintain Uniform prices, terms, and discounts at wttich said items are to be Fold and to cooperate with each other in the enforcement and main- ~enhance of said fixed prices, terms, and discounts by exchanging 1llformation through said respondent association as to the prices, terms, and discounts at which said respondent members and said eooperating respondents have sold and are offering to sell their Said products to customers and prospective customers. PAR. 8. Pursuant to said understanding agreemen.t, combination or conspiracy, and in furtherance thereof, the said respondents have • 208 FEDE·RAL TRADE COMMISSION DE·CISIONS C<Jmplalnt 35F.T.C· done .and performed, and still do and perform, the following acts and things: . · . · · · 1. Certain of said respondent members organized in February of 1934 said respondent Association, Agricultural Insecticide and Fun· gicide Association, which said Association since its organization has ·acted as a clearing ·house for the exchange of information submitted to it by said respondent members including reports as to the sales of the c~emicals, various types of insecticides and fungicides, and related items together with the prices, terms, and discounts at which said items are sold or will be sold or offered to be sold. 2. Regular meetings of the members of said respondent Association have been and are held from time to time at convenient locations with· in the United States and at said meetings said respondent members have discussed and do discuss trade and competitive conditions in said industry and have agreed, upon and established and do agree upon and establish trade policies to be followed and prices to be charged' by said respondent members in the interstate sale and distribution of their said products. · 3. Said respondent Association has compiled and distributed to respondent members and to the cooperating respondents white lists containing the names of those dealers in chemicals, various types of insecticides and fungicides, and related items, who are to be sold bY the respondent members and the said cooperating respondents on a. wholesale basis to the exclusion of other dealers which said lists are known as Distributor Guides, and have assi.sted in policing the re· spondent members and the said cooperating respondents in the enforce· ment of the use of such white lists or Distributor Guides. 4. Said· respondent .Association has compiled and distributed to respondent members and to the said cooperating respondents lists of dealers in chemicals, various types of insecticides and fungicides, .and. related items, who are to be recognized by the said respondent me:rn· hers and said cooperating respondents as retail dealers in said prod· ucts and are to be sold as such retail dealers in said products to the exclusion of other dealers therein. · 5. Said respondent Association has maintained an:d now maintains an open price filing system whereby it has and does relay to respondent members and said cooperating respondents, advance notice of im:rne· diate and future price rises and declines.

PAR. 9. Respondents, Phelps Dodge Refining Corporation and Ten· nessee Corporation, have entered into an agreement, combination, or conspiracy with certain members of respondent Association to estab· lish uniform terlns and conditions of sale and to fix and maintain th6 prices and to designate certain respondent members and thpir respec" AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 209 Complaint t' n·e customers who are to purchase and resell monohydrated copper Slilphate and certain other copper byproducts and specialties. · PAn. 10. Said cooperating respondents hereinbefore named in para- ~raph 4, while not members of respondent Association, Agricultural nsecticide and Fungicide Association, have joinecl with the said re- ~P0I~dent Association and said respondent members in said conspiracy erelllbefore set out in paragraphs 7 and 8 and have assisted in and · cooperated in carrying out the objects and aims of said .combination, agteement or conspiracy .

. 'PAn. 11. The officer and director respondents hereinbefore named In _Paragraph 2 hereof are now and have been officers and directors of ~Uld respondent Association and as such officers and directors of said respondent Association have had and now have full and complete cl~arge of the activities of said 'respondent Association, conducting the lb.eetings of said members of said respondent Association, collecting s~atistical information from the members of said respondent Associatl~n, and compiling and disseminating the same to the members of sald respondent Association and formulating the trade policies of said • respondent members, all in pursuance and furtherance of the objects and aims of said respondent Association,. as hereinbefore set out in llaragraphs 7 and 8.

:PAn. 12. The results of the acts and practices of the said respondent lne111bers and of said respondent Association and said cooperating re- Spondents as hereinbefore set out in paragraphs 7 and 8, have been and llow are to substantially lessen, restrict, restrain, and suppress comll.etition in the interstate sale of chemicals, various types of insecti- ()Jdes and fungicides, and related items, throughout the several States ~f the United States and in the District of Columbia and empower h~ said respondents to control the market and enhance the prices of said products above the price which would prevail under normal, nat- ~lal and open competition between said respondents; and also tend 0 create a monopoly in said respondents in the manufacture and sale of Said products in interstate commerce.

:P A.R. 13. The acts and practices of the respondents as herein alleged are aU to the prej udiee of the public, have. a dangerous tendency to and have actually hindered and prevented price·competition between a~d among said respondents in the sale of said products in commerce "'ithin the intent and meaning o£ the Federal Trade Commission Act, hnd have placed in said respondents the power to control prices; thave increased the prices of said products paid by the purchasers . ereof and consequently the prices paid by the public; have created llj. the said respondents a monopoly in the sale of said products in -such . . 210 FEDERAL TRADE CG:\I.MISSION DECISIONS Fiu!lings 35F. T. C.

