16, 1947, to consider the desirability of modifying the modified order entered by the Commission herein on August 12, 1946; and a stipulation having been entered into by and between Walter B. Wooden, Associate General Counsel of the Federal Trade Commission and the respondent A. P. W. Paper Company, Inc., providing that subject to the approval of the Federal Trade Commission, the following modified order, prepared and agreed upon with due notice to and in pursuance of conferences and collaboration had with respondent herein may be entered and issued by the Commission in this proceeding, and be thereafter duly served upon respondents and the Commission also having taken into account all the proocedings had in the matter preceding its remand as above stated:

It is ordered, That the said stipulation be approved, accepted and filed.

It is further ordered, That the respondent, A. P. W. Paper Company, Inc., a corporation, and its officers, representatives and employees, directly or through any corporate device, in connection with the offering for sale, sale and distribution of respondent's toilet tissues and paper towels in commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

Using (subject to the permissible limits prescribed by the Act of January 5, 1905, as amended by Section 4 of the Act of June 23, 1910) the words "Red Cross" or any abbreviation or simulation thereof, or the mark of a Greek red cross or any other mark, emblem, sign or insignia simulating a Greek red cross, on respondent's products, or using said words or said mark in selling or advertising the same;

(a) unless respondent uses upon the label, whether on the wrapper or the carton, and with equal clearness and conspicousness in immediate conjunction with said words or said mark, the legend, "This product has no connection whatsoever with American National Red Cross"; provided, that if said words or said mark appear on more than one side of respondent's wrapper or carton, respondent shall use said legend, as aforesaid, on each such side, and the forms of labels shown in Exhibits A and B hereto annexed are approved as illustrative of this order and as complying with its provisions, and

(b) unless respondent, in each of its written advertisements containing said words or said mark uses the said legend with equal clearness and conspicuousness; provided that if an advertisement covers more than one page, respondent shall use said legend as aforesaid on each and every page on which said words or said mark shall appear, and

(c) unless respondent, in each of its radio advertisements containing said words or said mark, makes the statement contained in said. legend with equal clearness and conspicuousness.

It is further ordered, That anything herein to the contrary notwithstanding, respondent may continue to use the labels for paper towels that were already printed on August 12, 1946, as compliance with the provisions of the aforesaid paragraph (a), until such labels are exhausted.

It is further ordered, That the respondent shall, within sixty (60) days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it is complying with this order.

Now, therefore, it is hereby ordered, adjudged and decreed, That the said order to cease and desist as modified and as set out hereinabove be, and it is hereby affirmed and enforced, and petitioner is

hereby commanded to obey said order to cease and desist and to comply herewith.

And it is hereby further ordered, adjudged and decreed, That within sixty days after the entry of this decree, petitioner shall file with the Federal Trade Commission a report in writing setting forth in detail the manner and form in which it is complying with said order to cease and desist.

By the Court.

THOMAS W. SWAN,

AUGUSTUS N. HAND, United States Circuit Judges.

FEDERAL TRADE COMMISSION v. CEMENT INSTITUTE ET AL.1

Nos. 23, 34-F. T. C. Dock. 3167

(United States Supreme Court. Apr. 26, 1948)

METHODS, ACTS AND PRACTICES CONCERT OF ACTION-SHERMAN ACT-IF SUIT OF WHETHER COMMISSION DEPRIVED OF JURISDICTION THEREBY

The Federal Trade Commission had jurisdiction of complaint charging unfair competition in the sale and distribution of cement even though conduct involved constituted a combination to restrain trade prohibited by the Sherman Act.

METHODS, ACTS AND PRACTICES-CONCERT OF ACTION-SHERMAN ACT.-IF SUIT UNDER, BY ATTORNEY GENERAL, AGAINST DEFENDANTS IN PRIOR COMMISSION PROCEEDING WHETHER DISMISSAL LATTER, THEREBY REQUIRED

The filing of civil suit by Attorney General to restrain Cement Institute and cement companies from violating Sherman Act did not require dismissal of prior proceedings under Federal Trade Commission Act involving many of same companies, since activities violating Sherman Act would not necessarily include all of unfair competition prohibited by Trade Commission Act.

