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Category C. The four memoranda to the Commission in subsection (a) of this category are from various Commissioners. Discussed are such matters as the weaknesses of the case, proposed revisions in the complaint, and the relative merits of proceeding by complaint, as opposed to rulemaking. None of these documents need be produced. See Retail Credit Co. v. FTC, supra, at pp. 68, 129–68, 130.

The items in subsection (b) to Category C are described as “over 50 Circulations and Routing Slips from Commissioners containing theo ries, strategies, reflections or plans to take action.” Exemption 5 applies here as well. Id. at p. 68, 127.

Category D. Those papers in subsections (a) and (b) of this category are described as interviews, conversations and discussions with expert consultants. Plaintiff seeks only the factual portions of these documents. Essentially, the Commission takes the position that the factual material in these papers is not “in a form that is severable without compromising the private remainder of the documents.” EPA v. Mink, 410 U. S. 73, 89 (1972); see Montrose Chemical Corporation v. Train, 491 F.2d 63 (D. C. Cir. 1972); Washington Research Project, Inc. v. Department of Health, Education and Welfare, 504 F. 2d 238 (D. C. Cir. 1974). In view of the evident substantial and good faith compliance with the requirements of the law insofar as the other disputed documents are concerned, the Court will take the Commission at its word and not require in camera inspection.

Subsection (c) of the category is described as “reports of visits and conversations with expert consultants who are included on the witness list.” Basically, these documents reflect discussions of trial strategy. The Court finds these exempt under both Exemptions 5 and 7A. See Title Guarantee Co. v. NLRB, 534 F. 2d 484 (2d Cir. 1976). Climax Molybdenum Co. v. NLRB, 539 F.2d 63 (10th Cir. 1976). See also Soucie v. David, 448 F.2d 1067, 1078 (D. C. Cir. 1971); Wu v. National Endowment for the Humanities, 460 F. 2d 1030, 1032 (5th Cir. 1972).

Category E. Plaintiff seeks only three letters in this category. All are letters from complaint counsel to various experts. These are free from disclosure under Exemption 5. See EPA v. Mink, supra; Hickman v. Taylor, 329 U.S. 495 (1947).

Category G. This category consists of drafts of the complaint issued against Bristol-Myers and a draft of a “Notice of Formulation of Proposed Trade Regulation Rule Relating to Advertising of Analgesics and an attached memorandum.” These documents fully reflect the deliberative processes and attorney work-product of the Commission and, therefore, are covered by Exemption 5. See Retail Credit Co. v. FTC, supra, at pp. 68, 126-68, 127.

Category H. This final category is composed of the notes, taken by Commission attorneys, of interviews taken in connection with the

companion case, American Home Products, et al., of two experts. The interviews were conducted by counsel for American Home Products. The Commission contends that both sets of notes are exempt under section (b)(5) and (b)(7)(A).

While the Commission has failed to sustain its burden of showing both that these documents are investigatory records and that their production would interfere with its enforcement proceedings, the Court is satisfied that they are the work-product of the Commission's attorneys, and therefore free from disclosure under the fifth exemption.

BRISTOL-MYERS CO. v. FEDERAL TRADE COMMISION

et al.

No. 76 Civ. 2556 (CMM).

F.T.C. Docket No. 8917.

(United States District Court, Southern District of New York,

December 30, 1976)

On petition for discovery of whether witnesses had been improperly induced to refuse ex parte interviews, court held that such an order was not justified where the claim was premature and could be raised upon the issuance of F.T.C. order to cease and desist. Despite F.T.C.'s refusal to consider the matter, plaintiff had not yet exhausted its administrative remedies.

Petition denied.

Before METZNER, District Judge.

Defendants move for an order dismissing the complaint pursuant to Rules 12(bX1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted. This motion is granted.

The background to this action begins on February 23, 1973, when the Federal Trade Commission issued an administrative complaint charging, inter alia, Bristol-Myers Company with misleading and unfair advertising with respect to certain of its products.

During a prehearing conference held on March 3, 1976, the administrative law judge ruled that proposed expert witnesses for the Commission were entitled, if they so desired, to have counsel for the Commission present at any interview conducted by counsel for BristolMyers, and that Commission counsel could communicate this ruling to all such expert witnesses. These guidelines also applied to interviews requested by Commission counsel of expert witnesses for BristolMyers.

On March 12, 1976, Bristol-Myers requested that the administrative law judge permit discovery to determine whether any of the Commission's counsel had instructed expert witnesses not to be interviewed without Commission counsel being present. This application was denied, as was a motion for reconsideration. The administrative law judge concluded that Bristol-Myers had shown no justification other than mere suspicion for this collateral discovery and that BristolMyers could move for appropriate relief if any case of improper influence came to light during any of the interviews of individual witnesses.