commerce and unreasonably restrained such comn;erce in said products and constitute unfair methods of competition in commerce within t!1e intent and meaning of the Federal Trade Commission Act. REPORT, FINDINGS AS TO THE F .ACTs, AND ORDER Pursuant to the provisions of the Federal Trade Commission _A.ct, the Federal Trade Commission on May 29, 1940, issued and snb· sequently set'ved its complaint in this proceeding upon the respond· ents, Agricultural Insectitude & Fungicide Association, a corpor(l· tion; R. N. Chipman, L. S. Hitchner, June C. Heitzman, II. p. Whittlesey, H. P. Mansfield, J. B. Cary, J. H. Boyd, A. J. Flebut, H.. E. Demmon, G. F. Leonard, and G. E. Riches, individually and ~ 5 officers and directors of respondent Agricultural Insecticide & Fungi· cide Association; Alll;'gheny Chemical Corporation,· a corpora tioll; Ansbacher-Siegle Corporation, a corporation; General Chemical Co., a corporation; Phelps Dodge Refining Corporation, a corporatiotlj Tennessee Corporation, a corporation; The Acme White Lead ~ 11 1• Color '\Yorks, a corporation; The American Agricultural Chem1ci\ Co., a corporation; The .American Cyanamid and Chemical Corpora· tion, a corporation; The American Nicotine Co., Inc., a corporation; The California Spray-Chemical Corporation, a corporation; Tho Chipman Chemical Co., Inc., a corporation; The Hercules Glue Co·~ Ltd., a corporation trading under the name of Colloidal Produc.t~ Corporation; The Commercial Chemical Co., a corpor:.ttion; Derr 1~' Inc., a corporation; Dow Chemical Co., a corporation; E. I. duPor~t de Nemours & Co., Inc., a corporation; The Latimer-Goodwin Chell11" cal Co., a corporation; The Niagartt Sprayer anJ Chemical Co., Inc·! a corporation; The Nicotine Production Corporation, a corporntioll; John Powell & Co., Inc., a corporation; The Sherwin-1Villiams Co., Inc., a corporation; The Southf'rn Acid & Sulphur Co., Inc., a. corpo ration; The Staufl'er Clwmical Co., Inc., a corporation; J. 1\I. Tnyior, general partner, and E. P. Drown and E. 1V. p;trker, special partner~~ trading as Taylor Chemical 1Vorks, Ltd.; The Tobacco By-Product• and Chemical Corporation, a corporation; The J. 1V. 1Voolfolk Co.,. 11 corporation; George. 1V. Cole & Co., Inc., a corporation; AntiseptJ~ Products Co., a corporation; Fred L. Lnvanburg Co., a corporatioll' Lucus Kil-Tone Co., a corporation; and Pittsburgh Plate Glass Co., Corona Chemical Division, a corporation; charging them with the m;e of unfair methods of competition in commerce in violation of the 11provisions of said act. , After the issuance of said complaint and the filing of respondeJ~ts answers thereto, a stipulation was entered into whereby it was ·sur· AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. ET AL. 211 Findings ~~ated and agreed that tt statement o:f facts signed and executed by 0 respondents or by their counsel on their behalf (except the re- ~ondents Allegheny Chemical Corporation, Antiseptic Products Co., Gred L. Lavanburg Co., Lucns Kil-Tone Co., and Pittsburgh Plate lass Co., Corona Chemical Division), and "\V. T. Kelley, chief c~unsel for the Federal Trade Commission, subject to the approval 0 the Commission, might be taken as the facts in this proceeding ltnd in lieu of testipwny in support o:f the charges stated in the Complaint or in opposition thereto, and that said Commission might ~ro~eed upon said statement o:f :facts to ,make its report, .stating ~ts lldJngs as to the :facts and its conclusion based thereon, and enter 1ts order disposing o:f the proceeding without the presentation o:f argu- ~ent or the filing o:f briefs. Respondents expressly waived the filing 0 a trial examiner's report upon the evidence. b 'rherea:after this proceeding regularly came on for finn.I. hearing 0!0re the Comtnission on said complaint, answers, and stipulation, • ~ld stipulation having been approved,· accepted, and filed, and the 011lmission, having duly considered the matter and being now :fully · !ld\'ised in the premises, finds that this proceeding is in the interest 0 the public and makes this its findings as to the :facts and its con- e1£1 • 1!'llon drawn therefrom: FINniNGS AS TO Tile FACTS A. PARAGRAPH 1. Respondent Agric~ltural Insecticide & Fungicide association, hereinafter referred to as "respondent Association," is a ~orporation organized on February 27, 1934, under the laws of the . t:tte of Delaware, having its principal office at 285 Madison Avenue, ~ll the city of New York, N. Y. Said respondent Association has as 1 ~8 members, manufacturers, and processors of insecticides and fungi- Cides and related items. These products fall into two general classes, l1:ttnely: (1) bulk or staple items, such as arsenate of lead, calcium ~\!·senate, lime sulphate, nicotine, etc., and (2) patentefl items which lire made and sold by the several members of the industry ns their 0"'n products and not in competition in the .sense that more than ~lle company manufactures the product in accordance with the same 0tmula. These' patented insecticides and fungicides, however, do Conlpete as to purpose apd more than one member makes a product \\rhich it sells for the extinction of a particular insect, fungus growth, or other enemy of plant life. Some of the members of the respond- Lilt association nre not engaged in the manufacture of these products tit serve only in the capacity of a reseller in said products. 212 FEDE·R.AL TRADE COMMISSION DE,CISIONS Findings 35F.T.C· Respondent, R. N. Chipman, is an individual and a representati'\'~ of The Ch~pman Chemical .Co., Inc., Bound Brook, N.J., and acte.1as chairman of the board of directors of respondent Association until January 10, 1940.

Respondent, L. S. Hitchner, 285 Madison Avenue, New York, 1St Y., is an individual and is a director and officer of said responded Association, having held the office of president and treasurer frolll June 5, 1935, to August 31, 1940, and the position of executive secre· tary and treasurer from September 1, 1940, to date. • Respondent, June C. Heitzman, 285 Madison Avenue, New Yorlc, N.Y., is an individual and an officer of respondent Association, ha'\'· ing held the office of secretary from June 5, 1935 to August 31, 194°· Respondent H. D. Whittlesey, is an individual and a representa· tive of The Sherwin-Williams Co., Inc., Cleveland,· Ohio, and h 119 been a director of respondent Association from September 1, 1937, . to date.

Respondent, H. P. Mansfield, is an individual and a representative of E. I. dupont de Nemours & Co., Inc., Wilmington, Del., and h119 been a director of respondent Association from its organization to date.

