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SUPREME COURT OF THE UNITED STATES

Syllabus

363 U.S. 166

FEDERAL TRADE COMMISSION v. HENRY BROCH & CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 61. Argued January 14, 18, 1960. -- Decided June 6, 1960.

In order to meet the bid of a favored buyer, a seller's broker reduced his brokerage commission from 5% to 3%, which was reflected in the seller's reduction of the price of apple concentrate from $1.30 per gallon to $1.25 per gallon; the sale was consummated at that price; and similar concessions were granted on subsequent sales to the same buyer but not to any other buyer.

Held: The seller's broker violated 2 (c) of the Clayton Act, as amended by the Robinson-Patman Act, which makes it unlawful for "any person" to make any allowance in lieu of "brokerage" to the "other party to such transaction." Pp. 167-177.

(a) A seller's broker is included within the term "any person" as used in 2 (c). P. 170.

(b) Such an allowance was not made lawful by the proviso of 2 (a) which exempts from the prohibitions of that section price differentials based on savings in selling costs resulting from differing methods of distribution. Pp. 170-174.

(c) The fact that the buyer was not aware that its favored price was based in part on a discriminatory reduction in the broker's commission is immaterial. Pp. 174-175.

(d) Section 2 (c) applies to payments or allowances by a seller's broker to a buyer, whether made directly to the buyer or indirectly through the seller. Pp. 175-176.

261 F.2d 725, reversed.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.


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