Groveton Paper Co.

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Tx roe Marrer or GROVETON PAPER CO.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2(d) OF THE CLAYTON ACT Docket 6592. Complaint, July 19, 1956—Decision, May 7, 1958 Order requiring 2 manufacturer in Groveton, N.IL., of paper napkins and other paper products selling to independent grocers and grocery chain stores, to cease discriminating in price in violation of section 2(d) of the Clayton Act by paying broadcasting companies for time furnished to certain favored grocery chains for their own advertising purposes in return for which the participating chains gave in-store promotions to respondent's products in their stores located in the trade area reached by the radio or TV station utilized, without making compensation for such benefits available on proportionally equal terms to all the competitors of the favored customers. Afr. William R. Tincher, Mfr. J. Wallace Adair, Mr. Eugene Kaplan and Mr. Daniel A. Austin, Jr., for the Commission. Appell, Austin & Gay, by Mr. Cyrus Austin, of New York, N.Y. ; Wilkie, Owen, Farr, Gallagher & Walton, by Mr. Sumner S. Wiitelle, of New York, N.Y.; and Cann, Taylor, Lamb and Long, by Afr. George P. Lamb, of Washington, D.C., for respondent. [xrriaL Decrston BY ABNER E. Lipscoms, Hrartnc Examiner THE PLEADINGS The complaint in this proceeding charges the respondent with having paid money to certain broadcasting companies for the benefit of certain of its chain-store customers, thereby providing broadcasting time “through such broadcasting companies to the favored customers for said customers’ own advertising purposes.” The payments thus made by respondent are alleged to have been made as compensation or in consideration for services or facilities furnished it by these favored customers in connection with the offering for sale and sale of respondent’s products. It is further averred that the benefits so furnished to some of respondent’s customers were not made available to respondent’s other customers on proportionally equal terms, in violation of the provision of subsection (dl) of section 2 of the Clayton Act, as amended.

The complaint then describes in some detail the sales-promotion plans through which respondent favored certain of its customers. Respondent in its answer denies that any broadcasting company served as a medium or intermediary between respondent and any of GROVETON PAPER CO. 1491 1490 Decision its grocery-chain customers; that any payments were made by the respondent to any broadcasting company for the benefit of any of respondent’s customers; and that respondent’s acts and practices have violated section 2(d) of the Clayton Act, as amended. STIPULATION OF FACTS In lieu of hearings and the presentation of evidence, counsel supporting the complaint and counsel for the respondent agreed upon, and submitted to the hearing examiner, a stipulation as to the facts involved in this controversy, with the understanding that such stipulation, together with the pleadings herein, was to constitute the entire evidentiary record. This stipulation has been duly incorporated into the record, and, together with the pleadings, does constitute the entire factual basis of this decision.

AMICUS CURIAE Subsequent to the submission of the stipulation as to the facts, Columbia Broadcasting System, Inc., applied for and was granted permission to submit a brief as amicus curiae. This brief supplements the brief of counsel for the respondent, and requests that the complaint herein be dismissed.

IDENTITY OF RESPONDENT Respondent, Groveton Paper Co., is a Maine corporation, with its principal office and place of business located at Groveton, N.H. ACTS IN COMMERCE For a number of years respondent has been engaged in the business of selling and distributing its products, including paper napkins and facial tissues, to competing customers, including independent grocers and grocery chains, located throughout some of the States of the United States and in the District of Columbia. Many of such competing grocery customers are located in the New York City metropolitan area, which extends into the adjacent States of New Jersey and Connecticut, and in the Boston metropolitan area. The quantity of the above-mentioned products sold by respondent in those areas during the past several years has been substantial. As a result of such sales, respondent is now, and has been for some time, engaged in commerce, as “commerce” is defined in the Clayton Act as amended. Decision 54 FL.

ORIGIN OF THE SALES-PROMOTION PLAN At the time when the broadeasting companies began contracting with grocery chains, the sale of broadcasting time had become difficult, and the American Broadcasting Co. and Columbia Broadcasting System, Inc., hereinafter referred to, respectively, as “ABC” and “CBS,” devised plaus to enable them to promote the sale of such time to manufacturers and sellers of grocery products by offering to them radio and television time at the reeular current rate, supplemented by the promise of certain in-store promotion facilities as an added inducement. Although the various sales-promotion plans devised by the broadcasting companics are substantially the same, each broadcasting company developed its own plan independently of the other. THE SALES-PROMOTION PLAN Tn initiating their sales-promotion plans, ABC negotiated contracts with certain grocery chains in the New York City metropolitan area, and CBS in the Boston metropolitan area, whercbhy the broadcasting company agreed to furnish radio time or television time of a stated amount or value to each grocery chain each week during the term of the contracts. These contracts provided that the broadcasting tine so furnished would be used by the chain stores only for their own adyertising. In consideration for such broadcasting time, the chain stores agreed to conduct in their stores a specific number of promotional displays of products sold therein, each such promotion to be continued for the duration of one week. The contract did not specify the products to he displayed or the dates for their promotion, but provided that such products were to be agreed upon and the dates for theit promotion fixed upon the suggestion or designation of the broadcasting company, subject to the approval of the chain, and also subject to the right of the chain to decline to promote any product nok deemed by it to be suitable for promotion in its store. These contracts were inade without any prior commitment or agreement involving anyone other than the broadcasting company and the erocery chain.

After the above-described contracts between the broadcasting companies and the grocery chains had been entered into, the broadcasting companies solicited respondent and other manufacturers and sellers of grocery products to purchase radio or television time from them, and, as an added inducement for such purchase, offered in-store promotion of respondent's products in the cham stores with which the broadeasting companies already had conuacts. ‘The CBS plau GROVETON PAPER CO. _ 1493 1490 Decision was called ‘“Supermarketing,” and the ABC plan, “Mass Merchandising” or “‘Sell-A-Vision.” In support of these plans, brochures and circulars were disseminated from time to time by the broad- ‘casting companies, which informed respondent and others that by purchasing radio or television time for certain periods in minimum amounts at the then regular station rate for such time, the advertiser would qualify, at no added cost, for one or more week-long promotional displays of its products in the stores of certain grocery chains. The brochures stated that the broadcasting company was able to furnish these displays by reason of the existing contracts which it had already negotiated with the grocery chains. Among other things, such brochures and circulars presented the advertising advantages of the sales-promotion plans as follows:

A WJZ-TV Merchandise Plan for heavier impact and pep-up sales. Two great impression-making mass movers of merchandise * * * television and point-of-purchase now teamed up for your benefit. BETTER BALANCE—the WJZ-TV merchandising plan—greatly increase point-of-purchase promotions * * * an on-the-ball plan which adds to advertiser’s sales impact * * * increases the value of an advertiser’s time franchise on WIZ-TYV, SELL-A-VISION works * * * SUNKIST ORANGE JUICE: sales incrensed 25 percent in the first half of the display week. And for + weeks following in the second display, sales showed a gain of 10 percent. CHANNEL 7 SELL-A-VISION IS PROMOTED 7 WAYS; 1. Floor Displays . End Displays . Dump Displays . Basket Displays . Shelf Strips . Refrigerator Space and Signs . Wire Bins at Check-out Counters As a Sell-A-Vision advertiser you receive one or more of these displays. The particular types are chosen according to your specific requirements, Your product is featured for a full week—from Thursday morning to Wednesday evening. * * * WJZ-TW’s “MASS MERCHANDISING” GETS RESULTS WJZ-TV’s A&P “Mass Merchandising” is a relatively new plan which began in late August 1952. Yet it has already given these extraordinary demonstrations of point-of-purchase selling power:

wpe aonb “I * * * * * * * VANITY FAIR TISSUES (Groveton Papers), which started in the ‘Mass Merchandising” plan October 9, put six carloads (approximately 3,400 cases into A&P’s Eastern Division to fulfill commitiments for the first week alone. Despite the six carloads, the increase in VANITY FAIR’S A&P sales volume was so great that some stores ran out of stock and were obliged to replace less than half-way through the display week.

Decision 54 FTC.

VANITY FAIR will be getting similar or better results every fourth week from now on through WJZ-TV advertising and A&P display on the “Mass Merchandising”’ plan.

Respondent participated in the above-described plans by entering into contracts with the broadcasting companies for the purchase of broadcasting time. These contracts contain no reference to in-store promotion. In fact, respondent’s contracts with ABC and CBS contain the following clause or its equivalent: This contract contains the entire agreement between the parties and is not. subject to oral inodification.

