Document Yjo1ed4boJXJLqX4pZ7jw4odn

UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION 1 Docket No. 5253* In the Natter of [ JAN 16 1' * \ NATIONAL LEAD COMPANY, a corporation, EAGLE-PICKER LEAD COMPANY, a corporation, EAGLE-PICHER SALES COMPANY, a corporation, ANACONDA COPPER MINING COMPANY, a corporation, INTERNATIONAL SMELTING & REFINING COMPANY, a corporation, THE SHERYfllMTILLIAMS COMPANY, a corporation, and THE GLIDDEN COMPANY, a corporation. " OBJECTIONS BY THE GLIDDEN COMPANY TO CERTAIN FINDINGS AND CONCLUSIONS PROPOSED BY ASSISTANT GENERAL COUNSEL OF THE FEDERAL TRADE COMMISSION TOGETHER VffTK 1EHORANDUK IN SUPPORT THERETO Roger Kinds, 165 Broadway, New York 6, New York, X` m X X, Oi John A. Duncan of K. B. & H. H. Johnson, 16U9 Union Commerce Bldg., Cleveland lit, Ohio, Attorneys for The Gliaden Company * ox> *%V X m< ;' r. N 4131 UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION Docket No. 5253* s i 'r'.' Vj,> In the Matter of RATIONAL LEAD COMPANY, a corporation, t% JAN is r: ' \ EAGLS-PICHER LEAD COMPANY, a corporation, s EAGLE-PICHER SALES COMPANY, a corporation, ANACONDA COPIER MINING COMPANY, a corporation, INTERNATIONAL SMELTING & REFINING COMPANY a corporation, THE SHERWIN-WILLIAMS COMPANY, a corporation, and THE GLIDDEN COMPANY, a corporation. OBJECTIONS BY THE GLIDDEN COMPANY TO CERTAIN FINDINGS AND CONCLUSIONS PROPOSED BY ASSISTANT GENERAL COUNSEL OF THE FEDERAL TRADE COMMISSION REPRODUCED AT THE NATIONAL ARCHIVES Comes now. The Glidden Company (one of the respondents herein) by its attorneys, Roger Hinds and John A. Duncan, and ob jects to certain findings and conclusions proposed by counsel on behalf of the Federal Trade Commission, as follows: A. PROPOSED FINDINGS I Page 9 (subparagraph 5 of part IB), line 6, substitute "30" for "60", in order to conform with the evidence, inasmuch as Glidden has only 30 retail stores and not 60 selling mixed paint, lead pigments and related products directly to consumers and the general public. Line 12, insert "probably" immediately before "the largest domestic producer of lithopone," so as to conform with the evidence given by witness Paul Sprague (Tr. 261+8). II Page 9 (subsection 6a. of IE), lines 2 and 3, delete "to serve the mutual interests of the entire lead industry.", inasmuch as the evidence given (Tr. 997) shows that Lead Industries Association was for those "who mine, smelt, refine and manufacture lead and lead products, including lead pigments." Page 9 (subsection 6b. of IB), lines 1U and 15, substitute "a basis" for "the sole basis", for the reason that said statement is false and contrary to the testimony given in this proceeding. Ill page 11, lines 2 and 3 from the bottom of the page (part II), delete "and of the freight rates used by his competitor", for the rea son that Glidden used published railroad rates only. page 12, third line from the bottom of the page (part II), delete the word "ostensible" from the phrase "for the ostensible pur pose", for the reason that the purpose was solely one of Code drafting. IV REPRODUCED AT THE NATIONAL ARCHIVES Page 26 (part III - Dry "White Lead), delete the first full para graph at the top of the page, for the reason that it is argumentative and not in accordance with the evidence. Page 26, 27 and first half of page 28, delete that part of page 26 starting with the last paragraph, beginning "The record is clear -ft- * *." Delete all of page 27 and that part of page 28 down to "IV. ADEEREKCE TO TIE CONSPIRACY", for the^reason that such proposed findings are mere conclusions and not findings based upon the testimony given in this proceeding. 745 V Page 29 (part IV), delete the last sentence in the second full paragraph relating to "conspiracy as found", for the reason that it is not supported by the evidence in this proceeding and is purely argumenta tive . Page 31, paragraph 2, line 1, delete "adopted and" and also the word "agreed" in the same line, for the reason that Glidden did not adopt but merely followed, as borne out by the testimony introduced in this proceeding; and inasmuch as the testimony introduced on behalf of Glidden expressly negatived any inference that Glidden had agreed to any pricing practices and terms and conditions of sale, the injection of the word "agreed" is not in accordance with the testimony presented in this pro ceeding. Page 31, second full paragraph, lines 6, 7 and 8, delete "with the exception that for a period of time Glidden offered dealers purchasing white lead-in-oil outright a price 200 lower than the price to dealers on consignment and the prices of respondents National and Eagle-Picher.", for the reason that such an.exception was not presented in evidence. Page 32, delete the first full paragraph, for the reason that there is no evidence in the record to support the contention of the Government that the documents therein referred to showed adherence to the agreed terms and conditions of sale, V Page Ul (part V), first full paragraph should be deleted, for the reason that it is argumentative and presents only a conclusion unsupported by testimony. REPRODUCED AT THE NATIONAL ARCHIVES -3- pt *g*. t :! VI Page Ul (part VI), delete all references to "fixing and maintaining prices, terms and conditions of sale pursuant to combina tion, agreement and planned common course of action", inasmuch as the record fails to support such a finding. B. PROPOSED CONCLUSIONS VII Page i;2 (part VII), delete all of the Conclusions, for the rea sons that they are insufficient and not reasonably deductible from the evidence presented' in this proceeding, MEMORANDUM In support of the objections hereinabove enumerated, we submit on behalf of The Glidden Company that the specific findings proposed by counsel for the Federal Trade Commission are without support by way of record reference. The burden on the part of the Government is to com pletely, adequately and fairly state the ultimate facts. Tihat counsel for the Federal Trade Commission proposes by way of the findings complained of, merely leads to the conclusion that if the Exarainer adopts those particular findings, he wall do so at the risk of not knovdng whether they are supported by the evidence. We submit that most of the proposed findings specifically above referred to are merely arguments on the part of counsel for the Federal Trade Commission in support of what he believes the evidence should have been; not based upon what the evidence actually was. We submit that the proposed conclusions do not fall from the evidence REPRODUCED AT THE NATIONAL ARCHIVES \ * > 4 ' i "i- introduced, ao far as The Glidden Company is concerned. In view of the foregoing, we earnestly submit that the objec tions above raised should be granted. Hespectfs u.bnxiteu, IU B. & K. K. Johnson, Of Counsel. REPRODUCED at th e n a t io n a l a r c h iv e s - 5- 748