in the advisory opinion rendered to Oakes Consumer Catalogs (Haywood Publishing Company File 6437014) on September 30, 1964. The Commission minute of December 10, 1964, directs the Bureau of Restraint of Trade to redraft its previous letter to ATD and to advise the latter that action will be deferred on the request for oral argument until the Commission is more fully informed and that the Commission will attempt to look into the matter on an industry-wide basis with a trade practice conference or trade regulation rule proceeding which will be initiated sometime in January 1965, and that at that time ATD and all other interested members of the industry will be given the opportunity to be heard and present their views. The Bureau of Restraint of Trade has redrafted the letter, which it now submits to the Commission for its consideration. This letter essentially advises ATD that the Commission is of the opinion that the subject matter of ATD's request requires consideration on an industry-wide basis and that a trade practice conference proceeding or trade regulation rule proceeding will be initiated by the Commission sometime in January of 1965. ATD is also informed that at such time it and other members of the industry will be given the opportunity to be heard and to present their views. The proposed letter further states that the information requested from ATD by the Compliance Division on October 30. 1964, could be submitted at that time. The Bureau of Restraint of Trade, however, now informs us that it has been advised by Mr. Hall, Chief of the Division of Trade Practice Conferences and Guides, that in his view it is very doubtful that the proposed trade practice conference proceeding could be initiated before the end of January 1965 and that the attached letter should be redrafted to indicate “early in 1965" as the starting date of the proceeding instead of "sometime in January of 1965", as directed by the Commission. As I indicated in my memorandum of December 3, 1964, I think that it would be preferable to handle ATD's request in the context of an industry-wide proceeding, provided this can be done by January of 1965. I moved at that time, in the alternative, that if the rule-making proceeding could not be initiated by January, ATD be given an opportunity to present its views at an oral argument to the Commission at the earliest convenient date. In view of the uncertainty as to the date when the trade practice conference will in fact be initiated, it is my view that respondent should be given a specific date to present oral argument to the Commission with respect to the operations of the "independent" catalogs and their impact on the industry in the light of the Commission's advisory opinion in Oakes. If at all possible, the date for oral argument should be set in January. ATD should not be subjected to a longer delay, if that can be avoided since undoubtedly respondent as well as others in the toy catalog industry will have to initiate their plans for 1965 rather early in the year. I think this is the best procedure, even though otherwise it would be preferable to handle respondent's request as a part of the proposed rule-making proceeding and despite the fact that it is unlikely that the Commission will reverse itself on the policy set forth in the Oakes advisory opinion. Under the circumstances good public relations with the business community require the ATD be given its day in court on these issues as soon as possible. Advising respondent that it will have this opportunity sometime "early in 1965" would not, to my mind, be good public relations, since our informal attempts to clarify ATD's problems over a period of some four months have apparently achieved no concrete result. I see no point in renewing the request for information made by the Compli ance Division on October 30. That request, it seems to me, was premised on the scope of the principles enunciated by the Oakes advisory opinion. It now appears that respondent does not wish to pursue that course and therefore renewing the request for this information at this time would appear to be meaningless I move that respondent be afforded an opportunity to present oral argument with respect to the guidelines to be drawn between the operations of "independ ent" and jobber affiliated catalogs at the earliest possible opportunity, preferably in January. I further move that the Bureau of Industry Guidance be requested to inform the Commission as to the specific date on which it will be ready to initiate the proposed trade practice conference proceeding. EVERETTE MACINTYRE. MEMORANDUM DECEMBER 17, 1964. To: The Commission. Via: Director, Bureau of Restraint of Trade. From: Joseph J. Gercke, Chief, Compliance