Harry M. Bitterman, Inc.

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IN THE MATTER OF HARRY M. BITTERMAN, INC.; ETAL . ..'COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SDBSEC. (c) OF SEC. 2 OE AN .ACT OF CONGRESS APPROVED OCT. 15, 1014, AS Al\IENDED . · Dorkct 4229-Complaint, Aug. 8, lfJ.jO-Dcdsion, ,Ju1]1 8, 1fi42 Where a corporation, and two individuni:-J-president and director and oftice manager thereof-engaged in the competitive interstate purchase from numerous manufacturer:! and other sell.ers of fur garments for a numb~1· of· retail establishments- ( a) Received compPn>:ation in the form of brokerage or commissions upon orders from aforesaid buyers for· the purchase of commodities including, particularly, fur· garments, which it transmitted to and executed with sl:'llers, amounting, customarily, to 5 percent of the sale~ prices of the goods solll, and while acting as said buyers' agent, buying representative or other interme<Iiary; and · . 'Vbere afore;.;t•Jd selling concerns, engaged as abo,·e ~'<l't fortl1, in the sale of their fur garments in interstate commel·ce to buyers referred to and to numf'rous othet• customers- · (b) Paid to said co~·poration and individuals, acting as· age;1ts, buylug retiresentutivt•ts, or other intermediaries of said buyer retailers in the transmittal and execution of their buying orders, compensation In the form of brokerage fees or commissions as above described upon the sales prices pf till' goods 801<1 by them to aforesaid buyers: · lield, That such receipt and acceptance, and payment ~f brokerage fees and commissions, as above set forth, tOlistltuted a violation of the provisions of Subsection (c) of Sectio•1· 2 of the Clayton .Act, us amen<lcd by the Robin!lon- Patman Act.

· Nr. Ed-wards. Ragsdale for the Commission . .Mr. Alfred .McCormack and JJ!r. Harmon Duncombe, of the firm of Cravath, Deter:sdorff, Swaine & ·wood, of New York City, for respondents.

Complaint 1 Pursuant to the provisions of an Act of Congress, approved October 15,1914, entitled "An Act to supplement existing laws against unlawful 1 Comph•lnt Is published as 1anll'nrled by a st,lpulo.tlon agreed to by and between respond- ~nts name.d below and W. T; .Kelley, chief counaei for the Commission, and approved by lito Commission on November 4, 1940, which stipulation amended original complaint, nunc t•ro tunc, aa follows: ' l:y striking from the caption of said complo.lnt tile word~ "Arthur PP.tras, Peter l'l'tras nnd George Aiveras, co-po.rtners doing business under the firm no.me and styie.of Petrus, Petras & Co." and substituting In lieu thereof the words "Peter Petras and GeorJ:a Alverna, lr•Hilng as Petras & Alenas, and Arthur Petras, trading as A. Petras & Company," and By •trlldng from paragraph 3, page 2, o! so.Id complaint the wot•i!s: "Respondents Arthur Petras, Peter Petras and George Alveras are co-partners doing bt!•lness under the Jlrm name and style ot Petras, Petras & Co. and have their prl!tcipal 50D740'"--43-vol. 85---4 DE<CIS~O)l"S 50 FEDERAL TRADE C0:\IMISSION' Complaint •35F. T. C.

restraints and monopolies, and for other purposes," commonly ·known as the Clayton Act (U.S. C. Title 15, Sec. 13), as amended by an act ·of Congress, approved June 19, 1936, commonly known as the Robinson- Patman Act, the Federal Trade Co,mmission, having reason to believe that the parties respondent named in the caption hereof and hereinafter more particularly designated and described, since June 19, 1936, have been and are now violating the provisions of subsection (c) of Section 2 of said net as amended, issues its complaint against said respondents and states its charges with· respect thereto as follows,· to wit:

PARAGRAPH 1. Respondent, Harry M. Bitterman, Inc. (hereinafter referred to as "Bitterman, Inc.") is a "corporation organized and existing under the laws of the State of New York, with its office and principal place of business located at li"H W. Fortieth Street, New York City, N.Y.

PAR. 2. Respondents, Harry M. Bitterman, Herman Bitterman, and Irving Dash, are the president, secretary-trr.asurer, and office manager, respectively, of the respondent, Bitterman, Inc. Harry M. Bitterman is a director of Bitterman, Inc.

