Document mBzg0D7G17arXjk09ey276bR0

UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION x In the Matter of Docket No, 5253 NATIONAL LEAD COMPANY et al. x EXCEPTIONS OF RESPONDENT, INTERNATIONAL SMELTING AND REFINING COMPANY, TO TRIAL EXAMINER'S RECOMMENDED DECISION AND TO SAID TRIAL EXAMINER'S FAILURE TO INCLUDE PROPOSED FINDINGS AND CONCLUSIONS RE- QUESTED BY SAID RESPONDENT COMES now the respondent, INTERNATIONAL SMELTING AND REFINING COMPANY (hereinafter referred to as "Inter national"), by its attorneys, CHADBOURNE, WALLACE, PARKE & WHITESIDE, and, pursuant to Rule XXIII of the Rules of Practice of this Commission, submits the following excep tions to the Trial Examiner's Recommended Decision herein and to the failure of said Trial Examiner to include pro posed findings and conclusions heretofore requested by this respondent under Rule XXI of said Rules of Practice. O-t'Q. c in u n w v 1V N O I IV N h i! EXCEPTIONS TO SECTION II OF THE RECOMMENDED DECISION ENTITLED "PLEADINGS AND ISSUES" 1. Page 1, first unnumbered paragraph*. Interna tional excepts to the action of the Examiner in treating it and Anaconda Copper Mining Company as one and the same for the reason that such assumption is not supported bjr the record, is opposed to the reliable and probative evi dence that has been received and contrary to the law. [Tr. 3537-3538; Martin v. Development Co. of America. 240 Fed. 42 (C.C.A. 9th, 1917); Ma.lestic Company v. Orpheum Circuit. 21 F. (2d) 720 (C.C.A. 8th, 1927); Esmond Mills v. Commissioner of Internal Revenue. 132 F. (2d) 753 (C.C.A. 1st, 1943); Schenlev Corporation v. United States. 326 U.S. 432 (1945).] 2. Page 5. third unnumbered paragraph. International excepts to this statement, it being an inaccurate and incomplete statement of its answer to the amended complaint. 3. Page 6. International excepts to the Inclu sion of the following as one of the "issues" herein: * The pages and paragraphs referred to at the outset of each exception iden tify that portion of the Trial Exam iner's Recommended Decision to which exception is being tal^n. 2 "Were the tendencies and effect of these transactions to restrain trade, suppress competition, or create monopolies through unequal cost factors and identical de livered prices." [Amended Complaint, Paragraph "Eleven"; Federal Trade Commission Act, Section 5: 2.] Sherman Act, Sections 1 and 4. Page 6. International excepts to the inclu sion of the following as one of the "issues" herein: "Did respondent's employment of the zone system, as alleged, involve differences in price between customers (a) located in a zone and (b) located in different zones, which differences were more than differences in cost, sale and delivery?" fClayton Act. Section 2(8^1 5. Page 6. International excepts to the paragraph following the paragraph hereinabove quoted because of the inclusion of the words "so discriminate" on the same grounds as objected to in "4ff above. 6. Page 6. International excepts to the se cond sentence in the paragraph beginning at the bottom of the page for the reason that it is improper to attempt to answer the issues by "inference" where it would conflict with reliable probative and substantial evidence. tk I- 7. Page 7, International excepts to the first three full sentences appearing et the top of the page for the reason that important parts of the evidence have not been set forth in the Recommended Decision, much reliable and substantial evidence has been ig nored and little attention has been paid to the greater weight of the evidence herein. EXCEPTIONS TO SECTION III OF THE RECOMMENDED DECISION ENTITLED 11 REPORT UPON THE EVIDENCE" COONT I 8. Page 14. Paragraph (4) International excepts to the second sentence as being unsupported by the re cord. 9. Page 16, Paragraph Ci-b') and Page 18. Para graph C4-c). International excepts to these paragraphs on the ground that they are not supported by the record as to this respondent. . 10. Page 19. Paragraph (5). International ex cepts to the next to the last sentence for the reason that it is improper to attempt to answer the issues by "inference" where it would conflict with reliable pro bative and substantial Evidence. .4 11. International excepts to the following enu merated Paragraphs on the ground that each and all of such findings are unsupported by the record as to this respondent: Page 19, (5-al); Page 20, (5-a2) ; Page 22, (5-b2); Page 26, C5-cl); Page 27, ($-c2); Page 33, (5-cB) and (5-c9) 12. Page 35. Paragraph (5-d). International excepts to that part of the Paragraph appearing on this page as being unsupported by the record. /Answers, of all respondents to amended complaint/7 13. Page 37. Paragraph (6-c) and the second and third sentences of Paragraph (6-d). International' excepts to the cited portions of these Paragraphs as being unsupported by the record as to this respondent, 14- Page 38. Paragraph (6-d). International excepts to the statement that Anaconda or International had a plant in Chicago. /Tr. 3489-35417 15. Pages 39 and 40. Paragraphs (7-a3). (7-a4). (7-a6), (7-ac) and (7-a9). International excepts to these Paragraphs as being unsupported by the record as to this respondent. 