Ftc v. Flotill Products, Inc., 389 U.S. 179 (1967)

Federal Trade Commission v. Flotill Products, Inc.

No. 20

Argued October 16, 1967
Decided December 4, 1967
389 U.S. 179

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

All five members of the Federal Trade Commission (FTC) heard oral argument in this case involving alleged violations by respondent of § 2(c) and § 2(d) of the Clayton Act, as amended by the Robinson-Patman Act. Two Commissioners resigned before the FTC rendered its decision, and a new Commissioner taking office in the interim declined to participate. The three participating Commissioners concurred that respondent had violated § 2(d), but only two agreed that it had violated § 2(c). A three-judge panel of the Court of Appeals upheld the FTC’s cease and desist order relating to the § 2(d) violation but refused to enforce the order relating to the § 2(c) violation, holding that, absent contrary statutory authority, three members of a five-member commission had to concur before their order could bind the commission. The court en banc sustained the panel decision. The Federal Trade Commission Act does not specify the number of Commissioners who may constitute a quorum. An FTC rule provides for a quorum of three Commissioners.

Held:

1. Absent a contrary statutory provision, the common law rule applies: a majority of a quorum which constitutes a simple majority of a collective body may act for the body. Pp. 183-184.

2. The FTC is empowered to follow the common law rule, since the Federal Trade Commission Act neither expressly nor impliedly reflects a contrary declaration and none is to be inferred by other congressional action. Pp. 185-190.

358 F.2d 224, 234, reversed in part and remanded.