PAR. 3. Respondent, I. and A. Berger, Inc., is a corporation organized and existing under the laws of the State of New York with its principal office and place of business at 150 'Vest Thirtieth Street, New York City, N.Y.

Respondent, B. Ordover & Sons, Inc., is a corporation organized and existing under the laws of the State o£ New York with its principal office and place· of business at 150 'Vest Thirtieth Street, New York, N.Y.

· Hespondents, Peter Petras and George Alevras, are individuals, trading as Petras & Alevras, having their principal office and place o£ business at 115 West Thirtieth Street, New· York, N. Y. Respondent, Arthur P~tras, is an individual, trading as A. Petras A~ Company, having an office and place o£ business at 249 'Vest Twenty-ninth Street, New York, N.Y.

office and place of business at 249 .w. 29th Street, New York City, N. Y." and substituting In lieu thereof the words:

"Re~pondents Peter Petras and George .Aleuns are Individuals trading as Petras & :!.h·eras, having their principal office and place of business at 115 West 30th Street, New York, N.Y. . "RPsponflent Arthur Petras Is an lndh-ldual trading as A. Petras & Company, having an otlico and place of business at 249 W. 29th Street, New York, N. Y." It {8 fu_rther aureed, By and between the parties aforesaid as follows, to wit : Said complaint, as amended, shall -be deemed and considered to llaYe been Iawfull1 sened on the said Peter Petras, George .Aievras, and .Arthur Petras on the date on which ~aid complaint was served on said indh·iduals originally, to wit: on August 8, 1940, HARRY ~I. BITTER\{AN, INC., ET AL. 51 49 Complaint Morris l\lim:k is an individual, -doing. business under his own name, With his principal office and place of business at 352 Seventh A venue, N"ew York, N. Y. . The respondents nameti in this paragraph will hereinafter be referred to as "seller respondents.'.' PAn. 4. On and for malil.y years prior to June 19, 1936, and until 011 or about January 1, 1938, Harry Bitterman was engaged and from on or about January 1, 1938, Bitterman, Inc., has been and is now engaged in the business of purchasing fur garments for a number of corporations, partnerships, and individuals. These corporations, Partnerships, and individuals (hereinafter collectively referred to as "buyers") operate retail establishments in which fur garments and other commodities are sold. l\fost of these buyers are located and do business in some State other than the State of New York. Each of said buyers is and for several years last past ha~ been engaged in the business of buying fur garments in interstate commerce ~rom numerous manufacturers ·and other sellers of such merchandise, lllcluding the seller respondents named in paragraph 3 hereof . . PAn. 5. Each of the seller respondents named in paragraph 3 hereof lS and for several years last past has been engaged in the business of selling fur garments in interstate commerce to the buyers referred to in paragraph 4 hereof, and to numerous other customers. Said seller respondents are fairly typical and representative mem- . hers of a large group or class of fur manufacturers and sellers engaged in selling their fur garments in interstate commerce to the buyers referred to in paragraph 4 hereof and to numerous other customers. The fur garment manufacturers and sellers comprising said group or class are too numerous to be specifically named as respondents herein or to be brought before the ·commission in this Proc~ding without manifest inconvenience and delay. Each of such tnanufacturers and sellers, in selling to buyers who purchase through lrarry Bitterman or Bitterman, Inc., has been and is engaged in Practices similar to those hereinafter charged against the seller respondents.

PAR. 6. In the course and conduct of his business aforesaid from June 19, 1936,. to on or about January 1, 1938, Harry Bitterman received and, in the course and conduct of its business aforesaid, from on ·or about January 1, 1938, to the present time, Bitterman, Inc. received and now receives orders from the buyers aforementioned to Pttrchase commodities, particularly fur garments, 'and transmitted or transmits such orders to and executed or executes-the same with the aforesaid seller respondents and other sellers. As a result of FEDERAL TRADE CQMMISSION DE1CISIONS52 Complaint 35F. T. C.