The various payments made by respondent to the two broadcasting companies from 1952 through 1956 were, as follows: Year Broadcasting Station Amount Yearly company paid total WABC-TV (New York).__--.------------------ $36, 463.81 | $36, 463. 81 WABC-TV (New York) ..__.------------------- 87, 513.13 } 92, 340.8 WEEI (Boston)... ......-...--s-2---s2ssssseeee 4, 827. 74 7 WABC-TV (New Y ork). 9-4, 939. 93 } 122, 151. WEEI (Boston)... 27,211.93 Bb WA - New Yo 102, 366. 72 WEEI (Boston)... : 9, 867. 86 } 112, 234. 58 WABC-TV (New ¥ - 46, 963. 00 } 60, 37 WEEI (Boston) 13, 408. 05 1.05 The two plans under which the above-listed payments were made both required of the respondent a minimum payment over a minimum period of time, to qualify for a minimum amount of in-store promotion. There were a number of variations of both of these plans. A recounting of the many details of such variations is here deemed unbecessary.

After the respondent had contracted with the broadcasting companies, as above described, the respondent was notified by them that respondent’s paper napkins and facial tissues would be displayed in the stores of certain grocery chains on certain dates. In many instances, the respondent thereupon contacted the designated chain store for the purpose of arranging the type and details of the in-store promotional displays.

All of respondent’s customers who received radio or television advertising time from the broadcasting companies, pursuant to the contracts described herein, were grocery chains who have been and are in competition in the resale of respondent’s products with other vrocery chains and independent customers of respondent who did not receive and who were not offered such broadcasting time or anything of value in lieu thereof.

GROVETON PAPER CO. 1495 1490 Decision THE ISSUE The section of the Clayton Act, as amended, under which this proceeding is brought provides, as follows: Sec. 2. (d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities. Since the complaint alleges and the answer denies that respondent paid money to said broadcasting companies for the benefit of certain of respondent’s chain-store customers as compensation or in consideration for services or facilities furnished respondent by those customers, and that the benefits as furnished to some of respondent’s customers were not made available to respondent’s other customers on proportionally equal terms, in violation of the above-quoted provision of the Clayton Act, the issue herein is as follows: Did respondent pay or contract for the payment of something of value to cither of the two broadcasting companies named herein “for the benefit of a customer” and ‘‘as compensation or in consideration” for in-store sales promotion furnished by such customer to respondent, without making the same benefit. available on proportionally equal terms to all its other customers competing with the eustomers so favored, within the meaning of section 2(d) of the Clayton Act as amended? THE ISSUE RESOLVED Counsel supporting the complaint, in effect. contends that the facts herein stipulated show that the respondent, by adopting and using the sales-promotion plan of the broadcasting companies, attempted to escape legal accountability by doing indirectly that which respondent knew it could not lawfully do directly; that is, procure instore promotion for its products by providing benefits in the form of broadcasting time for the use of a few favored customers without making the same or similar benefits available to its other competing customers. Counsel further contends that the several transactions heretofore described, instead of being unrelated business operations as they may appear when considered separately, constitute, in fact and in reality, one complete transaction, which can be properly evaluated only as a whole.

Counsel for respondent vigorously contradicts the above-stated contentions, and affirmatively asserts that the facts show that re- Decision - 54 PTC, spondent did not pay or contract for the payment of anything of value to any of the broadcasting companies for the broadcasting time furnished to respondent’s customers, and that the respondent did not pay or contract to pay anything of value as “compensation or in consideration” for promotional services furnished to the respondent by any of its customers.

Let us re-examine the facts in the light of these contentions. The facts show that the sales-promotion plan in question, like the issue herein, is composed of three elements. First, we have a separate contract between the broadcasting company and a chain store, promising such store certain broadcasting time for its own purposes in return for in-store promotion of certain products to be later designated by the broadcasting company. Second, we have a separate contract, of a later date, between the broadcasting company and the respondent, providing for the purchase by the respondent. of certain broadcasting time for its own advertising purposes, at the standard rate of payment then current. This contract is expressly limited to the provisions contained therein. Third, we have brochures and circulars disseminated by the broadcasting company for the purpose and with the effect of inducing the respondent to enter into the contract with the broadeasting company. We also have correspondence between and among the various parties to both contracts, relative to the various phases of the sales-promotion plan and the details of the in-store displays.

When the above transactions are considered in their interrelationship with each other, the true significance of the several phases of the sales-promotion plan, and the true relationship established between the parties thereto, become apparent. Thus we see that the in-store promotion feature of the plan, although astutely excluded from the narrow specifications of the contract between respondent and the broadcasting company, was actually the primary cause and the chief consideration for the execution of that contract. ‘The respondent was required, not merely to purchase radio or television time in order to acquire the right to in-store promotions, but was required to purchase a specified minimum amount of such time in order to so qualify. It is reasonable to conclude, since the plan in question resulted from the difficulty of selling broadcasting time, that it was continued for the same reason, and that respondent would not have purchased broadcasting time at all, or would have purchased it only at a reduced price or in a lesser amount, except for the inducement of the in-store promotion. We also see that the respondent made the only money payment involved in the whole transaction, and was therefore the GROVETON PAPER. CO. 1497 1490 Decision sole financial support of the plan. Without such support, it is reasonable to assume that the plan would not have matured, but would have proven financially unprofitable, and therefore of short duration. It follows, therefore, that the respondent, as the scale financial supporter of the plan, paid for the broadcasting time granted the chain store for in-store promotional displays, as well as for the broadcasting time purchased for respondent’s own use.

The facts show clearly that the responsible officials of the respondent. knew, or should have known, when they entered into the plan presented to respondent by the broadcasting company, that respondent, in adopting such plan, would be supplying the consideration which would constitute compensation for the benefits to be received by a few favored customers, to the prejudice of their competitors. The fact that the payment for the broadcasting time furnished to the favored chain stores was indirect rather than direct does not. alter its legal or practical effect; neither docs the fact that the respondent made the payment in question primarily in its own behalf and without a prior agreement with the chain store. On these points, counsel supporting the complaint verv aptly quotes from the statement of counsel for the respondent, in his book entitled “Price Discrimination and Related Problems Under the Robinson-Patman Act,” revised edition, 1953, page 116, as follows:

It is no defense for a seller charged with a violation of either of these sections [Sec. 2(d) and Sec. 2(e)] to show that he furnished or paid for a service solely in his own interest and not pursuant to any prior understanding with the purchaser. These sections prohibit discrimination in merchandising allowances or services irrespective of whether the making of the payment or furnishing of the serivee was a term or condition of sale, or amounted to an indirect price discrimination. Respondent also contends, as does Columbia Broadcasting System, Inc. as amicus curiae, that respondent’s payment to the broadcasting company was in fulfillment of a separate, individual contract, and was in no wise a consideration for the in-store promotions later supplied. In fact, respondent contends that the supplying of the in-store promotions to the respondent was a gratuity, and was ‘free’? within the interpretation of the Commission in the matter of Walter J. Black, Inc., Federal Trade Commission docket No. 5571 (1953). This contention is fallacious, because we are not here concerned, as was the Commission in the case cited, with the question of whether a certain advertisement. was misleading. On the contrary, we are here concerned with determining, from all the relevant facts, whether the payment made bv the respondent to the broadcasting company was in reality compensation only for the broadcasting time purchased by the respondent, for its own use, or whether such payment was made for a broader Decision 54 FTC.

purpose, and did actually serve also as compensation for in-store displays furnished to the respondent by some of its chain-store customers. We are persuaded by the facts that the payment by the respondent included the larger purpose, and was actually not only a self-serving payment, but also a payment on behalf of a few favored customers. We must conclude, therefore, that the case cited is in no way a precedent for the decision in the present proceeding. Counsel for the respondent further contends that the consideration received by the chain stores in the form of broadcasting time was not contingent or dependent on any act of the respondent, but was dependent solely on the contract between the broadcasting company and the chain store. He points out that this contract provides for the furnishing of broadcasting time to the chain store in compensation for in-store promotions of products to be later designated by the broadcasting company. The facts reveal that such designation was not made by the broadcasting company until after the signing of its contract with respondent for the purchase of broadcasting time. From these facts the conclusion is inescapable that the broadcasting company, when entering into the contract with the chain store, contemplated completing the overall plan, of which that contract was merely a part, only after successful negotiation of a second contract with some manufacturer for the purchase of broadcasting time, which would enable the broadcasting company, thereafter, to designate that manufacturer's products as those to be promoted in the in-store.displays. We must conclude, therefore, that the contention stressing the independent character of the first contract is altogether unrealistic, and disregards the fact that the first contract was only preliminary to the contract with the respondent, both contracts being, not independent transactions, but parts of a larger plan.