Not reported in Federal Reporter. Reported in Trade Reg. Rep. 961,224 at 70,689 (1976-2 Trade Cases).

By petition, Bristol-Myers sought discretionary review by the Federal Trade Commission. This was denied.

Finally, on June 9, 1976, plaintiff instituted the instant action requesting this court to order the Commission to allow it to conduct discovery into whether counsel for the Commission improperly influenced any of their prospective witnesses not to grant ex parte interviews to plaintiff's counsel.

Bristol-Myers has failed to persuade this court that judicial intervention would be appropriate here. This claim is asserted prematurely and is properly dismissed for failure to exhaust administrative remedies. Judicial review of Federal Trade Commission proceedings is governed by Section 45(c) of Title 15, United States Code, which limits the power of review to final cease and desist orders. Section 10(c) of the Administrative Procedure Act, 5 U.S.C. $ 704, provides:

Agency action made reviewable by statute ... [is] subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.

If formal adjudicative procedures subsequently result in a cease and desist order, it seems clear that on review by a court of appeals BristolMyers will have an opportunity to press the claim that it was entitled to this discovery. Bristol-Myers Company v. Federal Trade Commission, 469 F. 2d 1116 (2d Cir. 1972).

Of course, this court would intervene where the preliminary procedural agency action threatened so irreparable an injury as to justify interlocutory resort to corrective judicial process. Bristol-Myers Company, supra at 1118. Bristol-Myers' alleged injury does not rise to this level. Its reliance on International Business Machines Corp. v. Edelstein, 526 F. 2d 37 (2d Cir. 1975) is misplaced. The impairment of the constitutional right to effective assistance of counsel in that case involved the trial judge's ruling that a transcript be made of all interviews of a witness in the absence of opposing counsel.

In this instance the administrative law judge permitted the opposing counsel to be present if the expert witness so requested. The evidence of any improper influence that in effect denied plaintiff the effective assistance of counsel is little more than mere suspicion.

It should be quite easy at the beginning of each interview for plaintiff, by appropriate questioning, to ascertain the facts and make a record for action by the administrative law judge.

Accordingly, defendant's motion is granted.
So ordered.

565

PENALTY CASES

United States v. The J.B. Williams Company, Inc. – United States District Court, Southern District of New York; judgment in the amount of $125,000 was entered January 16, 1976, for violation of a cease and desist order prohibiting the representation that Geritol, or any similar preparation, would be beneficial in treating or relieving tiredness, loss of strength, run-down feeling, nervousness or irritability without disclosing that most people with these symptoms do not have them as a result of iron deficiency or iron deficiency anemia, and therefore, would not benefit by taking the preparation.

The company previously paid $155,000 in civil penalties, plus $22,005 interest, in the same suit in connection with its advertising of Fem Iron. The U.S. Court of Appeals (2d Cir. 1974) upheld that award but remanded the counts concerning the advertising of Geritol to the U.S. District Court for jury trial, 493 F.2d 414 (1974), IX S.&D. 938. The above settlement was for those remanded counts. (Docket No. 8547, 68 F.T.C. 481; modified 72 F.T.C. 865.)

United States v. Firestone Tire & Rubber Company – United States District Court, Northern District of Ohio; judgment in the amount of $800,000, $750,000 of which was to be used in tire safety advertising campaign, was entered February 13, 1976, for violation of an order to cease and desist requiring respondent to cease disseminating tire safety commercials without required disclosures. (Docket No. 8818, 81 F.T.C. 398.)

United States v. Bestline Products Corporation United States District Court, Northern District of California; judgment in the amount of $1,036,000 was entered June 16, 1976, for violation of a final order to cease and desist prohibiting the deceptive and unfair operation of a multi-level (pyramiding) marketing program in the sale of Bestline soap and related products. (Docket No.C-1986, 79 F.T.C. 107; modified 85 F.T.C. 407.)

United States v. Charles R. Johnson – United States District Court, Eastern District of Maryland; judgment in the amount of $40,000 was entered June 27, 1976, for violation of an order to cease and desist prohibiting misrepresentations in connection with the sale of computer school courses. (Docket No. C-1569, In re Technical Education Corporation, et al.; 76 F.T.C. 181; affirmed 541 F.2d 710 (1976); rehearing and rehearing en banc denied Sept. 21, 1976.)

United States v. Subscription Bureau Limited, et al. – United States District Court, Eastern District of Virginia; judgment in the amount of $10,000 was entered July 16, 1976, for violation of an order

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