Respondent, J. B. Cary, is ari individual and a representative of The Niagara Sprayer and Chemical Co., Inc., Middleport, N. Y., and has been a director of respondent Association from its organization to~ ' f Respondent, J. H. Boyd, is an individual and a representative 0 The Commercial Chemical Co., Memphis, Tenn., and has been a director of respondent Association from its organization to date. f Respondent, A. J. Flebut, is an individual and a representative 0 The California Spray-Chemical Corporation, Lucas & Ortho "l{fly' Richmond, Calif., and was a director of respondent Association :fro~ September 1, 1938, to August 31, 1941. · Respondent, R. E. Demmon, is an individual and a representa,ti'\'e of.The Stauffer Chemical Co., Inc., 420 Lexington Avenue, New Yo~k, N. Y., and has been a director of respondent Association. from 1ts organization to date.

Respondent, G. F. Leonard, is an individual and. a representati!e of The Tobacco By-Products and Chemical Corporation, Columb11" Building, Louisville, Ky., and has been a director of respondent Association from its organization to date. . Respondent, G. E. Riches, is an individual and a representative of The American Agricultural Chemical Co., 50 Church Street, N"e"' York, N. Y., and was a ·director of respondent Associ~tion :frolll June 5, 1935, to May 15, 1940.

AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 213 201 Findings t' Respondent, The Acme White Lend and Color Works, is a corpora- ' 1?n organized and existing under the laws of the State of Michigan,, lttth its principal· office at 8250 St. Aubin Street, Detroit, Mich. t' Respondent, The American Agricultural Chemical Co., is a corporah10~ organized and existing under the laws of the State of Delaware, aving its principal office at 50 Church Street, New York, N.Y. . Respondent, The American Cyanamid and Chemical Corporation, 19 a corporation organized, and existing under the laws of the State ~ Delaware, with its principal office located at 30 Rockerfeller Plaza, e"' York, N.Y. · :Respondent,· The American Nicotine Co., Inc., is a corporation ~rganized and existing under the laws of the C9mmonwealth of Ken- Lucky, with its principal office in Henderson, Ky. . Respondent, The California Spray-Chemical Corporation, is a cor- Poration organized and existing under the laws of the State of Dela- \\>are,.with its principal office located at Lucas and Ortho Way, Richlnond, Calif, .. . :Respondent, The Chipman Chemical Co., Inc., is a corporation ?tganized and existing under the laws of the State of New York with 1 s principal office at Bound Brook, N.J.

Respondent, The Hercules Glue Co., Ltd., is a .corporation trading lln.der the name of Colloidal Products Corporation, organized and llttsting under the laws of the State of California., with its principal Ofllce located at 2598 Taylor Street, San Francisco, Calif . . :Respondent, The Commercial Chemical Co., is a corporation hav- . tng its·principal office at Memphis, Tenn. . Uespondent, Derris, Inc., is a corporation organized and existing ~der the laws of the State of New York, with its principal office at 79 •van Street, New York, N.Y.

~respondent, Dow Chemical Co., is a corporation ·organized and ettsting under the laws of the State of Michigan, with its principal oflice at Midland, Mich.

:Respondent, E. I. dupont de Nemours & Co., Inc., is a corporation ?rganized and existing under the l,aws of the State of Delaware, with lts principal office at Wilmington, Del. . ·~ Respondent, The Latimer-Goodwin Chemical Co., is a corporation ?rganized and existing under the laws o£ the State of Colorado, with lts principal office at Grand Junctjon, Colo. :Respondent, The Niagara Sprayer and Chemical Co., Inc., is a cor- ~oration organized and existing under the laws of the State of New Ork, with its principal office at Middleport, N. Y •. 214 FEDERAL TRADE COMMISSION DECISION'S Findings 35F. 'f. C. Respondent, The Nicotine Production Corporation, is a corporate~on organized and existing under the laws of the State of Virginia, with its principal office at Clarksville, Tenn.

Respondent, John Powell & Co., Inc., is a corporation organized nnd existing under the laws of the State·of New York, with its princip2\l office at 114 East 32nd Street, New York, N.Y. Re~pondent, The Sherwin-Williams Co., Inc., is a corporati?11 organized and existing under the laws of the State of Ohio, with Its principal office at Cleveland, Ohio.

Respondent, The Southern· Acid & Sulphur Co., Inc., is a corpoi:n· tion organized and existing under the laws of the State of Virginut, with its principal offi~e in the Rialto Building, St. Louis, Mo. . Respondent, The Stauffer Chemical Co., Inc., is a corporation organized and existing under the laws of the State of California, with its principal office at 420 Lexington Avenue, New York, N.Y. Respondent, J. 1\f. Taylor is general partner, and E. P. Brown and E. "\V. Parker, special partners, trading as Taylor Chemical Works, Ltd., a limited partnership organized under and by virtue of the la"'5 of the State of North Cnrolina, with their principal office at Abel'· deen,N. C.

Respondent, The Tobacco By-Products and Chemical Corpornti011' is a corporation orgftnized and existing under the laws of the St~te of Delaware, with its principal office in the Columbia Building, Louis' ville, Ky. · Respondent, The J. "\V. Woolfolk Co., is a corporation organized and existing under the laws of the State of Georgia, with its principal· office at Fort Valley, Ga. . Respondents, Tlie Acme White Lead and Color "\Vorks, The Ameri· can Agricultural Chemical Co., The American Cyanamid and CheJ~­ ical Corporation, The American Nicotine Co., Inc., The Cali£orllV1 Spray-Chemical Corporation, The Chipmtm Chemical Co., Inc., 'f}le Hercules Glue Co., Ltd., The ·Commercial Chemical Co., Derris, Jnc., Dow Chemical Co., E. I. dupont de Nemours & Co., l11c., The Latimer· Goodwin Chemical Co., Tbe Niagara Sprayer and Chemical Co., Joe., The Nicotine Production Corporation, J olm Powell &. Co., Inc., The Sherwin-Williams Co., Inc., The Southern Acid & Sulphur Co.-, Jnc., The Stauffer Chemical Co., Inc., J.l\L Taylor, general partner, and B· P. Brown and E. "\V. Parker, special partners, trading as Taylor CheJ11· ical Works, Ltd., The Tobacco By-Products and Chemical Corpora· tion, and J. "\V. 'Voolfolk Co., are all, respectively, respondent meill" bers of the respondent Association and nre hereinafter referred to as "respondent members."

AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 215 Findings . :Respondent, George ,V. Cole and Co., Inc., is a corporation organlze.d and existing under the laws of the State of New York, with its [ltJncipal office in the city of New York, N.Y. Said respondent has ~~t been a member o~ respondent Associat~OI: since A~tgust 31, 193.8, ~ lt has coopemted with respondent Assoc1atwn and Its members m ·urne of its· and their activities hereinafter described. ·. :nesponclent, Ansbacher-Siegle Corporation, is a corporation organ- !z~.llnnd existing under the laws of the State of New York, with its ~l'Illcipal office at 310 North Seventh Street, Brooklyn, N. Y. Said 1 .e~pondent was formerly a member of respondent Association, having 1"signed its· membership on July 6, 1938, but has cooperated with the te~llondent Association and with its members in some of its and their UetiYith:is hereinafter set forth.

· ~respondent, General Chemical Co., is a corporation organized and ~:klsting Hnder the laws of the State of New York, with its principal uflice at 40 Rector Street, New York, N.Y. Suit! respondent is not a lllernber of respondent .Association but has cooperated with the re-· SlJondent Association and its m£>mbers in some of its and their activities a.s I · ' 1eremafter set forth. :nespondent, Phelps Dodge .Refining Corporation, is a corporation ?1'ganized and existing under the laws of the State of New York, with :ts Principal office at 40 Wall Street, New York, N.Y. Said respondent 18 not a member of respondent Association but has coopemted with the ;respondent Association and its membet·s in some of its and their nctivlties as het·einafter set forth.

~respondent, Tennessee Corporation, is a corporation organized and e:snsting under the laws of the State of New York, with its principal Oflice at 61 Broadway in the city of New York, N. Y. Said respond- \'llt is not a member of respondent Association but has cooperated with ~'respondent Association and its members in some of its and their activities as hereinafter set forth.

:nespondent, Allegheny Chemical Corpomtion, is a corporation ?rgunized and existing m1der the laws of the State of Delaware, with Its principal ollice at 35 North Sixth Street, Reading, Pa. The plant CJf said respondent burned on September 6, 1940, since which date re- ~Ponden£ has been in liquidation nnd has discontinued nil otlwr bus- !IJess activities.

· .Respondent, Antiseptic Products Co., was formerly a corporation ~''lth its principal office at 3101 Walnut Str£>et, Denver, Colo., but sold lts assets and was dissolved in 1939. . .nespondent, Fretl L. Lavnnburg Co., was formerly n corpomtion '"Ith its principal office at 105 Bedford Avenue, Brooklyn, N. Y.' Said j;ii il 216 . I FEDERAL TRADE COMMIS~ION DEClSIO~'"S Si5F.T,C· Findings corporation was dissolved and ceased all business activities in or about the month of December, 1939. , · . h Respondent, Lucas Kil-Tone Co., was :formerly a corporation 'W'l~d its principal office at 322 Race Street, Philadelphia, Pa. Sal respondent was dissolved and its assets sold on August 31, 1941; . Respondent, Pittsburgh Plate Glass Co., Corona Chemical DiviSlOilt is a corporation, with its principal office at 235 East Pittsburgh Avenue, Milwaukee, Wis. This respondent is not a member of respondent A.sso· ciation. Said respondent did, on two occasions, contribute funds to respondent Association; the last of which contributions to said .Ass?d ciation was made on October 13, 1936. Since October 13, 1936, sal respondent has neither contributed to, nor cooperated with, the re· spondent Association or its members in any o:f its or their activities. PAR. 2. The respondent members and the respondents, Ansbacher·. Siegle Corporation and General Chemical Co., have been for mor~ than 2 years last past, and arl now, engaged in the inanufacture. ail ·in the sale and distribution of various types of insecticides, :fungicide~, and. related items. The respective respondents have caused their said·products, when sold by them, to be transported from the Sta~ of location of the 1espective respondents to the purchasers thereo located at various points in the several States of the United Sta~e: other than the States of origin of such shipments and in the Distrlcd of Columbia. Said respondents maintain, and at all times mentioned herein have maintained, a course of trade in said products in commerce among and between the various States of the United States and in t~; District of Columbia. At all times mentioned herein, each o:f sal respondents has been engaged in competition with some of the other respondents and with other dealers in said products in commerce among and. between the various States of the United States and in th9 District of Columbia in the sale and distribution o:f their res,Pecti." 6 products.

PAR. 3. The respondents; Phelps Dodge Refining Corporation ail~ Tennessee Corporation, have been for more than 2 years last past, ~n. are now, engaged in the m,anu:facture and in the sale and distribut1°11 of monohydrated copper sulphate and certain other copper by-product=' and specialties. Said. respondents cause said products, when sold, to be transported from the State of the location of the respective re· spondents to the purchasers thereof located at various points in the. several States of the United States other than the State of origin of . shipment and in the District of Columbia. Said respondents main· tain, and at all times mentioned. herein have maintained, a course, of trade ·in said. products in commerce among and between the various States of the United States and in the District of Columbia. At nil AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 217 Findings tU;tes mentioned herein said respondents have been in competition ~th other corporations, partnerships, and individuals engaged in e lnanufacture and in the sale and distribution of monohydrated ~ 0Paper sulphate and certain other copper by-products and specialties ~ conunerce among and between the various States o£ the United states and in the District of Columbia.

