Analysis of cases in which findings and orders were issued subsequent to enactment of Wheeler-Lea Act, involving food, drugs, therapeutic devices, and cosmetics, showing manner of disposition and court's disposition of those appealed

Total number of cases_

Number disposed of on admission answers_

Number disposed of on stipulations as to the facts_

Number disposed of on admission answers and stipulations

as to the facts_.

Number disposed of by trial..

462.

180, or 39 percent.

97, or 21 percent.

277, or 60 percent.

185, or 40 percent.

Number disposed of by trial which were not appealed--

141, or 76 percent.

Number of formal complaints dismissed or closed by the
Commission.

58.

(Thereupon, at 11:55 a. m., Wednesday, February 27, 1946, the committee recessed until 10 a. m., Thursday, February 28, 1946.)

AMEND FEDERAL TRADE COMMISSION ACT

THURSDAY, FEBRUARY 28, 1946

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D. C.

The subcommittee reconvened at 10 a. m., Hon. George G. Sadowski, chairman of the subcommittee, presiding.

Mr. SADOWSKI. The subcommittee will come to order.

STATEMENT OF WALTER B. WOODEN, ASSISTANT CHIEF COUNSEL, FEDERAL TRADE COMMISSION

Mr. SADOWSKI. Will you state your name and the organization you represent.

Mr. WOODEN. My name is Walter B. Wooden. I am one of the assistant chief counsel of the Federal Trade Commission, and have held that position since 1939.

During that time I have been in charge of the Commission's trial work, having to do primarily with combinations in restraint of trade, price-fixing cases, basing-point cases, and violations of the price discrimination sections and other sections of the Robinson-Patman Act. In that connection, I have handled a number of such cases before the appellate courts.

Several months ago I was placed in charge of all of the appellate work of the Commission.

Prior to 1939 I had been an attorney on the staff of the Commission, ever since the Commission was formed in 1915.

Mr. Kelley pointed out to the committee yesterday that the necessary implication of any suggestion that the Commission decides its factual issues upon any basis other than that of the preponderance of the evidence was that the Commission was not intellectually honest in reaching those decisions. I want to call the committee's attention in that connection, to a particular case which illustrates how the Commission goes about reaching its conclusions on the facts.

This was a case that was decided on May 3, 1944, and is known as the Listerine case, Docket 4232. Only four Commissioners participated in that decision, Judge Davis being absent on account of illness, but there were four opinions, three of which united in dismissing the

case.

In the concurring opinion of Commissioner Ferguson, he said, and I quote:

It is the duty of the Commission to decide issues of fact, whether or not medical or scientific questions are involved, by the greater weight of the evidence, the burden of proof being on the Commission.

Commissioner March, in his concurring opinion, concluded that, and I quote:

The allegations in the complaint are not sustained by the greater weight of the evidence.

Commissioner Freer also made a very detailed analysis of the evidence, pro and con, in his concurring opinion.

Commissioner Ayres, however, dissented from the majority as to what the weight of the evidence was in the case, and after he had analyzed it in detail.

I call this case to the committee's attention, because it affirmatively shows that the Commission does act upon the weight and the preponderance of the evidence. And that was a case that came up before this bill was introduced. That case emphasizes and it illustrates the obvious fact that it is impossible for the several Commissioners to apply any rule other than that of the preponderating evidence without automatically questioning the good faith with which they acted in reaching their several conclusions.

Mr. REECE. May I interrupt, if the interruption does not disturb you?

Does the law require the preponderance of the evidence rule to be followed?

Mr. WOODEN. The law of good faith requires it, and it is implicit in any trial tribunal. Whether it is required by statute or not, it is there and must be there unless you are willing to question the good faith of the tribunal in reaching its conclusion on the preponderance of the evidence.

Mr. REECE. But in the event a defedant felt that the preponderance rule had not been followed, would he have a right to appeal to the court for a determination of that question?

Mr. WOODEN. Of the preponderance? Not under the statute as it now stands. And it is to be the burden of my statement that that should remain as it is.

Mr. REECE. That would seem to me to be really the important consideration involved in connection with this part of the bill.

Mr. WOODEN. It is.

Mr. REECE. There is frequently a difference of opinion among Commissioners, a difference of opinion among the judges on the bench, and, however conscientiously and capably a tribunal, commission, or judicial body, may undertake to adjudicate the questions at issue, the defendant, or litigant, may feel aggrieved, and he may have great interests involved; and concurrently, a public interest may be involved and what seems to me to be important in connection with the consideration of this bill, not so much the maner in which the Commission. adjudicates and reaches its decision but whether the defendant or litigant, if he should feel aggrieved or feel his interests had been prejudiced, that he would have some right of appeal to the court for the determination of the issues involved in the case.

Mr. WOODEN. He has now the right of appeal, the same kind of appellate right that a defendant has from a jury verdict.

It seems to me very logical that if the verdict of a jury, supported by substantial evidence, is binding on the Appellate Court, that the verdict of a special agency, experienced and expert, should be given the same status.