Samuel H. Moss v. Federal Trade Commission, 155 F.2d 1016 (2d Cir. 1946)

Henry Ward Beer, of Washington, D. C., for petitioner.

W. T. Kelley, Walter B. Wooden, and Phillip R. Layton, all of Washington, D. C., for respondent.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

The petitioner has moved us to modify our order entered on April 17, 1945; but, as there is no change which we think it either necessary or desirable to make, the motion will be denied, quite aside from the question of our power to change the order at this time. However, some uncertainty has arisen as to the meaning of some of the language in the opinion, which it is desirable to clarify. The following passages will be deemed amended as set forth below. The second sentence of the first full paragraph of the left column of page 380 of 148 F.2d will read as follows: "We agree that he must prove that he did not mean to undercut his competitors' price; but when he has in fact undercut that price, we reserve the question whether it is necessary as part of that proof, for him to show that he did not know what that price was." The fourth sentence of the same paragraph will read as follows: "That is to say, we need not now decide more than the offer shall be made without actual intent to undercut his competitors' price." The sixth sentence of the last paragraph of the left column on page 380 will read as follows: "Once the petitioner was shown to have charged different prices and failed to prove that this did not `lessen competition,' it could not escape without showing that the offers which it made were either in fact no lower than that of its competitors, or that it did not mean them to be."

The motion is denied.