Pan. 4. The respondent members in cooperation with each other, and in cooperation with certain respondents who were not members ~f the respondent Association, and in cooperation with the respondent Association, entered into and have eng~ged for more than 2 years last Past and particularly since on or about October 1, 1936, in an understanding, agreement, combination, or conspiracy among themselves and with and through the respondent Association and with certain tespondents who were not members of the respondent Association, to . ;;strict, restrain, and suppress competition in the sale and distribulon of various types of insecticides, fungicides, and related items to customers located throughout the several States of the United States :nd in the District of Columbia, by agreeing to fix and maintain uniorm prices, terms, and discounts at which the said items were and are to be sold to various classes of customers, and to cooperate with :ach other in the enforcement and maintenance of said fixed prices, terms, and discounts by exchanging information through the re- ~Ondent Association as to the prices, terms, and discounts at which th~ said respondent members of the respondent Association, and cersa~n nonmember respondents have sold and are offering for sale their a1d products to customers and to prospective customers. nespondent members have agreed that many of the prices agreed ~Don should be fixed, and they have been fixed, on a delivered basis 0 certain consumers and to various classes of dealers. Such delivered !>~ices included blanket charges for delivery by rail to all destinations "'ithin certain States, certain groups of "States, or throughout the ~!!tire United States. Actual rail freight was allowed to purchasers at their respective destinations but no allowance was made on shiplllents by truck. The purpose and effect of fixing prices on a delivered basis was to prevent differences in the cost of delivery from the ~members' respective. shipping points creating differences in the de- 1"ered cost to any buyer at a given destination. , Agreements were also entered. into among respondent members to6 t and maintain certain uniform price differentials between carload a.~d less than carload lots and certain uniform discounts or price ~lfferentials f9r payment of invoices within certain fixed periods of t1111e. Agreements were also entered into·among respondent members 0 fix the prices to be quoted on all Government, State, and municipal 218 FEDE.RAL TRADE COMMISSION DECISION'S 35F. 'f. C. Findings bids and to require their dealers to maintain certain uniform resale Prices. 1 'bee PAR. 5. Pursuant to and in furtherance of the above-descfl .d general w1derstanding, agreement, or conspiracy entered into by sal respondents, the said responcJ.ents have entered into numerous a¥rer ments on specific occasions and have concertedly and cooperatrve Y done the following acts and things: · 116 1. Certain of said respondents organized in February of 1934 ~ respondent Association, Agricultural Insecticide & Fungici<le .Assoclll' tion. The respondent Association since its organization has acted. as a clearing house for the exchimge of statistical, price, and trade 111• formation which was submitted to .it by the respondent members; The information so collected and disseminated by the responde11f Association .has included reports as to the sales of various types 0 insecticides, fungicides, ami related items. The said reports have included the prices, terms, and discounts at which these said ite 1115 ,·e were sold or offered to be sold by the various respondents, and 1111 included advance notice of future prices. · For instance, on March 11, 1937, The Sherwin-Williams Co., Inc:' .one of the respondent members herein, telegraphed to L. S. Hitchner, then president of the respondent Association, as follows: Ef1'active Marth fifteenth adnmcing sthedule standard arsenate lend one-cent pound to base price elc>n·u and one-half tents Past and west of RockiP"'· On the snme day l\fr. Hitchner wired this information to The .T. '~· 'Voolfolk Co., another respo.ndent member herein. On March 12, t93l, the respondent member The California Spray-Chemical Corporati011 also telegraphed its schedul~S to Mr. Hitchner that it was advancinl!~ - 111 on arsenate of lead 1 cent a pound to the base. price of 11% cents 1 dealer carloads, and that it was advancing its schedule. on basic Ie~. % of a cent per pound to the base pric-e of 12 cents in dealer carlo!\.~ effective as of March 15th. On the same day lh·. Hitchner wired this information to the respondent member The J. W. 'Voolfolk Co. . t There was an agreement and understanding among respondel, members that they would adhere to the prices which they respective15 filt.~d with respondent Association and alleged failures to so adhere were reported to, and policed by, the Association.· 2. The said respondent members have· from time to time at cow venient locations within the United States, attended regular meetings of its membership held under the auspices of respondent Associati011' 'These meetings have been widely attended by the respon~lent mcJll: hers of the Association, and at the meetings the respondent 'member~ , AGRICULTURAL INSE·CTICIDE & FUNGICIDE ASSO. Err AL. 219 Fiucllngs ~ttve discussed trade and competitive conditions in the industry and f n(e agreed upon, and established, trade policies which are to be bo lowed and prices which are to be charged by the respondent memers and the respondents cooperating with them in the interstate sale :nd. distribution of their said products. Meetings have been held at J\.fl.t·tous dates since January 1936, in such widely separated places as Philad~lphia, Pa.;ll:t~Fsta,anta, Ga.;Ga.; PineSpringValley,Lake,N.N.J.;J.; Absecon,Duffalo, N.Y.;N. J.; New York, N.Y.; \~c~ Haton, Fla.; Chicago, Ill.; Greenwioh, Conn.; Portland, Oreg.; Oh ~tte~ Sulphur Springs, "\V. Va.; Del Monte, Cal if.; and Cleveland,' 't 0ne such meeting of the respondent Association was held in New t Otk, N.Y., on July 26 and 27, 1937. Among the respondent members iePresented at this meeting were The Tobacco By-Products and Chemlcal Corporation, General Chemical Co., The Chipman Chemical Co., Cnc., The American Agricultural Chemical Co., Ansbucher-Siegle C~rpo.ration, The Acme White Lead and Color Works, Grasselli t tenncal Division of E. I. dupont de Nemours lr:.r, Co., Inc., The Cali- Sornia Spray-Chemical Corporation, Lucus I·Gl-Tone Co., The Niagara sfrayer and Chemical Co., Inc., The Commercial Chemical Co., The Clerwin-"\Villiams Co., Inc., Dow Chemical Co., The J. W. Woolfolk tho., and L. S. Hitchner, president, and June C. Heitzman, secretary of we respondent Association. At this meeting the following matters ere discussed: trade and competitive conditions in the ·industry with esrecial emphasis on so-called fair trade practices; propm;ed uniform sn es contract forms; the coloring of lead and calcium arsenates; ~~c~age merchandising and standardization of containers; merchand181~1g through distributors with especial emphasis on the recommen- ~tton that the principles of the· distributor service fee should be ll opted and continued through 1938 and that the requirements for d~rvice fees should be limited to a report of total pounds sold to Ql\lers; the using of all legal efforts to police filed. price schedules; ~ Continuance of the present price basis with no c-change in quoting un dealer price and issuing credit memorandum to follow, to cover ~~rvice fees monthly as the rna terial is sold; increased service fees; ~e removal of distributors' names from the list during the season 8 ould such action be necessary; the continuance of the 1 percent ensh discounts for the season of 1938; the protection of pric-es in e~l'tnin territories 1 the withholding of outbound freight allowances on shipments from jobbers' stocks; the withholding of service allow- ~nces on sales to companies in which the distributor is financially lflterested; and.the discouraging of pool cars. 220 FEDE·RAL TRADE COl\.fMISSION DECISIONS • Findings 3:JF.T.C· In February of 1937 at a meeting of the respondent Association there was set up a dealer price on 20-20-60 dust of $5.20 for carloads and $5.70 for less than carloads. . . On September 30, 1937, the respondent, Hitchner, president of the respondent Association; advised the! respondent, Ansbacher-Siegi~ Corporation, by telephone that the minimum :price which it shou quote on all government, State or municipal bids for lend arsenate was 13 cents delivered. Mr. Hitchner further advised that this procedure had been· agreed to ·by Sherwin-Williams, Corona, Dow, Gen· eral, and others.