Counsel for the respondent seeks, in his brief, to invoke the rules of private contract law governing third-party beneficiaries. In connection with this argument, he states that— Most of the States recognize the right of a third person to sue upon a contract made for such person’s benefit. Under that doctrine as applied by the courts a contract is not regarded as made for the benefit of a third party unless the intent to benefit that person clearly appears. Benefit resulting incidentally from a contract. made by others is not sufficient. By these tests, the station contracts here in evidence plainly were not contracts for the benefit of the chains, whether or not the terms of the merchandising plans are read into them. This argument is specious. We are not here concerned with the application of the rules of private contract law, but with the broader and more realistic principles of public law, which require an examination of the entire plan in question in all its related parts. As herein- GROVETON PAPER CO. 1499 1490 Conclusion before stated, the omission from respondent's contract of the benefit intended to be conferred, in the form of broadcasting time, upon the chain store in consideration of the in-store displays promised to respondent as an inducement to purchase broadcasting time for its own use appears, particularly in the light of the contentions herein made by counsel for respondent, to have been intentional, for the purpose of shielding the respondent from the force and effect of the Clayton Act. Such omission appears to be, palpably, an attempt to circumvent that act by effectuating, indirectly through the agency of the broadcasting company, a practice which could not lawfully be effectuated directly.

The fact that this sales-promotion plan was instigated by the broadcasting company rather than by the respondent does not alter the fact that respondent, by accepting it, became a party thereto, and cannot now evade full responsibility therefor. Respondent’s acceptance of the broadcasting company's tempting offer of in-store promotion would, of course, have become lawful, had the respondent required, as a condition of its acceptance that the benefit of broadcasting time given in return for such in-store promotion be made equally available to all respondent’s customers. Extension of the offer to all respondent’s customers might have proved impracticable because of their number; but that factor offers no justification for respondent’s unlawful conduct.

Counsel for the respondent cites the case of State Wholesale Grocers v. The Great Atlantic and Pacific Tea Co. (C.C.H. 1957 Trade Cases, pp. 73145, 73148-9, 73175)a s condemning the contention of counsel supporting the complaint that the broadcasting companies would not continue to offer merchandising plans without the participation therein of manufacturers of grocery products, and that respondent, by its participation in the plan here involved, is contributing to and making possible the continuance thereof. Counsel, in quoting that decision, has disregarded the several basic, factual differences between that case and the instant proceeding. Lengthy analysis of such differences is here deemed unnecessary. Counsel for the respondent has wisely refrained from stating that the case cited is a valid precedent upon which to base a decision herein. We agree with that omission; the case cited is not a precedent nor a parallel to the instant proceeding, and can be of no assistance in the adjudication thereof.

CONCLUSION In reaching our conclusion in this proceeding, we recognize that the section of the Robinson-Patman Act amending the Clayton Act with 528577—60-——96 Order 54 FTC.

which we are presently concerned was designed by Congress to protect small, independent merchants against unfair and discriminatory competitive advantages, in the form of payments, rebates or advertising allowances, granted by manufactures and distributors to the larger chain stores with which the small stores must compete at the retail level. In other words, as applied to the facts of the present proceeding, the provision of section 2(d) of the Clayton Act as amended was specifically designed to protect the small businessman buying respondent’s products from the competitive injury resulting from respondent’s large chain-store customers receiving advertising allowances in the form of broadcasting time in return for in-store sales promotion in which the smaller merchants were never given an opportunity to participate.

We recognize, also, that section 2(d) of the Clayton Act as amended makes no distinction between a benefit conferred directly and one conferred indirectly, but expressly forbids the conferring of any diseriminatory benefit, by providing that no payment shall be made “for the benefit of a customer” unless the opportunity to share in that benefit. is equally bestowed upon all competing customers. Jn the hght of these principles, we must conclude that in the present proceeding, the respondent, by its payment to the broadcasting company, paid or contracted to pay something of value for its own benefit. and also for the benefit of certain chain-store customers in consideration for in-store promotional facilities furnished to respondent. by such favored customers, without making the same or similar benefits availabie on proportionally equal terms to all respondent’s other customers who compete in the retail distribution of respondent’s products with the customers so favored. These acts and practices clearly violate section 2(d) of the Clayton Act as amended. Accordingly, It ws ordered, That respondent, Groveton Paper Co.. a corporation, its oflicers, agents, representatives or emplovees, directly or through any corporate or other device, in or in connection with the offering lor sale, sale, or distribution of grocery products, including paper napkins and facial tissues, in commerce, as “commerce” is defined in the Clayton Act, as amended, do forthwith cease and desist from: Paying or contracting for the payment of anything of value to, or for the benefit of, any customer of respondent as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the offering for sale, sale, or distribution of any of respondent’s products, unless such payment or consideration is made available on proportionally equal terms to all other customers competing in the distribution of such products. GROVETON PAPER CO. 1501 1490. Decision DECISION OF THE COMMISSION Respondent, Groveton Paper Co., having filed an appeal from the hearing examiner’s initial decision finding that said respondent has violated the provisions of section 2(d) of the Clayton Act, as amended, and ordering it to cease such violation; and The Commission having considered the entire record, including the briefs and oral arguments of counsel for respondent and counsel in support of the complaint and the brief of Columbia Broadcasting System, Inc., as amicus curiae, and having determined that the findings and conclusions in the initial decision are fully substantiated on the record and that the order contained therein is appropriate in all respects to dispose of this matter:

ft rs ordered, That respondent’s appeal be, and it heveby is, denied. It 1s further ordered, That the hearing examiner’s initial decision filed October 9, 1957, be and it hereby is, adopted as the decision of the Commission.

It is jurther ordered, That respondent, Groveton Paper Co., a corporation, 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 contained in the initial decision.

Decision 54 E.T.C.

In toe Marrer or GENERAL FOODS CORP.

