The Kroger Co.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER m' THE KROGER CO.

lJocket 5991. Complaint, May 14, 1952. Decision, Sept. 1955 Charge: Knowingly receiving lower prices from sellers of grocery products of like grade and quality than said sellers charged respondent's eompet.itors, in violation of subsection (f) of Sect.ion 2 of t.he Clayton Act as amended by the Hobinson-Patman Act.

Before Jlr. 1fT easter B a/Zinger hearing examiner. Mr. Edward S. Ragsdale, Mr. Rice E. Schrim8her and Mr. Brock- 1nan Horne for the Commission.

Arnold, Fortas Poi'eT' of \Vashington, D. c., for respondent. D.ECISION m' TI-IE COMMISSION This matter coming on to be heard by the Commission upon its review of the hearing examiner s initial decision herein;. and The Commission having duly -considered the entire record and being of the opinion that, although the hearing examiner in his initial decision did not accurately construe the admissions made by counsel supporting the comphint in their answer to respondent's motion to dismiss, the conclusion reached by him is correct, and that said initial decision is adequate and appropriate to dispose of this proceeding: 1 t is order That the attached initial decision of the hearing examiner shall, on the 8th day of September, 19:')3, become the decision of the Commission.

Commissioner HowlT)' not participating.

ORDER DISJlIISSING COxfl' LAINT \VI'l'TOCT PREJUDICE INITIAL DECISION BY WEBSTER BALLINGER, HEARING l'JXA nner The Federal Trade Commission on the 14th day of May 1952 issued its complaint in this proceeding charging respondent, The Kroger Co. with having violated the provisions of subsection (f) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act (D. S. Title 15, Sec. 13). Service being made, respondent answered and the case was, by order of the Commission, assigned to the undersigned duly appointed Hearing Examiner. Respondent is engaged in the retail grocery business and maintains a large number of retail stores located in 19 States through which it Order 50 F. T. C.

sells to the public, in competition with other retail stores, a variety of grocery products, including food, food products and household supplies.

Prior to the receipt of evidence respondent, by motion in writing, moved to dismiss the complaint for failure to state a violation of law to which counsel for the complaint filed their written answer, oral argument being waived.

The complaint charges respondent with having knowingly received lower prices from sellers of grocery products of like grade and quality than said sellers charged respondent' s competitors, in violation of subsection (f) of Section 2 of the Clayton Act, as amended. The answer to the motion to dismiss admits that in the light of the recent decision of the Supreme Court of the United States (June 8 1953) in Autonwtw Oanteen Oompany v. F. T. O. (346 U. S. 61; 49 F. T. C. 1763J this allegation is insuffcient to constitute a violation of the statute.

To constitute a violation of subsection (f) of Section 2 of said Act it must be affrmatively alleged not only that respondent knowingly received such price differentials, but also knew that they were not within the defenses afforded the sellers by other provisions of Section 2 of said Act, particularly subsection (a), Automatic Canteen Company, supra.

No violation of subsection (f) of Section 2 of said Act being alleged in the complaint, it is by the Examiner this 23rd day of June 1953 ordered That respondent's motion to dismiss the ,complaint be, and it is hereby, granted, and the complaint dismissed without prejudice to the institution of further proceedings, should circumstances warrant. , , FRANK M. BUCKLEY CO., ETC. 215 Consent Settlement