Federal Trade Commission v. Henry Broch & Company/Opinion of the Court

by William O. Douglas

United States Supreme Court

363 U.S. 166

FEDERAL TRADE COMMISSION, Petitioner,  v.  HENRY BROCH & COMPANY.

 Argued: Jan. 14 and 18, 1960. --- Decided: June 6, 1960

Section 2(c) of the Clayton Act, as amended by the Robinson-Patman Act, ^[1] makes it unlawful for 'any person' to make an allowance in lieu of 'brokerage' to the 'other party to such transaction.' The question is whether that prohibition is applicable to the following transactions by respondent.

Respondent is a broker or sales representative for a number of principals who sell food products. One of the principals is Canada Foods Ltd., a processor of apple concentrate and other products. Respondent agreed to act for the Canada Foods for a 5% Commission. Other brokers working for the same principal were promised a 4% Commission. Respondent's commission was higher because it stocked merchandise in advance of sales. Canada Foods established a price for its 1954 pack of apple concentrate at $1.30 per gallon in 50-gallon drums and authorized its brokers to negotiate sales at that price.

The J. M. Smucker Co., a buyer, negotiated with another broker, Phipps, also working for Canada Foods, for apple concentrate. Smucker wanted a lower price than $1.30 but Canada Foods would not agree. Smucker finally offered $1.25 for a 500-gallon purchase. That was turned down by Canada Foods, acting through Phipps. Canada Foods took the position that the only way the price could be lowered would be through reduction in brokerage. About the same time respondent was negotiating with Smucker. Canada Foods told respondent what it had told Phipps, that the price to the buyer could be reduced only if the brokerage were cut; and it added that it would make the sale at $1.25-the buyer's bid-if respondent would agree to reduce its brokerage from 5% To 3%. Respondent agreed and the sale was consummated at that price and for that brokerage. The reduced price of $1.25 was thereafter granted Smucker on subsequent sales. But on sales to all other customers, whether through respondent or other brokers, the price continued to be $1.30 and in each instance respondent received the full 5% Commission. Only on sales through respondent to Smucker were the selling price and the brokerage reduced.

The customary brokerage fee of 5% To respondent would have been $2,036.84. The actual brokerage of 3% Received by respondent was $1,222.11. The reduction of brokerage was $814.73 which is 50% Of the total price reduction of $1,629.47 granted by Canada Foods to Smucker.

The Commission charged respondent with violating § 2(c) of the Act, and after a hearing and the making of findings entered a cease-and-desist order against respondent. The Court of Appeals, while not questioning the findings of fact of the Commission, reversed. 261 F.2d 725. The case is here on writ of certiorari, 360 U.S. 908, 79 S.Ct. 1297, 3 L.Ed.2d 1259.

The Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power. A lengthy investigation revealed that large chain buyers were obtaining competitive advantages in several ways other than direct price, concessions ^[2] and were thus avoiding the impact of the Clayton Act. ^[3] One of the favorite means of obtaining an indirect price concession was by setting up 'dummy' brokers who were employed by the buyer and who, in many cases, rendered no services. The large buyers demanded that the seller pay 'brokerage' to these fictitious brokers who then turned it over to their employer. This practice was one of the chief targets of § 2(c) of the Act. ^[4] But it was not the only means by which the brokerage function was abused ^[5] and Congress in its wisdom phrased § 2(c) broadly, not only to cover the other methods then in existence but all other means by which brokerage could be used to effect price discrimination. ^[6]

The particular evil at which § 2(c) is aimed can be as easily perpetrated by a seller's broker as by the seller himself. The seller and his broker can of course agree on any brokerage fee that they wish. Yet when they agree upon one, only to reduce it when necessary to meet the demands of a favored buyer, they use the reduction in brokerage to undermine the policy of § 2(c). The seller's broker is clearly 'any person' as the words are used in § 2(c)-as clearly such as a buyer's broker.

It is urged that the seller is free to pass on to the buyer in the form of a price reduction any differential between his ordinary brokerage expense and the brokerage commission which he pays on a particular sale because § 2(a) ^[7] of the Act permits price differentials based on savings in selling costs resulting from differing methods of distribution. From this premise it is reasoned that a seller's broker should not be held to have violated § 2(c) for having done that which is permitted under § 2(a). We need not decide the validity of that premise, because the fact that a transaction may not violate one section of the Act does not answer the question whether another section has been violated. Section 2(c), with which we are here concerned, is independent of § 2(a) and was enacted by Congress because § 2(a) was not considered adequate to deal with abuses of the brokerage function. ^[8]

Before the Act was passed the large buyers, who maintained their own elaborate purchasing departments and therefore did not need the services of a seller's broker because they bought their merchandise directly from the seller, demanded and received allowances reflecting these savings in the cost of distribution. In many cases they required that 'brokerage' be paid to their own purchasing agents. After the Act was passed they discarded the facade of 'brokerage' and merely received a price reduction equivalent to the seller's ordinary brokerage expenses in sales to other customers. When haled before the Commission, they protested that the transaction was not covered by § 2(c) but, since it was a price reduction, was governed by § 2(a). They also argued that because no brokerage services were needed or used in sales to them, they were entitled to a price differential reflecting this cost saving. Congress had anticipated such a contention by the 'in lieu thereof' provision. ^[9] Accordingly, the Commission ^[10] and the courts ^[11] early rejected the contention that such a price reduction was lawful because the buyer's purchasing organization had saved the seller the amount of his ordinary brokerage expense.