ORDER, ETC., IN REGARDS 1 5 1 1 5 1150 793 41 21 96.544777 TO5 1 5 1 1 6 1217 793 69 21 96.398178 THES 1 5 1 1 7 1312 793 160 22 96.311256 ALLEGED5 1 5 1 1 8 1498 794 190 22 96.423393 VIOLATIONS 1 5 1 1 9 1716 794 42 22 95.846436 OF5 1 5 1 1 10 1783 793 71 23 93.145584 SEC.5 1 5 1 1 11 1880 779 93 43 8.442375 2(d)4 1 5 1 2 0 1076 843 409 22 -1 5 1 5 1 2 1 1076 843 42 21 95.452538 OF5 1 5 1 2 2 1141 843 69 21 95.255394 THES 1 5 1 2 3 1237 843 160 22 96.149002 CLAYTON5 1 5 1 2 4 1420 845 65 20 96.223595 ACTA 1 5 1 3 0 787 907 1038 34 -1 5 1 5 1 3 1 787 907 98 26 94.578102 Dockets 1 5 1 3 2 901 908 79 25 92.754921 6596.5 1 5 1 3 3 1024 907 164 32 89.367615 Complaint,5 1 5 1 3 4 1207 907 69 32 95.450798 July5 1 5 1 3 5 1293 910 41 30 92.485085 19,5 1 5 1 3 6 1354 908 250 32 69.500465 1956—Decision,5 1 5 1 3 7 1623 908 71 33 96.367836 May5 1 5 1 3 8 1711 910 23 31 92.933838 7,5 1 5 1 3 9 1753 909 72 26 91.943069 19584 1 5 1 4 0 650 974 1312 34 -1 5 1 5 1 4 1 650 974 88 28 94.246635 Orders 1 5 1 4 2 760 975 143 32 94.246635 requiring5 1 5 1 4 3 923 983 17 16 95.918449 a5 1 5 1 4 4 960 974 169 26 96.336700 distributors 1 5 1 4 5 1150 974 29 26 96.390770 of5 1 5 1 4 6 1199 975 114 26 96.348755 various5 1 5 1 4 7 1334 975 67 26 96.514999 foods 1 5 1 4 8 1423 976 137 32 96.680756 products5 1 5 1 4 9 1581 976 70 25 96.853302 with5 1 5 1 4 10 1672 976 139 32 96.143982 principals 1 5 1 4 11 1832 976 80 32 96.143982 places 1 5 1 4 12 1933 976 29 26 96.791069 of4 1 5 1 5 0 722 1016 1237 34 -1 5 1 5 1 5 1 722 1017 126 25 94.229599 business5 1 5 1 5 2 865 1017 27 24 96.278397 in5 1 5 1 5 3 913 1016 93 25 96.633308 Whites 1 5 1 5 4 1024 1016 103 32 93.274010 Plains,5 1 5 1 5 5 1147 1016 84 31 91.984535 N.Y.,5 1 5 1 5 6 1249 1019 31 23 95.964272 to5 1 5 1 5 7 1297 1025 79 18 95.979645 ceases 1 5 1 5 8 1393 1017 229 33 96.594841 discriminating5 1 5 1 5 9 1638 1018 26 25 95.910072 in5 1 5 1 5 10 1684 1019 75 31 95.910072 prices 1 5 1 5 11 1776 1018 27 25 96.453781 in5 1 5 1 5 12 1822 1018 137 26 96.007736 violation4 1 5 1 6 0 721 1058 1240 34 -1 5 1 5 1 6 1 721 1059 28 24 96.294136 of5 1 5 1 6 2 769 1059 106 25 93.219376 sections 1 5 1 6 3 898 1058 60 31 88.979492 2(d)5 1 5 1 6 4 983 1059 28 24 96.830009 of5 1 5 1 6 5 1031 1059 49 24 95.928001 thes 1 5 1 6 6 1102 1058 124 32 95.928001 Clayton5 1 5 1 6 7 1248 1058 54 26 96.744949 Acts 1 5 1 6 8 1324 1060 37 31 95.815155 by5 1 5 1 6 9 1382 1061 107 31 90.555344 paying5 1 5 1 6 10 1510 1060 204 32 96.171143 broadcasting5 1 5 1 6 11 1735 1061 163 30 95.635666 companies5 1 5 1 6 12 1917 1061 44 24 95.635666 fora 1 5 1 7 0 721 1100 1240 33 -1 5 1 5 1 7 1 721 1101 69 24 96.757332 times 1 5 1 7 2 808 1100 146 25 96.063095 furnished5 1 5 1 7 3 981 1102 29 23 96.737984 to5 1 5 1 7 4 1031 1100 105 25 96.191872 certain5 1 5 1 7 5 1156 1100 118 25 96.320831 favored5 1 5 1 7 6 1295 1108 116 25 96.210457 grocery5 1 5 1 7 7 1432 1101 96 26 96.172165 chains5 1 5 1 7 8 1547 1101 44 25 96.489853 for5 1 5 1 7 9 1610 1101 73 26 95.722504 theirs 1 5 1 7 10 1702 1109 62 17 95.722504 owns 1 5 1 7 11 1785 1101 176 32 96.224548 advertising4 1 5 1 8 0 721 1142 1240 33 -1 5 1 5 1 8 1 721 1150 136 23 96.216393 purposes5 1 5 1 8 2 869 1142 27 24 96.216393 in5 1 5 1 8 3 910 1143 96 23 95.997917 returns 1 5 1 8 4 1020 1142 43 24 95.758278 for5 1 5 1 8 5 1075 1142 92 24 96.859482 which5 1 5 1 8 6 1179 1142 48 25 96.834389 thes 1 5 1 8 7 1239 1142 206 32 96.447090 participating5 1 5 1 8 8 1458 1142 96 26 96.447090 chains5 1 5 1 8 9 1568 1151 71 24 96.980042 gave5 1 5 1 8 10 1653 1143 117 25 96.216820 in-stores 1 5 1 8 11 1782 1143 179 31 96.736961 promotions4 1 5 1 9 0 721 1183 1239 32 -1 5 1 5 1 9 1 721 1186 30 23 93.278404 to5 1 5 1 9 2 766 1183 198 32 92.478302 respondent’s5 1 5 1 9 3 979 1183 136 31 95.696075 products5 1 5 1 9 4 1132 1184 26 24 96.728752 in5 1 5 1 9 5 1175 1184 73 24 96.810509 theirs 1 5 1 9 6 1263 1186 90 23 96.533043 stores5 1 5 1 9 7 1370 1184 112 25 96.458626 located5 1 5 1 9 8 1497 1184 28 25 96.458931 in5 1 5 1 9 9 1541 1184 49 25 96.837418 thes 1 5 1 9 10 1606 1184 82 25 96.912125 trades 1 5 1 9 11 1704 1192 65 17 95.528641 areas 1 5 1 9 12 1785 1184 120 25 95.528641 reached5 1 5 1 9 13 1922 1184 38 31 95.885895 by4 1 5 1 10 0 720 1224 1240 34 -1 5 1 5 1 10 1 720 1226 49 25 96.037811 thes 1 5 1 10 2 791 1225 80 25 96.164902 radios 1 5 1 10 3 894 1233 30 17 96.355927 or5 1 5 1 10 4 947 1224 51 24 95.324142 TV5 1 5 1 10 5 1020 1225 107 25 95.150627 stations 1 5 1 10 6 1151 1224 123 33 96.062981 utilized,5 1 5 1 10 7 1299 1226 124 25 96.254906 without5 1 5 1 10 8 1447 1226 116 32 96.220810 making5 1 5 1 10 9 1586 1227 216 31 96.528870 compensations 1 5 1 10 10 1826 1226 43 25 96.625008 for5 1 5 1 10 11 1891 1226 69 25 96.836510 such4 1 5 1 11 0 722 1267 1239 32 -1 5 1 5 1 11 1 722 1267 118 25 90.005859 benefits5 1 5 1 11 2 856 1267 139 24 95.532333 available5 1 5 1 11 3 1011 1274 35 17 96.244896 on5 1 5 1 11 4 1062 1267 226 32 96.248421 proportionally5 1 5 1 11 5 1303 1268 84 29 95.661629 equals 1 5 1 11 6 1402 1269 88 24 96.053139 terms5 1 5 1 11 7 1505 1270 31 23 95.084045 to5 1 5 1 11 8 1551 1268 35 24 95.084045 all5 1 5 1 11 9 1602 1268 50 25 96.764008 thes 1 5 1 11 10 1667 1268 186 31 96.557732 competitors5 1 5 1 11 11 1868 1268 29 25 96.030716 of5 1 5 1 11 12 1912 1268 49 25 96.717323 thea 1 5 1 12 0 721 1308 300 26 -1 5 1 5 1 12 1 721 1308 118 25 96.421890 favored5 1 5 1 12 2 856 1310 165 24 93.220413 customers.4 1 5 1 13 0 690 1366 1268 41 -1 5 1 5 1 13 1 690 1367 67 30 90.505341 Mr.5 1 5 1 13 2 778 1367 145 30 91.562073 Williams 1 5 1 13 3 939 1367 38 29 84.667953 R.5 1 5 1 13 4 1000 1367 144 37 81.690056 Tincher,5 1 5 1 13 5 1161 1366 68 31 87.011902 Mr.5 1 5 1 13 6 1246 1367 34 31 94.692497 J.5 1 5 1 13 7 1301 1367 138 31 95.592018 Wallace5 1 5 1 13 8 1455 1367 116 39 93.282784 Adair,5 1 5 1 13 9 1588 1367 69 31 78.712769 Adr.5 1 5 1 13 10 1675 1367 130 40 94.816536 Eugene5 1 5 1 13 11 1820 1367 138 40 96.259712 Kaplan4 1 5 1 14 0 649 1416 961 39 -1 5 1 5 1 14 1 649 1417 64 32 95.281708 ands 1 5 1 14 2 729 1416 68 31 62.074120 Atv.5 1 5 1 14 3 814 1416 120 31 95.829803 Daniels 1 5 1 14 4 947 1418 42 29 95.304459 A.5 1 5 1 14 5 1006 1417 132 38 93.238007 Austin,5 1 5 1 14 6 1155 1417 62 37 89.730591 Jr.,5 1 5 1 14 7 1234 1417 51 31 94.914619 for5 1 5 1 14 8 1301 1418 57 31 96.345955 thes 1 5 1 14 9 1373 1417 237 32 96.382713 Commission.4 1 5 1 15 0 689 1466 1267 40 -1 5 1 5 1 15 1 689 1467 130 39 82.418335 “Appell,5 1 5 1 15 2 838 1467 122 30 55.009850 Austin5 1 5 1 15 3 984 1467 31 30 91.839600 &5 1 5 1 15 4 1042 1466 75 39 95.489517 Gay,5 1 5 1 15 5 1138 1466 46 39 92.426865 by5 1 5 1 15 6 1204 1467 68 30 15.392448 ALr.5 1 5 1 15 7 1293 1467 104 39 95.566589 Cyrus5 1 5 1 15 8 1420 1467 133 39 95.477943 Austin,5 1 5 1 15 9 1579 1466 34 32 96.551338 of5 1 5 1 15 10 1636 1467 84 31 96.942741 News 1 5 1 15 11 1744 1467 104 39 96.374489 York,5 1 5 1 15 12 1868 1467 88 31 95.368927 N.Y.4 1 5 1 16 0 649 1515 1310 42 -1 5 1 5 1 16 1 649 1516 64 32 92.668190 ands 1 5 1 16 2 734 1516 68 31 37.907253 Adr.5 1 5 1 16 3 823 1515 106 33 91.168327 Lester5 1 5 1 16 4 948 1516 38 31 55.175270 £.5 1 5 1 16 5 1012 1516 196 38 95.744049 Waterbury,5 1 5 1 16 6 1232 1517 65 31 96.538208 ands 1 5 1 16 7 1319 1517 68 31 78.856552 Afr.5 1 5 1 16 8 1411 1517 168 31 92.444138 Fredericks 1 5 1 16 9 1600 1517 36 31 81.571281 F.5 1 5 1 16 10 1658 1517 111 40 96.662392 Mack,5 1 5 1 16 11 1792 1517 35 31 95.964546 of5 1 5 1 16 12 1846 1516 113 32 92.215439 White4 1 5 1 17 0 649 1566 537 39 -1 5 1 5 1 17 1 649 1566 119 38 93.014175 Plains,5 1 5 1 17 2 789 1566 99 39 87.399902 N.Y.,5 1 5 1 17 3 907 1566 50 30 96.729378 for5 1 5 1 17 4 973 1566 213 39 95.866234 respondent.2 1 6 0 0 0 651 1657 1303 39 -1 3 1 6 1 0 0 651 1657 1303 39 -1 4 1 6 1 1 0 651 1657 1303 39 -1 5 1 6 1 1 1 651 1658 137 31 20.205261 Tsurian5 1 6 1 1 2 820 1658 174 31 68.579834 Decisions 1 6 1 1 3 1028 1668 44 20 94.304520 By5 1 6 1 1 4 1104 1659 128 30 91.639435 ABNER5 1 6 1 1 5 1261 1657 40 32 81.914139 E.5 1 6 1 1 6 1333 1658 190 38 51.807095 Lirscoms,5 1 6 1 1 7 1558 1658 167 31 37.802719 Hrearinc5 1 6 1 1 8 1758 1658 196 31 96.517456 EXAMINER2 1 7 0 0 0 1159 1752 290 21 -1 3 1 7 1 0 0 1159 1752 290 21 -1 4 1 7 1 1 0 1159 1752 290 21 -1 5 1 7 1 1 1 1159 1752 68 20 96.163567 THES 1 7 1 1 2 1253 1752 196 21 95.734283 PLEADINGS2 1 8 0 0 0 651 1806 1315 892 -1 3 1 8 1 0 0 651 1806 