decided: January 15, 1962.
FEDERAL TRADE COMMISSION
HENRY BROCH & CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
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MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Federal Trade Commission seeks reversal of the action of the Court of Appeals for the Seventh Circuit in modifying the cease-and-desist order which the Commission had issued against the respondent Broch on finding that Broch violated § 2 (c) of the Clayton Act.*fn1 285 F.2d 764. The action of the Court of Appeals was sua sponte, and was taken in proceedings on remand which followed our reversal of that Court's earlier action setting aside the order in its entirety because Broch's conduct was thought not to violate § 2 (c).*fn2 Federal Trade Comm'n v. Broch & Co., 363 U.S. 166, reversing 261 F.2d 725. We granted certiorari, 366 U.S. 923.
Broch is a broker selling food products on commission for some 25 seller principals. One of his principals is
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Canada Foods, Ltd., a processor of apple concentrate. The Commission found that Broch, to make possible Canada Foods' acceptance of an offer from J. M. Smucker Co. to buy an unusually large quantity of apple concentrate at less than Canada Foods' established price, reduced to 3%, for this sale, the agreed 5% rate of commission ordinarily payable by Canada Foods to Broch.*fn3 The Commission adjudged, and in our prior opinion we agreed, that this action of Broch was, in the circumstances, a violation of § 2 (c).
The Commission's order was not confined to restraints against repetition of the precise violation of § 2 (c) which Broch was found to have committed, nor was the application of the order limited to future sales from Canada Foods to Smucker.*fn4 Paragraph (1) did prohibit the
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repetition of the particular violation which Broch committed, but in connection with sales for Canada Foods, or for "any other seller principal," to Smucker, or "to any other buyer." Paragraph (2) also extended its prohibitions to sales from all seller principals to all buyers, but went beyond paragraph (1) to prohibit Broch from "In any other manner . . . directly or indirectly" paying, granting or allowing, in the words of § 2 (c), "anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof . . . ." The Court of Appeals excised from the order all references to "any other seller principal" and to "any other buyer," thus limiting the order's application to future sales from Canada Foods to Smucker.
The Commission renews here the argument it made in the Court of Appeals that judicial modification of the order was precluded because Broch failed to object to the scope of the order before the Commission. Broch disputes that he failed to register a proper objection before the Commission. We see no reason to determine the fact. We will assume, without deciding, that the Court of Appeals properly passed upon the scope of the order. We nevertheless think that in the circumstances of this case the order should have been affirmed in the form entered by the Commission.
Broch supports the action of the Court of Appeals as to paragraph (1) of the order with the argument that,
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since the order was based only upon findings limited to an asserted illegal payment respecting a single sale from Canada Foods to Smucker, the Commission's ban was too sweeping in its application to sales from all seller principals to all buyers. There is no merit in this argument. The Commission has a wide discretion to formulate a remedy adequate to prevent Broch's repetition of the violation he was found to have committed. See Jacob Siegel Co. v. Federal Trade Comm'n, 327 U.S. 608, 611-612. We cannot say that the Commission exceeded its discretion in banning repetitions of Broch's violation in connection with transactions involving any seller and buyer, rather than simply forbidding recurrence of the transgression in sales between Canada and Smucker. Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 728-729. Compare United States v. United States Gypsum Co., 340 U.S. 76, 90.
Broch further argues that the Commission exceeded its discretion in the prohibitions embodied in paragraph (2). He did not cross-petition this Court for a writ of certiorari and does not here challenge paragraph (2) as modified by the Court of Appeals. Had the only vice claimed in paragraph (2) been its extension to all seller principals and all buyers, the Court of Appeals' sua sponte amendment would for reasons already stated have been clearly erroneous. But Broch contends that, before it was restricted to transactions involving Canada and Smucker, this part of the order was so broad as to jeopardize the conduct of his entire business, in that it unqualifiedly prohibited reductions of commissions coupled with lower prices -- even uniform reductions, or reductions which are service- or cost-justified, or reductions for the purpose of meeting competition.
