Federal Trade Commission v. Brown Shoe Company, Inc.

PETITIONER: Federal Trade Commission
RESPONDENT: Brown Shoe Company, Inc.
LOCATION: Juvenile Court

DOCKET NO.: 118
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 384 US 316 (1966)
ARGUED: Apr 25, 1966
DECIDED: Jun 06, 1966

Facts of the case

Question

Media for Federal Trade Commission v. Brown Shoe Company, Inc.

Audio Transcription for Oral Argument - April 25, 1966 in Federal Trade Commission v. Brown Shoe Company, Inc.

Hugo L. Black:

Well, this seems to be a rather specific statement to do that which you say you wouldn't object to this.

That was all it did entering into continuing and operating all the facts on imposing in the agreement that understanding as any customer or prospect [Inaudible] imposing any conditions which as the purpose or effect of precluding these customer, a prospective customer from independent determination whether shoes would be purchased by first customer, prospective customers of any concern --

Robert H. McRoberts:

We're not clear --

Hugo L. Black:

Is that's what you're objecting?

Robert H. McRoberts:

We're not clear Mr. Justice whether that will be construed as Mr. Justice White suggests only as prohibiting us from entering into an agreement not to carry conflicting line but permitting us to say to our dealers, “If you will carry an adequate and a representative stock of our shoes.

We will get you these services as long as you do so.”

William J. Brennan, Jr.:

Probably the words or effect were not there, just the word of having a purpose.

Robert H. McRoberts:

That is a -- that is a troublesome thing.

Byron R. White:

Well, if the -- but [Inaudible] and effect both, you wouldn't have any trouble, is that it?

Robert H. McRoberts:

And understanding, is there an implied understanding there that we are not acquainted with.

Byron R. White:

Well, if -- if you're afraid that if the customer's agreement to carry a full line economically precludes this comparing his [Inaudible] inventory, he would violate the order?

Robert H. McRoberts:

That is our concern.

It might be interpreted that way.

Byron R. White:

But upheld really, if the fellow, an ordinary dealer if he really has a full line necessary in the other line?

Robert H. McRoberts:

It is a practical matter you cannot do it, a small store.

Now, a large department store, for example, where there's a great volume they can carry many conflicting lines, several, perhaps.

Byron R. White:

But I don't find that this is or to really to focus on this issue at all.

I mean, there's no really any consideration to this matter in this unless do you find it?

Do you think -- can you find any error in order to like focuses on this question?

Robert H. McRoberts:

Focuses on this question?

Byron R. White:

Whether or not that absolute agreement not to carry somebody else's lines that the mere undertaking to carry a full line would nevertheless violate these all.

Robert H. McRoberts:

That is not said Your Honor, but it does say that where the effect of it is to protrude in from independently determining whether they'll be shoes would be purchased from the competitor.

Now, the Commission is contending that that is what is the effect of our present plan as it is now being operated.

And the record shows that five out of six of every one of these dealers, five out of six of 573 actually were carrying conflicting shoes, not lines but conflicting shoes without objection.

And the testimony shows, if Your Honor please --

Byron R. White:

Oh, I hope that it will -- this just proves that -- this just proves that the -- what are you worried about that because carrying a whole line won't keep them from dealing with every other.

Robert H. McRoberts:

It keeps them from carrying a conflicting line as a practical matter, practical economic matter.

Abe Fortas:

Well, a real difference maybe I suggest to you whether you have a -- whether the Federal Trade Commission is going to acknowledge or admit that Brown Shoe Company can buy agreement or commission or otherwise imposed upon a retailer the decision as to who's shoes he is going to carry and as I read this Federal Trade Commission says the Brown Shoe Company, you cannot directly or indirectly impose upon -- you cannot directly or indirectly deprive a retailer of the right to exercise as independent judgment as to what shoes he's going to carry and you disagree with that?

Robert H. McRoberts:

No.

We say, if Your Honor please, we are not interfering with their independent judgment.