5 16. Page 40. Paragraph (7-bl) and Page 41. Paragraph (7-b2) . International excepts to these Paragraphs as they contain statements, inferences and insinuations unsupported by the evidence. 17. Pages A3 and 44. Paragraphs (7-cl). (7-c2). (7-c4) and (7-c5). International excepts to these Paragraphs as being unsupported by the evidence or directly contrary to the reliable probative and substantial evidence herein. 18. Page 44. Paragraph (7-dl). International excepts to this Paragraph. fNational Industrial Re- covery Act. Section 5 : 48 Stat. 195. 198.1 19. Page 45. Paragraphs (7-d2). (7-d4) and (7-d5). International excepts to these Paragraphs on the ground that they are unsupported by the record as to this respondent. fEugene Dietzgen Co. v. Federal Trade Commission, 142 F. (2d) 321, 329; Sugar Insti tute v. Dnited States. 297 D.S. 553; Maple Flooring Ass*n v. Dnited States. 268 D.S. 563; Dnited States v. General Electric Co.. 272 D.S. 476; Dnited States - v. Socony-Vacuum Oil Co.. 310 D.S. 150, 198-99; Dnited States v. 0. S. Steel Corporation. 251 D.S. 417; Dnited States v. International Harvester Co.. 274 D. S. 693; Dnited States v. Standard Oil of Nevr Jgr-- 6 9S3 sey. 47 F. (2d) 288; Appalachian Coals. Inc._ v. United States. 288 U.S. 344*1 20. International adopts as its own, and incor porates herein by reference, each and every exception and the authorities in support thereof to the Examiner's Recommended Decision which are taken by the other re spondents herein to his report upon the evidence and conclusions as to conspiracy, collusion, agreement and cooperation between or among any or all of said re spondents. COUNT II 21. Page 46. International excepts to the third unnumbered Paragraph under this subject in so far as the same incorporates the items set forth in the Report Upon The Evidence at Pages 7 to 46 on the same grounds as hereinabove set out in this* respondent ' s exceptions to Count I. 22. Page 46. Paragraph (8-al). International excepts to this Paragraph as being unwarranted by the . evidence or by law. fClayton Act. Section 2(a); Corn Products Refining Co. v. Federal Trade Commission. 324 U.S. 726; Federal Trade Commission v. A. E. Staley Co.. 324 U.S. 746.] 7 (JS 23. Page 49. Paragraph (8-a3), Internation al excepts to this Paragraph as being unsupported by record references or any other portion of the record,, 2L. Page 50. Paragraph (9-a), Internation al excepts to references that Anaconda charged con signment dealers in the par zone $1,00 less per cwt. than its price to competing dealers at the same loca tions as being unsupported by the record as to this respondent. 25. Page 56. Paragraph flQ-h') . Internation al excepts to this Paragraph as being unsupported by the record as to this respondent. 26. Page 57. Paragraph flO-l). Internation al excepts to the first sentence as being unsupported by the record as to this respondent. 27. Page 57, Paragraph ClO-m). Internation al excepts to the word "discriminations" in the first line, and to the last two sentences of said Paragraph as being unsupported by the record as to this respondent. 28. Page 57. Paragraph (ll-a), Interna tional excepts to this Paragraph for the reason that it is unsupported by the evidence and is contrary to law. * [Federal Trade Commis8 sion v. A. E. Staley Co.. 324 U.S. 746; United States v. U. S. Steel Coro.. 251 U.S. 417, 451; Swift & Co, v. United States. 196 U.S. 375, 400; United States v. Socony-Vacuum Oil Co.. 310 U.S. 150, 198-99; United States v. International Harvester Co.. 274 U.S. 693; United States v. Standard Oil Co. of New Jersey. 47 F. (2d) 288.] EXCEPTIONS TO SECTION IV OF THE RECOMMENDED DECISION ENTITLED "RECOMMENDED FINDINGS AND ________ CONCLUSIONS"______________. 29. Page 61. Paragraph 1-C. International ex cepts to having all references to it and respondent, Anaconda Copper Mining Company, combined under the name of "Anaconda" in this and subsequent paragraphs of the recommended findings and conclusions. [Record refer ences and authorities in support of this exception are the same as those cited by respondent in Exception "1," Page 2 herein.] 30. International excepts to the findings and conclusions in the following enumerated Paragraphs on the ground that each and all of such findings are un supported by the record as to this respondent; Page 62. 1-G: Page 68. 4-C: Page 69. second sentence of 4-D: Page 69. 5-A1: Page 70. 5-A2 and 5-A3; Page 71. 5-B2 and Page 72. 5-BA. 31. Page 73. second sentence of the first un numbered paragraph of Paragraph 5-B5. International ex cepts to the finding that it or Anaconda sold dry white lead on a consignment basis in Wisconsin.' [Tr. 3533] 32. International excepts to the findings and conclusions in the following enumerated Paragraphs on the ground that each and all of such findings are un supported by the record as to this respondent: Page 7A. 5-C1; Page 76. 