Agricultural Insecticide & Fungicide Ass'N

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

MODIFIED CEASE AND DESIST ORDER Docket 4145. Order, December 14, 1944 Order, pursuant to provisions of Section 5 (b) of the Federal Trade Commission Act, in proceeding in question; in which (1) the original order issued on July 24, 1942, in Agricultural Insecticide and Fungicide Assn., et al, Docket 4145, 35 F.T.C. 201; (2) the 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 ~he Commission's order as to the six peti· tioning 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; and (3) the Com· mission on June 8, 1944, pursuant to the provisions of Sec. 5 (i), and in accordance with the decrees above referred to, modified, as to said petitioning respondents only, 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 respondents, the above quoted words were changed to read "cooperating in any agreed or planned common course of action"; and (4) dis· missed the complaint as to respondent Demmon;

Modifying similarly as to the other respondents joined in said original order, the a{ore· said language so as to read, as applied to them also, "cooperating in any agreed or planned common course of action"; and Ratifying and confirming in all other respects save as thus modified the original cease and desist order entered on July 241 1942.

~ODIFIED 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 sever&l respondents, and certain stipulations of fact, and respondents having expressly waived all intervening procedure and hearing as to the facts and consented that the Commission may, without any further intervening procedure, make and enter its findings 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, entered its cease and desist order herein on July 24, 1942. Thereafter, the respondents, Phelps-Dodge Refining Corporation, Tennessee Corporation, American Cyanamid & Chemical Corporation, John Powell & Co., Inc., AGRICULTURAL INSECTICIDE & FUNGICIDE ASS 1N ET AL. 519 518 Order Southern Acid & Sulphur Co., Inc., $tauffer Chemical Co., 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 Commission's said order to cease and desist, entered on July 24, 1942; and, thereafter, on December 23, 1943, the said United States Circuit Court of Appeals for the Second Circuit having unconditionally affirmed the Commission's said order to cease and desist as to the said respondents, Phelps-Dodge Refining Corporation, Tennessee Corporation, American Cyanamid & Chemical Corporation, John Powell & Co., Inc., Southern Acid & Sulphur Co., Inc. and Stauffer Chemical Co., Inc., and having reversed the Com~ mission's said order as to the respondent, R. Earl Demmon; !itnd, 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 u 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; and, thereafter, on June 8, 1944, the Commission having entered its order modifying its order to cease and desist entered on July 24, 1942, with respect to the petitioning respondents so as to conform to the decrees entered by the United States Circuit Court of Appeals for the Second Circuit; and, thereafter, on motion of the attorney for the Federal Trade Commission, the Commission, on July 5, 1944, having entered an order directing that a copy of said motion be served upon said respondents and requiring said respondents within twenty days after service upon them of said motion to show cause, if any, they could, in writing, why said order to cease and desist heretofore entered herein on July 24, 1942, should not be so modified, in accordance with said motion, to the extent that the language u cooperating in any common course of action" appearing in the Commission's said order to cease and desist entered on July 24, 1942, be changed to read "cooperating in any agreed or planned common course of action" as to all of said respondents, and, thereafter, the said period of twenty days within which said respondents were directed to show cause why said order should not be so modified in accordance with said motion having expired; now, therefore, It is ordered, That in accordance with the provisions of Section 5(b) of the Federal Trade Commission Act, due notice having been served on said respondents, this matter be, and the same hereby is, reopened for the purpose only of modifying the order to cease and desist heretofore entered herein on July 24, 1942.

1 tis further ordered, That, as to the respondents, Agricultural Insecticide & Fungicide Association, the Acme White Lead and Color Works, The American Agricultural Chemical Co., The American Nicotine Co., Inc., The California Spray-Chemical 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 & Chemical Co., Inc., The Nicotine Production Corporation, The Sherwin-Williams Co., Inc., The Tobacco By-Products & Chem- Order 39 F. T. C.

ical Corporation, The J. W. Woolfol~ Co., Ansbacher-Siegle Corporation, General Chemical Co., R.N. Chipman, L. S. Hitclmer, June C. Heitzman, H. D. Whittlesey, H. P. Mansfield, J. B. Cary, J. H. Boyd, A. J. Flebut, G. F. Leonard, G. E. Riches, and J. M. Taylor, general partner, and E. P. Brown and E. W. Parker, special partners, trading as Taylor Chemical Works, Ltd., 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 11 cooperating in any common course of action 11 appearing therein be, and the same hereby is, changed so as to read 11 cooperating in any agreed or planned common course of action 11 ; and It is further ordered, That the Commission's said order to cease and de· sist, as entered herein on July 24, 1942, (and as modified on June 8, 1944) · be, and the same hereby is, ratified and confirmed in all other respects save and except as herein modified.

It is further ordered, That the respondents upon whom this modified order is served are excused from the filing within 60 days of any new com· pliance reports, in view of the fact that they have previously filed reports of compliance with the broader form of order originally entered in the case on July 24, 1942.

ED. W. ARNOLD CO., ET AL. 521 Syllabus