American General Insurance Co. And Fidelity & Deposit Co. Of Maryland v. Federal Trade Commission

589 F.2d 462 1979-1 Trade Cases 62,463 AMERICAN GENERAL INSURANCE CO. and Fidelity & Deposit Co. of Maryland, Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. No. 77-3207. United States Court of Appeals, Ninth Circuit. Jan. 11, 1979. John L. Murchison, Jr. (argued), Houston, Tex., Michael J. Henke (argued), of Vinson & Elkins, Washington, D. C., for petitioners. David C. Shonka, Atty. (argued), Washington, D. C., for respondent. 1 Petition to Review from Federal Trade Commission. 2 Before BROWNING and KENNEDY, Circuit Judges, and DUMBAULD * , District Judge. DUMBAULD, District Judge: 3 This is a petition to review an order of the Federal Trade Commission (hereinafter called FTC), dated June 28, 1977, holding that the 1969 acquisition of Fidelity and Deposit Company of Maryland, a Maryland corporation, by American General Insurance Company (hereinafter called AG), a Texas corporation, violated section 7 of the Clayton Act, 1 and ordering divestiture and other prohibitory relief. 4 At an earlier stage of the Commission proceeding AG contended that the McCarran Act of March 9, 1945, 59 Stat. 33 -34 as amended with respect to date by the Act of July 25, 1947, 61 Stat. 448…

This is a petition to review an order of the Federal Trade Commission (hereinafter called FTC), dated June 28, 1977, holding that the 1969 acquisition of Fidelity and Deposit Company of Maryland, a Maryland corporation, by American General Insurance Company (hereinafter called AG), a Texas corporation, violated section 7 of the Clayton Act, 1 and ordering divestiture and other prohibitory relief.

At an earlier stage of the Commission proceeding AG contended that the McCar-ran Act of March 9,1945, 59 Stat. 33 -34 as amended with respect to date by the Act of July 25, 1947, 61 Stat. 448 , 15 U.S.C. § 1011-1015 , 2 deprived the FTC of jurisdic *463 tion. After the FTC rejected that contention AG sought injunctive relief in Texas against further proceedings by the FTC. American General Insurance Co. v. FTC, 359 F.Supp. 887 (S.D.Texas 1973), aff'd 496 F.2d 197 (C.A.5, 1974). In the proceedings before the Fifth Circuit Court of Appeals, one Calvin J. Collier, then General Counsel of FTC, appeared as counsel and signed a brief arguing that section 7 of the Clayton Act was applicable notwithstanding the McCarran Act, and also arguing that in any event the insurance companies had not…

concurring:

Some rules of automatic disqualification go beyond what is necessary to preserve justice and public confidence, and their rigorous application even may retard achievement of those ends. In this case, however, the Commissioner who authored the opinion had participated in previous court proceedings involving the same parties. In those proceedings he contended for adoption of a principle that is critical to this case. I have no hesitation in saying this is unacceptable, see, e. g., Trans World Airlines, Inc. v. CAB, 102 U.S.App.D.C. 391 , 254 F.2d 90 (1958), and I therefore concur in the judgment of the court.