the transmission of said. orders by such buyers to Harry M. Bitterman or to Bitterman, Inc., the execution of same by said Harry M. Bitterman or by 'Bitterman, Inc., at the instance and request of said buyers and the acceptance of some of said orders by said respondent sellers or one or more of them, goods, wares, and merchandise, pai'ticularly fur garments, were or are, in the case of each such order, sold or delivered by one or more of !Oaid seller respondents to one or more of the said buyers. By such means and in the manner aforesaid. Harry M. Bitterman and Bitterman, Inc., acting for and in behalf of the said buyers, caused or now cause 'the above named seller respond· ents to ship the said commodities, particularly fur garments, frolll the State in which such merchandise was located at.the time of sale into and through various other States of the United States directly to the said buyers in the States of their respective locations. Respondent Bitterman, Inc. carried through and performed the operations and activities Teferred to through respondents Harry nnd Herman Bitterman and Irving Dash,' its officers and employees. The estimated annual volume.of purchases negotiated by Harry l\f. llitterman or by Bitterm.m, Inc., as aforesaid, for each of the years 1037, 1938, and 1939 from all seller respondents and other sellers has been approximately $200,000. In all of said transactions Harry M· Bitterman and Bitterman, Inc. and the other respondents herein named .ns officers and employees of said Bitterman, Inc., and each of them, were acting in fact for or in behalf of the buyers hereinbefore mentioned and were generally rendering to such buyers all of the services that are customarily rendered hy a buying agent to and for his principals.

PAR. 7. In the course and conduct of the commerce hereinabove described, the seller. respondents paid to Harry l\1. Ditteruuin and paid and are now paying to Bitterman, Inc. brokerage fees and commissions, amounting to n certain percentage, customarily 5 percent of the sales prices of· the goods sold by seller respondents to buyers and, while acting in fact as intermediary for and in behalf of the buyers in the tranl"mittal and execution of the aforesaid buying orders and otherwise, Harry l\f. Bitterman received and accepted andt while so acting, Bitterman, Inc. received and accepted and now recein•s and accepts brokerage fees and commissions from the seller respondents and other sellers. · PAR •. 8. The payment· by seller respondents of brokerage fees and commissions to Harry M. Bitterman nnd to Bitterman, Inc., imder the circumstances hereinabove set forth; were arrd are in violation of the provisions of Section 2, subsection (c) of the aet described in the HARRY M.. BITTERMAN, INC., ET AL1 53 49 Fi'lldings Preamble hereof. The receipt and acceptance from seller respondents and other sellers of said brokerage fees and commissions by Harry ~1. Bitterman and by Bitterman, Inc., unfler the circum.;tances here- Inabon~ set forth, were and are likewise in violation of the terms of said statute.

REPORT, FINDINGs _'\s TO THE Facts, AND Onder Pursuant to the provisions of an .Act of Congress, entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes," approved October 15, 1914 (the Clayton Act) as amended by an Act of Congress approved June 19, 1936 (the Robinson"Putman ..:\.et) (U.S. C. Title 15, Sec. 13), the Federal Tmde Commission on August 8, 19-!0, issued and subsequently served its complaint in this proceeding upon the parties respondent named in the caption hereof, charging said respondents.with violation of the provi- ,sions of subsection (c) of Section 2 of said Clayton Act, as amended. A.after the issuance of said complaint each of said respondents except Herman Bitterman, individually, and as secretary-treasurer of Harry l\I. Bitterman, Inc., filed an answer admitting all the material I allegations of fact set forth in said .complaint and waiving all inter- I, I Vening procedure and further hearings as to said facts. Said re- spondents also waived oral argument and the filing of briefs. Thereafter, this proceerliJ1g regularly came on for final hearing before their Colllmission on the said complaint and the admission answers, and the Commission. having duly consitlt>rPrl the saine and being now ,fully advised in the premises! makes ti1is its findin~~s as to the facts and its. conclusion drawn therefrom:

• I FINDINGS AS TO THE FACTS PARAGRAPH 1. Responuent, Harry l\I. Bitterman, Inc.· (hereinafter teferred to as "Bitterman, Inc."), is a corporation organized and existing under the laws of the State of New York, with 'its office and principal place ·of business located at 370 Seventh· A nnue, New Y ork1 :N'. Y. . .~ . ' PAR. 2. Respondents, Harry l\f. Bitterman and Irvi11g- Dash, are the president and office manager,. respectively, of the respondent~ Bitterman, Inc., and Harry l\I. Bitterman is a director of Bitterman, Inc .. Respondent, Herman Bitterman, named in the complaint herein individually and as secretary-treasurer of Harry l\I. Bitterman, Inc.t h-as not .actively participated at any time in the conduct of said business. ' 54 FEDERAL TRADE COMMISSION DE1CISIONS Findiugs 35F. T. C.

