Simon Hafner

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IN THE MATTER OF SIMON HAFNER DOING BUSINESS AS HAFNEH COFFEE COMPANY CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2(d) OF THE CLAYTON ACT Docket 696.1. CO'm.p nint, Nov. 1957-Decision, Dec. 3, 1.958 Consent order requiring a Pittsburgh company preparing and sellng coffee under some I GOO different private brand names and its own trade name to grocery wholesalers and jobbers, with annual sales approximating 000 000, to cease discriminating in price in violation of Sec. 2(d) of the Clayton Act by paying certain customers an allowance for advertising in connection with the sale of its coffee products while not making such payments available to their competitors on proportionally equal terms. AMENDED COMPLAINT 1 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 fonows: PARAGRAPH 1. Respondent Simon Hafner is an individual and does business under the trade style Hafner Coffee Company with his offce and principal place of business located at Union Street Etna, Pittsburgh, Pa.

PAR. 2. Respondent is now, and has been, engaged in the business of preparing and sening coffee. Respondent sens his coffee under approximately 1 000 different private brand names, and under his own trade name "Hafner. " Respondent sens his products to grocery wholesalers and jobbers, and directly to customers who sen at retail, including chain store organizations. Sales made by respondent of his products are substantial amounting to approximately $3,000 000 a year.

PAR. 3. In the course and conduct of his business respondent has engaged, and is now engaging, in commerce, as "commerce is defined in the Clayton Act, as amended. Respondent ships his products, or causes them to be transported, from his principal 1 Complaint is published as amended by order of July 25 , 195R. 816 FEDERAL TRADE COM:\ISSION DECISIONS Decision 55 F.

place of business located in the State of Pennsylvania to customers located in the same and other States of the United States. PAR. 4. Tn the course and conduct of his business in commerce respondent has paid, or contracted for the payment of, something of value to 01' for the benefit of some of his 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 payment 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 1956 respondent contracled to pay and did pay to Century Food Markets Company of Y oul1v,stown, Ohio, $750 as compensation or as an allowance for adycrtising or other service or facility furnished by or through Century Fool11Vfarkets Company in connecUon with their offering for sale or sale of products sold to them by respondent. Such compensation or allowance vvas not offered or otherwise made available by respondent on proporUona1Jy equal terms to al1 other customers competing with Century Food Markets Company in the sale and distribution of respondent' s products. 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 Hobinson-Patman Act.

Mr. Anrl1'1l C, GoorllwjJe and M,' . John Pe,' cchinskll for the Commission.

Mr. Har,.y L. Lcntchn"" and MI'. Pillil J. Wi7lschel of Pittsburgh Pa., for respondent.

IJ\lTIAL DECISION BY LOREN H. LAUGHLIN, HEARING EXAMINER The Federal Trade Commission (sometimes also hereinafter recharging felted to as the Commission) issued its complaint herein, the above-named respondent with having violated the provisions of subsection (d) of Section 2 of the Clayton Act (U. C. Title Act. , SI3), as amend1e(l by the Hobinson-Patman The complaint was amended pursuant to an order of the Commission, and on October 8, 1958, there ,"as submitted to the undersigned hearing examiner of the Commission for his consideration and approval an "Agreement Containing Consent Order to Cease and Desist " ,which had been entered into by gnd bet\veen respondent and the attorneys for both parties, under date of HAFNER COFFEE CO, 817 815 Decision October 6, 1958, subject to the approval of the Bureau of Litigation of the Commission, which had subsequently duJy approved the same.

On due consideration of such ag-reement, the hearing examiner finds that said agreement, both in form and in content, is in accord with 93.25 of the Commission s Rules of Practice for Ad- ,indicative Proceedings, and that by said agreement the parties have specifically agreed to the following matters: 1. Respondent Simon Hafner is an individual and does business under the trade style Hafner Coffee Company with his offce and principal place of business located at Union Street, Etna Pittsburgh, Pa.

2. Pursuant to the provisions of the Clayton Act, as amended by the Robinson-Patman Act, the Commission, on November 26, 1957, issued its complaint in this proceeding against Hafner Coffee Company and a true copy was thereafter duly served on Hafner Cof!"ee Company. Thereafter, the amended complaint was issued and served upon respondent, 8in1011 Hafner, an individual doing business as Hafner Cotree Company, in lieu of Hafner Coffee Company)r, and a true copy \vas thereafter duly served upon respondent, Simon Hafner.

3. Respondent admits all the jurisdictional facts alleged in the Rmenrled comp aint and agrees that the record may be taken as if findings of jurisdictional facts had been duly made in accl1rclance with such allegations.

4. This agreement di ,poses of all of this proceeding as to al1 parties.

5. Respondent ,vaives:

(a) Any further procedural steps before the hearing examiner and the Commission;

(b) The making of findings of fact or conclusions of Jaw: and (c) All of the rights they may have to cballenge or contest the validity of the order to cease and desist entered in accordance ,'with this agreement.

G. The record on \which the initial decision and the decision of the Commission shall be based shall consist some1y of the amended complaint and this agreement.

7. This agreement is for seUlement purposes only and does not constitute an admission by respondent that he has violated the Jaw as a1Jeged in the amended complaint. 8. This agreement shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission. Decision 55 F.

Upon due consideration of the amended complaint filed herein and the said "Agreement Containing Consent Order to Cease and Desist " the latter is hereby approved, accepted and ordered filed, the same not to become a part of the record herein, howev unless and unti it becomes part of the decision of the Commission. The hearing examiner finds from the amended complaint and the said" Agreement Containing Consent Order to Cease and Desist " that the Commission has jurisdiction of the subject matter of this proceeding and of the person of the respondent herein; that the amended complaint states a legal cause for complaint under the Clayton Aet against the respondent both generally and in each of the particulars alleged therein; that this proceeding is in the interest of the public; that the following order as proposed in said agreement is appropriate for the just disposition of all of the issues in this proceeding as to all of the parties hereto; and that said order therefore should be, and hereby is, entered as follows:

ORDER 11 is orde,' That respondent Simon Hafner, an individual doing business as Hafner Coffee Company, directly or through any corporate or other device in or in connection with the sale of coffee and instant coffee, in commerce, as "commerce " is defined in the aforesaid Clayton Act, as amended, do forlhwith 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 respondent' s coffee or instant coffee, 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 COM MISSION AKD ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 8.21 of the Commission s Rules of Practice the initial decision of the IJearing examiner shall, on the 8d day of December 1958, become the decision of the Commission; and accordingly:

It is ordered That respondent Simon Hafner, an individual HAFNER COFFEE CO. 819 815 Decision doing business as Hafner Coffee Company, shall, within sixty (60) days after service upon him of this order, file with the Commission a report in ,writing, setting forth in detaH the manner and form in which he has complied with the order to cease and desist.

820 FEDERAL TRADE COM IISSION DECISIONS Decision 55 F,