prohibiting the identical practices which have resulted in illegal price discriminations, and the Commission has the authority to prohibit acts of the same type or class as those committed in the past. ORDER OF COMMISSION-PRICE DISCRIMINATION-WHETHER TOO BROAD-"PISTON RINGS AND OTHER RELATED ITEMS" Order of the Federal Trade Commission under the Robinson-Patman Act prohibiting manufacturer from discriminating in price by selling to any one purchaser at net prices higher than net prices charged to any other purchaser who, in fact, competed with the purchasers paying a higher price in the resale and distribution of manufacturer's product, was not too broad because it contained the phrase "piston rings and other related items," where there was evidence that piston rings were sold to the same type of accounts as manufacturer's other items, and that rebates were paid by manufacturer with respect to piston rings. BILL OF PARTICULARS-WHERE RELIANCE ON ANNUAL REBATE PLAN AS SOLE SOURCE OF PRICE DISCRIMINATIONS-DENIAL OF MOTION FOR, NOT PREJUDICIAL Where complaint charging manufacturer with price discrimination in violation of the Robinson-Patman Act was in the general terms of the act, but it was made apparent on the first day of hearing before Federal Trade Commission that the Commission was relying on the price discriminatory effect of manufacturer's cumulative annual rebate plan as the sole source of the price discriminations, and manufacturer admitted the existence of the rebate plan, denial of manufacturer's motion for a bill of particulars was not prejudicial and could not be said to have constituted a denial of due process. (The syllabus, with substituted captions, is taken from 238 F.2d 43) On petition to review order of the Commission, order affirmed. Mr. Malcolm I. Frank, of St. Louis, Mo. (Mr. Bernard Mellitz, of St. Louis, Mo., Mr. James W. Cassedy, of Washington, D. C., and Mellitz & Frank, of St. Louis, Mo., were with him on the brief), for petitioner. Mr. James E. Corkey, Atty., Federal Trade Commission, of Washington, D. C. (Mr. Earl W. Kintner, Gen. Counsel, and Mr. Robert B. Dawkins, Asst. Gen. Counsel, and Miss Janet D. Saxon, Atty., Federal Trade Commission, all of Washington, D. C., were with him on the brief), for respondent. Before SANBORN, JOHNSEN and WHITTAKER, Circuit Judges. The Federal Trade Commission, after hearings, found that petitioner, which manufactures and sells automobile repair or replacement parts in interstate commerce, has granted to its customers, at the end of each annual period, a retroactive volume rebate consisting of a flat, graded, percentage of the aggregate dollar volume of their respective purchases in the preceding year, and that this practice has discriminated in price between different purchasers of like grades and qualities of its products, and that the effect "may be to substantially lessen, in jure, destroy or prevent competition between customers receiving the benefit of said discriminations and the customers who do not receive the benefit of such dis[46]crimination", and it concluded that such discriminations violated Section 2(a) of the Clayton Act, 38 Stat. 730, as amended by Section 1 of the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C., Section 13, which, in pertinent part, provides: (a) It shall be unlawful for any person, engaged in commerce * * *, either directly or indirectly, 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 in any line of commerce, or to injure, destroy, 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 contained in Sections 12, 13, 14-21, and 22-27 of this title shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered * * The Commission accordingly issued an order prohibiting petitioner from discriminating in price: By selling to any one purchaser at net prices higher than the net prices charged to any other purchaser who, in fact, competes with the purchaser paying a higher price in the resale and distribution of (respondent's) petitioner's products. Aggrieved by that order, petitioner has brought the matter here upon its petition for review, and seeks reversal upon the grounds (1) that the Commission's findings and conclusions are erroneous, and are not supported by any substantial evidence, (2) that the Commission's order is broader than its powers to make, and (3) of claimed procedural errors of the Commission. It is conceded by the parties that (a) petitioner sold and distributed its products in interstate commerce, (b) they were sold for resale within the United States, (c) petitioner's base price for its products has been the same to all its customers, (d) petitioner promulgated, years ago, and has since universally used, the questioned annual retroactive volume rebate plan, and (e) the plan allows a volume discount, or rebate, to petitioner's customers, computed, at the end of each annual period of purchases, upon a flat, graded, percentage of the aggregate dollar volume of their respective purchases made in the preceding year. Petitioner practically concedes, at least does not seriously dispute, as, indeed, it could not, that its rebate plan has resulted in higher prices to some than to others of its customers-the extent of the differentials depending upon the aggregate dollar volume of their respective. purchases in the preceding year. The essential facts found by the Commission are that petitioner manufactures at St. Louis, and sells to jobbers, whom it calls dis tributors, and to "group buying" associations throughout the country, thousands of different types and sizes of replacement parts-all of the same high or first grade and quality-for many makes, models and ages of automobiles and trucks. These jobbers and "group" buyers are not granted exclusive territories by petitioner, and two or more of them do business in each trade