Exquisite Form Brassiere, Inc.

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In the Matrer oF EXQUISITE FORM BRASSIERE, INC.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SECS. 2(@) AND 2(e) OF THE CLAYTON ACT Docket 6966. Complaint, Nov. 29, 1957 *—Decision, Oct. 31, 1960 Order requiring an industry leader in the manufacture and sale of brassieres, with annual sales in excess of $10 million, to cease discriminating in price between competing customers in violation of Secs. 2(d) and 2(e) of the Clayton Act by paying advertising allowances and furnishing “stylists” to certain large retailer customers while not making either available on proportionally equal terms to competing smaller customers. Peter J. Dias, Esqg., and Robert G. Cutler, Esqg., for the Commission.

James W. Cassedy, E'sq.; Robert B. Dawkins, Esq., and Peyton Ford, E'sq., of Washington, D.C., for respondent. Init1at Decision py Ropvert L. Piper, Heartnc EXAMINER STATEMENT OF THE CASE On. November 29, 1957, the Federal Trade Commission issued its complaint against Exquisite Form Brassiere, Inc., a corporation (hereinafter called respondent), alleging that respondent had violated Section 2(d) of the Clayton Act. (hereinafter called the Act), 15 U.S.C. 12, et seg., as amended by the Robinson-Patman Act. Copies of said complaint together with a notice of hearing were duly served on respondent.

Respondent appeared by counsel and filed an answer admitting the corporate, commerce, and most of the factual allegations of the complaint but denying any violation of the Act. Pursuant to notice, hearings were thereafter held before the undersigned hearing examiner, duly designated by the Commission to hear this proceeding, at various times and places from June 9, 1958, to December 29, 1958.

At the conclusion of the case-in-chief, counsel supporting the complaint moved the undersigned to certify to the Commission their motion to amend the complaint to also allege a violation of Section 2(e) of the Act, in view of the proof received. Counsel for both parties and the undersigned being of the opinion that such an amendment was not “reasonably within the scope” of the original complaint, as required by Section 3.9 of the Commission’s Rules » Amended and Supplemental Complaint, Aug. 1, 1958. EXQUISITE FORM BRASSIERE, INC., 1037 1036 Findings of Practice, said motion was certified to the Commission. On August 1, 1958, the Commission granted the motion and issued its amended and supplemental complaint, alleging violations of Sections 2 (d) and (e). The Commission’s order further provided that the evidence theretofore introduced should have the same force and effect as though received under the complaint as amended, and that respondent be accorded such procedural rights as the undersigned deemed appropriate and necessary.

Respondent was accorded the right to, and did, recall witnesses for further cross-examination in the light of the amended complaint, and thereafter presented its defense, none of which had been proffered prior to the amendment of the complaint. Every procedural right which respondent could have been afforded had the complaint originally alleged violations of Sections 2 (d) and (e) was accorded.

The amended and supplemental complaint alleges, in substance, that respondent paid for services furnished by some customers and that such payments were not available on proportionally equal terms to competing customers, in violation of Section 2(d); and that respondent furnished services to some purchasers upon terms not accorded to competing purchasers on proportionally equal terms in violation of Section 2(e).

Both parties were represented by counsel, participated in the hearings, and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file proposed findings of fact, conclusions of law, and orders, together with reasons in support thereof. Because of the untimely demise of both Messrs. Cassedy and Dawkins, several extensions of time for the filing of proposed findings were granted, finally terminating September 15, 1959, at which time both parties filed their proposed findings of fact and waived oral argument thereon. AII such findings of fact and conclusions of law proposed by the parties, respectively, not hereinafter specifically found or concluded, are herewith specifically rejected.

Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. The Business of Respondent The complaint alleged, respondent admitted, and it is found that respondent is a New York corporation with its principal 15 U.S.C. § 1007(b).

Findings 57 F.T.C.

office and place of business located at 159 Madison Avenue, New York City, New York.

