Lakeland-Deering Nurseries Sales

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

In THE MatTrTer OF LAKELAND-DEERING NURSERIES SALES ET AL.

CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 6666. Complaint, Oct. 26, 1956—Decision, June 25, 1957 Consent order requiring mail order sellers of nursery products in New York City to cease making false representations in newspaper advertisements, circulars, etc., regarding the physical characteristics, color, season and amount of bloom, etc., of their “Lythrum Morden Gleam” and Shasta Daisy plants.

Mr. Donald K. King and Mr. S. F. House for the Commission. Zalk, Hayashi & Karp, by Mr. Joseph Zalk, of New York, N. Y., for respondents.

Inrrrau Decision py Frank Hier, Hearina ExXaMINnER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on October 26, 1956, issued and subsequently served its complaint in this proceeding against respondents Lakeland-Deering Nurseries Sales, a corporation existing and doing business under and by virtue of the laws of the State of New York, Henry L. Hoffman, Chester Carity, Lillian Zogheb and Allen Lekus, individually and as president, vice president, secretary, and treasurer, respectively, of the corporate respondent. The office and principal place of business of said respondents is at 16 West 61st Street, New York, New York.

Subsequently, a considerable amount of proof was taken both in support of and in defense to allegations of the complaint. Before completion thereof attorneys, on May 14, 1957, entered into an agreement providing for the entry of a consent order by the terms of which respondents admit all the jurisdictional facts alleged in the complaint and agree that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations. By such agreement, respondents waive any further procedural steps before the hearing examiner and the Commission; waive the making of findings of fact and conclusions of law; and waive all of the rights they may have to challenge or contest the validity of the order to cease and desist entered in accordance with this agreement. Such agreement further provides that it disposes of all of this proceeding as to all parties; that the record on which this initial decision and the decision of the Commission shall be Order 53 F.T.C.

based shall consist solely of the complaint and this agreement; that the latter shall not become a part of the official record unless and until it becomes a part of the decision of the Commission; that the agreement is for settlement purposes only and does not constitute an admission by respondents that they have violated the law as alleged in the complaint; and that the following order to cease and desist may be entered in this proceeding by the Commission without further notice to respondents, and, when so entered, it shall have the same force and effect as if entered after a full hearing, and may be altered, modified, or set aside in the manner provided for other orders; and that the complaint may be used in construing the terms of the order.

The hearing examiner having considered the agreement and proposed order, and being of the opinion that they provide an appropriate basis for settlement and disposition of this proceeding, the agreement is hereby accepted, the following jurisdictional findings made, and the following order issued.

1. Respondent Lakeland-Deering Nurseries Sales is a corporation existing and doing business under the laws of the State of New York, with its principal place of business located at 16 West 61st Street, New York, New York. Respondents Henry L. Hoffman, Chester Carity, Lillian Zogheb, and Allen Lekus are present, vice president, secretary, and treasurer, respectively, of said corporation, with their office and principal place of business located at the same address as the corporate respondent.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER It is ordered, That respondents, Lakeland-Deering Nurseries Sales, a corporation, and its officers; Henry L. Hoffman, Chester Carity, Lillian Zogheb, and Allen Lekus; individually and as officers of said corporation, and respondents’ representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of the plants Lythrum Morden Gleam or Shasta Daisy (Chrysanthemum Maximum) in commerce, as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from: 1. Representing, directly or indirectly, by description, depiction, failure to reveal, or otherwise, that the purchaser will receive more than one variety of the plant Shasta Daisy, unless such be the fact; 2. Using the term “Chrysanthemum Maximum” without contigu- LAKELAND-DEERING NURSERIES SALES ET AL. 1191 1189 Decision ously, conspicuously, and coincidentally stating the common name for such plant, to wit, “Shasta Daisy”;

3. Representing, directly or indirectly, by description, depiction, failure to reveal, or otherwise, the physical characteristics of the plant Lythrum Morden Gleam (including size at maturity, rate of growth, season of bloom, color or amount of bloom) unless such representations hold true in all areas where said plant is advertised and sold by respondents: Provided, however, That respondents may represent, the physical characteristics of said plant as respondents have grown it.

DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission’s Rules of Practice, the initial decision of the hearing examiner shall, on the 25th day of June, 1957, become the decision of the Commission; and, accordingly:

It is ordered, That the respondents herein shall within sixty (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. 1192 ‘FEDERAL TRADE COMMISSION DECISIONS Complaint 53 F.T.C.