Pompeian Olive Oil Corporation

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IN THE ~fatter OF POl\fPEIAN OLIVE OIL CORPORATION CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2 (d) OF TI-IE CLAYTON ACT Docket 6468. Coli/plaint, Nov. 1955-Decislon, SelJt. 20, 1957 Consent order requiring a Baltimore corporation, engaged in selling its "Pompeian Olive Oil" through food brokers and direct to large retail chain store organizations, with sales in 1954 amounting to $1,747 493, to cease violating Sec. 2 (c1) of the Clayton Act by paying money to a Philadelphia food chain as an allow~lOce for advertising, while not mal~ing such allowance available on proportionally equal terms to all competitors of the chain. Before ill?. Frank flier hearing examiner. 1111'. AndTe'W O. Goodhope and Alt. F'I' edTic T. SUSS for the Commission.

illr. I1forton J. Hollander of Baltimore, :Md. , and llfr. James W. Cassedy, of ",Vashington, D. , for respondent. COMPLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly described, has violated the provisions of subsection (d) of Section 2 of the Clayton Act (U. C. Title 15 , Sec. 13), as amended by the Robinson-Patman Act, hereby issues its complaint stating its charges with respect thereto as follows: P AH,\GRAPH 1. Respondent, Pompei an Olive Oil Corporation, is a corporation organized, existing and doing business under and virtue of the laws of the State of ~laryland, with its office and principal place of business located at 4201 Pulaski I-lighway, Baltimore :Maryland.

PAR. 2. Respondent is now and has been engaged principally in the business of selling oli,re oi1. Respondent sells its olive oil through food brokers and direct to large retail chain store organizations. Respondent sells its olive oil under the trade name "Pompeian Olive Oir' and sales of such product made by the respondent are substantial, amounting in the year 1954 to $1 747 493. PAR 3. In the course and conduct of its business, respondent has engaged in commerce, as "commerce" is defined in the Clayton Act. Respondent ships its products, or causes them to be transported, from its principal place of business in the State of :Maryland to customers located in the same and any other states of the United States and the District of Columbia.

POMPEIAN OLIVE OIL CORPORATION 375 374 Decision PAR. 4~ In the course and conduct of its business in commerce respondent has paid, or contracted for the payment of, something of value to or for the benefit of some of its customers as compensation or in consideration for services or facilities furnished by or through such customers in connection with their offering for sale or sale of products sold to them by respondent, and such payments were not made available on proportionally equal terms to all other customers competing in the sale and distribution of respondent' s products. PAR. 5. For example, during the year 1955 respondent contracted to pay and did pay $2 000.00 to the Food Fair Stores, Inc., of Philadelphia, Pennsylvania, as compensation or as an allowance for advertising or other service or facility furnished by or through such customer in connection with its offering for sale or sale of products sold it by the respondent. Such compensations or allowances were not offered or otherwise made available by respondent on proportional)y equal terms to all other customers competing in the sale and distribution of respondent's products ,,-ith Food Fair Stores, Inc. PAR. 6. The acts and practices of the respondent, as alleged above violate subsection (d) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act.

INITIAL DECISION BY Fr~ANK I-IIEP., I-IEAIUNG EXAl\IINER PurSll~nt to the provisions of subsection (d) of Section 2 of the Clayton Act (D. C. Title 15, Sec. 13), as amended by the Robinson- Patman Act, the Federal Trade Commission on November 21, 1955 issued and subsequently served its complaint in this proceeding against respondent Pompeian Olive Oil Corporation, a corporation existing and doing business under and by virtue of the In. ws of the place of businessState of l\lnry land, with its office and principal located at 4201 Pulaski I-lighway, Baltimore, :Mary land. One. hearing ,yas held after 'which there was, on August 2, 1957 submitted to the, undersigned hearing examiner an agreement between respondent and counsel supporting the complaint providing for the entry of a consent order. By the terms of said agreement, respondent admits all the jm'isdictional facts alleged in the complaint and agrees that the record may be taken as if findings of jurisdictional facts had been duly made. in aecorda.nce with such allegations. By such agre,ement, respondent waives any further procedural steps before the hearing examiner and the Commission; waives the making of findinp:s of fad and conclusions of law; and waives all of the rights of the order to ceaseit mav have to ehallen!!e or contest the validitv and desist entered in accordance with this agreement. Such agree- : .

Order 54 F.

mellt 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 based shall consist solely of the complaint and this agreement; that the latter shall not become a part. of the official i'ecord 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 respondent that it has 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 respondent, 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 c.....'"miner having c.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 Pompeian Olive Oil Corporation, is a corporation existing an(1 doing business under the laws of the. State of :Maryland with its of1lce and principal place of business located at 4201 Pulaski Higlnyay ~ Baltimore, ~laryland.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent. ORDER I t is ordered That respondent Pompei an Olive Oil Corporation, a , di-corporation, its ofi-ic.ers, employees, agents, and representatives rectly or through any corporate or other device, in or in connection ,,'ith the sale of olive oil and other products in commerce, as "commerce~' is defined in the aforesaid Clayton Act, as amended, do forth- \"i t 11 cease. and desist from:

"\JakinO" or contl'actint!: to make. to or for the benefit of any customel any payment. of an~,thing of value as compensation or in consideration for any aclyertising or other services or facilities furnished bv or throw..th such customer, in connection ,,-ith the handling, oflerin!! for resale, or resale of olive oil and other products sold to him by re.;pondent, unless such payment is affirmatively offered or otherwise made available. on proportionally equal terms to a11 other customers competing in the distribution or resale of such olive oil and other products.

POMPEIAN OLIVE OIL CORPORATION 377 374 Decision DECISION OF THE CO)Il\IlSSION AND OIWER TO FILE HEPOP.T OF COMPLIANCE Pursuant to Sec. 3.21 of the Commission s Rules of Practice, the initial decision of the hearing examiner shall, on the 20th day of ac-September, 1957, become the decision of the Commission; and, cordingly :

It is ordered That the respondent herein shall, within sixty (60) days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with the order to cease and desist. &;

Decision . 54 F.