Il. Interstate Commerce The complaint alleged, respondent admitted, and it is found that it is now, and for many years past has been, engaged in the manufacture, sale and distribution of brassieres. In the course and conduct of its business respondent is now, and has been, engaged in commerce, as “commerce” is defined in the Act, having shipped its products or caused them to be transported from its principal place of business in the State of New York to customers located in other rstates of the United States and the District of Columbia. Volume and dollar-wise, respondent is a leader in the industry, with sales in excess of $10,000,000 annually. Respondent sells its products to various customers and purchasers, such as department stores, women’s specialty stores, and dress shops, with places of business located in various cities throughout the United States, who were and are engaged in the resale of respondent’s products at retail to the purchasing public. III. The Unlawful Practices A. Paying for services furnished by customers. (Section 2(d)) Section 2(d) makes it illegal for any person engaged in commerce to * * * pay * * * to a customer * * * for any services * * * furnished by or through such customer in connection with the * * * sale * * * of any products * * * manufactured * * * by such person, unless such payment * * * is available on proportionally equal terms to all other customers competing in the distribution of such products. * * * The facts with respect to this issue are substantially undisputed and for the most part admitted. Since 1954 respondent has had in effect a cooperative advertising plan, with various changes from time to time as hereinafter set forth, under which it pays, by means of credit memoranda applicable to current or future invoices, a portion of the cost of newspaper advertising placed by its larger customers and featuring respondent’s products. From August 30, 1954, to January 25, 1956, if a customer would place such an advertisement of at least 400 lines in a recognized newspaper, respondent would pay 60 percent of the cost. If within six months the customer placed at least five such advertisements, respondent would pay 70 percent of the cost of all of them. If at least eight advertisements were placed within six months, respondent would pay 80 EXQUISITE FORM BRASSIERE, INC., 1039 1036 Findings percent of the cost of all of them. No payments were made for any smaller advertisements or in any other media. From January 26, 1956, to July 1, 1957, the lineage requirement “was changed to 260 lines and respondent would pay 50 percent of the cost of each advertisement; for successive advertisements within a three-months’ period, 60 percent for two, 70 percent for three, and 80 percent for four. From Julv 1, 1957, to the date of the hearings, respondent’s plan was changed so that it would pay 50 percent on all such advertisements regardless of the number placed, with the same 200-line and media requirements.

The record establishes that this plan was designed for, and offered only to, the Jarger accounts. The specific terms of the cooperative advertising plan, particularly the requisite size of the advertisement, made it inapplicable to smaller accounts which never did enough business in respondent’s products to justify or even pay for advertising expenditures in such amounts. In fixing the terms of its advertising program, respondent of course knew that its smaller accounts could not afford an advertisement of the requisite size devoted to one product when the account’s share of the cost would in all probability exceed its total gross profit on the sale of such product.

In the terms of the statute, the payments must be available upon proportionally equal terms to all competing customers. It follows that if they are not available or offered to all such, no matter how equal the terms otherwise may be, the statute is violated. Both requisites are necessary—availability to all and proportionally equal terms to all. It is settled law, and indeed respondent’s counsel concedes, that the term “available” as used in §2(d) means that the payment must be offered, and the terms made known, to all competing customers.? That which is not made known or that which is not offered cannot be considered as available. The choice must be that of the customer, not the seller. Any other interpretation would make evasion of the statute simplicity itself. The record here establishes that the respective plans were not offered and were not made known to many of respondent’s customers competing with those to whom such payments were made. Counsel supporting the complaint called a number of respondent's customers located in Paterson, Plainfield, and Trenton, New Jersey, who testified that they were never offered cooperative advertising allowances by respondent and had never received any. Some of these customers testified that they had been informed of the existence of a 2 Kay Windsor Frocks, Inc., 51 FTC 89 (1954); Henry Rosenfeld, Inc., 52 FTC 1535 (1956) ; Chestnut Farms-Chevy Chase Dairy, 53 FTC 1050, Docket No. 6465 (1957). Findings 57 F.T.C.

