Vulcanized Rubber and Plastics Company

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IN THE l\1:A TTER OF VULCANIZED RUBBER AND PLASTICS COl\'IP ANY Docket 6222. Order and opinion, Nov. , 1955 Interlocutory order denying respondent's appeal from hearing examiner s denial of its motion to dismiss complaint, etc., since the record contains evidence which, if not overcome by rebuttal, would support a desist order. Before Mr. Loren H. Laug hun hearing examiner. llfr. Charles S. Cow for the Commission.

Chapman, TValsh Connell of ",Vashington, D. C. , and Mr. Joseph Sawye1' of New York City, for respondent. ivl r. 1. Louis vVolk of Los Angeles, Calif., for Dayton Rubber Co. amicus curiae.

A1'thur, D1'Y de Dole of New York City, for United States Rubber Co. a1nicus curiae.

ORDER DENYING RESPONDENT S INTERLOCUTORY Appeal This matter having been heard by the Comnlission upon respondent:s appeal from the hearing examiner s ruling denying respondent' motion to dismiss the complaint and respondent's request that the Commi ssion order that further hearings herein be suspended until the Commission has acted on the appeal; and The Commission, for the reasons stated in the accompanying opinion, having concluded that the appeal and request for oral argument thereon, as well as the request that further hearings herein be suspended until the Commission has acted on the appeal, should be tis ordered That respondent's appeal, and request for oral argu-denied:ment thereon, from the hearing examiner s ruling denying respondent' s motion to dismiss the complaint, and respondent's request that further hearings herein be suspended until the Commission has acted on the appeal, be, and they hereby are, denied. OPINION OF THE COMMISSION Per Curiam:

This is an interlocutory appeal by the respondent from the hearing examiner s denial of the respondent' s motion to dismiss the complaint. The complaint charges that the respondent has falsely, deceptively, and misleadingly represented its combs as "rubber" and "hard rubber products. Extensive hearings have been held and considerable testimony and other evidence in support of the allegations of the com- Opinion 52 F. T. C.

plaint have been introduced. After counsel supporting the complaint rested his case, the respondent filed a motion to dismiss the complaint alleging that counsel in support of the complaint had failed to establish a prima facie case and to prove the existence of any public interest in the proceedings. The hearing examiner denied the motion to dismiss and ordered that further hearing shall commence on N ovember 28, 1955. The respondent has filed an appeal from the examiner ruling denying the motion to dismiss and has requested the Commission to order that further hearings be suspended pending disposition of the appeal. Respondent has also requested oral argument on theappeal. Under the Commission s Rules of Practice, Section 3. , an interlocutory appeal from a ruling of a hearing exalniner may be granted only upon a fulding that the ruling appealed from involves substantial rights and will materially affect the final decision of the case, and further that a determination of its correctness before conclusion of the trial would better serve the interests of justice. Thus, for the respondent to succeed in this appeal it must have demonstrated to the satisfaction of the Commission not only that the examiner s ruling in some way touches the respondent' s substantial rights, but also that the ruling will have some material effect on the final decision of the case and that the interests of justice would be better served by a determination of the correctness of the ruling now rather than at the conclusion of the trial.

The ruling of a hearing examiner denying a motion to dismiss a complaint for failure of proof, made at the conclusion of the case in chief, obviously is not a decision on the merits of the case. Such a ruling is merely a determination that there is in the record reliable evidence which, when considered in connection with reasonable inferences which may be drawn therefrom, and if not overcome by the respondent's evidence, would support an order to cease and desist. The ultimate decision of whether an order to cease and desist will be issued, even in the absence of further evidence, is not reached; and it could well be that a hearing officer, upon full consideration of a proceeding submitted for final decision, after making appropriate determinations concerning the credibility of witnesses, the weight to be given conflicting evidence, and other pertinent questions involved would dismiss the complaint even though he had theretofore denied a motion to dismiss for failure of the record to establish a prima facie case.

A hearing examiner in ruling on a motion to dismiss for failure of proof, made at the close of the case in chief, like a Federal district . court in ruling on a similar motion in a non-jury trial, views the VULCANIZED RUBBER A.L~D PLASTICS CO. 535 533 Opinion evidence and inferences reasonably to be drawn therefrom in the light most favorable to the complaint. Thus, an appeal from a ruling denying such a motion should be granted only when it is apparent that there is in the record no substantial evidence in support of the complaint and the ruling was obviously erroneous. The instant appeal does not present this situation. The record in this case contains considerable respectable evidence which, if not overcome by rebutting evidence, would support an order to cease and desist. Moreover, the ruling appealed from, involving as it does only a determination, under the circumstances stated, that a prima facie case has been established will have no material effect on the final decision of the case. It is also clear that for the Commission to entertain appeals of this nature would be but to encourage the submission of cases for decision piecemeal, with resulting unjustifiable delays; and that, in the opinion of the Commission, would not "better serve the interests of justice. It follows that the respondent's appeal is not one to be granted under ~ 3.20 of the COlllmission s Rules of Practice. In scheduling further hearings in this matter and in stating that he would not defer further hearings during the pendency of the respondent' s appeal, the hearing examiner was acting well within the scope of his authority. No sufficient reason appears as to why should disturb that action.

In the view we take of the respondent's appeal, oral argument in support thereof is not necessary and would serve no useful purpose. The respondent's appeal and its request for oral argument thereon as well as its request that further hearings herein be suspended, are denied and an appropriate order will be entered. 536 FEDERA.L TRADE COMMISSION DECISIONS Complaint 52 F. T. C.