FTC Staff Comment Before the U.S. International Trade Commission In the Matter of Certain Electronically-Resistive Monocomponent Toner

BEFORE 	THE 	UNITED STATES
INTERNATIONAL 	TRADE 	COMMISSION
. !to,
IN 	THE 	MATTER OF
CERTAIN 	ELECTRONICALLY-
-RESISTIVE 	MONOCOMPONENT
TONER
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Investigation 	No.
337-TA-253
TO 	:
REQUEST 	OF 	THE 	FEDERAL 	TRADE 	COMMISSION 	TO
INTERVENE 	AND TO BECOME A PARTY
Kenneth 	R. 	Mason, 	Secretary
International Trade 	Commission
Washington, 	D.C. 	20436
The 	Federal 	Trade 	Commission 	(WFTC") 	has 	authorized 	the
Bureau 	of 	Competition 	to 	request, 	pursuant 	to 	Section 	210.26 	of
the 	rules 	of 	the 	International 	Trade 	Commission, 	that 	the 	FTC 	be
permitted 	to 	intervene 	and 	to 	become 	a 	party 	in 	the 	above-
captioned 	investigation.
The 	complaint 	alleges 	that 	the 	respondent 	has 	monopolized,
attempted 	to 	monopolize, 	and 	conspired 	to 	monopolize 	the 	market
for 	"certain 	electrically 	resistive 	monocomponent 	toner" 	and 	has
Wagreed, 	combined, 	and 	conspired" 	with 	some 	of 	respondents'
dealers 	that 	they 	purchase 	Canon-compatible 	toner 	only 	from
respondents. 	The 	complaint 	thus 	consists 	entirely 	of 	antitrust
allegations 	that 	are 	said 	to 	constitute 	unfair 	acts 	in 	violation
of 	Section 	337 	of 	the 	Tariff 	Act 	of 	1930. 	The 	complainant 	has
also 	filed 	a 	complaint 	in 	a 	federal 	district 	court, 	covering 	the
same 	conduct 	as 	this 	complaint 	and 	alleging 	that 	Canon 	has
violated 	state 	and 	federal 	antitrust 	laws 	and 	common 	law 	of

· .
unfair 	competition, 	tacitly 	acknowledging 	that 	the 	issues 	pending
before 	this 	agency 	are 	antitrust 	in 	nature. 	Moreover, 	Judge
Mathias's 	Order 	No.7 	in 	this 	case, 	"Initial 	Determination
Designating 	the 	Investigation As 	More 	Complicated," 	issued
November 	19, 	1986, 	refers 	on 	pages 	1, 	2, 	and 	3 	to 	the 	·complex
antitrust 	issues 	which 	were 	already 	present 	in 	this 	matter,"
"the 	antitrust 	nature 	of 	the 	allegations 	in 	issue," 	and 	"the
complicated 	antitrust 	issues 	raised 	in 	the 	complaint 	and 	the
original 	answer." 	The 	FTC 	wishes 	to 	intervene 	because, 	as 	an
agency 	that 	enforces 	the 	antitrust 	laws, 	it 	has 	a 	strong 	interest
in 	seeing 	that 	these 	laws 	are 	interpreted 	consistently.
19 	U.S.C. 	§ 	1337 (b) (2), 	provides 	that" [d] uring 	the 	course
of 	each 	investigation 	under 	this 	section, 	the 	Commission 	shall
consult 	with, 	and 	seek 	advice 	and 	information 	from 	••• 	the
Federal 	Trade 	Commission 	and 	such 	other 	departments 	and 	agencies
as 	it 	deems 	appropriate." 	Rather 	than 	waiting 	to 	comment 	on 	a
decision 	rendered 	by 	the 	Administrative 	Law 	Judge, 	in 	our 	view
the 	close 	cooperation 	between 	our 	two 	agencies 	mandated 	by
Section 	337(b) (2) 	would 	be 	best 	served 	by 	providing 	advice 	prior
to 	the 	initial 	decision. 	Our 	interest 	is 	in 	advocating 	a