1313 632 -1 4 1 8 1 1 0 694 1806 1267 42 -1 5 1 8 1 1 1 694 1808 70 31 96.061768 Thes 1 8 1 1 2 778 1807 184 40 96.061768 complaints 1 8 1 1 3 976 1807 29 31 96.173088 in5 1 8 1 1 4 1020 1807 66 32 96.890892 this5 1 8 1 1 5 1098 1807 198 41 96.374580 proceedings 1 8 1 1 6 1309 1808 136 40 96.362923 charges5 1 8 1 1 7 1459 1808 56 31 94.565712 thes 1 8 1 1 8 1526 1808 207 39 94.565712 respondents 1 8 1 1 9 1743 1807 80 31 96.941910 with5 1 8 1 1 10 1837 1806 124 41 96.153313 having4 1 8 1 2 0 652 1857 1308 41 -1 5 1 8 1 2 1 652 1858 76 40 94.109390 paid5 1 8 1 2 2 741 1869 123 28 94.109390 moneys 1 8 1 2 3 879 1863 32 25 96.078697 to5 1 8 1 2 4 925 1857 125 31 96.147934 certain5 1 8 1 2 5 1064 1857 237 40 96.058357 broadcasting5 1 8 1 2 6 1314 1857 191 40 96.337425 companies5 1 8 1 2 7 1518 1858 51 31 96.799904 for5 1 8 1 2 8 1583 1857 56 32 96.590424 thes 1 8 1 2 9 1651 1857 126 32 96.142838 benefits 1 8 1 2 10 1788 1857 35 31 96.142838 of5 1 8 1 2 11 1835 1857 125 31 96.892059 certain4 1 8 1 3 0 651 1906 1310 42 -1 5 1 8 1 3 1 651 1908 33 32 96.470329 of5 1 8 1 3 2 712 1908 43 31 93.252258 its5 1 8 1 3 3 783 1908 203 31 91.647041 chain-stores 1 8 1 3 4 1014 1913 193 33 96.176514 customers,5 1 8 1 3 5 1240 1908 139 39 94.874207 thereby5 1 8 1 3 6 1408 1908 178 40 96.336769 providing5 1 8 1 3 7 1613 1906 239 41 94.398369 broadcasting5 1 8 1 3 8 1881 1906 80 32 94.398369 time4 1 8 1 4 0 653 1956 1308 40 -1 5 1 8 1 4 1 653 1958 164 38 96.616074 “through5 1 8 1 4 2 841 1958 78 29 96.175308 such5 1 8 1 4 3 943 1957 236 39 93.260933 broadcasting5 1 8 1 4 4 1200 1958 191 38 91.702477 companics5 1 8 1 4 5 1413 1963 34 25 95.652451 to5 1 8 1 4 6 1470 1958 56 31 95.652451 thes 1 8 1 4 7 1546 1956 139 32 96.607498 favored5 1 8 1 4 8 1708 1962 184 25 96.590912 customers5 1 8 1 4 9 1911 1956 50 31 96.686615 fora 1 8 1 5 0 652 2005 1311 42 -1 5 1 8 1 5 1 652 2008 68 30 95.716415 said5 1 8 1 5 2 736 2008 193 30 93.942413 customers’5 1 8 1 5 3 944 2018 72 20 95.918602 owns 1 8 1 5 4 1032 2007 205 40 95.918602 advertising5 1 8 1 5 5 1250 2008 195 38 56.501991 purposes.”5 1 8 1 5 6 1493 2007 73 31 87.141342 Thes 1 8 1 5 7 1578 2012 181 34 96.174736 payments5 1 8 1 5 8 1774 2007 77 30 96.180222 thus5 1 8 1 5 9 1864 2005 99 31 96.587990 made4 1 8 1 6 0 653 2055 1307 41 -1 5 1 8 1 6 1 653 2058 42 38 96.445671 by5 1 8 1 6 2 715 2057 201 39 95.991203 respondents 1 8 1 6 3 940 2067 52 20 95.239967 ares 1 8 1 6 4 1014 2056 123 40 95.239967 alleged5 1 8 1 6 5 1162 2063 31 24 96.203972 to5 1 8 1 6 6 1214 2057 86 30 95.979263 have5 1 8 1 6 7 1321 2057 82 31 95.979263 been5 1 8 1 6 8 1423 2057 99 31 95.579811 made5 1 8 1 6 9 1544 2067 35 20 96.649246 as5 1 8 1 6 10 1600 2056 253 40 96.534569 compensations 1 8 1 6 11 1873 2066 37 20 95.969704 or5 1 8 1 6 12 1929 2055 31 31 82.786652 jn4 1 8 1 7 0 653 2106 1308 40 -1 5 1 8 1 7 1 653 2106 242 32 95.703224 considerations 1 8 1 7 2 921 2107 48 30 96.497604 for5 1 8 1 7 3 991 2106 140 31 96.314934 services5 1 8 1 7 4 1153 2117 37 19 96.119461 or5 1 8 1 7 5 1211 2106 153 31 95.745003 facilities5 1 8 1 7 6 1390 2106 173 32 95.745003 furnished5 1 8 1 7 7 1586 2106 27 31 89.058525 it5 1 8 1 7 8 1634 2106 45 40 96.361717 by5 1 8 1 7 9 1704 2106 92 32 96.361717 these5 1 8 1 7 10 1824 2106 137 31 96.423744 favored4 1 8 1 8 0 653 2155 1310 41 -1 5 1 8 1 8 1 653 2163 182 25 96.124084 customers5 1 8 1 8 2 852 2157 29 29 94.606354 in5 1 8 1 8 3 901 2157 193 30 94.606354 connections 1 8 1 8 4 1114 2157 78 29 95.693062 with5 1 8 1 8 5 1210 2157 54 31 96.136169 thes 1 8 1 8 6 1279 2157 140 39 96.538399 offerings 1 8 1 8 7 1434 2157 49 31 89.161118 for5 1 8 1 8 8 1496 2157 78 37 89.161118 sale,5 1 8 1 8 9 1590 2157 65 31 96.441109 ands 1 8 1 8 10 1672 2156 67 32 96.732475 sales 1 8 1 8 11 1755 2156 35 31 93.257370 of5 1 8 1 8 12 1804 2155 159 39 91.205368 respond-4 1 8 1 9 0 653 2205 1308 40 -1 5 1 8 1 9 1 653 2208 84 30 72.882668 ent’s5 1 8 1 9 2 754 2207 169 38 76.288857 products.5 1 8 1 9 3 972 2206 33 30 40.633373 It5 1 8 1 9 4 1022 2206 24 30 40.633373 is5 1 8 1 9 5 1065 2206 126 30 93.184792 furthers 1 8 1 9 6 1207 2206 136 31 92.348137 averred5 1 8 1 9 7 1364 2206 76 30 95.850418 that5 1 8 1 9 8 1457 2207 54 30 95.850418 thes 1 8 1 9 9 1529 2205 142 32 90.315285 benefits5 1 8 1 9 10 1687 2217 34 19 96.059395 so5 1 8 1 9 11 1738 2205 171 31 95.969719 furnished5 1 8 1 9 12 1930 2210 31 26 95.969719 to4 1 8 1 10 0 652 2254 1311 41 -1 5 1 8 1 10 1 652 2268 89 19 96.241028 some5 1 8 1 10 2 761 2256 34 30 92.295288 of5 1 8 1 10 3 815 2256 230 39 90.820099 respondent’s5 1 8 1 10 4 1065 2262 183 25 96.801315 customers5 1 8 1 10 5 1268 2267 81 20 95.644775 were5 1 8 1 10 6 1371 2261 59 26 95.644775 not5 1 8 1 10 7 1447 2256 98 31 96.015465 made5 1 8 1 10 8 1566 2255 166 32 95.875168 available5 1 8 1 10 9 1751 2260 33 27 93.145302 to5 1 8 1 10 10 1804 2254 159 40 91.163658 respond-4 1 8 1 11 0 653 2304 1311 42 -1 5 1 8 1 11 1 653 2308 85 29 22.358215 euit’s5 1 8 1 11 2 759 2306 96 31 63.133915 others 1 8 1 11 3 877 2312 183 25 95.741081 customers5 1 8 1 11 4 1081 2317 40 20 95.741081 on5 1 8 1 11 5 1146 2305 266 40 96.161385 proportionally5 1 8 1 11 6 1434 2306 97 40 96.697884 equals 1 8 1 11 7 1555 2311 112 33 96.262955 terms,5 1 8 1 11 8 1691 2305 31 32 96.747459 in5 1 8 1 11 9 1746 2304 162 33 96.211899 violations 1 8 1 11 10 1930 2304 34 31 96.211899 of4 1 8 1 12 0 657 2355 1307 40 -1 5 1 8 1 12 1 657 2358 51 30 95.435562 thes 1 8 1 12 2 736 2356 163 39 95.435562 provisions 1 8 1 12 3 924 2356 34 30 90.762367 of5 1 8 1 12 4 980 2356 189 31 92.187813 subsections 1 8 1 12 5 1198 2356 48 37 92.187813 (d)5 1 8 1 12 6 1271 2356 34 30 96.653564 of5 1 8 1 12 7 1327 2356 126 31 95.330444 sections 1 8 1 12 8 1478 2359 17 27 95.489655 25 1 8 1 12 9 1519 2357 34 30 96.574486 of5 1 8 1 12 10 1579 2357 53 30 96.600342 thes 1 8 1 12 11 1657 2355 147 40 93.756119 Clayton5 1 8 1 12 12 1828 2355 75 37 95.259026 Act,5 1 8 1 12 13 1928 2365 36 20 95.259026 as4 1 8 1 13 0 654 2406 171 32 -1 5 1 8 1 13 1 654 2406 171 32 95.667175 amended.3 1 8 2 0 0 656 2454 1306 92 -1 4 1 8 2 1 0 697 2454 1265 42 -1 5 1 8 2 1 1 697 2457 70 31 93.465347 Thes 1 8 2 1 2 793 2456 179 40 95.633270 complaints 1 8 2 1 3 1001 2457 77 30 95.848656 then5 1 8 2 1 4 1105 2456 164 31 73.073479 describes5 1 8 2 1 5 1293 2456 31 30 96.120659 in5 1 8 2 1 6 1350 2466 89 22 96.135323 some5 1 8 2 1 7 1465 2456 100 32 96.144562 details 1 8 2 1 8 1594 2457 55 30 92.979439 thes 1 8 2 1 9 1672 2454 290 41 91.431816 sales-promotion4 1 8 2 2 0 656 2506 1220 40 -1 5 1 8 2 2 1 656 2507 93 39 95.141830 plans5 1 8 2 2 2 768 2507 141 38 95.141830 through5 1 8 2 2 3 929 2506 104 30 96.027954 which5 1 8 2 2 4 1055 2506 201 38 95.959328 respondents 1 8 2 2 5 1273 2506 137 30 95.684914 favored5 1 8 2 2 6 1429 2507 125 30 95.684914 certain5 1 8 2 2 7 1573 2506 34 30 96.218323 of5 1 8 2 2 8 1623 2506 42 30 96.335281 its5 1 8 2 2 9 1683 2511 193 25 90.218002 customers.3 1 8 3 0 0 655 2556 1311 142 -1 4 1 8 3 1 0 698 2556 1267 40 -1 5 1 8 3 1 1 698 2557 220 39 86.347992 Respondents 1 8 3 1 2 941 2557 30 30 93.520584 in5 1 8 3 1 3 998 2557 41 30 94.726677 its5 1 8 3 1 4 1063 2566 126 21 96.313599 answers 1 8 3 1 5 1210 2556 113 31 96.352272 denies5 1 8 3 1 6 1348 2557 76 30 96.173195 that5 1 8 3 1 7 1447 2567 65 29 96.236801 any5 1 8 3 1 8 1536 2556 239 40 96.061035 broadcasting5 1 8 3 1 9 1798 2565 167 29 96.216599 company4 1 8 3 2 0 655 2605 1311 41 -1 5 1 8 3 2 1 655 2608 113 30 94.768257 served5 1 8 3 2 2 793 2618 34 20 94.012810 as5 1 8 3 2 3 847 2617 19 21 90.999954 a5 1 8 3 2 4 884 2607 147 31 90.999954 mediums 1 8 3 2 5 1051 2618 37 20 95.427559 or5 1 8 3 2 6 1106 2607 239 39 94.492195 intermediary5 1 8 3 2 7 1365 2607 151 31 94.492195 between5 1 8 3 2 8 1535 2606 207 40 95.556183 respondents 1 8 3 2 9 1761 2605 66 33 95.556183 ands 1 8 3 2 10 1847 2616 66 28 96.039886 any5 1 8 3 2 11 1932 2605 34 30 96.831482 of4 1 8 3 3 0 656 2655 1310 43 -1 5 1 8 3 3 1 656 2659 42 31 92.173622 its5 1 8 3 3 2 721 2658 249 40 67.978516 gvocery-chains 1 8 3 3 3 997 2662 197 33 96.123222 customers;5 1 8 3 3 4 1219 2658 76 30 96.393936 that5 1 8 3 3 5 1317 2668 67 29 96.555550 any5 1 8 3 3 6 1408 2662 181 35 89.283516 payments5 1 8 3 3 7 1612 2668 84 21 96.771538 were5 1 8 3 3 8 1719 2656 98 32 96.350960 made5 1 8 3 3 9 1840 2656 46 39 95.596375 by5 1 8 3 3 10 1910 2655 56 31 96.591728 the GENERAL FOODS CORP. 1503 1502 Decision .

