Federal Trade Commission v. Sterling Drug, Inc., Dancer-Fitzgerald-Sample, Inc., and Thompson-Koch Company

MARSHALL, Circuit Judge

(concurring) .

In order to obtain a preliminary injunction of this type the Federal Trade Commission was required to show that it had “reason to believe” that appellee was using advertising in violation of the Act, and had to do so by a “proper showing” thereof. 15 U.S.C.A. § 53. Judge Dawson found that the Commission had failed to make such a showing. We are convinced that his conclusions were not clearly erroneous. Even in this type of statutory proceeding for the benefit of the public, as contrasted to the ordinary private injunction proceeding, we should be careful to go no further than is necessary in the initial preliminary stage of what will no doubt be long and protracted administrative and court proceedings. While I concur in the result, I would not want it construed as pre-judging the determination of the Commission in advance of such hearing.