Division, Bureau of Restraint of Trade. Subject: Letter redraft responsive to Commission Minute of December 10, 1964. ATD Catalogs, Inc., Docket No. 8100. Forwarded herewith is a redraft of the letter to counsel for ATD Catalogs, Inc., responsive to Commission Minute of December 10, 1964. Two matters relative thereto should be noted. First, it is believed that specific drection should be given counsel for ATD relative to the outstanding and pending request for additional information from ATD. We construe the Commission Minute to imply, although it does not specifically so state, that such information should appropriately be submitted in connection with the scheduled trade practice conference proceeding or trade regulation rule proceeding. Accordingly, the subject letter so advises. Second, this Division has been advised by Mr. Hall, Chief, Division of Trade Practice Conferences and Guides, Bureau of Industry Guidance, that in his view it is extremely doubtful that the referenced trade practice conference proceeding can be initiated before the end of January, 1965. The attached letter redraft presently conforms in this respect to the time indicated in the Commission's directive, i.e., "sometime in January, 1965". Mr. Hall has requested however, that we recommend that this time reference be changed to, "early in 1965". DEAR MR. ROSEN WASSER: This is with reference to your letter of November 19, 1964, requesting oral hearing before the Commission in connection with your pending request for an advisory opinion. The Commission is of the opinion that the matters referenced in your requests require consideration on an industry-wide basis. A trade practice conference proceeding, or trade regulation rule proceeding, to consider the problems of the toy industry, including matters such as those referenced in your requests, will be initiated by the Commission sometime in January, 1965. During the course of such proceeding, ATD Catalogs, Inc. and all other interested members of the industry will be given the opportunity to be heard and to present their views. Information responsive to the outstanding request by the Commission's Division of Compliance under date of October 30, 1964, for additional information from ATD Catalogs, Inc., will presumably be germane to such proceedings, and may be there submitted. The Commission is accordingly deferring action on your request, until it is further informed in the premises. By direction of the Commission. JOSEPH W. SHEA, Secretary. AGENDA MATTER FEBRUARY 7, 1964 Re: Docket 7790-Alfonso Gioia & Sons, Inc., File 601 0176-Procino-Rossi Corp., File 601 0177-Ideal Macaroni Co., File 601 0178-Gioia Macaroni Co., File 601 0181-Prince Macaroni Co. From: Sigurd Anderson, Commissioner. To: Bureau of Restraint of Trade. I request that this matter be placed on the Commission's meeting agenda. To: The Commission. MEMORANDUM FEBRUARY 7, 1964. From: Siguard Anderson, Commissioner. Subject: 1. *Macaroni Cases. 2. Price discrimination and discriminatory allowances and services-Sections 2(a), (d) and (e), Clayton Act, as amended. 3. Recommendations: as set forth below. These are five interrelated macaroni cases, interrelated to the extent that the Commission by minute of February 1, 1962 (entered in Docket 7790), and by minute of May 10, 1962 (entered in File 601 0181), directed that the following matters be submitted to the Commission simultaneously: *Docket 7790-Alfonso Gioia & Sons, Inc., File 601 0176-Procino-Rossi Corporation, File 601 0177-Ideal Macaroni Company, File 601 0178-Gioia Macaroni Company, File 601 0181-Prince Macaroni Company. The Division of Discriminatory Practices, Bureau of Restraint of Trade, now presents these matters for our consideration. All of the above matters are being presented simultaneously but by separate memorandum. The files in these matters comprise approximately 26 binders. The status and posture of each of these matters are hereinafter set forth, together with the recommendation of the Bureau as to what should be done in each instance. IDEAL MACARONI COMPANY, FILE 601 0177 Forwarded at this time is a draft of complaint charging proposed respondent with a violation of Section 2(d) of the amended Clayton Act. Also forwarded is an executed consent agreement containing an order to cease and desist. The complaint charges and the evidence will show that Ideal granted various payments and allowances during 1962 to the Kroger Company in the form of free merchandise for store openings; discounts and allowances for a stamp promo tion; payments and allowances for newspaper and TV advertising; and payments and allowances for coupon sales. Similar payments and allowances were not made available to