SHERMAN ACT AND FEDERAL TRADE COMMISSION ACT-SCOPE AND PURPOSE-AS INVOLVED BY COMMON VIOLATIONS OF BOTH

The Sherman Act and the Trade Commission Act were designed to provide the government with cumulative remedies against activities detrimental to competition and to permit simultaneous use of both types of proceedings against same respondents based in part on same conduct.

1 Reported in 333 U. S. 683, and 68 S. Ct. 793. For case before Commission, see 37 F. T. C. 87. Rehearing denied June 7, 1948. 334 U. S. 839.

CEASE AND DESIST ORDERS-METHODS, ACTS AND PRACTICES-CONCERT OF ACTIONINTERSTATE COMMERCE-IF TWO OF PARTICIPANTS, OTHERWISE ENGAGED THEREIN, SELLERS IN SINGLE STATE ONLY-WHETHER COMMISSION THEREBY DEPRIVED OF JURISDICTION WITH RESPECT THERETO

Where Cement Institute and cement companies charged with using unfair methods of competition were located in many different States and engaged in interstate commerce in cement, fact that two of companies participating in the combination made sales only in a single State did not deprive Federal Trade Commission of jurisdiction to enter cease and desist order against them since charges were based upon unfair methods used by the combination. PROCEEDINGS BEFORE COMMISSION-DISQUALIFICATION-BIAS, PREJUDICE AND PREJUDGMENT OF ISSUES-MULTIPLE BASING POINT DELIVERED PRICE SYSTEMMEMBERS' DETERMINATION, IN PRIOR STUDY, AS SHERMAN ACT PRICE FIXING EQUIVALENT WHETHER BAR TO DETERMINATION OF ISSUE INVOLVING SYSTEM, IN SECTION 5 PROCEEDING

The fact that members of Federal Trade Commission in prior study of multiple basing point system for price-fixing had determined that it was equivalent of a price-fixing restraint of trade in violation of Sherman Act did not disqualify commission from determining proceedings against cement companies based on charge that use of such price-fixing formula constituted unfair competition.

PROCEEDINGS BEFORE COMMISSION—DISQUALIFICATION—BIAS, PREJUDICE AND PREJUDGMENT OF ISSUES-MULTIPLE BASING POINT SYSTEM-MEMBERS DETERMINATION, IN PRIOR STUDY, AS SHERMAN PRICE FIXING EQUIVALENT WHETHER BAR TO DETERMINATION OF ISSUE INVOLVING, IN SECTION 5 PROCEEDING IF DENIAL OF DUE PROCESS THEREBY

The fact that Federal Trade Commission, after having expressed view that multiple basing point system of price-fixing was illegal, determined proceedings against cement companies using this system, did not constitute a denial of due process.

EVIDENCE-METHODS, ACTS AND PRACTICES-CONCERT OF ACTION-MULTIPLE BASING POINT DELIVERED PRICE SYSTEM-IF 1929 COMBINATION CHARGED WHETHER ACTION PRIOR TO, AND DURING NRA PERIOD THEREAFTER, ADMISSIBLE

In proceedings against cement companies on charges of unfair competition based on use of multiple basing point system of pricing by combination of companies created in 1929, evidence relating to activities of cement industry prior to 1929 and during period of NRA in preparation of NRA Code for cement industry was admissible to show existence of continuing combination among companies to utilize basing point pricing system. EVIDENCE-TRANSACTIONS PRIOR, OR SUBSEQUENT, TO BASIS OF SUIT-WHEN

ADMISSIBLE

Testimony of prior or subsequent transactions which are barred from forming basis for a suit may be introduced if it tends [794] reasonably to show purpose and character of the particular transactions under scrutiny. ADMINISTRATIVE AGENCIES-EVIDENCE-RULES OF-AS NOT RESTRICTED BY RIGID

Administrative agencies like Federal Trade Commission are not restricted by rigid rules of evidence, and rules barring certain types of evidence in criminal or quasi-criminal cases are not controlling.