5-C5: Page 77. 5-C8 and the first two sentences of 5-C11: Page 78. 5-D; Page 80. 6-P; Page 81, 7-A3 and 7-A4: Page 82. 7-A6. 7-A7 and 7-A8. 33. Page 83. Paragraph 7-B2. International ex cepts to this Paragraph, with the exception of the se cond sentence, on the ground that the findings as to it are unsupported by the record and cannot be "inferred" from the evidence that has been received. 34 Page 84. Paragraph 7-C2 and Page 85. Para graph 7-C4. International excepts to these Paragraphs as being without foundation in law and unsupported by the record as to this respondent. 35. Page 85. Paragraphs 7-C5 and_.Z-.Dl. Inter10 93? national excepts to these Paragraphs on the ground that these findings are unsupported by the record as to this respondent. 360 International excepts to the findings in the following enumerated Paragraphs as being unsupported by the record and without foundation in law: Page 85. 7-D1; Page 86. 7-D2: Page__87, 7-DA and 7-D5. 37. Page 87, the third unnumbered paragraph of Paragraph 8-A. International excepts to thisi Paragraph in so far as the same incorporates the facts relating to the parties, zone pricing, price differences, differ entials and other features bearing on the issues under Count II, which are set out in the Report Dpon The Evi dence under Count I, and adopts as its exceptions and authorities thereto those exceptions hereinabove set out by this respondent to Count I* 3.8o Page 88, Paragraph 8-A1, International ex cepts to this Paragraph as being unwarranted by the evidence or by law. fClayton Act. Section 2(a): Corn Products Refining Co. v. Federal Trade Commission. 324 DoS. 726; Federal Trade Commission v. A. E. Staley Co., 324 UoS. 746.] 39. International excepts to the findings and 11 conclusions in the following enumerated paragraphs on the ground that each and all cf such findings are unsupported by the record as to this respondent: Page 89. 9-A: Page 91. 9-E and 9-F; Page 93, first two sentences of 10-E and 10-F: Page 94. 10-H. 10-J and 10-L. 40* Page 95. Paragraph 11-A. International ex cepts to this Paragraph on the ground that it is un supported by the record and contrary to law. fFederal Trade Commission v. A. F. Staley Co.% 324 U.S. 746.] 41. International adopts as its own, and in corporates herein by reference, each and every exception and the authorities in support thereof to the Examiner's Recommended Decision which are taken by the other re spondents -herein to his recommended findings and conclu sions as to conspiracy, collusion, agreement and coopera tion between or among any or all of said respondents. EXCEPTIONS TO SECTION V OF TPE RECOMMENDED DECISION ENTITLED "RECOMMENDED ORDER" 42. Page 96. Paragraph 1. Page 97. Paragraph 2. and Page 98. Paragraphs k and 5. International excepts to its inclusion in the Recommended Order for the reason that the record does not sustain the finding that it was a party to, or was engaged in, any of the acts complain ed of in the amended complaint, and there is uncontra dicted evidence that International is not engaged in any of the activities covered by the order, and the Examiner has found that it is no longer in the business of selling or manufacturing lead pigments and that there is no reason to believe International will ever reenter or reengage in the manufacture or sale of lead pigments. [Com. Ex. 836B; Affidavit of Frederick Laist, Vice President of International, in support of motion to dis miss amended complaint; pp. 2075-2077; 3541-3543; TrialExaminer's rulings on proposals for findings and con clusions submitted by counsel, March 31, 1948, p. 2] EXCEPTIONS TO TEE TRIAL EXAMINER'S FAILURE TO INCLUDE PROPOSED FINDINGS AND CONCLU SIONS REQUESTED UNDER RULE XXI SUBMITTED B? THIS RESPONDENT 43. International excepts to the Examiner's denial of the findings requested in Paragraphs nl6,n n20," "21," "22," "25," "28," "29," "30," "31" and "32" of its pro posed Findings and Conclusions and Reasons therefor which were duly filed in this proceeding. 44* International excepts to the Examiner's denial of Paragraphs "1" to n8,n inclusive of the Conclusions of Law requested by it and reasserts that these Conclusions 13 9 were proper statements of the law on the points in volved and that the denial thereof was contary to both the evidence and the law. Pursuant to the ruling of the Examiner herein, this respondent reserves the right to file further proposals and further exceptions at the time of sub mission of its brief on the merits and the argument of the case before the Commission. This respondent respectfully requests argument on the above exceptions at the time of the argument be fore the Commission on the merits. Respectfully submitted, CHADBOURNE, WALLACE, PARKE & WHITESIDE By Office and Post Office Address, No. 25 Broadway, Borough of Manhattan, City of New York. Attorneys for Respondent, INTERNATIONAL SMELTING AND REFINING COMPANY 14 * 99