consistent 	application 	of 	the 	antitrust 	laws 	rather 	than 	in 	the
specific 	factual 	details 	of 	this 	proceeding; 	thus, 	we 	do 	not 	wish
to 	conduct 	any 	discovery 	of 	our 	own 	in 	this 	case.
Respectfully 	submitted,
l:q~zBureau 	of 	Competition
Edward 	F. 	Glynn, 	Jr.
Assistant 	Director
(Int~national Antitrust)
~tU1 	(?~
Susan 	Pettee
Attorney
Bureau 	of 	Competition

CERTAIN 	ELECTRICALLY 	RESISTIVE 	MONOCOMPONENT 	TONER
1nv. 	No. 	337-A-253
CERTIFICATE 	OF 	SERVICE
I, 	Susan 	Pettee, 	hereby 	certify 	that 	the 	attached 	motion 	was
served 	upon 	Stephen 	L. 	Sulzer, 	Esq. 	and 	Steven 	Schwartz, 	Esq.,
and 	upon 	the 	following 	parties 	via 	first 	class 	mail, 	and 	air 	mail
where 	necessary 	on 	December 	22, 	1986.
FOR 	COMPLAINANT: 	Aunyx 	Corporation
Bart 	S. 	Fisher, 	Esq,:
Andrew 	S. 	Newman, 	Esq.
PATTON, 	BOGGS 	& BLOW
2550 	M Street, 	N.W.
Washington, 	D.C. 	20037
Ralph 	Warren 	Sullivan, 	Esq.
MALLOY 	& SULLIVAN, 	P.C.
59 	Water 	Street
Hingham Harbor, 	MA 	02043
FOR 	RESPONDENTS: 	Canon 	Inc. 	and 	Canon 	U.S.A., 	Inc.
Norman 	Moloshok, 	Esq.: 	Richard 	H. 	Silberberg, 	Esq.
DELSON 	& GORDON
605 	Third 	Avenue
New 	York, 	NY 	10158
Harvey 	M. 	Applebaum, 	Esq.:
David 	R. 	Grace, 	Esq.: 	Paul 	J. 	Tagliabue, 	Esq.
Mitchell 	F. 	Dolin, 	Esq.: 	Charles 	Lister, 	Esq.
COVINGTON 	& BURLING
1201 	Pennsylvania 	Avenue, 	N.W.
P.O. 	Box 	7566
Washington, 	D.C. 	20044
<
Joseph 	M. 	Fitzpack, 	Esq.: 	John 	A. 	O'Brien, 	Esq.
Robert 	H. 	Fischer, 	Esq.
FITZPATRICK, 	CELLA, 	HARPER & SCINTO
277 	Park 	Avenue
New 	York, 	New 	York 	10172

GOVERNMENT 	AGENCIES
Mr. 	Charles 	S. 	Stark
Antitrust 	Div./U.S. 	Dept. 	of 	Justice
Room 	7115, 	Main 	Justice
Pennsylvania 	Avenue 	& Tenth 	Street, 	N.W.
Washington, 	D.C. 	20530
Edward 	F. 	Glynn, 	Jr., 	Esq.
Asst. 	Dir. 	for 	Int'l 	Antitrust
Federal 	Trade 	Commission
Room 	2636
601 	Pennsylvania 	Avenue, 	N.W.
Washington, 	D.C. 	20580
Darrel 	J. 	Grinstead, 	Esq.
Dept. 	of 	Health 	& Human 	Services
Room 	5362, 	North 	Building
330 	Independence 	Avenue, 	S.W.
Washington, 	D.C. 	20201
Michael 	T. 	Schmitz
Chief 	Counsel
u.S. 	Customs 	Service
1301 	Constitution 	Avenue, 	N.W.
Washington, 	D.C. 	20229