The carload price of lead arsenate was advanced by respondents fr0?1 9% cents in October 1936 to 10% cents in February 1937, 111/2 cents lll March 1937, and 13 cents in October 1937. In February 1938, it de· clined to 12% cents.

Respondents attempted to police the enforcement of prices. .t\t a~ executive meeting of the respondent Association held at the }:lote Biltmore, New York, N. Y., on December 2, 1937, a report inade b~ the respondent, Ansbacher-Siegle Corporation, relative to the Gul States Fertilizer Co. of Gulfport, Miss., which report shows not only respondents' activities in policing prices but also in selecting distribu· tors, stated in part as follows:

' ~ We are satisfied Gulf States can be depended upon to maintain the Industry resale prices, terms and conditions and Ansbacher will undertake to "police" tlle . I~ account, provided they can be sold on an equitable bnsls with other legit Ill distributors.

At the same meeting respo11dent, Ansbacher, reported on Grand Rapids Growers, Inc., in part as follows:

. ~ Ansbacher hns sold Grand Rapids for the past two years and we have ;vet receive a complaint that they have violated any price schedules or quoted spec~ dealer prices at .any time. They have been confronted with ftagrant vlolat~ons• for example, the pool car to growers at Peach Ridge made by Field of Shelby~ Mlchlgnn, an unlisted distributor of Corona Chemical Company~ This busi?es was otrered to Grund Rapids Growers but refused by them. t We are confident that Grand Rapids Is not only qualiiied as a distributor bll will function strictly In accordance with the insecticide industry's requlreilleotS· At a meeting of the respondent Association held in Rochester, N. f.~ on December 10, 1937, it was announced by Mr. Hart, vice presidell and sales manager of the respondent member, The Niagara' Spr~ye~ and Chemical Co., Inc., that the New· York Insecticide Co. would ll0 be represented at the meeting but that Mr. O'Brien of the New Yor~ Insecticide Co. had expressed his intention to cooperate and ba. stated that on lime sulphur solution his proposed price for 1938 would be on the 1937 basis, narpely, to dealers in drums for 13 cents per gllJlon, less 1 cent per gallon for drums, and less 1 cent per gallon for cash· AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. E1T AL. 221 201 Findings ~j Was agreed at the meeting that lime sulphur prices would not be 1 eu until February 15, 1938, and it was further agreed that the ·cash ~nd time prices as established by the New York Insecticide Co. would e llj.et.

On Janu~ry 5, 1938, Taylor Chemical '\';orks, Ltd., one of the re- ~Pondent merribers, wrote in part to The J. ,V, Woolfolk Co., another respondent member, as follows: 1 •• hn • we have reasonable cause to believe that Generul Chemical Company L s lllade a price on lime sulphur with full ft·eight allowed to uestinatlon, the ~~l'e_,. th(m turning ar·found and hiring a trucking company to deliver this at ~0 nsalet·able less than the LCl, freight, which makes the buyers net delivered tb st less than published delivered price. Do you think that this is according to llc~·letter of regulations? If you uo nut, what would you suggest that the proper 1011 would be? "On January G, The J. W. Woolfolk Co. replied to this letter in _t·llrt as follows :

W~ith regard to the General Chemical Company's proposal, we think that It Uld be better for us to handle this matter and suggest that you_ give us the 11 11llles of the buyer and, if possible, the trucking company and the quantity of 111 nterial Involved and we will handle it by air mall with the proper partll•s. 3· The respondent _.Association compiled and distributed to respond- (lnt members and to cooperating nonmember responde11ts, lists which Contained the names of those dealers ,in in'secticicles, fungicides, and ;!related hems who were to be sold by the respondent melnbers and le cooperating nonmember respondents on a wholesale basis to the l'}{clusion of other dealers in said products which said lists were known as distributor guides. Thie respondent Association has assisted in l)olicillg the respondent members and the coopei'ating nonmcmbcr respondents in the enforcement of the use of such distributor guiLles, ~which were white lists of dealers jointly recognized and agt·eed upon . Y respondents as entitled to certain prices, On October 17, 1935, the Association mailed out a special bulletin ~lealing1 with the merchandising policy for the industry nml attachl~g thereto "a suggested method of proccdure basel! on recommcncla- ~ions receive<l from the di1fcrent members of. the industry." The lll!etin stated that the industry would recognize lht·ee classes of buyers pei·fol'lning special functions for the Industry otlwr 1.han that of a jobhet• ~r dealer, thereby entitling them to special considerations 1t·otn the posted jobb~>r open price ~;schedule. · The bulletin advised that B and C buyers must be registered with · ~he Association and that their names should he added or rejectetl by llj.utual agreements," and inforined the respondents that the classification of names l~sted in Cla:ss "B'' and "C" should be reviewPtl by 222 FEDE·RAL TRADE COMMISSION DE·CISIONS \ 35F. '!'.c. Findings the board of directors at their next meeting and any additions, del~· tions, or corrections to these facts should be made at the earliest pos· flible date. ' ' It was further advised that this was tentative, subject to appro~al, and that no action should· be taken on any names, indicated, pendlM~· general approval. .