respondent to any broadcasting company for the benefit of any of respondent’s customers; and that respondent’s acts and practices have violated section 2(d) of the Clayton Act, as amended. STIPULATION OF FACTS In lieu of hearings and the presentation of evidence, counsel supporting the complaint and counsel for the respondent agreed upon, and submitted to the hearing examiner, a stipulation as to the facts involved in this controversy, with the understanding that such stipulation, together with the pleadings herein, was to constitute the entire evidentiary record. This stipulation has been duly incorporated into the record, and, together with the pleadings, does constitute the entire factual basis of this decision.

AMICI CURIAE Subsequent to the submission of the stipulation as to the facts, Columbia Broadcasting System, Inc. and National Broadcasting Co., Inc. applied for and were granted permission to submit briefs as amicr curiae. These briefs supplement the brief of counsel for the respondent, and request that the complaint herein be dismissed. IDENTITY OF RESPONDENT Respondent General Foods Corp. is a Delaware corporation, with its principal office and place of business located at 250 North Street, White Plains, N.Y.

ACTS IN COMMERCE For a number of years respondent has been engaged in the business of selling and distributing grocery products, including instant and regular coffee, cake mixes, frozen foods, cereals, and puddings, to competing customers, including independent grocers and grocery chains, located throughout some of the States of the United States and in the District of Columbia. Many of such competing grocery customers are located in the metropolitan areas of Chicago, Ill.; Washington, D.C.; Cleveland, Ohio; Los Angeles and San Francisco, Calif.; St. Louis, Mo.; and Boston, Mass.; and in the New York City metropolitan area, which extends into the adjacent States of New Jersey and Connecticut. The quantity of the above-mentioned products sold by respondent in those areas during the past several years has been substantial. As a result of such sales, respondent is now, and has been for some time, engaged in commerce, as “‘commerce’’ is defined in the Clayton Act, as amended.

Decision 54 F.T.C.

ORIGIN OF THE SALES-PROMOTION PLAN In 1950 and in 1951, the sale of broadcasting time had become difficult, and the American Broadcasting Co., Columbia Broadcasting System, Inc., and National Broadcasting Co., Inc., hereinafter referred to, respectively, as “ABC,” “CBS,” and “NBC,” devised a plan to enable them to promote the sale of such time to manufacturers and sellers of grocery products by offering to them radio and television time at the regular current rate, supplemented by the promise of certain in-store promotion facilities as an added inducement. Although the various sales-promotion plans devised by the several broadcasting companies are substantially the same, each broadcasting company developed its own plan independently of the others. THE SALES-PROMOTION PLAN In initiating its sales-promotion plan, ABC negotiated contracts with certain groc ry chains in the New York City metropolitan area, and CBS and NBC in the Chicago metropolitan area, whereby the broadcasting company agreed to furnish radio time or television time of a stated amount or value to each grocery chain each week during the term of the contracts. These contracts provided that the broadcasting time so furnished would be used by the chain stores only for their own advertising. In consideration for such broadcasting time, the chain stores agreed to conduct in their stores a specific number of promotional displays of products sold therein, each such promotion to be continued for the duration of 1 week. The contract did not specify the products to be displayed cr the dates for their promotion, but provided that such products were to be agreed upon and the dates for their promotion fixed upon the suggestion or designation of the broadcasting company, subject to the approval of the chain, and also subject to the right of the chain to decline to promote any product. not deemed by it to be suitable for promotion in its store. These contracts were made without any prior commitment or agreement invelving anyone other than the broadcasting company and the erocery chain.

