Nelbro Packing Company

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IN THE MATTER OF NELBRO PACKING COMPANY CONSENT ORDER, ETC" IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2(e) OF THE CLAYTON ACT Docket 7209. Cmnpln.int, July, 1958-De6s1on Dec. 24, 1.968 Consent order rf'quiring a rlistributur of canned salmon in Seattle ash. , to ('ease violating the brokerage section of the Clayton Act as evidenced by its a110wHnee of discolmts reflecting brokerage on direct sales to a large retail chain.

COMPLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly designated and described, has been and is no\V violating the llfovisions of subsection (c) of Section 2 of the Clayton Act, as amended (U. C. Title 15, Sec. 13), hereby issues its complaint stating its charges with respect thereto as follows:

FARAGRAPH 1. l(respondent 1-elbro Packing Company, hereinafter sometimes referred to as eIbro, is a corporation, organized existing and doing business under and by virtue of the la,,,s of the State of Vlashington, ,,,ith its principal offce and place of business located at 401 Colman Building, Seattle, Wash. Respondent Nelbro is a 'wholly o\vned subsidiary of :0elson Bros. Fisheries Ltcl. , a Canadian corporation, located at Vancouver C. Respondent Nelbro is engaged in distributing canned salmon, all of which are hereinafter referred 1.0 as seafood products. Rcsponrlent Nelbro is a substantial factor hl the sale ancl distribution of seafood products, particularly canned salmon, acting in its own behalf as well as in behalf of its parent corporation in c011nection with sales of seafood products Ivithin the United States.

PAR. 2. In the course and conduct of its business, respondent Nelbro for the past several years h s sold and distributed and is now selling and distributing seafood products in commerce as to buyers commerce" is defined in the aforesaid Clayton Ad, located in the several States of the United States other than the State in which respondent is locater1. Saill respondent transports or rauses such seafood products when sold to be transported from ?-ELBRO PACKING COMPANY 937 93G Decision its place of business or warehouse in the State of Washington to buyers or to said buyers' places of business located in various other States of the United States. Thus, there has been at all times mentioned herein a continuous course of trade in commerce in said seafood products across state Jines betvv cen respondents and the respective buyers of said seafood products. PAR. 3. For the past several years respondent N eItro has sold and distributed, and is now selling and distributing seafood products in commerce to customers located in the several States of the United States generally through primary brokers. When selling- through said brokers, respondent pays them for their services usually at the rate of five percent of the net selling price of the merchandise. In a substantial number of instances, however, respondent has made sales direct to at least one large retail chain buyer, for its own account, without utilizing the services of a broker, and on these sales respondent has allowed said buyer a discount or an allowance in lieu of brokerage, or a lo\ver net price which reflects the brokerage normally paid to brokers for negotiating sales for it.

PAR. 4. In paying or granting to said buyers for their o\vn account a discount or an a1hnvance in lieu of brokerage, or a lower net price \which refIccts brokerage as alleged and described hereinabove, respondent has vio1aied and is now violating the provisions of subsection (c) of Section 2 of the Clayton Act, as amenderl (L. C. Title 15, Sec. 13).

M,' . Cecil G. Miles for the Commission. Jones GTOij, by IV!1' HaTgTa1) Ga?Ti80n of Seatte, Wash. for respondent.

INITIAL DECISION BY LOREN H. LAUGHLIN , HEARING EXAMINER The Federal Trade Commission (sometimes also hereinafter referred to as the Commission) issued its complaint herein, charging the above-named respondent with having violated the provisions of S2 (c) of the Clayton Aet as amended (U. C. Title 15, !;13). The respondent was duly served with process. On October 15 , 1958 , respondent and tbe attorneys for both parth:s entered into an " Agreement Containing Consent Order to Cease and Desist " which yvas (luly approved by the Bureau of Litigation of the Commission, and, on October 23 , 1058 , submitted to the undersigned hearing examiner of the Commission for his consideration. Thereafter the initial hearing was cancel1ec1. 938 FEDERAL TRADE COMMISSION DECISIO:\S Decision 55 F.

After due consideration of the said "Agreement Containing Consent Order to Cease and Desist " the hearing examiner finds that said agreement, in both form and content, is in accordance with 25 of the Commission s Rules of Pradice for Adjudicative Proceedings, and that, by said agreement, the parties have specifically agreed that:

1. Respondent elbro Packing Company is a corporation existing and doing business under and by virtue of the laws of the State of Washington, with its offce and principal place of business located at 401 Colman Building, in the City of Seattle State of Washington.

2. Pursuant to the provisions of subsection (c) of 1;2 of the Clayton Act, as amended (U. C. Title 15 , S13), the Federal Trade Commission, on July 23 , 195R, issued its complaint in this proceeding against respondent, and a true copy ,vas thereafter duly served on respondent.

3. Respondent admits alj the jurisdictional fact.s alJcged in the complaint and agrees that the record may be taken as findings of jurisdictional fads had been duly made in accordance with such alJcgat.ions.

4. This agreement disposes of alj of this proceeding as to alj parties.

5. Hespondcnt waives:

(a) Any further procedural steps before t.he nearing' examiner and the Commi sion;

(b) The making of findings of fact or conclusions of Irl\v; and (c) Alj of the right.s it may have t.o challenge or contest the validity of the order to cease and desist entered in accordance "with this agreement.

6. The record on which the initial decision and the decision of the Commission shall be based shall consist solel:v of the cornplaint and this agreement.

7. This agreement shall not. become a part of the official recorel unless ancl until it becomes a part of the decision of the Commission.

8. This 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.

9. The follo\ving order to cease and desist may be entered in this proceeding by the Commission without further notice to re- \\ NELBRO PACKING COMPANY 939 936 Decision spondent. When so entered it shall have the same force and effect as if entered after a full hearing. It may be altered, modified or set aside in the manner provided for other orders. The complaint may be used in construing the terms of the order. Upon due consideration of the complaint filed herein and the said "Agreement Containing Consent Order to Cease and Desist the agreement is hereby approved, accepted and ordered filed, the same not to become a part of the record herein, hO\vever, unless and until it becomes a part of the decision of the Commission. The hearing examiner finds from the 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 complaint states a legal cause for complaint under the Clayton Act, as amended, against the respondent, both generally and in each of the particulars alleged therein; that this proceeding is in the interest of the public; that t.he following order, as proposed in said ag-reement, is appropriate for the just disposition 01' all of the issues in this proceeding as to all of the parties hereto; and t.hat said order t.therefore should be, and hereby is, entered as fo1Jows:

ORDER It is ordered That. Nelbro Packing Company, a corporate.ion and its offcers, agents, representatives or employees, directly or through any corporate or other device, in connection with the sale of seafood products in commerce, as "commerce" is defmed in the aforesaid Clayt.on Act, do forthwith cease and desist from:

Paying, granting or allowing, directly or indirectly, to any buyer, or to anyone acting for or in behalf of, or who is subject to t.he direct or indirect control of such buyer, anything of value as a commission, brokeragc, or other compensation, or any allo" ance or discount in lieu thereof, upon or in connection ,with any sale of seafood products to such buyer for his own account. D!;CISION OF Tile Commisslon AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section B.21 of the Commission s Hulcs of Practice the initi"! decision of the hearing examiner shall, on t.he 24t.h day of December 1958 , become the decision of t.he Commission; and, accordingly:

Dccision 55 F.

It is ordered That respondent Nelbro Packing Company, 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 to cease and desist. LADD KNITTING MILLS, INC., ET AL. 941 Decision