Gamble-Skogmo, Inc., et al.

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IN THE MATTER OF IBLE-SKOGMO, EC., ET AL.

Docket 5575. Complaint, July 1948-Dees1on, Oct. , 1954 Order of dismissal-following setting aside and remflnd by the Court of Appeals of the Commission s order to cease and desist, for the reason that the recommended decision was made by a substitute examiner who did not preside at the reception of evidence--of complaint charging a manufacturer and seller with violating section 3 of the Clayton Act and section 5 of the Federal Trade Commission Act through making sales of various merchandise to its 1600 retail dealer customers in many States on the condition that the purchasers 110t (real in similar guods of its competitors. Before Lv/r. Randolph Pie&ton antl illi'. TVebste1' Bcdl-in,qcJ' hearing exammcrs.

andllh. Andnw O. Mr. William O. Kern, MI'. William H. Smith Gooclhope for the Commission.

Mr. W. P. Bej'qhui8 or Minneapolis, Minn., ror respondents ORDER DrSJIISSIXG CO::UPLAINT ,VITHOl,'" PREJUDICE Appeals lor the Eighth Cir- Whereas, the United States Court or cuit, by judgment entered on February 25, 1954, in the matter of , et aI., Petitioners, vs. Federa.l Gamble-Skogmo, Inc., a corporation 1 set aside the decision and order of Trade Commission, No. 14657 the Commission issued in this proceeding on June 11, 1952 2 and TO. manded the cause to the Commission for proceedings consistent with the Court's opinion; and "\Vhereas, the Courfs opinion \ras based on the view that the recommended decision, in 'which credibility evaluation of witnesses on a personal basis was a salient factor, was made by a substitute hearing examiner 'who did not preside at the reception of the evidence and that this constituted a violation or Section 5 (c) or the Administrati ve Procedure Act, 5 U. S. C. A. S 1004 (c) ; It appearing that the examiner who presided at the reception of and, hence, that the the evidence is unavailable to the Commission, procedural deficiency which provided the basis for the COllrVs decision could be remedied only by a trial de n01:o either in whole or in part; and It further appearing that the allegations in the complaint as well as the evidence in the record relate to acts and practices occllrring 1211 F. 2d 106.

248 F. '1'. C. 1396.

GAMBLE-SKOGMO , INC. , ET AL. 411 410 Order more than six years ago a.nd that thc Commission has no information as to the respondents' current practices; and The Commission being of the opinion that in the circumstances it is not in a position to find that a retrial of the case would be warranted: It is o1'lej'ed that the complaint herein be, and it hereby is, dismissed, \vithout prejudice, however, to the right of the Commission to make such investjgation of the current practices of the respondents as may be necessary and to take such further or other action with rcspect thereto as the circumstances may warrant. &, Complaint 51 F.