Consolidated Book Publishers, Inc. v. Federal Trade Commission , 53 F.2d 942 ( 1931 )

On Petition for Rehearing.

Petitioner in its petition for a rehearing has called our attention to the fact that this court has not referred to nor commented upon the additional evidence taken on respondent’s motion since the argument of the cause, relative to competition with and resulting injury to other concerns engaged in the same line of business; and it further contends that this court failed to consider Federal Trade Commission v. Raladam Co., 283 U. S. 643, 51 S. Ct. 587, 75 L. Ed. 1324, decided after the argument in this cause!

Petitioner bases its right to a rehearing upon the following grounds: (a) The commission has failed to show the existence of competition between petitioner and the traders who it claims were injured; (b) competitors were not injured by any acts of petitioner; (e) competitors used methods the same as, or substantially similar to, those employed by petitioner.

These matters were fully presented to this court and argued prior to the taking of additional testimony as referred to above; and the pendency of the Raladam Case in the Supreme Court was also called to our attention. When that ease was decided by the Supreme Court and the opinion was published, it was considered by this court. Subsequently, when respondent asked permission to take additional testimony, as above referred to, a part of the membership of this court thought that the evidence then in the record was sufficient to support the finding of the commission to the effect that there was competition and resulting injury; and also that the Raladam Case was not controlling in the instant case, because the facts qf that ease showed neither competition nor injury. Out of abundance of precaution, however, the court permitted the additional evidence to he taken, after which the commission found the existence of both competition and resulting injury to such competitors. It may be also stated that petitioner, in its answer to respondent’s original complaint, admitted that it was in competition with various other persons, partnerships, and corporations similarly engaged.

From a perusal of all the evidence; including the additional testimony given, it is quite apparent that the commission’s findings are supported by material and competent evidence with respect to competition and resulting injury to competitors. It is true the injury shown is not expressed in specific terms of money, but this we do not regard as necessary. The statement of petitioner that the competitors are guilty of the same or similar methods as those charged to petitioner is not supported by the evidence.

The petition for rehearing is overruled.