Unfair business practice

“ Having the right to that use, courts will not interfere where the only confusion, if any, results from a similarity of the names, and not from the manner of the use. The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another; and if defendant so conduct its business as not to palm off its goods as those of complainant, the action fails. ”

“ The words 'unfair method of competition,' as used in the Act, 'are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.' Federal Trade Comm. ”

“ The danger of failures in business would still exist. Some factors would tend to lessen this danger as, the prevention of stock- watering, misappropriation of funds, excessive salaries, and the unfair competition of rivals. But failures could no longer be averted by squeezing wages, neglecting conditions of production, or lowering the quality of goods. The employers may well ask, in bitterness, what right the Government has to close their chances of high profits when it leaves the chance of total loss. ”

“ The answer must be that if the Consumers' League ever does become strong enough to exercise a great influence in the industrial world, it will probably abuse and sell its power. Rich unfair firms may be able to bribe those in control to give them a recommendation they do not [Pg 111] deserve, and various other kinds of corruption will most likely creep in. ”

“ UNFAIR COMPETITION.—The most common way in which trade marks and trade names become the subject of litigation, is in connection with unfair competition. By this term we mean, ordinarily, the imitation by one person, for the purpose of deceiving another, of the name, device, or symbol used by a business rival. The courts act in such cases upon the theory that the public should be protected, and should not have other goods pawned off on it in place of something else which a person thinks he is getting. ”

“ To use an unfair practice charge to punish an enterprise for consequences inevitably flowing from its position in the structure of commerce is a grave distortion of the statute, imposing a massive and unjustifiable restraint on entrepreneurial action. Henceforth, large concerns marketing their products through smaller distributors stand vulnerable to the charge that their methods of competition are unfair because they have done no more than add a complementary product to those already sold through their distributors. ”

“ Inasmuch as our object and the spirit of our action in these matters is to meet business half-way in its processes of self-correction and disturb its legitimate course as little as possible, we ought to see to it, and the judgment of practical and sagacious men of affairs everywhere would applaud us if we did see to it, that penalties and punishments should fall, not upon business itself, to its confusion and interruption, but upon the individuals who use the instrumentalities of business to do things which public policy and sound business practice condemn. ”

“ Not the officers of the company, who cannot do more than their best with the materials laid to their hands; not the directors, who cannot create profits beyond the capacity of their line—although justice requires us to admit that they might reduce expenses, by squabbling less with other companies, and ceasing unfair, because ruinous as well as ungenerous, competition. ”

“ Consumers' cooperation has been more widely successful. On this plan a number of people contribute the capital of a business in equal small amounts and share the profits in proportion to their purchases. The possibility of excessive profits to a single owner or a small group of owners is thus abolished. But the other evils of autocratic industry remain; laborers are hired for current wages, as by the capitalists, and the temptations to unfair treatment of employees and of competitors remain. ”

“ If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous. ”

“ Sharp dealing, "unfair" competition, the exaction of the pound of flesh, may be reprobated and by the decent majority condemned, but behind such an attitude there is no definite code which business men reinforce by their collective sense of its necessity and by their deliberate adoption of it as ex- pressly binding upon themselves. There is no general brotherhood of business men from which the offender against these sentiments, who does not at the same time overtly offend against the law of the land, is extruded as un- worthy of an honorable calling. ”

“ It is, of course, for the Company to judge how best to promote its own business, but when so large a portion of the public as those who support temperance laws and seeks their enforcement is openly snubbed in the interests, and it would seem at the instance, of illicit and murderous dealers in a contraband article, from the transport of which your Company seeks profit, we may fairly ask the question whether the Company is acting even the part of worldly wisdom. ”

“ Furthermore, an enumeration, however comprehensive, of existing methods of unfair competition must neces arily soon prove incomplete, as with new conditions constantly arising novel unfair methods would be devised and developed. ”

“ The threatened consequences to interstate commerce are as immediate and as certain to flow from respondents' unfair labor practices as were those which were held to result from unfair labor practices in National Labor Relations Board v. ”

“ The public right and the duty extend not only to the prevention of unfair labor practices by the employer in the future, but to the prevention of his enjoyment of any advantage which he has gained by violation of the Act, whether it be a company union or an unlawful contract with employees, as the means of defeating the statutory policy and purpose. ”

“ Let us consider the opposite alternative. It cannot be a good thing to have such a great proportion of the active business men of the country, who bear the highest personal character, engaged in illegal contracts. ”

“ Its power to draft business organizations to support the fighting men who risk their lives can be no less.
Profits. The general common law rule of unconscionability on which the petitioner relies is said to deny enforcement to contracts when the profits provided for are grossly in excess of a standard established by common practice. ”

“ No business man or corporation is entitled in justice to more than a moderate reward for the mental and physical labor expended; the excessive incomes of monopoly are largely at the expense of the public, who, by one means or other, are being compelled to pay more than a fair price for the article. ”