After the above-described contracts between the broadcasting companies and the grocery chains had been entered into, the broadcasting companies solicited respondent and other manufacturers and sellers of grocery products to purchase radio or television time from them, GENERAL FOODS CORP. 1505 1502 Decision and, as an added inducement for such purchase, offered in-store promotion of respondent’s products in the chain stores with which the broadcasting companies already had contracts. The CBS plan was called “Supermarketing”’; the NBC plan, “Chain Lightning”; and the ABC plan, “Mass Merchandising” or ‘“Sell-A-Vision.” In support of these plans, brochures and circulars were disseminated from time to time by the broadcasting companies, which informed respondent and others that by purchasing radio or television time for certain periods in minimum amounts at the then regular station rate fer such time, the advertiser would qualify, at no added cost, for one cr more week-long promotional displays of its products in the stores of certain grocery chains. The brochure stated that the broad ‘asting company was able to furnish these displays by reason of the existing contracts which it had already negotiated with the grocery chains. Among other things, such brochures and circulars presented the advertising advantages of the several plans as follows:

SEEING TWICE IS SELLING TWICE AND ONLY A TV-MERCHAN- DISING PLAN can deliver the kind of coordinated impact that in-the-home/inthe-store display guarantees.

The Plan is based on a tight contractual arrangement with A & P’s Eastern Division Headquarters, providing high frequency of display, regular check back and 100 percent cooperation through a single, central source. A & P has about three times as many retail outlets as the next food chain in the New York area. A & P, with highly centralized control, delivers the best inerchandising service to advertisers participating in the “Mass Merchandising” plan. A total of 864 stores in four States controlling an annual sales volume of more than $1 billion * * * and perhaps even more important * * * is the fact that 737 stores of the WMAQ CHAIN-LIGHTNING chains are logated in the Chicago metropolitan area and control approximately 60 percent of all food sales in the area or more than $800 million in annual sales volume. Respondent participated in the above-described plans by en tering into contracts with the broadcasting companies for the purchase ef broadcasting time. These contracts contain no reference to in-store promotion. In fact, respondent’s contracts with ABC and CBS contain the following clause or its equivalent: This contract contains the entire agreement between the parties and is nut subject to oral modification, The NBC contract contains a similar clause, as follows: This contract constitutes the entire agreement between the parties relating to the subject matter thereof.

Decision 54 F.C.

The various payments made by respondent to the several broadcasting companies from 1952 through 1956 were, as follows: 59, 55:

Year Broadcasting Station Amount Yearly company paid total WiAIAQ (Chicago, T.)_..------2 2 - eee $13, 800.00 | $13, 800. 00 WABC (New York, N.Y.)_--- 65, 112.00 }\ 82, 827. 00 WATAQ (Chicago, Ill 1 nen 17,715.00 |J WBBM (Chicago, il., 11/4/54 to 12/80/54) _. 38.111. 48 58, 636. 48 WAAQ (Chicago, II. } eee eee eee ee eee 20, 525. 00 WABC (New York, N.Y.)..-.-2---- 67, 637. 50 WBBM (Chicago, Ill, 4/5/55 to 3/29/56) . - 109, 293. 68 j7 206, 411. 18 WMAQ (Chicago, Ill. 0. oecee eee eee ene none 29, 480. 00 WABC (New. York, N.Y., to June 30th) 24, 461. 51 } | WBBM (Chicago, Il., 4/5/55 to 3/29/56)... - LLL} 35,091. 96 The three plans under which the above-listed payments were made all required of the respondent a minimum payment over a minimum period of time, to qualify for a minimum amount of in-store promotion. There were anumber of variations of all of these three plans. A recounting of the many details of such variations is here deemed unnecessary. After the respondent had contracted with the broadcasting companies, as above described, the respondent was notified by such broadcasting companies that some of the respondent’s products would be displayed in the stores of certain grocery chains on certain dates. In many instances, the respondent thereupon contacted the designated chain store for the purpose of arranging the type and details of the in-store promotional displays.

All of respondent’s customers who received radio or television advertising time from the broadcasting companies, pursuant to the contract described herein, were grocery chains who have been and are in competition in the resale of respondent’s products with other grocery chains and independent customers of respondent who did not receive and who were not offered such broadcasting time or anything of value in lieu thereof.

THE ISSUE The section of the Clayton Act, as amended, under which this proceeding is brought provides, as follows §2(d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities. GENERAL FOODS CORP. 1507 1502 Decision Since the complaint alleges and the answer denies that respondent. paid money to said broadcasting companies for the benefit of certain of respondent’s chain-store customers as compensation or in consideration for services or facilities furnished respondent by those customers, and that the benefits so furnished to some of respondent’s customers were not made available to respondent’s other customers on proportionally equal terms, in violation of the above-quoted provision of the Clayton Act, the issue herein is as follows:

Did Respondent pay or contract for the payment of something of value to any of the three broadcasting companies named herein ‘‘for the benefit of a customer” and “as compensation or in consideration” for in-store sales promotion furnished by such customer to Respondent, without making the same benefit available on proportionally equal terms to all its other customers competing with the customers so favored, within the meaning of section 2(d) of the Clayton Act as amended? THE ISSUE RESOLVED Counsel supporting the complaint, in effect, contends that the facts herein stipulated show that the respondent, by adopting and using the sales-promotion plan of the broadcasting companies, attempted to escape legal accountability by doing indirectly that which respondent knew it could not lawfully do directly; that is, procure in-store promotion for its products by providing benefits in the form of broadcasting time for the use of a few favored customers without making the same or similar benefits available to its other competing customers. Counsel further contends that the several transactions heretofore described, instead of being unrelated business operations as they may appear when considered separately, constitute, in fact and in reality, one complete transaction, which can be properly evaluated only as a whole.

Counsel for respondent vigorously contradicts the above-stated contentions, and affirmatively asserts that the facts show that respondent did not pay or contract for the payment of anything of value to any of the broadcasting companies for the broadcasting time furnished to respondent’s customers, and that the respondent did not pay or contract to pay anything of value as “compensation or in consideration” for promotional services furnished to the respondent by any of its customers.

Let us re-examine the facts in the light of these contentions. The facts show that the sales-promotion plan in question, like the issue herein, is composed of three elements. First, we have a separate contract between the broadcasting company and a chain store, promising such store certain broadcasting time for its own purposes in return for in-store promotion of certain products to be later desig- Decision 54 F.T.C.

nated by the broadcasting company. Second, we have a separate contract, of a later date, between the broadcasting company and the respondent, providing for the purchase by the respondent of certain broadcasting time for its own advertising purposes, at the standard rate of payment then current. This contract is expressly limited to the provisions contained therein. Third, we have brochures and circulars disseminated by the broadcasting company for the purpose and with the effect of inducing the respondent to enter into the contract with the broadcasting company. We also have correspondence between and among the various parties to both contracts, relative to the various phases of the sales-promotion plan and the details of the in-store displays.

When the above transactions are considered in their interrelationship with each other, the true significance of the several phases of the sales-promotion plan, and the true relationship established between the partics thereto, become apparent. Thus we see that the in-store promotion feature of the plan, although astutely excluded from the narrow specifications of the contract between respondent and the broadcasting company, was actually the primary cause and the chief consideration for the execution of that contract. The respondent was required, not merely to purchase radio or television time in order to acquire the right to in-store promotions, but was required to purchase a specified minimum amount of such time in order to so qualify. It is reasonable to conclude, since broadcasting time in 1950 and 1951 was in fact hard to sell, that respondent would not have purchased broadcasting time at all, or would have purchased it only at a reduced price or in a lesser amount, without the inducement of the in-store promotion. We also see that the respondent made the only money payment involved in the whole transaction, and was therefore the sole financial support of the plan. Without such support, it is reasonable to assume that the plan would not have matured, but would have proven financially unprofitable and therefore of short duration. It follows, therefore, that the respondent, as the sole financial supporter of the plan, paid for the broadcasting time granted the chain-store for in-store promotional displays, as well as for the broadcasting time purchased for respondent’s own use.