In Great Atlantic & Pacific Tea Co. v. Federal Trade Comm., 3 Cir., 1939, 106 F.2d 667, a buyer sought to evade § 2(c) by accepting price reductions equivalent to the seller's normal brokerage payments. The court upheld the Commission's view that the price reduction was an allowance in lieu of brokerage under § 2(c) and was prohibited even though, in fact, the seller had 'saved' his brokerage expense by dealing directly with the select buyer. The buyer also sought to justify its price reduction on the ground that it had rendered valuable services to the seller. The court rejected this argument also. Although that court's interpretation of the 'services rendered' exception in § 2(c) has been criticized, ^[12] its conclusion that the price reduction was an allowance in lieu of brokerage within the meaning of § 2(c) has been followed ^[13] and accepted. ^[14]

We are asked to distinguish these precedents on the ground that there is no claim by the present buyer that the price reduction, concededly based in part on a saving to the seller of part of his regular brokerage cost on the particular sale, was justified by the elimination of services normally performed by the seller or his broker. There is no evidence that the buyer rendered any services to the seller or to the respondent nor that anything in its method of dealing justified its getting a discriminatory price by means of a reduced brokerage charge. We would have quite a different case if there were such evidence and we need not explore the applicability of § 2(c) to such circumstances. One thing is clear-the absence of such evidence and the absence of a claim that the rendition of services or savings in distribution costs justified the allowance does not support the view that § 2(c) has not been violated.

The fact that the buyer was not aware that its favored price was based in part on a discriminatory reduction in respondent's brokerage commission is immaterial. The Act is aimed at price discrimination, not conspiracy. The buyer's intent might be relevant were he charged with receiving an allowance in violation of § 2(c). But certainly it has no bearing on whether the respondent has violated the law. The powerful buyer who demands a price concession is concerned only with getting it. He does not care whether it comes from the seller, the seller's broker, or both.

Congress enacted the Robinson-Patman Act to prevent sellers and sellers' brokers from yielding to the economic pressures of a large buying organization by granting unfair preferences in connection with the sale of goods. The form in which the buyer pressure is exerted is immaterial and proof of its existence is not required. It is rare that the motive in yielding to a buyer's demands is not the 'necessity' for making the sale. An 'independent' broker is not likely to be independent of the buyer's coercive bargaining power. He, like the seller, is constrained to favor the buyers with the most purchasing power. If respondent merely paid over part of his commission to the buyer, he clearly would have violated the Act. We see no distinction of substance between the two transactions. In each case the seller and his broker make a concession to the buyer as a consequence of his economic power. In both cases the result is that the buyer has received a discriminatory price. In both cases the seller's broker reduces his usual brokerage fee to get a particular contract. There is no difference in economic effect between the seller's broker splitting his brokerage commission with the buyer ^[15] and his yielding part of the brokerage to the seller to be passed on to the buyer in the form of a lower price. ^[16]

We conclude that the statute clearly applies to payments or allowances by a seller's broker to the buyer, whether made directly to the buyer, or indirectly, through the seller. The allowances proscribed by § 2(c) are those made by 'any person' which, as we have said, clearly encompasses a seller's broker. ^[17] The respondent was a necessary party to the price reduction granted the buyer. His yielding of part of his brokerage to be passed on to the buyer was a sine qua non of the price reduction. This is not to say that every reduction in price, coupled with a reduction in brokerage, automatically compels the conclusion that an allowance 'in lieu' of brokerage has been granted. As the Commission itself has made clear, whether such a reduction is tantamount to a discriminatory payment of brokerage depends on the circumstances of each case. Main Fish Co., Inc., 53 F.T.C. 88. Nor does this 'fuse' provisions of § 2(a), which permits the defense of cost justification, with those of § 2(c) which does not; it but realistically interprets the prohibitions of § 2(c) as including an independent broker's allowance of a reduced brokerage to obtain a particular order.