plan at its inception, but had never been advised of its terms and specifically the changes occurring in 1956 and 1957. The record further establishes that respondent did pay such advertising allowances to various customers in each of the three cities who were in direct. competition in the resale of respondent’s products with the customers who were not offered the plan. Both the testimony of the customers who were not offered the plan and their geographic proximity to the location of the stores which were paid advertising allowances establish that they were in fact in direct competition with each other in the resale of respondent’s products.’ As the Commission said in the Rosenfeld case, supra: * * * Under the Act, an allowance cannot be deemed “available to a reseller, ** © when a seller fails to inform or otherwise offer promotional allowances to a customer * * *, and also in the Chestnut Farms Dairy case, supra, *o ® Whether or not a customer participates therein is a decision for the customer. The customer obviously must know the specific terms of a plan before he can determine whether he is interested in participating. * * * Respondent’s cooperative advertising plan in fact was not designed or intended for the use of its smaller customers. As found above, many of them were never offered the plan, and, while many of them knew in general that cooperative advertising existed in the industry, they were never told of respondent’s terms, which changed three times from 1954 to 1957. Respondent argues that its second plan, the one adopted in 1956, was given some publicity in trade journals and hence was known to its customers. Aside from the question of who did or did not read such articles, such general publicity cannot. be equated with an offer and actual knowledge of the terms, so as to be “available” within the meaning of the statute. Respondent also contends that it offered the plan to all of its customers orally through its salesmen, but the undisputed testimony of many customers was that they were never offered the plan, and of other customers, that while they were informed of the original plan, they were never advised of the terms of the second or third plans. Respondent. called no salesmen to refute this testimony and hence it stands undisputed. While it is apparent that many of respondent’s smaller customers economically could not have made use of the cooperative advertising because of the required size of the advertisement, it also seems obvious that at least some of them might have been able to make use of it when the requisite size was 3 Elizabeth Arden v. F.9.C., 156 F. 24 182 (C.A. 2, 1946); F.T.C. v. Simplicity Pattern, 860 U.S. 55 (1959; and Liggett € Myers Tobacco Co., Inc., 56 FLC 221, Docket No. 6642 (1959).

EXQUISITE FORM BRASSIERE, INC., 1041 1036 Findings reduced from 400 to 200 lines in 1956. Yet it is undisputed that they were never informed of this change.

While the Commission in the Lever Brothers and the so-called Soap cases,* held that every feature of a plan need not be useful to all in order for it to be upon proportionally equal terms, this holding was limited to situations where reasonably equal alternatives are available. As the Court of Appeals pointed out in the recent State Grocers case,° a plan (of exactly the same type as herein) whose terms by their nature cannot be used by all competing customers is not “available,” and is tantamount to no offer at all. In the Soap cases, alternative advertising allowances were made known and available to all. The teaching there is that all parts of an offer do not have to be usable by all, but only when and if a reasonable alternative of proportionally equal terms is available. Unless such special circumstances exist, the more recent holding in the State Grocers case, supra, must prevail—namely, that a plan which is not usable by all, with no alternatives of proportional equality, is not available to all within the meaning of the statute. In an attempt to establish a reasonable alternative, respondent argued that its premium plan, and/or the furnishing of counter display material and store dispensers for its products, were available alternatives upon proportionally equal terms. The argument is without merit. With regard to its premium plan, hereinafter described, in the first place, and most importantly, the record establishes that it was not in effect during most of the time encompassed by the cooperative advertising allowances. The premium plan was discontinued in January 1955, renewed in June of 1955, and then discontinued permanently in January 1956. Throughout nearly half of 1955, substantially all of 1956, and ever since it has not been in existence. That which does not exist cannot be an alternative. Secondly, even when it existed it was not proportionally equal—it did not constitute a form of advertising allowance such as the various alternatives in the soap case did. Thirdly, it was not an alternative since it was neither offered nor made available to all. It was neither offered, nor made available, to those accounts receiving advertising allowances.

