Oneida LTD.

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

IN THE :vATTER OF ONEIDA LTD.

ORDER TC. IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2(d) OF THE CLAYTON ACT Docket 72.'1. Complaint, Aug. 1958-0rrle?' , Apr. , 1959 Order dismissing, following discontinuance in good faith of illegal practice before Commission investigation, complaint charging a large silvcrware manufacturer with granting" discriminatory advertising allowances to favored customers.

Mr. William H. Smith and M,' . James R. P,.chterman for the Commission.

Shearman Sterling Wright by Mr. Robert L. Date, .J. of ew York, N. , for respondent.

INITIAL DECISION DISMISSING COMPLAINT BY FRANK HIER, HEARING EXAMINER On August 21 , 1958, complaint in this proceeding was issued by the Commission charging violation of Seclion 2 (d) of the Robinson-Patman amendment to the Clayton Act, alleging that respondent granted a special advertising allowance to one of its customers, Associated Barr Stores, Inc. , of Philadelphia, Pa. , a chain of retail jewelry outlets, for a special television promotion program and had paid substantial sums of money thereon during 1954, 1955, and 1956, and that this allowance was not granted on proportional or any other terms to any of respondent' s other customers in that area.

Time was extended for answer, and on October 20 , 1958 , respondent moved to dismiss the complaint on the basis of voluntary discontinuance in good faith prior to any investigation or litigation activities. This motion was supported by an affdavit of the president in which it was admitted that the payments were made as alleged; that the allowance was discontinued by letter to Barr dated November 28 , 1956, copy of which was attached; that IIO investigator called on respondent prior to September 9, 1957; that the special TV promotion program was a financial and commercial failure; that, in fact, the payments thereunder exceeded the sales; that the respondent had discoIItinued in June 1957 all advertising allowances of any kind or character; that the administration of any advertising program Order 55 F.

in its particular operation is not only cumbersome, but diffcult; that it has no reason to renew or institute any further cooperative advertising allowance program, and will not do so. At the hearing on the motion held this date, in response to questions from the undersigned hearing examiner, the following facts developed: That counsel in support of the complaint was unable to state that the files before the Commission at the time it issued the complaint, contained any of the facts relating to abandonment; that an investigator from the Federal Trade Commission did visit Associated Barr Stores, Inc. , on October 10, 1956, but apparently on a general inquiry unrelated, at the time to this respondent; that there is nothing to show that the respondent was apprised of any charge of illegality prior to September 9 , 1957 , as asserted; that counsel for the respondent admits all of the factual allegations in thc complaint, and, having thus confessed, requests absolution or at least a dismissal of the complaint.

If the Commission had before it the facts relating to abandonment, this hearing examiner would feel that he had no discretion in the matter but to deny the motion. However, the contrary appears. He is una\vare of any other Commission or other case involving this question of abandonment where the facts for dismissal ale as strong as these. In most instances discontinuance has occurred after the filing of the complaint or after investigation has apprised the respective respondent that the legality of its practices is being questioned. However, if abandonment took place ten months before any such knowledge, under all these circumstances, above related, the motion should be and is granted. It is, therefore Ordered That the complaint herein be, and the same hereby , dismissed for good faith of abandonment with no reason to suspect or expect resumption or reinstitution of the practices charged and that, therefore, there is no public interest in further proceedings.

ORDER DENYING APPEAL AND ADOPTING INITIAL DECISION DISMISSIKG COMPLAINT This matter having been heard upon the appeal of counsel in support of the complaint from the hearing examiner s initial decision dismissing the complaint; and The Commission having considered the entire record, including the briefs and oral argument of counsel in support of and in ONEIDA LTD. 1671 1669 Order opposition to the appeal, and having concluded that the initial decision is correct and appropriate in all respects to dispose of this proceeding:

It is o?'dered That the aforementioned appeal of counsel in support of the complaint be, and it hereby is, denied. It is fUTthe?' ordered That the hearing examiner s initial decision dismissing the complaint, filed October 31 , 1958 , be, and it hereby is, adopted as the decision of the Commission. g, 1672 FEDERAL TRADE CO:vIMISSIOX DECISIONS Decision 55 F.