Dekle Brokerage Co., Inc.

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IN THE MATTER OF DEKLE BRJKEI AGE CO., I"C., ET ill.

IPLAI:\T, 'E'INDIKGS A:NT' ORDERS IJ\ REGARD TO THE ALLEGED VIOLATION OF SUBSEC. (c) OF' SI;;C. 2 OF A ACT O ' CO"KGRESS APPROVED OCT. 15 , 1914, AS A:-IE:\DED BY A:- ACT ..APPROVED JU::E 19, 1936 Docket 5880. Complaint, JIa.y H!51-Decision, Attg. , 1951 Where a corporation, and its president and stockholder, who was responsible for its acts and practicl$, engaged as a broker of fruits and vegetables, and as a jobber and whole:,ulcl' thereof in the purchase of surh produce from vendors in otller states and in its sales to wholesalers and retailers- Received and accepted ire-il such vendors commissions, brokerage 01 other compensation, of allowr.llces or discounts in lieu thereof, in connection with purchases of produce made on responden t's own account, as jobber and wholesaIer, in purchasing in their own name and for shipment to their places of business for resale:

Held 'l' hat said respondenh; in receiving and accepting brokerage fees, etc., from sellers under the circmGstances set forth, violated the provisions of subsec tion (c) of section 2 0/ the Clayton Act as amended. Before Mr. Flank Hi/;r trial examiner.

Mr. Peter J. Dias and illt. Richard E. Ely for the Commission. Howell Johnston of Mobile, Ala., for respondents. COl\fPLAI:ST The Federal Trade Commission, having reason to believe that the parties respondent., named in the caption hereof, and hereinafter more particularly designated and described, have been and are now violating the provisions of subsection (c) of section 2 of the Clayton Act (U. S. C. Title 15, sec. (3) as amended by the Robinson-Patman Act approved June 19, 1936 , hereby issues its compliint stating its charges with respect thereto as follows:

PARAGRAPH 1. Respondent Dekle Brokerage Co., Inc., is a corpo ration organized and eJ:isting under the la-IV's of the State of Alabama with its principal oice and place of busineos located al GOO orth ,Vater Street, l\iobiJc lJa., and with a branch offce located in Jackson Miss.

Respondent Arthur U. Dekle is an individual with principal offce aud place of business lc)cated at GOO" orth IValer Street, Mobile, Ala. He is a stockholdcr in and president of respondent Dekle Brokerage Co. , Inc. As such, 1li) directs, controls and is responsible for the acts anrl practices of seid corporate respollclent which are l1el' inflfter alleged.

\R. 2. Respondent(j are now and for several yellrs hrtve been eJJgaged in business as a broker of fruits and vegetables, hereinafter DEKLE BROKERAGE CO. , INC. ET AL. 193 192 Complaint referred to as produce, and as a jobber and wholesaler of produce selling said produce to both wholesalers and retailers. In the course and conduct of their business as a jobber and wholesaler of produce, respondents are and have been engaged in commerce as commerce is defined in the Clayton Act as amended by the Robinson- Patman Act, purchasing such produce from vendors whose places of business are located in States other than Alabama or Mississippi, and causing it to be shipped to their places of business within the States of Alabama or )Jjssissippi or both.

PAR. 3. In the course and conduct of said jobbing and wholesaling business in commerce, said vendors payor grant to respondents and respondents receive or accept commissions, brokerage, or other compeJlsat.ion, or allowances or discounts in lieu thereof, in connection with said purchases of produce made on their own account. PAR. 4. Among the circumstances under which respondents receive or accept the commissions, brokerage, or other compensation, or allmvances or discounts in lieu thereof alleged in pa.ragraph 3, are those existing in the normal course and conduct of their business as a jobber and wholesaler in making said purchases of produce from said vendors for resale to wholesalers and retailers. Such clrcumstances are that respondents tra,nsmit purcllase orders directly to said vendors, naming themselves as purchasers. Said vendors, at respondents' request, ship said produce so ordered directly to respondents' places of business in :Mobile, Ala., or Jackson, Miss. or both. Said vendors invoice respondents for said produce at the gross price agreed upon less an amount designated as brokerage, and the net amount of said l11voices is pa,id by respondents to said vendors. Said produce so purchased is resold by respondents to wholesalers or retailers at prices satisfactory to respondents. PAR. 5. Illustrative of respondents' acts and practices, alleged in paragraph 4, was their purchase in the name of Dekle Brokerage Co. in or about July 1949, of a carload of grapes from a vendor in California. S:lid grapes were shipped at respondents' request to ackson Miss., for partial unloading and thence to Mobile, Ala. , as final destination.

At the request of said vendor, respondents informed him that their brokerage fee was $40 which amount said vcndor deducted from the gross price on the invoice sent to respondents. R.respon(lents paid the net amount of said invoice.

Re,spondents resold said grapes to wholesale or retail purchasers in comparatively small quantities for their own account. PAn. 6. The acts and practices of the respondents as above alleged 194 FEDERAL TRADE CO:yMISSIO:N DECISIOXS Findings 48 F. T. violate subsection (c) of section 2 of the Clayton Act as amended by the Robinson-Patman Act (U. S. C. Title 15, sec. 13). DECISION OF THE COMMISSION Pursuant to Bule XXII of the Commission s rules of practice and as set forth in the Commission s "Dec.ision of the Commission anu Order to Finc Report of Compliance " dated August 16, 1951 , the initial decision in the instant matter of trial examiner Frank l-Iier as set out as follows, became on that date the decision of the Commission.