The premium plan consisted of a system of points awarded to customers, one for each $10 worth of goods purchased from respondent. It required the accumulation of 30 points, or 2 minimum of $300 in purchases, before any premium or prize was earned. Conversely, no minimum purchases were necessary under the co- 4 Lever Brothers Co., 50 FTC 494 (1953) ; and companion cases. 5 State Wholesale Grocers v. A ¢ P Company, 258 F. 2d 831 (C.A. 7, 1958). 640968—63——67 Findings 57 FTC.

operative advertising plan. Additionally, no one could seriously argue that an ice bucket, a pressure cooker, an iron, a percolator, a carving set or a bridge set were reasonable alternatives of proportional equality with hundreds of dollars worth of promotional advertising. In short, the premiums were neither available nor proportionally equal within the meaning of the statute. In addition to establishing that advertising allowances were not made available to all competing customers, the record also establishes that even among those to whom they were made available the plan was not adhered to and they were not upon proportionally equal terms. A number of instances were established where respondent deviated from its stated percentages in Paterson, Plainfield and Trenton. Some customers were paid 80 percent of the costs of ads when they were only entitled to 50 percent under the terms of the plan; some were paid percentages not even set forth in the plan, such as 75 and 77 percent; and some were paid only 50 percent when they were entitled to a larger amount because of placing the requisite number of ads during the specified periods of time. In each instance these variations occurred among customers competing in the resale of respondent’s products. The record also establishes that in one instance respondent granted “push” or “prize” money to one customer’s sales personnel in the amount of 11 cents per brassiere sold during a specified period of time, without according such allowance to any of respondent’s competing customers.

Respondent’s contention that its furnishing of display material and store dispensers constitutes a proportionally equal alternative is entitled to even less consideration. Inasmuch as such materials were offered and furnished to all customers who desired them regardless of participation in the cooperative advertising or the premium plan, they were in no sense alternatives but were general promotional services available to all. Even if such facilities had been offered as alternatives, which they were not, quantitatively they could not be considered proportionally equal. In addition, it would appear to be an attempt to make Section 2(e) “services” a substitute or alternative for Section 2(d) “payments”; Section 2(d) encompasses paying for services furnished by a customer, whereas § 2(e) encompasses services furnished by the seller to the customer, which would include the furnishing of store dispensers and display material. Section 2(d) expressly provides that such payments for services furnished by a customer are illegal unless such payment is available on proportionally equal terms to all other customers competing. . This means what it says: an alternative must be the EXQUISITE FORM BRASSIERE, INC., 10438 1036 Findings payment for services furnished and not the furnishing of services by the seller to the customer. Such payment, not something else, must be available on proportionally equal.terms. In addition to the foregoing defenses, respondent also argued that its cooperative advertising allowances were made in good faith to meet competition. It is now well settled that the good faith meeting of competition defense set forth in Section 2(b) is not applicable to Section 2(d).6 A preponderance of the reliable, probative ‘and substantial evidence in the entire record convinces the undersigned, and accordingly it is found, that respondent has paid and contracted to pay for advertising services furnished by or through some of its customers in connection with the sale or offering for sale of its products by such. customers. without making such payments available on proportionally equal terms to all other customers competing in the distribution of its products, in violation of Section 2(d) of the Act. B. Furnishing services to purchasers. (Section 2(e) ) Section 2(e) makes it illegal to * * * discriminate in favor of one purchaser against another * * * of a commodity bought for resale * * * by * * * furnishing * * * any services * * * connected with the * * * sale * * * of such commodity * * * upon terms not accorded to all purchasers on proportionally equal terms. The terminology of the Section and the decisions of the Commission and the courts make it clear that the term “accorded” used in Section 2(e) has substantially the same meaning as the term “available” used in Section 2(d). For the same reasons as expressed hereinabove, the services supplied by respondent must be offered and made known to all purchasers, or they cannot be considered as having been accorded to all as required by the statute. Although Section 2(e) does not contain the limitation found in 2(d), that the purchasers or customers to whom the services must. be accorded be competing in the resale of the products, the decisions of the Commission and the courts uniformly have so construed it. As with respect to the 2(d) count, the facts are substantially undisputed. During the same period of time in the course and conduct of its business, respondent has furnished to some of its purchasers the services of special personnel known as “stylists.” These “stylists,” perhaps more commonly known as “demonstrators,” are employed and paid by respondent. and furnished to some of its customers at their stores to assist in the demonstration and sale of 6F.T.C. v. Simplicity Pattern Co., 360° U.S. 55 (1959); A & P Tea Co. v. F.T.C., 106 F. 2d 667 (C.A. 8, 1984); and Henry Rosenfeld, Inc., 52 FTC 1585 (1956). 1044. FEDERAL TRADE COMMISSION DECISIONS Findings 57 F.T.C.