Meetings of the respondent Association were also held from tiu:e to time for the purpose of approving the names of dealers in insect!· cides, fungicides, and related items who were to be recognized by the respondents as distributors of such products and at such meetings the names of dealers to be so recognized a& distributors of such prod· ucts were submitted and voted on by those present. The names a.pd proved for recognition as distributors were added to the list an the names disapproved were deleted therefrom. Printed copies of tho list of distributors as finally approved were distributed among the respondents by the respondent Association. ' 4. The· respondent Association compiled and distributed to the re· E>pondent members and to the cooperating nonmember respondentd lists of dealers in various types of insecticides, fungicides, and relnte items, who were to be recoguiz('d by the responderi.t members and bY the cooperating nonmember respondents as retail dealers in said pro· ucts and ~ere to be sold as such retail dealers in said products to the exclusion of other dealers therein.

For instance, at a meeting held just prior to June 6, 1935, in Corpus Christi, Tex., it was agreed that the distributors would at a subs.c· quent meeting present lists of the retail dealers that they sold 111 the Corpus Christi area. · The' lists would then be gathered at a subd sequent meeting and gone over, and the names passing as appro-ve retail dealers would be adopted as the lists that each distributor would follow and no other retail dealers would be created until the follo'". ing season. It was agreed that this list of approved ·retail dealers would be furnished to the various. manufacturers of insecticides, fungicides, and related items. · 5. The respondent Association has maintained and now maintai!IS an open price filing system whereby it relays to respondent members and to cooperating nonmember respondents, advance notice of imme· diate and future price rises and declines. . PAn. 6. The respondents, Phelps Dodge Retining Corporation and Tennessee Corporation, entered into an agreement, combination, or conspiracy with some of the members of respondent Association to establish uniform terms and conditions of sale, and to fix and main- · tain the prices, and to designate certain respondent members and the . respective customers who were to purchase and resell monohydrated AGRICULTURAL INSE,CTICIDE & FUNGICIDE ASSO. Err AL. 223 Conclusion ~after sul~hate and certain other copper byproducts and specialties. by n Ineetmg held on November 15, 1937, which was presided over ~r respondent Hitchner of the respondent Association, there .were Coesent representatives of the respondents, Phelps Dodge Refining A r1oration, Tennessee .Corporation, General Chemical Co. and C~~ acher-Siegle Corporation, and of the respondent members, The d.ulPinan Chemical Co., Inc., The Sherwin-1Villiams Co., Inc., E. I. N' ont de Nemours & Co., Inc., Lucas Kil-Tone Co .. and The Iagara Sprayer arid Chemical Co., Inc. At this meeting, it was 11 g:~d that copper produc~rs would sell only to a selected list of 11 l;. ~s. It was also agreed that sales would be made in car lots to <\.gitiirJ.ate de~,tlers and jobbers at the established price schedule only. su.~ 0~Inittee was appointed to prepare and su~mit, and prepared and Sch lnitted at a subsequent meeting, a list 9f agents and proposed price lishedules, ·.At this later meeting, prices were agreed upon and estab- G ed, and the following names were selected as agents: Dupont, f ~~e<ral, Ansbacher, Sherwin-1Villiams, Niagara, Chipman, Wool- ; 'Allegheny, American Agricultural, Florida Agricultural Supply, ew York Insecticide, and Corona.

l\ PAn, 7. The directors of respondent Association hereinbefore t U!~ed have, during their respective terms of office, hnd general conand supervision of the activities of the Association, including the/0 t~r~ulation of policies; and the officers hereinbefore named, during t'lelr respective ternl.s of office, have, under the supervision and direc- ~on of said directors, had control of the active affairs of respondent of550?iation, including the collection and distribution to the members, . ;aid Association of !'aid statistical, price, and trade information. · An •. 8. The aforesaid understandings, agreements, combinations, 11 nd conspiracies and the things done thereunder and pursuant there,to, ~nd in furtherance thereof, as hereinabove found, have had and now i a"e the tendency and effect of unduly lessening, restricting, restrain- ~'· and suppressing competition in the sale and distribution of in-' b ticides, fungicides, and related items in commerce among and etween the various States of the United States and in the District ~f. C.columbia, and of enhancing the prices of said products and main-. 111nmg prices at artificial levels above the prices which would prevnil llnder normal, natural, and open competition between said respond-, ents; and also tend to create a monopoly in said respondents in the 111.manufacture and in the sale and distribution of said products ins . . Q1d commerce.

CONCLUSION 'I'he nets nnd practices of the respondents as herein found aro all to the prejudice of competitors of respondents and of the public and '! 224 FEDE-RAL TRADE COMMISSION DE•CISIONS Order s5F. rr.c.