The facts show clearly that the responsible officials of the respondent knew, or should have known, when they entered into the plan presented to respondent by the broadcasting company, that respondent, in adopting such plan, would be supplying the consideration which would constitute compensation for the benefits to be received by a few favored customers, to the prejudice of their competitors. ‘The GENERAL FOODS CORP, ’ 1509 1502 Decision fact that the payment for the broadcasting time furnished to the favored chain stores was indirect rather than direct does not alter its legal or practical effect; neither does the fact that the respondent made the payment in question primarily in its own behalf and without a prior agreement with the chain store. On these points, counsel supporting the complaint very aptly quotes from the statement of counsel for the respondent, in his book entitled “Price Discrimination and Related Problems Under the Robinson-Patman Act,” revised edition, 1953, page 116, as follows:

It is no defense for a seller charged with a violation of either of these sections [sec. 2(d) and sec. 2(e)] to show that he furnished or paid for a service solely in his own interest and not pursuant to any prior understanding with the purchaser. These sections prohibit discrimination in merchandising allowances or services irrespective of whether the making of the payment or furnishing of the service was 2 term or condition of sale, or amounted to an indirect price discrimination. Respondent also contends, as do the broadcasting companies as amict curiae, that respondent’s payment to the broadcasting company was in fulfillment of a separate, individual contract, and was in no wise a consideration for the in-store promotions later supplied. In fact, respondent contends that the supplying of the in-store promotions to the respondent was a gratuity, and was “free” within the interpretation of the Commission in the matter of Walter J. Black, Inc., Federal Trade Commission docket No. 5571 (1953). This contention is fallacious, because we are not here concerned, as was the Commission in the case cited, with the question of whether a certain advertisement was misleading. On the contrary, we are here concerned with determining, from all the relevant facts, whether the payment made by the respondent to the broadcasting company was in reality compensation only for the broadcasting time purchased by the respondent for its own use, or whether such payment was made for a broader purpose, and did actually serve also as compensation for in-store displays furnished to respondent by some of its chainstore customers. We are persuaded by the facts that the payment by the respondent included the larger purpose, and was actually not only a self-serving payment, but also a payment on behalf of a few favored customers. We must conclude, therefore, that the case cited is in no way a precedent for the decision in the present proceeding. Counsel for the respondent further contends that the consideration received by the chain stores in the form of broadcasting time was not contingent or dependent on any act of the respondent, but was depend-_ ent solely on the contract betaveen the broadcasting company and the chain store. He points out that this contract provides for the furnishing of broadcasting time to the chain store in compensation for Decision 54 FT.C.

in-store promotions of products to be later designated by the broadcasting company. The facts reveal that such designation was not made by the broadcasting company until after the signing of its contract. with respondent for the purchase of broadcasting time. From these facts the conclusion is inescapable that the broadcasting company, when entering into the contract with the chain store, contemplated completing the overall plan, of which that contract was merely a part, only after successful negotiation of a second contract with some manufacturer for the purchase of broadcasting time, which would enable the broadcasting company, thereafter, to designate that manufacturer's products as those to be promoted in the in-store displays. We must conclude, therefore, that the contention stressing the independent character of the first contract is altogether unrealistic, and disregards the fact that the first contract was only preliminary to the contract with respondent, both contracts being, not independent transactions, but parts of a larger plan.

Counsel for the respondent seeks, in his brief, to invoke the rules of private contract law governing third-party beneficiaries. In connection with this argument, he states that Most of the States recognize the right of a third person to sue upon a contract made for such person’s benefit. Under that doctrine as applied by the courts a contract is not regarded as made for the benefit of a third party unless the intent to benefit that person clearly appears. Benefit resulting incidentally from a contract made by others is not sufficient. By these tests, the station contracts here in evidence plainly were not contracts for the benefit of the chains, whether or not the terms of the merchandising plans are read into them. This argument isspecious. We are not here concerned with an application of the rules of private contract law, but with the broader and moro realistic principles of public law, which require an examination of the entire plan in question in all its related parts. As hereinbefore stated, the omission from respondent’s contract of the benefit intended to be conferred, in the form of broadcasting time, upon the chain store in consideration of the in-store displays promised to respondent as an inducement. to purchase broadcasting time for its own use appears, particularly in the light of the contentions herein made by counsel for respondent, to have been intentional, for the purpose of shielding the respondent from the force and effect of the Clayton Act. Such omission appears to be, palpably, an attempt to circumvent that act by effectuating, indirectly through the agency of the broadcasting company, a practice which could not lawfully be effectuated directly. The fact that this sales-promotion plan was instigated by the broadcasting company rather than by the respondent does not alter the fact that respondent, by accepting it, became a party thereto, and cannot GENERAL FOODS CORP. 1511 1502 Conclusion now evade full responsibility therefor. Respondent’s acceptance of the broadcasting company’s tempting offer of in-store promotion would, of course, have become lawful, had the respondent required, as a condition for its acceptance, that the benefit of broadcasting time given in return for such in-store promotion be made equally available to all respondent’s customers. Extension of the offer to all respondent’s customers night have proved impracticable because of their number; but that factor offers no justification for respondent’s unlawful conduct.

Counsel for the respondent cites the case of State Wholesale Grocers v. The Great Atlantic and Pacific Tea Co. (C.C.H. 1957 Trade Cases, pp. 73145, 73148-9, 73175) as condemning the contention of counsel supporting the complaint that the broadcasting companies would not continue to offer merchandising plans without the participation therein of manufacturers of grocery products, and that respondent, by its participation in the plan here involved, is contributing to and making possible the continuance thereof. Counsel, in quoting that decision, has disregarded the several basic, factual differences between that case and the instant proceeding. Lengthy analysis of such differences is here deemed unnecessary. Counsel for the respondent has wisely refrained from stating that the case cited is a valid precedent upon which to base a decision herein. We agree with that omission; the case cited is not a precedent nor a parallel to the instant proceeding, and can be of no assistance in the adjudication thereof. CONCLUSION Jn reaching our conclusion in this proceeding, we recognize that the section of the Robinson-Patman Act amending the Clavton Act with which we are presently concerned was designed by Congress to protect small, independent merchants against unfair and discriminatory competitive advantages, in the form of payments, rebates or advertising allowances, granted by manufacturers and distributors to the larger chain stores with which the small stores must. compete at the retail level. In other words, as applied to the facts of the present. proceeding, the provision of section 2(d) of the Clayton Act as amended was specifically designed to protect the smal] businessman buying respondent’s products from the competitive injury resulting from respondent’s large chain-store customers receiving advertising allowances in the form of broadcasting time in return for in-store sales promotion in which the smaller merchants were never given an opportunity to participate.

We recognize, also, that section 2(d) of the Clayton Act as amended makes no distinction between a benefit conferred directly and one Decision 54 FTC.

conferred indirectly, but expressly forbids the conferring of any discriminatory benefit, by providing that no payment shall be made “for the benefit of a customer” unless the opportunity to share in that benefit is equally bestowed upon all competing customers. In the light of these principles, we must conclude that, in the present proceeding, the respondent, by its payment to the broadcasting company, paid or contracted to pay something of value for its own benefit and also for the benefit. of certain chain-store customers in consideration for in-store promotional facilities furnished to respondent. by such favored customers, without making the same or similar benefits available on proportionally equal terms to all respondent’s other customers who compete in the retail distribution of respondent’s products with the customers so favored. These acts and practices clearly violate section 2(d) of the Clayton Act as amended. Accordingly, It is ordered, That respondent, General Foods Corp., a corporation, its officers, agents, representatives or emplovees, directly or through any corporate or other device, in or in connection with the offering for sale, sale or distribution of grocery products, including instant ancl regular coffee, cake mixes, frozen foods, cereals, and puddings, in commerce, as “commerce” is defined in the Clayton Act, as amended, do forthwith cease and desist from:

Paying or contracting for the payment of anything of value to, or for the benefit of, any customer of respondent as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the offering for sale, sale or distribution of any of respondent’s said products, unless such payment. or consideration is made available on proportionally equal terms to all other customers competing in the distribution of such products. DECISION OF THE COMMISSION Respondent, General Foods Corp., having filed an appeal from the hearing examiner’s initial decision finding that said respondent has violated the provisions of section 2(d) of the Clayton Act, as amended, and ordering it to cease such violation; and The Commission having considered the entire record, including the briefs and oral arguments of counsel for respondent and counsel in support of the complaint and the briefs of Columbia Broadcasting System, Inc., and National Broadcasting Co., Inc., as amici curiae, and having determined that the findings and conclusions in the initial decision are fully substantiated on the record and that the order contained therein is appropriate in all respects to dispose of this matter: GENERAL FOODS CORP. 15138 1502 Decision ' /t ts ordered, That respondent’s appeal be, and if hereby is, denied. It is further ordered, That the hearing exaniner’s initial decision filed October 9, 1957, be, and it hereby is, adopted as the decision of the Commission.

It is further ordered, That respondent, General Foods Corp., a corporation, 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 contained in the initial decision, Decision 54 F.T.C.