competing retailers on proportionally equal terms. The investigation of Ideal did not reveal violations in commerce of other provisions of the Robinson-Patman Act, and the order in this mater is, therefore, limited to Section 2(d). It will be hereinafter noted that the orders in the other macaroni cases being submitted cover Sections 2(a), (d) and (e). The memorandum from the Bureau of Restraint of Trade also outlines the evidence sup porting the 2(d) violation herein. As noted above, the proposed respondent herein has executed a consent agreeemnt. The Bureau, accordingly, concludes that the consent agreement in this matter should be accepted by the Commission and issued simultaneously with the issuance of the complaint in Procino-Rossi. It was further recommended that the effective date of the order in the instant matter be stayed until such time as an order is issued against Procino-Rossi. The Bureau points out that somewhat similar arrangements were followed by the Commission in Central Linen Supply Company, Docket 8558. GIOIA MACARONI COMPANY, INC., FILE 601 0178 Also forwarded herewith is a draft of proposed complaint charging this proposed respondent with violations of Sections 2(a), (d) and (e) of the amended Clayton Act, together with the signed and executed consent agreement which the Bureau of Restraint of Trade recommends that the Commission accepts in disposition of the complaint charges. The memorandum from the Bureau of Restraint of Trade indicates that prior to the completion of the reinvestigation of this matter, the proposed respondent signified a willingness to sign a consent agreement. Therefore, the files, while not complete, do indicate rather clearly that the proposed respondent was violating a number of the Robinson-Patman amendments to the Clayton Act. The Sections 2(a), (d) and (e) provisions of the order to cease and desist in this matter are substantially identical with the order entered in Docket 7790 and the order contained in File 601 0181, and that recommended in File 601 0176. The recommendation is made by the Bureau of Restraint of Trade that the proposed complaint should herewith be issued and that the consent agreement be accepted in disposition thereof. It is further recommended that the order to cease and desist not become effective until an order is entered in the ProcinoRossi matter, as suggested above. PRINCE MACARONI MANUFACTURING COMPANY, FILE 601 0181 This is the third matter in which a draft of proposed complaint is forwarded charging respondent with violations of the Robinson-Patman amendments to the Clayton Act, together with a signed and executed consent agreement. The Bureau of Restraint of Trade recommends that the Commission accept the agreement in disposition of the complaint charges. Again, in this file, as in the Gioia matter, the proposed respondent indicated a willingness to sign a consent agreement prior to the completion of the reinvestigation. However, the Bureau of Restraint of Trade advises us that the files do contain sufficient information to indicate that the proposed respondent was violating the Robinson-Patman Act rather promiscuously. Here also the order to cease and desist contains provisions relative to Sections 2(a), (d) and (e) of the Clayton Act, as amended. The recommendation is also made by the Bureau of Restraint of Trade that the proposed complaint should issue and that the consent order be accepted, but that the order to cease and desist not become effective until an order is entered in the Procino-Rossi matter. ALFONSO GIOIA & SONS, INC., DOCKET 7790 By order issued October 21, 1960, the Commission adopted the initial decision of the hearing examiner based on an agreement containing a consent order. However, the Commission subsequently reopened the proceedings, vacated and set aside the order, and the matter was placed on suspense to be reconsidered when the other macaroni cases were submitted to the Commission. The entire bundle of macaroni cases is now being presented to the Commission for appropriate disposition. I believe it would now be appropriate for the Commission by order to take this matter off suspense and to issue its order in this matter, with the proviso that the order should not become effective until an order is entered in the Procino-Rossi matter, as previously suggested. PROCINO-ROSSI CORPORATION, FILE 601 0176 Forwarded herewith as to this matter is a copy of a proposed complaint charging the proposed respondent with violating Sections 2(a), (d) and (e) of the Clayton Act, as amended. This is the sole proposed respondent that has declined to sign a consent agreement in these matters. As recently as November 21, 1963, the Commission was advised that Procino-Rossi