“ How Corporations pervert the Action of Economic Laws.—Whatever interferes with individual enterprise interferes with the action of the laws of value, wages, and interest, and distorts the very structure of society. ”

“ It is not claimed by the company that there is no lessening of its profits, though it repudiates any philanthropic basis for its action. However, it must be admitted that a higher standard of justice here prevails than any one can expect to become immediately prevalent in the business world. ”

“ If he be a rogue and won't pay, he will probably know that nine out of ten distresses are illegal, through the carelessness, ignorance, or extortion of the brokers who execute them. Many, if not most, of the respectable brokers will not execute distresses, and the business falls into the hands of persons whom it is by no means desirable to employ. ”

“ Neither will it allow the employee to manage his employer’s business. The employer may occasionally find himself “in a hole,” where he must submit to any terms imposed by the only men who can help him out, but if he gets in any such fix a second time his bankers and customers will go back upon him, after which he will have no use for labor at any price.
Then can law and public opinion do more for laboring men than they have done? ”

“ All in all, the system, while deceptive and dishonest on its face, was for a time a tolerated evil, apparently sanctioned by the company and became a veritable disease among the colored employees who, without exception, received and kept the company's money without a single qualm of conscience. ”

“ When poor customers complained of these things, they were told that the system was perfect, that the evils were all from the evil men who conducted the business! but the good people did not further explain how the perfection of the system could ever be realised, since it must always be worked by imperfect men. Complainants thus mildly and vaguely answered were very fortunate; others, in places where the firm was very powerful, were answered by imprisonment or false accusations, or by being pelted and even murdered by mobs. ”

“ And it must be admitted that the existing system alone is guilty in the matter, that the most honest employer is clearly forced to follow the stern law of competition, to exploit his workmen, if he himself wishes to live. ”

“ The committee was of the opinion that it would be better to put in a general provision condemning unfair competition than to attempt to define the numerous unfair practices, such as local price cutting, interlocking directorates, and holding companies intended to restrain substantial competition.' S.Rep.No. ”

“ The employés object because they fear the sympathy of arbitrators with the superior intelligence, wealth and power of employers. Yet there seems no good reason why a representative body of men, chosen for character and ability, should not be appealed to by both parties in a contest which has already broken up the natural relations of business. As has been shown, the whole community suffers in every interruption of production and trade, and so far the community has the right, and should have the legal privilege, of insisting upon the fairest and quickest means of settling the controversy. ”

“ As is not uncommon in human experience, such situations present a complex of motives and preferring one motive to another is in reality the far more delicate task, reflected in part in decisions of this Court, [7] of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's conduct. ”

“ The corporate form of business lends itself to exploitations of many kinds. The public is usually victimized, but sometimes the stockholders suffer through a breach of trust on the part of officers—as for example, the granting of contracts or the payment of exorbitant salaries to the detriment of the large body of stockholders. Another form of exploitation is the diversion of profitable business to some other corporation controlled by the untrustworthy officers. Then again the officers may buy up unprofitable ventures and sell them to the corporation at a large profit. ”

“ Misrepresentation or concealment regarding material facts connected with the organization of an enterprise; the evils connected with unscrupulous promotion; overcapitalization; unfair competition, resulting in the crushing out of competitors who themselves do not act improperly; raising of prices above fair competitive rates; the wielding of increased power over the wage-earners. Of course none of these abuses may exist in a particular trust, but in many trusts, as well as in many corporations not ordinarily called trusts, one or more of them are evident. ”

“ And it presently annoyed him that his usually docile mind refused to obey his will's order to concentrate on the client and the business—said business being one of those huge schemes through which a big monster of a corporation is constructed by lawyers out of materials supplied by great capitalists and controllers of capital, is set to eating in enormous meals the substance of the people ”

“ This power of the combination is a constant temptation to unscrupulous and grasping managers to increase their advantage by vicious discrimination and false competition, expecting the destruction of others' business to [pg 199] increase their own. The largeness of the operation makes more plain the injustice of the maxim, “All is fair in trade.” The final dangers of combination are thus likely to be overestimated. ”

“ There are many private employment agents who try to conduct their business honestly, but they are the exception rather than the rule. The business as a whole reeks with fraud, extortion, and flagrant abuses of every kind. ”

“ To the employer it is a question whether his individual rights as to the control of his property shall be so far overborne as not only to deprive him of his freedom, but also expose him to interference seriously impairing the value of his capital. To the employees, it is a question whether, by the force of coercion, they can wrest, to their own profit, powers and control, which, in every civilized community, are secured as the most sacred and inalienable rights of the employer. ”

“ If lawbreaking is to be found in the business of some corporations, it is incumbent upon us to determine just in what way the law is being broken, why it is being broken, what sort of law it is that is being broken, and how much moral turpitude or public wrong is involved. ”