PAR. 3. Respondent, I. and A. Berger, Inc., is a corporation organized and existing under th~ laws of the State of New York, with ' its principal office and place of business at 150 West Thirtieth Stre.et, New York, N.Y.

Respondent, B. Ordover & Sons, Inc., is a corporation organized and existing under the laws of the State of New York, with its principal office and place of business at 150 ·west Thirtieth Street, New York, N.Y.

Respondents, Peter Petras and George Alevras, are individuals, trading as Petras & Alevras, and have their principal office and place of business at 115 ·west Thirtieth Street, New York, N.Y. Respondent, Arth!lr Petras, is an individual, trading as A. Petras & Co., having an office and place of business at 249 'Vest T\ventyninth Street, New York, N. Y. .

Morris Minsk is an individual doing business under his own name, with his principal office and place of business at 352 Seventh Aveni1e, New York, N.Y .

. The respondents named in this paragraph will hereinafter be referred to as "seller respondents."

PAR. 4. On and for many years prior to June 19, 1936, and until on or about January 1, 1938, Harry Bitterman was engaged and from on or about January 1, 1938, Bitterman, Inc., has been and is now engaged in the business of purchasing fur garments for a number of corporations, partnership, and individuals. These corporations, partnerships, and individuals (hereinafter collectively referred to as ''buyers") operate retail establishments in which fur garments and other commodities are sold. Most of these buyers are located and do business in some State other than the State of New York. Each of said buyers is and for several years last past has peen engaged in the business of buying fur garments in interstate commerce from numerous manufacturers and other sellers of such merchandise, including the seller. respondents named in paragraph 3 hereof. · PAn. 5. Each of the seller respondents named in paragraph 3 hereof is and for sce-\•eral years last past has been engaged in the business of selling fur garments in interstate commerce to the buyers referred to in paragraph 4 hereof, and to numerous other customers. Said seller respondents are fairly typical and rep"resentative members of a large group or class of ful' manufacturers and sellers engaged in selling their fur garments in interstate commerce to the buyers referred to in paragraph 4 hereof, and to numerous other customers. The fur garment manufacturers and sellers comprising said group or class are too numerous to be specifically named as respondents • HARRY M. BITTERMAN, INC., ET. AL. ,. . 55 49 Findings herein or to be brought before the Commission in this proceed~ng without matiifest inconvenience and delay." Each of such manufacturers and sellers, in sellin~ to buyers who purchase through Harry Bitterman or Bitterman, Inc., has been and is engaged in practices similar to those of the seller respondents specifically named herein. . PAR. 6. In the course and conduct of his business aforesaid, from June 19, 1936, to on or about January 1, 1938, Harry Bitterman received and, in the course and conduct of its business aforesaid, from 011 or about January 1, 1V3~, to the present time, Bitterman, Inc., received and now receives orders from the buyers aforementioned 'to purchase commodities, particularly fur garments, and transmitted or transmits such orders to and executed or executes the siune with the aforesaid seller respondents and other sellers. As a result of the transmission of said orders by such buyers to Harry M. Bitterman or to Uitterman, Inc., the execution of same by said Harry M. Bitterman 01' by Bitterman, Inc., at the instance and i·equest of said buyers and the acceptance of some of said orders by said respondent sellers or one or more of them, goods, wares, and mercha.ndise, particularly fur garments, were or are, in the case o'f each such order, sold or delivered b:y one or more of said seller respondents to one or more of the said buyers. By such means and in the manner aforesaid, Harry :M. Bitterlnan and Bitterman, Inc., acting for and in behalf of the said buyers, caused or now cause the above-named seller respondents to ship the said commodities, particularly fur garments, from the State in which Sllch merchandise was located at the time of sale into and through ~'arums other States of the United States directly to the said buyers ln the States of their_respective locations. Respondent, Bitterman, ~nc., carried through and performed the. operations-and activities referred to through its president and director,. llarry Bitterman, and through its office manager, Irving Dash. Th(l estimated annual volume of purchases negotiated by Harry M. nitterman or by Bitterman, Inc., as aforesaid, for each of the years 1937, 1938, and 193V, £rom all seller respondents and other sellers has been approximately $200,000. In Jlll of said transactions Harry M . . nitterman and Bitterman, Inc., and the respondents herein named, individually, ana as officet·s and employees of said Bitterman, Inc., and each of them, were acting in fact for or in behalf of the buyers hereinbefore mentioned and were generally rendering to such buyers all of the services that are customarily rendered by a buying agent to and for his principals. : PAR. 7. In the course and conduct of the commerce hereinabove described, the seller respondents paid to Harry M. Bitterman and paid and are now paying to Bitterman, Inc., brokerage £ees and commis- • 56 FEDERAL TRADE COMMISSION DECISION~ · Concim<iou 35 !+!. T. C. sions, am~mnting to i certain percentage, customarily 5 percent, of the sales prices of the goods sold by seller respondents to buyers arid, while acting in 'fact as intHmediary for and in behalf of the buyers in the transmittal ami execution of the aforesaid buying orders and other~ wise~ Harry l\I. Bitterman received and accepted and, while so acting, Bitterman, Inc., received and accepted and now receives and accepts brokerage fees and commissions from the seller respondents and other sellers.

