Federal Trade Commission v. Texaco, Inc. (393 U.S. 223)/Dissent Stewart

Mr. Justice STEWART, dissenting.

We are told today that '(t)he sales-commission system for marketing TBA is inherently covercive.' If that is so, then the Court went to a good deal of unnecessary trouble in Atlantic Refining Co. v. FTC, 381 U.S. 357, 368, 85 S.Ct. 1498, 1506, 14 L.Ed.2d 443, to establish that Atlantic 'not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and overt threats of reprisal * *  * .' The Court acknowledges that 'the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic.' But that is an understatement. For the fact is that in this case the Court of Appeals was totally unable to 'find that Texaco used its controlling economic power to compel its dealers to purchase sponsored TBA.' 127 U.S.App.D.C. 349, 356, 383 F.2d 942, 949. That is why this Court must perforce create today's per se rule of 'inherent' coercion.

For the reasons set out at some length in my separate opinion in Atlantic, supra, 381 U.S., at 377, 85 S.Ct., at 1510. I cannot agree to any such per se rule. Accordingly, I would affirm the judgment of the Court of Appeals.