respondent’s products and the education of its customers’ sales personnel. As in the case of cooperative advertising, the record establishes that respondent furnished stylists only to its larger accounts. They were not offered or made available to many of respondent’s smaller accounts in direct competition with such favored accounts in the resale of respondent’s products. Much of the testimony concerning the furnishing of stylists came into the record prior to the amendment of the complaint, when Section 2(e) was not in issue and the issue at that point was 2(d). The testimony of respondent’s officials reveals that the stylist program was never intended to be available or offered to all of its customers, but was a special program designed to promote sales in the largest stores of respondent’s.customers. Respondent sells nationally and has the country divided into from ten to fourteen districts. It employed only four to six stylists. They were assigned on an equal basis to each district, so that each individual district would have use of a stylist for approximately six months. Respondent’s officials conceded that its district managers assigned stylists to purchasers in their territory as they saw fit, and that it would be completely impractical to furnish them to every customer who wanted them. They also conceded that it was not intended that the program would be available to all customers. Prior to the amendment of the complaint to include Section 2(e), it was frankly conceded that the stylist program was adopted as a promotional device to enhance respondent’s sales.

The record establishes that respondent furnished stylists to customers in Plainfield and one customer in Trenton while not offering or furnishing such stylists to all other competing customers in those areas. While respondent’s answer affirmatively alleged that it had made the services of stylists available on proportionally equal terms to all its competing customers, respondent’s principal defense to the 2(e) charge appears to be that it furnished such services as a good faith meeting of competition. Actually its position in this respect is inconsistent inasmuch as if it furnished or offered the services of stylists to all of its customers, then it could not have been limiting the furnishing of such stylists to a good faith meeting of services furnished by competitors, since the record establishes and respondent concedes that such stylists were not furnished by competitors to the smaller stores and accounts among respondent’s customers.

Inasmuch as the record establishes beyond dispute that such services were not offered or accorded to all competing purchasers, the only defense necessary to consider is that of the good faith meeting of competition. Counsel supporting the complaint suggest EXQUISITE FORM BRASSIERE, INC., 1045 1036 Findings in their brief that the good faith meeting of competition defense in Section 2(b) is not applicable to Section 2(e) as a matter of law, suggesting that the holdings of the Commission and the Court of Appeals to the contrary in the A & P Tea Co. and Rosenfeld cases™ were dicta. Be that as it may, the issue has been definitively settled by the recent decision of the Supreme Court in the Simplicity Pattern case,’ where the Court specifically held that. the good faith meeting of competition defense set forth in Section 2(b) does apply to Section 2(e), although it does not to Sections 2(c) and 2(d). Section 2(b) provides, inter alia:

* * * Provided, however, That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. With respect to this very point, the Supreme Court held: Thus ‘a discrimination in prices may be rebutted by a showing under any of the Section 2(a) provisos, or under the Section 2(b) proviso—all of which by their terms apply to price discriminations. On the other hand, the only escape Congress has provided for discriminations in services or facilities is the permission to meet competition as found in the Section 2(b) proviso. There can no longer be any question but that the proviso in 2(b) is applicable to Section 2(e).

«As counsel supporting the complaint points out, this necessitates applying the tests which have been applied to Section 2(b) in order to determine whether or not respondent’s furnishing of stylists was in fact a good faith meeting of the furnishing of such services to a purchaser by a competitor. It is settled law that the good faith meeting of competition defense is restricted to individual competitive situations and does not apply to a plan or system. In other words, in the language of the statute, the meeting of competition must be defensive in order to meet an offer made to one’s customer and thus prevent the loss of such a customer, rather than be aggressive, or a system designed to meet competition generally as distinguished from individual offers to customers. The situation here was exactly the opposite. Before the complaint was amended, respondent’s testimony frankly revealed that the plan was designed as an aggressive tool to promote the sales of its products. The very method by which it was set up, limiting the stylists to an equal amount. of time in each district and permitting their use by each district manager as he saw fit would prevent its 7 See footnote 6, aupra.