CONCLUSION From the aforesaiLl facts and circumstances the Commission concludes that respo11dents, Harry ~I. Bitterman, Inc., a corporation, Harry l\1. Bitterman, individually and as a presid~nt and one of the directors of Harry ~f. Bitterman, Inc., and Irving Dash, individually antlns office manager of Harry M. Bitterman, Inc., are engaged in business in commerce as agents, buying representatives or other intermediaries in the purchase of fur garments and other commodities for operators of retail stores and said respondents purchase such fur garments and other common<liti('s from a large number of competitive sellers. In so placing orders nnd hnying fur garments and other commodities said respondents have acted in fact for, or in behalf or are subject to the direct or indirect control of, the retail dealers for whom the pmchnses were made and while acting in fact as agent, buying represl'ntative, or othl'l' intermediary in the aforesaid manner saiu respondents rpceiwcl COmpensation in the form of brokerage or commission:=; from the sellers in violation. of the provisions of ~ubsection (c) o.f Section 2 of ''An '.Act to supplement existing laws against unlawful restraints and monopolies, and for other pui·pose!"," approved October 15, 1914 (the Clayton Act), as amenaed by an Aet of Congre:'ls approval'd ,Tune 19, 1936 (the Robinson-Patma.n Act} (U.S. C., Title 15, Sec.l3). · The Comnlission further conclud«.>s that rrspondents, I. and .A. Berg.er, Inc., n. corporation; B. Orclover & Sons, Inc., a corporation; Peter Petras and George A1evras,·indivicluals, trading as Petras and Alevras; 'Arthur PPtras, an individual, trading as· A. Petras & Company; and l\Iorris Minsk, an individual, engaged in the manufacture and sale in commerce of fur gnrments and other commodities, have paitl and granted compen,.ation in the form of br:okerage or commissions to Ilatry 1\I. llittt'l:man, Inc., u· corporation; Hurry M. Bitterman, .individually mid as president and one of the directors of Harry 1\I. Bitterman, Inc.; anJ Irving Dash, individually and as (lffice manager of Harry l\I. Bitterman, Inc., while the· said respond- HARRY l\I. BITTERJ\IAN1 INC., ET AL. .17 49 Order (·nts were engaged in business .in commerce· us agents, buying repref;entatives, or other intermediaries and were acting in fact. for or in liehalf of or were subject to the direct or indirect control of retail dealers :for whom the purchase of fur garments and other commodities were made, in violation of the provisions of subsection (c) of Section 2 of the aforesaid Clayton Act, as amended. onm:R TO CEASE A:SD DESIST . This proceeding· having been heard by the Federal Trade Comlnission upon the complaint of the Commission and the answer filed hy each of the respondents named )n the caption hereof except Herman Bitter~an, individually1 and as secretary-treasurer of Harry M. Bitterman, Inc., and the respective answers of said respondents having admitted all material allegations of fact set out in the complaint to be true and )1aving wain'<l all intenening procedure and further· hearing as to said facts and the Commission having made its findings as to the facts and conclusion herein that :'aid rpspondents, Harry M. Bitterman, Ine., a corporation, Hany l\I. Bitterman, individually and as president aiel as one of the directors of II a rry ~I. Bitterman, Inc., Irving Dash, indi ddually and as office mamlg(•r of Harry 1\I. Bitterman, Inc., and I. and A. Berger, Inc., a corporation, B. Ordover & Sons., Inc., a corporation, Peter ·Petras and George Alevras, individuals trading as Petras & AlC'nas, Arthur Petras, an individual trading as A. Petras & Co., and :Morris Minsk, nn individual, have violated the provisions of -subsection (c) of Seetion 2 of "An Act to supplement existing laws against unlawful' l'e~traints and monopolies, and for other purposes," approved October 15, 19l4 (the Clayton Act), as amended by an Act of Congress approved June 19, 1936 (the Robiuson-Patman Act) (U. S. C., Title 15, Sec. 13). ' . . It is ordered, That the respondents, Harry l\1. Ditterman, Inc.~ a ('orporation, its officers, agents, and employees; Harry M. Bitterman, individually, and as president, and as one of the directors of Harry l\1. Bitterman, Inc., his representatives, agents, and employees; and Irving Dash, individually, and as office manager of Harry M. Bitterman, Inc.,. his repre-sentatives, agents, and employees; jointly or severally, directly or indirectly, through· any corporate or other device, on or in connection with the purchase of :fur garments or other commodities in · eomnwrce as commerce is defined in the aforesaid Clayton Act as amended, do :forthwith cease and desist from: , Receiving or accepting directly or indirectly anything of value as n commission, brokerage;, or other compensation, or any allowance or Order 35 F. T. C.