INITIAL DEcrsIO:! - BY THANK lIIEB, TRl.AL EXAIIIXER Pursuant to the provisions of the Clayton Act as amended by the Robinson-Patman Act (1: U. S. C. 13), the Federal Trade Commission, all fay 7, 1951, issilec1 and subsequently served its complaint , a corpora.tionin this proceeding upon Dekle Brokerage Co. , Inc. and Arthur U. Dekle, ind;vidually and as president thereof, charging asthem with violation of fubsectiol1 (c) of section 2 of said a,ct amended. On June 26, 1951, respondents filed their answer thereto wherein they admitted all the material allegations of fact set forth in eaid compla.int, waivec,. further notice and consented to the entry of an order to cease and desist from the violations charged in the complaint. Thereafter, the proceeding regularly came on for final consideration by the above-named trial examiner theretofore duly designated by the Commi :sion upon said complaint and answer there- , and said trial examiner having duly considered the record herein makes the following findings as to the facts, conclusion drawn therefrom, and order.

INDIXGS AS TO THE FACTS , is a corpo- PARAGRAPH 1. Respondent Dekle Brokerage Co., Inc. ration organized and existing under the laws of the State of Alabama with its principal offce ,nd place of business located at 600 Korth IV ateI' Street, Mobile, Ala, and with a branch offce located in Jackson Miss.

Respondent Arthur U. Dekle is an individual with princip,tl offce , 110bileand place of business located at 600 North IV ateI' Street Ala. He is a stockholder in and president of respondent Dekle Brokerage Co. , Inc. As SUell, he directs, controls and is responsible for the acts and practices of said corporate respondent which are hereinafter alleged.

PAR. 2. Respondents arc now and for several1 years have been hereinafterengaged in business as a broker of fruits and vegetables, DEKLE BROKERAGE CO. , INC. ET AL. 195 192 Findings referred to as produce, and as a jobber and wholesaler of produce selling said produce to both wholesalers and retailers. In the course and conduct of their business as a jobber and wholesaler of produce, respondents a.remand have been engaged in commerce as commerce is defined in the Clayton Act as amended by tbe Hobin son- Patman Act, purchasing such produce from vendors whose places business are located in States other than Alabama or :l\ississippi, and causing it to be shipped to their places of business within the States of Alabama, or Iississippi or both.

PAR. 3. In the course and condnet of said jobbing and wholesaling business in commerce, said vendors payor grant to respondents and respondents receive or accept 0011m1810ns, brokerage, or other compensation or allowances or discounts in heu thereof, in connection with said purchases of produce made on their own account. PAIL 4. Among the circumstances under which respondents receive or accept the commisions, brokerage, or other compensation, or allowances or discounts .1n lieu thereof found in paragraph 3 , are those existing in the normal course and conduct of their business as a jobber and wholesaler in making said purchases of produce from said vendors for resale to wholesalers and retailers.

Such circumstances are that respondents transmit purchase orders directly to said vendors, naming themselves as purchasers. Said vendors, at respondents' request, ship said produce so ordered directly to respondents' places of business in J\Iobile, Ala" or Jackson, Jliss. or both. Sa.id vendors invoice respondents for said produce at the gross price agreed upon less an amount designated as brokerage, and the net amount of said invoices is paid by respondents to said vendors. Said produce so purchased is resold by respondents to wholesalers or retailers at prices satisfactory to respondents. PAll. 5. illustrative of respondents' acts and practices, found in paragraph 4, was their purchase in the name of the Dekle Brokerage Co. , in or about July 1949, of a carload of grapes from a vendor in California. Said grapes were shipped at respondents' request to Jackson, JEss., for partial unloading and thence to ::1obilc, Ala. , as final destination.

At the request of said vendor, respondents informed him that their brokerage fee was 840 which amollnt said vendor deducted from the gross price on the jnvoice sent to respondents. Respondents paid the net amount of said invoice.

Respondents resold sa.iel grapes to wholesale or reta.il purchasers in comparatively small quantities for their own account. 196 FEDERAL TRADE CO:VIMISSION DECISIONS Order 48 E' . T. C.

CONCLUSION In receiving and accepting brokerage fees or commissions, and allowances or discounts in lieu thereof, from sellers upon purchases of merchandise in the manner and under the circumstances as hereinabove found, respondents have violated the provisions of subsection (c) of section 2 of the Clayton Act as amended. ORDER It is ordered That Dekle Brokerage Co., Inc., a corporation, and its oii""rs, and Arthur n. Dekle, individually and as president of Dekle Brokerage Co., Inc.: and their respective representatives, agents and employees, directly or through any corporate or other device in connection with the purcrase of fruits, vegetables, and other produce in commerce, as "commerce8" is defined in the Clayton Act as amended do forthwith cease and aesist from receiving or accepting, directly or indirectly, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, from any seller on or in connection with purchases made from such seller- (a) When such purchases are made for respondents' own account, or (b) When such purcha:;es are made as agent or buying representative of the purchaser, or (0) -wen, in making such purchases, respondents are acting in fact for or in behalf of, or are subject to the direct or indirect control , the purchaser.

ORDER TO :TILE REPORT OF COMPLIANCE It is ordered That the respondents herein 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 the order to cease and desist (as required by said declaratory decision Lnd order of August 16 , 1951 J. HAUPT:\1:A:"\ FEATHER CO., L'\C. ET AL. 107 Complaint