area, and, in turn, sell these products to the same types of customers-repair shops, garages, service stations, fleet accounts, car dealers, other jobbers, and over-the-counter-as competitors. For pricing and volume rebate purposes, petitioner has classified its products into three lines, namely (1) leaf spring line, including coil springs and chassis parts, (2) coil action line, and (3) piston ring line. It enters into contracts, which it calls franchise agreements, with its jobber and "group buying" purchasers. Those contracts contain an annual cumulative rebate schedule, for each of the three lines of [47] products, as set forth in the margin. It will be seen from those schedules that a different volume rebate is applicable to each line; that the coil action line rebate ranged from 5% on annual net purchasers of $1,000, to 19% on annual net purchases of $27,500 1 These rebate schedules were applicable to the sample year 1949. Coil Action Line 1 $30,000 and over----- Beginning July 1, 1949, petitioner introduced the following schedule applicable to its Net Purchases 20 Retroactive or more; that the piston ring line rebate ranged from 2% on annual net purchases of $2,000, to 20% on annual net purchases of $30,000 or more, and the leaf spring line rebate ranged from 3% on annual net purchases of $2,000, to 13% on annual net purchases of $35,000 or more. In addition to those rebates, petitioner allowed a 10% warehousing commission to those of its customers who resold its products to other jobbers whom it had approved, provided the combined earnings from the volume rebate and the redistributing commission could not exceed the maximum volume rebate for that line. Petitioner also allowed its customers a cash discount of 2% if payment be made by the 10th day of the month following order. In the sample year 1949, petitioner had franchise agreements with 15 group buying organizations or associations having numerous members, many of whom operated in the same trading area. The group buying was done substantially as follows: A member of a group would forward his orders directly to petitioner, with a copy to the group's office, or through the group's office. Petitioner would then ship the goods directly to the member, but would bill the group's office which would pay the bills and the member would later reimburse the group's office. At the end of each year, petitioner totaled the combined purchas [48]es by all members of the group and paid a rebate, in the scheduled percentage applicable to the total of those combined purchases, to the group's office, which, in turn, distributed the rebate to its members on the basis of the amount of their respective purchases. The Commission found that these group buying associations were "in reality bookkeeping devices for the collection of rebates, discounts and allowances received from sellers on purchases made by its jobber members," and that such jobber members "in fact, purchased their requirements of petitioner's products directly from petitioner, and at the same time received a more favorable price or higher rebate based upon the combined purchases of all the members." This finding is not here challenged by petitioner. Though the fact that petitioner's rebate plan has resulted in price differentials between its customers is not here, and, we think, could not be, in serious dispute, two simple illustrations-typical of many shown by the evidence—will demonstrate how, and to what extent, it has done so, and may aid general understanding of points to follow. First, the Commission found that in 1949 petitioner had approximately 1,200 purchasers of its coil action line, but 793, or nearly two thirds of them, received no rebate and only 407, or about one third of them, received a rebate, and 352 of those 407 received a rebate of only 5%, while others, in smaller numbers, received rebates ranging from 72% to 19%, as illustrated by the tabulation in the margin.2 Second, the evidence shows, and the Commission found that petitioner sold its leaf spring line to six customers in Dallas, all of whom were in competition with each other in the resale of those products, four of whom purchased through group buying organizations and received rebates from petitioner ranging from 12% to 15%, but the fifth, who was not a member of a "group", received no rebate, because his aggregate annual purchases were not sufficient, and the sixth, who was the largest purchaser of the six, but not a member of a group, received a rebate of 7.29%, of the dollar amount of its purchases in the preceding year. That these rebates were substantial is shown by the Commission's finding that they amounted, on the coil action line, to $163,392.66 in 1947, to $203,478.53 in 1948, and to $106,255.91 in 1949, and, on the piston ring line, they amounted to $57,561.89 in 1947, to $21,011.19 in 1948, and to $22,380.88 in 1949, and on the leaf spring line, they amounted to in excess of $81,000 in 1950. These illustrations demonstrate that petitioner's cumulative annual rebate plan has resulted in general, widespread and substantial price differentials between its customers. We have no issue here respecting justification of these price differentials, as petitioner does not contend on this review that it has justified the different prices by any showing of "differences in the cost of manufacturer, sale or delivery", [49] as indeed it could not, because their source is its rebate system, based, not on the quantities or other factors involved in any particular sale, but, rather, upon the combined dollar amount of all sales to a purchaser, or to a "group" of which he is a member, made in the preceding year (without any prior commitment to purchase any particular amount), and that system results "inevitably in systematic price discriminations, since the prices |