· have a dangerous tendency to and have actually hindered and pre· vented price competition between and among respondents in the sale o~ insec.ticides, £~ngicides, and related items. i~ commerce p.s "coJlld merce" IS defined m the Federal Trade Commission Act; have place in respondents the power to control and enhance prices; have unrea· sonably restrained such commerce in said products; and constitut~ unfair methods of competition in commerce within the intent an meaning of the Federal Trade Commission Act. ORDER TO 'CEASE AND DESIST This proceeding having been heard by the Federal Trade Comtnis· sion upon the complaint of the Commission, the answers of the respondents, and a stipulation as to the facts entered into between the ~espomlents herein ( ~xcept Antiseptic l_,roduqts Co., Fred L. Lavand burg Co., Lucas Kil-Tone Co., Allegheny Chemical Corporation, aJl Pittsburgh Plate Glass Co.) and "\V. T. Kelley, chief counsel for the Commission, which provides, among other things, that the said Conl· mission may proceed upon said statement of facts to make its report stating its findings as to the facts (including inferences which it 111!1Y draw from the said stipulated facts) and its conclusion based thereoll and enter its order disposing of the proceeding without the prese~tn· tion of argument or the filing of briefs, and which waives the fill~~ of a report upon the evidence by the trial examiner; and the Comtn1.d sion having made its findings as to the facts and 't~onclusion tlmt sal respondents have violated the provisions of the Federal Trade CoJll' mission Act.

It is ordered, That said respondent Agricultural Insecticide 8: Fungicide Association, its officers, agents, and employees; the follo,v· ing respondent corporations, The Acme "White Lead and Color World~j The American Agricultural Chemical Co., The American Cyanan11 and Chemical Corporation, The American Nicotine Co., Inc., The Californin, Spray-Chemical Corporation, The Chipman Chemical Co., Inc., Geo~·ge "\V. Cole and Co., Inc., The Hercules Glue Co., Ltd. (a cor· poration trading under the name of Colloidal Products Corporation), The Commercial Chemical Co., Derris, Inc., Dow Chemical Co., E. 1. dupont de Nemours & Co., Inc., The Latimer-Goodwin Chemical Co., The Niagara Sprayer and Chemical Co., Inc., The Nicotine Producti011 Corporation, John Powell & Co., Inc., The Sherwin-'\Villimns Co., Inc., The Southern Acid & Sulphur Co., Inc., The Stauffer Chemical Co., Inc.,,The Tobacco By-Products and Chemical Corporation, The J, ,y, Woolfolk Co., Ansbacher-Siegle Corporation, General Chemical C~., . Phelps Dodge Refining Corporation, and Tennessee Corporation, their officers, agents, and employees; and the following individual respond· AGRICULTURAL INSECTICIDE & FUNGICIDE ASSO. Err AL. 225 201' ' Order :~ts, R.N. Chipman, L. S. Hitchner, June C. Heitzman, H. D. Whit- ' Desey, H. P. Mansfield, J. B. Cary, J. H. Boyd, A. J. Flebut, R. E .. p emrnon, G. F. Leona.rd, G. E. Riches, and J. l\1. Taylor, general ll:~ners, and E ..P. Brown and E. ,Y, Purl~er, special~ partners, trad.ing taylor Chemical 'Vorks, Ltd., and their respective representatives 11 ag~nts_, and employees, in connection with the offering for sale or sale clnd ~Istribution of agricultural insecticides, fungicides, and related ~t~rnrcals and items for similar uses in commerce as "commerce" is d~ .ned in the Federal Trade Commission Act, do forthwith cease and i el:nst from entering into, continuing, carrying out, directing, instigattlng, or cooperating in, nny common course of action, mutual agreement, t nderstnnding, combinatim1, or conspiracy between and among any 0~~ 0 or more of said respondents, with or without the cooperation of !lf}' ters not parties hereto, for the purpose, or with the tendency or i e~t, of fixing the prices for, or of restricting, restraining, or elimtntmg competition in, the sale in said commerce of agricultural tlnsecticides, fungicides, or related chemicals and items fot: similar tlses, and from doing any of the following acts and practices pursuant ~~ ' d 1: lii..xing, establishing, or maintainin~ the prices, whether on a e~n'cred basis or 'otherwise, or the charges at which the products of ~nrl} respondents are to be sold or offered for sale, or fixing, establishng, or maintaii1ing any method of pricing which deprives buyers of opportunity to obtain more favorable terms from one respondent cor. - ~f~ation than from anotl~e~, or fixing, establishing, or maintaining any scounts, terms, or conditions of sale.

b 2. Adhering to any price list compiled or distributed by or on ehulf of any of the said respondents.

3. Imposing, or attempting or threatening to impose, any penalty ~n, or coercing, or attempting to coerce by any means, any manufac· t Urer. who fails or refuses to adhere to or adopt charges, discounts, 1:rn1s or comlitions of sale, prices, of pricing methods fixed or estab- lShed by said respondents. 1. Exchanging, distributing, or relaying among respondent members or through re~pondent Association or any other medium or central ag~mcy, price lists or other information showing current or future f:ll'lces or current or future terms or conditions of sale . . 5. Determining or attempting to determine by any means, either chrect]y 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. . 226 . ·FEDERAL TRADE COMMISSION DE·CISIONS Order ssF.'1'.c. · 6. Furnishing to the respondent Association, or to any other central .. J:;etlium or agency, any list or lists of jobbers or retail dealers or nny dassification 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 indl· rectly, between_n and among any of the respondents, lists of names ?t classifications of dealers or users who are to be sold by any of said respondents. I 8. Holding or participating in any meetings, discussions, or es· changes 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 prevent· ing or hindering any dealer or user or any class of dealers or users fro~ obtaining the products manufactured by the respondents, or any 0 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 fotbidden when such continuation or resumption results in purchasers being prevented frolll obtaining more favorable prices, terms, or conditions of sale from one of respon?ent corporations than from the others. . It is further ordered, That the complaint herein be, and it' hereby 15 dismissed as to the following named respondents: Antiseptic Products Co., Fred L: Lavanburg Co., Lucas 1\:il-Tone Co., Allegheny Chemical Corporation, and Pittsburgh Plate Glass Co. It i8 further ordered, That the respondents shall, within 60 day9 after service upon them of this order, file with the Commission. a report in 'writing, setting forth in detail the manner and form ill which they have complied with this order.

SUCCESS Portrait CO., ETC., Err AL. 227 Syllabus