would agree to sign a consent settlement if its competitors would do so. However, Procino-Rossi has failed to furnish the Commission or its counsel with any positive statements of improper practices of other competitors, even though they have been specifically invited to do so. As indicated above, the other macaroni competitors of Procino-Rossi, insofar as they represent its principal competitors, have entered into consent agreements. Counsel in support of the complaint has advised this office that he believes that Procino-Rossi probably would execute a consent agreement, should it be given another opportunity. It would appear that these matters are now in the posture requiring Commission action before anything else can be done. In review, it would appear that three of the macaroni respondents have executed consent agreements; another. which is on the adjudicative calendar, has also executed a consent agreement; only Procino-Rossi Corporation is the hold-out. Under the circumstances, I believe we should now extend to Procino-Rossi another opportunity to sign a consent agreement. If it fails to do so within a 30-day period, I firmly believe that the Commission should issue its complaint forthwith. In disposition of the above matters I make the following recommendation: 1. That the Commission should accept the consent agreement executed in the matters of Ideal Macaroni Company, Gioia Macaroni Company and Prince Macaroni Manufacturing Company, with the understanding that the orders to cease and desist therein shall not become effective until an order is entered in the Procino-Rossi matter. Appropriate orders have been prepared in each of these matters accepting the consent agreement as an appropriate disposition of the proceeding and deferring service of the decision and order until issuance of the Commission's decision and order "in the aforesaid related Commission proceeding." 2. That the case of Alfonso Gioia & Sons, Inc., Docket 7790, rather than be taken off suspense at this time, be continued in its present posture. At the time a decision and order is issued in the Procino-Rossi matter, an appropriate order can then be prepared and issued, adopting the initial decision reinstating the effective date of the order therein. 3. With the issuance of the orders accepting the consent agreements as to the three consenting macaroni manufacturers, Procino-Rossi can be advised of the status of these other matters and that these competitors have executed consent agreements and that it will be given another opportunity to sign a consent agreement; and that, failing to do so within 30 days, the Commission's complaint shall forthwith issue. Accordingly, the Commission can now make its determination to issue complaint herein pursuant to Part II of its Rules. As to the above recommendations, I move their adoption. SIGURD ANDERSON, Commissioner. DECEMBER 16, 1963. Re: Lovable Brassiere Company, et al., File 601 0885. From: Sigurd Anderson, Commissioner. To: Bureau of Restraint of Trade. I request that this matter be placed on the Commission's meeting agenda. MEMORANDUM DECEMBER 16, 1963. To: The Commission. From: Sigurd Anderson, Commissioner. Subject: 1. File 601 0885-Lovable Brassiere Company, et al. 2. Bras, girdles, etc. 3. Discriminatory promotional allowances-sec. 2(d), Clayton Act, as amended. 4. Recommendation: that revised complaint now issue pursuant to Part II of our Rules. On September 5, 1963, the Commission returned this file to the Division of Discriminatory Practices, Bureau of Restraint of Trade, for additional review and reconsideration in the light of certain facts disclosed in the original memerandum from that Bureau. It had been found that proposed respondent's original promotional plan, and particularly its "LIFT" cooperative advertising plan, had been discontinued and a new Retail Promotion Plan instituted as of January 1, 1963. In addition, the name of the proposed respondent had been changed to "The Loving Company". A redrafting of the complaint accordingly seemed indicated. The file has now been returned to us with the revised and redrafted complaint and a detailed memorandum pointing out how the new Retail Prom tion Plan used by respondent fails to conform to Section 2(d) of the Clayton Act, as amended, and provides payments to some competing customers that are not available to other competing customers on a proportional basis. It would appear that the redrafted complaint now covers the proposed respondent under its proper name and its new Retail Promotion Plan. Accordingly. I recommend and move that the Commission make its determination that the complaint should issue pursuant to Part II of its Rules. SIGURD ANDERSON, Commissioner. |