discount in lieu thereof, from any seller on or in connection with pur· chases made from such seller (a) when such purchases are made for respondents' own account, or (b) when such purchases are made by respondents as agents or buying representatives of the purchaser, or (c) when in making such purchases respondents are acting in fact for, or- in behalf, or are subject to the direct or indirect control, of the purchaser.

It is furrther ordered, That respondents, I. and A. Berger, Inc., a corporation, and B. Ordover & Sons, Inc., a corporation, their officers, agents and employees; Peter Petras and George Alevras, individuals, trading as Petras & Alevras, or under any other name; Arthur Petras, an individual, trading as A. Petras & Co., or under any other name; and Morris Minsk, an individual; their representativ~s, agents and employees; directly or indirectly, through any· corporate or other device, on or in connection with the sale of fur garments or other corn· modities in commerce as commerce is defined in the aforesaid Clayton( Act as amended, do forthwith cease and desist from: Paying or granting directly or indirectly anything of value as a commission, brokerage, or other compensation, or any allowance Ol' discount in lieu thereof, to Harry M. Bitterman, Inc., a corporation, Harry l\L Bitterman, individually or as an officer of Harry M. Bitter· man, Inc., Irving Dash, individually or as office manager of Harry 1\f. Bitterman, Inc., or to any corporation, partnership, firm, or individual, on or in connection with' the sale of fur garments or other commodities,; (a) when such sales are made to such corporation, partnership, firm, or individual, or (b) when such sales are made through such corporation, partnership, firm, or individual acting as agent or buying representa· tive of the purchaser, or (c) when such corporation, partnership, finn, or individual in making such purchases is·acting in fact for or in be· half, or is subject to the direct or indirect control, of the purchaser. It is further ordered, That respondents shall, within 60 days after service upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they. have complied with this order.

It is further ordered, That for the reason~ set out in the findings as to the facts herein that the case growing out of the complaint issued herein be, and the same hereby 1s, close>.d as to Hennan Bitterman, indi· vidually and as secretary-treasurer of Harry M. Bitterman, Inc., with· out preju<;Iice to the right of the Commission, should the facts· so warrant, to reopen the same and resume trial thereof in accordance with its regular procedure.

:r ISAAC S. DICKLER 59 Coruplaint