It is suggested that reversal of this case would establish an irrevocable floor under commission rates. We think that view has no foundation in fact or in law. Both before and after the sales to Smucker, respondent continued to charge the usual 5% On sales to other buyers. There is nothing in the Act, nor is there anything in this case, to require him to continue to charge 5% On sales to all customers. ^[18] A price reduction based upon alleged savings in brokerage expenses is an 'allowance in lieu of brokerage' when given only to favored customers. Had respondent, for example, agreed to accept a 3% Commission on all sales to all buyers there plainly would be no room for finding that the price reductions were violations of § 2(c). Neither the legislative history nor the purposes of the Act would require such an absurd result, and neither the Commission nor the courts have ever suggested it. Here, however, the reduction in brokerage was made to obtain this particular order and this order only and therefore was clearly discriminatory.

The applicability of § 2(c) to sellers' brokers under circumstances not distinguishable in principle from the present case is supported by a 20-year-old administrative interpretation. Beginning in 1940, four years after the Act was passed, the Commission restrained the practice of brokers who, whether buying and selling on their own account or acting on behalf of the seller, sold goods to purchasers who bought through them direct at a reduced price reflecting the savings made by the elimination of the services of a local broker. This practice was held to be a violation of § 2(c), not § 2(a). ^[19]

If we held that § 2(c) is not applicable here, we would disregard the history which we have delineated, overturn a settled administrative practice, and approve a construction that is hostile to the statutory scheme-one that would leave a large loophole in the Act. Any doubts as to the wisdom of the economic theory embodied in the statute are questions for Congress to resolve.

Reversed.

Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

Notes

1. Section 2(c) makes it unlawful for 'any person * * * to pay or grant * * * anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods * * * either to the other party to such transaction or to an * * * intermediary therein * * *.' (Emphasis supplied.) 49 Stat. 1527, 15 U.S.C.A. § 13(c).
2. See Final Report on the Chain-Store Investigation, S.Doc. No. 4, 74th Cong., 1st Sess. (1935).
3. Section 2 of the Clayton Act as originally enacted in 1914 (38 Stat. 730) applied only to price discriminations the effect of which was to 'substantially lessen competition or tend to create a monopoly.' This section was modified and retained in § 2(a) as amended by the Robinson-Patman Act. See note 7, infra.
4. See S.Rep. No. 1502, 74th Cong., 2d Sess., p. 7; H.R.Rep. No. 2287, 74th Cong., 2d Sess., pp. 14-15; Federal Trade Comm. v. Simplicity Pattern Co., 360 U.S. 55, 69, 79 S.Ct. 1005, 1013, 3 L.Ed.2d 1079.
5. In the Final Report on the Chain-Store Investigation, note 2, supra, Congress had before it examples not only of large buyers demanding the payment of brokerage to their agents but also instances where buyers demanded discounts, allowances, or outright price reductions based on the theory that fewer brokerage services were needed in sales to these particular buyers, or that no brokerage services were necessary at all. Id., at 25, 63. These transactions were described in the report as the giving of 'allowances in lieu of brokerage' (id., at 62) or 'discount(s) in lieu of brokerage.' Id., at 27.
6. The Report of the House Judiciary Committee described the brokerage provision as dealing 'with the abuse of the brokerage function for purposes of oppressive discrimination.' H.R.Rep. No. 2287, 74th Cong., 2d Sess., p. 14. And although not mentioned in the Committee Reports, the debates on the bill show clearly that § 2(c) was intended to proscribe other practices such as the 'bribing' of a seller's broker by the buyer. See 80 Cong.Rec. 7759 7760, 8111-8112.
7. Section 2(a) 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a), provides, in relevant part: 'It shall be unlawful for any person engaged in commerce * * * to discriminate in price between different purchasers of commodities of like grade and quality * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly * * * or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing * * * shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, of delivery resulting from the differing methods or quantities in which such commodities are * * * sold or delivered.'
8. The bill as reported from the Senate Committee excepted savings in brokerage from the cost proviso in § 2(a). S.Rep. No. 1502, 74th Cong., 2d Sess., p. 5. Yet when the bill was finally passed, the reference to brokerage in § 2(a) had been deleted. This was done, according to the Conference Report, 'for the reason that the matter of brokerage is dealt with in a subsequent subsection of the bill.' H.R.Conf.Rep.No. 2951, 74th Cong., 2d Sess., p. 6. By striking the words 'other than brokerage' from § 2(a) we think Congress showed both an intention that 'legitimacy' of brokerage be governed entirely by § 2(c) and an understanding that the language of § 2(c) was sufficiently broad to cover allowances to buyers in the form of price concessions which reflect a differential in brokerage costs. The legislative history is barren of any indication that a change in substance was intended by this deletion. Indeed, the Conference Report clearly precludes any other inference.
9. The brokerage clause in the bill was originally directed only at outright commission payments by sellers to buyers' agents. The Senate added the phrases 'or any allowance or discount in lieu thereof,' and 'either to the other party to such transaction (or his intermediary).' S.Rep. No. 1502, 74th Cong., 2d Sess., p. 7. 'This phrasing of the law was obviously designed to prevent evasion of the restriction through a mere modification of the form of the sales contract. It was assumed that large buyers would seek to convert the brokerage which they had hitherto received into an outright price reduction.' Zorn and Feldman, Business Under the New Price Laws (1937), 219.
10. The Commission has held that a price reduction to favored buyers, who bought direct without the intervention of a broker, which was equivalent to brokerage currently paid by the seller to its brokers for sales to other customers was a violation of § 2(c). It has issued cease-and-desist orders against buyers in, e.g., The Great Atlantic & Pacific Tea Co., 26 F.T.C. 486 (1938), affirmed 3 Cir., 1939, 106 F.2d 667; General Grocer Co., 33 F.T.C. 377 (1941); Giant Tiger Corporation, 33 F.T.C. 830 (1941); UCO Food Corporation, 33 F.T.C. 924 (1941); R. C. Williams & Co., 33 F.T.C. 1182 (1941); A. Krasne, Inc., 34 F.T.C. 121 (1941); and against sellers in Ramsdell Packing Co., 32 F.T.C. 1187 (1941); The Union Malleable Mfg. Co., 52 F.T.C. 408 (1955). See also several memorandum decisions reported in 32 F.T.C. 1192, 1193 (1941).
11. Great Atlantic & Pacific Tea Co. v. Federal Trade Comm., 3 Cir., 1939, 106 F.2d 667; Southgate Brokerage Co. v. Federal Trade Comm., 4 Cir., 1945, 150 F.2d 607 (buyer's broker buying and selling on his own behalf).
12. See Report of the Attorney General's National Committee to Study the Antitrust Laws (1955) 192, 193; Oppenheim, Federal Antitrust Legislation: Guideposts to a Revised National Antitrust Policy, 50 Mich.L.Rev. 1139, 1207, n. 178; Rowe, Price Discrimination, Competition, and Confusion: Another Look at Robinson-Patman, 60 Yale L.J. 929, 957-958.
13. Southgate Brokerage Co. v. Federal Trade Comm., supra, note 11. See also cases cited, note 10, supra.
14. In speaking of these interpretations of § 2(c), a leading authority said:
15. See Oliver Bros., Inc. v. Federal Trade Comm., 4 Cir., 102 F.2d 763, 770.
16. The Conference Report states that § 2(c) 'prohibits the direct or indirect payment of brokerage except for such services rendered.' (Italics supplied.) H.R.Conf.Rep. No. 2951, 74th Cong., 2d Sess., p. 7.
17. Several writers, including one of the co-authors of the Act, have viewed § 2(c) as covering payments or allowances by sellers' brokers for the benefit of particular buyers. See Patman, The Robinson-Patman Act (1938), 102, 108; Austin, Price Discrimination and Related Problems Under the Robinson-Patman Act, Am.L.Inst. (rev. ed. 1953), 108. (See also 2d rev. ed., 1959, 116); Oppenheim, Administration of the Brokerage Provision of the Robinson-Patman Act, 8 Geo.Wash.L.Rev. 511, 544 (1940); Edwards, The Price Discrimination Law (1959), 104. As Patman, op. cit., supra, at 102, states respecting seller's brokerage, 'To waive the cost of the brokerage or commission to one purchaser and assess it against another represents an unfair discrimination between the purchasers, is an attempt to divorce one item of cost from the rest when, in fact, they all make up the whole, and permits a practice to gain foothold which may increase in such proportions as to demoralize the industry of which it is a part.'
18. Cf. Robinson v. Stanley Home Products, Inc., 1 Cir., 272 F.2d 601, where it was held that § 2(c) was not violated by a seller who eliminated the services of a broker entirely, converted to direct selling, and thereafter reduced his prices.
19. See Albert W. Sisk & Son, 31 F.T.C. 1543 (1940); C. F. Unruh Brokerage Co., 31 F.T.C. 1557 (1940); C. G. Reaburn & Co., 31 F.T.C. 1565 (1940); William Silver & Co., 31 F.T.C. 1589 (1940); H. M. Ruff & Son, 31 F.T.C. 1573 (1940); Thomas Roberts & Co., 31 F.T.C. 1551 (1940); American Brokerage Co., Inc., 31 F.T.C. 1581 (1940); W. E. Robinson & Co., 32 F.T.C. 370 (1941); Custom House Packing Corp., 43 F.T.C. 164 (1946).

We need not view this administrative practice as laying down an absolute rule that § 2(c) is violated by the passing on of savings in broker's commissions to direct buyers, for here, as we have emphasized, the 'savings' in brokerage were passed on to a single buyer who was not shown in any way to have deserved favored treatment.