In considering Broch's challenge to paragraph (2) it is necessary to observe that the 1959 amendments to § 11 of the Clayton Act -- which substitute for the Clayton Act
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provisions for enforcement of administrative orders those in § 5 of the Federal Trade Commission Act -- do not apply to enforcement of the instant order.*fn5 In consequence, Broch cannot be subjected to penalties except for violation of an enforcement order yet to be entered by an appropriate Court of Appeals, to be predicated upon a determination that some particular practice of Broch violated the Commission's order. Thus Broch is not, by virtue of that order, presently acting under the risk of incurring any penalty without further administrative and judicial consideration and interpretation, despite the fact that he has already received determination of his petition for review. Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 477-480.*fn6
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Upon any future enforcement proceeding, the Commission and the Court of Appeals will have ready at hand interpretive tools -- the employment of which we have previously sanctioned -- for use in tailoring the order, in the setting of a specific asserted violation, so as to meet the legitimate needs of the case. They will be free to construe the order as designed strictly to cope with the threat of future violations identical with or like or related to the violations which Broch was found to have committed,*fn7 or as forbidding "no activities except those which if continued would directly aid in perpetuating the same old unlawful practices." Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 727. They need not -- as we have already made clear -- read the order as denying
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to Broch the benefit of statutory defenses or exceptions. Federal Trade Comm'n v. Ruberoid Co., supra, at 475-476; Federal Trade Comm'n v. National Lead Co., 352 U.S. 419, 426.*fn8 Nor need the order be construed as prohibiting anything as clearly lawful as a uniform reduction in commissions.*fn9 And, we repeat, these various interpretive aids will have to be brought to bear by a Court of Appeals upon a particular practice of Broch, and will have to yield the announced result that such practice violates the order, before Broch can be subjected to penalties because of still a second repetition of the violation.
In this situation, and on this record, we hold that the attempt of the Court of Appeals to redress the asserted overbroadness by the inapt device of confining paragraph (2) to Canada's sales to Smucker was inappropriate and, indeed, any attempt to restrict the scope of the order would have been premature.
We do not wish to be understood, however, as holding that the generalized language of paragraph (2) would necessarily withstand scrutiny under the 1959 amendments.*fn10 The severity of possible penalties prescribed
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by the amendments for violations of orders which have become final underlines the necessity for fashioning orders which are, at the outset, sufficiently clear and precise to avoid raising serious questions as to their meaning and application.*fn11 See Labor Board v. Express Pub. Co., 312 U.S. 426, 435-437; Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 726; Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 54. Compare New Haven R. Co. v. Interstate Commerce Comm'n, 200 U.S. 361, 404; Swift & Co. v. United States, 196 U.S. 375, 400-401.
The judgment of the Court of Appeals is reversed and the case is remanded with direction to affirm the order of the Federal Trade Commission.
It is so ordered.
MR. JUSTICE BLACK concurs in the result.
285 F.2d 764, reversed.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN join, dissenting.
On the Court's assumption that the Court of Appeals had power, sua sponte, to modify the decree, I would affirm. This Court reversed the judgment of the Court of Appeals on the prior appeal largely on the very narrow ground that petitioner's "reduction in brokerage was made to obtain this particular order and this order only . . . ,"
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U.S. 166, 176, and therefore the Court of Appeals was justified in limiting the Commission's order accordingly.
When its attention is focused to the appropriateness of the scope of an order to restrain illegality, the Commission has shown responsible awareness of the difference in shaping its order to a situation like the one presented by this case, to wit: a specific, closely confined illegality as distinguished from a widespread illegal practice inimical to the public interest. See opinion of the Commission in In re Colgate-Palmolive Co. and Ted Bates & Co., Docket No. 7736, December 29, 1961, CCH Trade Reg. Rep., para. 15,643, pp. 20,474, 20,485. So, too, has the United States Court of Appeals for the Second Circuit shown responsive awareness and appreciation of that distinctive difference. Swanee Paper Corp. v. Federal Trade Comm'n, 291 F.2d 833, 837-838.