8 See footnote 6, supra.

9 F.T.C. v. Staley Mfg. Co., 324 U.S. 746 (1945); Standard Oil Co. v. F.T.C., 340 U.S. 231 (1951) ; 355 U.S. 396 (1958) ; and C. E. Niehof & Co., 51 F.T.C. 1114 (1955). 1046 FEDERAL ‘TRADE COMMISSION DECISIONS Findings 57 FTC.

being used only for the purpose of meeting specific competition. If it were designed to meet competition. as it arose, stylists would have to be assigned in those areas where the need occurred, and not divided equally throughout the entire nation and used at the discretion of district managers. The odds would be astronomical against an even distribution of offers by competitors to respondent’s customers at all times throughout the country. Furthermore, as was pointed out by the Supreme Court in the Staley and Standard Oil cases, supra, Section 2(b) does not permit the adoption of a system to meet the competition of an illegal discriminatory system engaged in by competitors. Two-wrongs do not make a right. The “good faith” requirement is not met unless the discrimination is limited to individual situations in order to meet competitive offers and prevent the loss of customers. Although respondent proved that some of its competitors had supplied stylists, no attempt was made to demonstrate the terms and conditions of such programs, the products involved, or the length of time such services were furnished. Lacking this information, respondent’s furnishing of stylists hardly could -be said to have been. made in good faith to meet the services furnished by. competitors.

“Additionally, the proviso is designed to prevent. the loss of customers by permitting such discrimination in limited situations. The record here establishes that the furnishing of stylists was not a _ prerequisite to preventing the loss of any- customers, since they all testified that the failure or refusal of a manufacturer to furnish stylists would not result in their discontinuance of business with that manufacturer. After the complaint was amended to include Section 2(e), the same witness for respondent, then testified that the furnishing of stylists was limited to the meeting of competition, although he had previously testified to the contrary, namely, that stylists were used at the discretion of the district managers for whatever promotional benefit possible. In the light of well-established principles of evidence, his testimony prior to the existence of a self-serving motivation militating against a full and frank disclosure of all the facts is entitled to more weight than that after the amendment. This principle is similar to the familiar one applied by the courts in connection with numerous exceptions to the hearsay rule, such as past recollection recorded, admissions, statements against interest, res gestae, declarations of state of mind, ete. ‘A preponderance of the reliable, probative and substantial evidence in the entire record convinces the undersigned, and accordingly it is found, that respondent has discriminated in faxor of some purchasers against other purchasers by furnishing the services of stylists upon terms not accorded .to all competing purchasers on EXQUISITE FORM BRASSIERE, INC., 1047 1036 Order proportionally equal terms, in violation of Section 2(e) of the Act. It is further concluded and found that such discrimination in the. furnishing of services was not made in good faith to meet services furnished by a competitor.

C. Respondent’s contentions applicable to both counts Respondent’s answer (although not its present counsel) advanced the threadbare contention that Sections 2 (d) and (e) are unconstitutional. In addition to the well-settled rule that. administrative agencies have no power to pass upon the constitutionality of laws enacted by Congress, the numerous decisions of the Courts of Appeal and the Supreme Court enforcing Commission orders issued under’ Sections 2 (d) and (e) demonstrate the contrary.?® Respondent also argues that under Sections 2 (d) and (e) it is essential to both plead and prove that the practices may have had a substantially injurious effect upon competition, as is necessary in connection with alleged violations of Section 2(a), price discrimination. The contrary is so well settled as to not warrant extended discussion, and the Commission and the courts have so held frequently.11 In the recent Simplicity Pattern decision, the Supreme Court specifically passed upon this very contention, and stated: In terms, the proscriptions of these three subsections [(c), (d), and (e)] are absolute. Unlike Section 2(a), none of them requires, as proof a a prima facie violation, a showing that the illicit practice has had an injurious or destructive effect on competition.

CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and engaged in the abovefound acts and practices in the course and conduct of its business in. commerce, as “commerce” is defined in the Act. 2. The acts and practices of respondents as above found violate Sections 2 (d) and (e) of the Act.

ORDER It is ordered, That respondent Exquisite Form Brassiere, Inc., a corporation, its officers, directors, representatives, agents and em-. ployees, directly or through any corporate or other device, in or in connection with the sale of brassieres in commerce, as “commerce” is defined in the Clayton Act, as amended, do forthwith cease and desist from:

10 Hlizabeth Arden v. F.T.C., supra; F.T.C. v. Simplicity Pattern, supra; Great Ad Pv. F.T.C., supra, and State Wholesale Grocers v. A & P Co., aupra. 11 Henry Broch & Company, 54 FTC 673, Docket No. 6484 (1957); Elizabeth Arden v. F.T.C., supra; and F.T.C. v. Simplicity Pattern Co., supra. Opinion 57 FTC.

1. Paying, or contracting to pay to or for the benefit of any customer, an advertising allowance, push money or anything of value 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 respondent’s products, unless such payment or consideration is offered and otherwise made available on proportionally equal terms to all other customers competing in the distribution or resale of such products; 2. Discriminating, directly or indirectly, among competing purchasers of its products, by contracting to furnish, furnishing, or contributing to the furnishing of the services of stylists or any other services or facilities connected with the processing, handling, sale or offering for sale of respondent’s products, to any purchaser from respondent of such products bought for resale, unless such services or facilities are offered and otherwise made available on proportionally equal terms to all purchasers competing in the distribution or resale of such products.

OPINION OF THE COMMISSION By Secrest, Commissioner:

The complaint herein charges the respondent with violating subsections (d) and (e) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act. The hearing examiner in his initial decision held that the allegations of the complaint were sustained by the evidence and ordered respondent to cease and desist the practices found to be unlawful. Respondent has appealed from this decision.

The complaint, as originally issued, charged only a violation of Section 2(d). At the conclusion of the case in chief, the complaint was amended on the motion of counsel supporting the complaint to include allegations charging also a violation of Section 2(e) of the Act. Respondent. contends that the Commission exceeded its authority under §3.9 of its Rules of Practice by amending the complaint to include a new and separate charge. It also contends that by so amending the complaint the Commission deprived respondent of its constitutional right to a fair hearing. The answer to the first argument is that the new allegations were not added to the complaint pursuant. to § 3.9 of the Rules of Practice which relates solely to the hearing examiner’s authority to amend complaints, but in an exercise of the administrative responsibility of the Commission itself to issue its complaint and to supplement a complaint previously issued whenever it has “reason to believe” EXQUISITE FORM BRASSIERE, INC., 1049 1036 Opinion that a provision of the Clayton Act within its jurisdiction to enforce is, or has been, violated.

With respect to the second contention, respondent has failed to indicate in what manner it was deprived of a fair hearing. The record reveals that insofar as the new allegations were concerned respondent was accorded the same procedural rights and safeguards it would have received had a new complaint been issued. Its appeal on these points is, therefore, denied. Respondent has also appealed from the hearing examiner’s holding that it violated Section 2(d) by making payments to certain customers for newspaper advertising furnished by or through them in connection with the sale of its products without making such payments available on proportionally equal terms to other customers competing in the distribution of such products. The hearing examiner found in this connection that. respondent’s cooperative newspaper advertising plan was not offered or made known to certain customers of respondent who were competing with others to whom respondent had granted advertising allowances. Respondent contends that the hearing examiner’s findings | are not supported by the evidence, and further that it had proportionalized the payments made under the cooperative advertising plan by providing alternative plans on proportionally equal terms to customers who could not use newspaper advertising. On the latter point, the examiner ruled that other plans offered by respondent, namely, its premium plan and/or the furnishing of counter display material and store dispensers for its products, were not suitable alternatives to respondent’s cooperative advertising plan. We are convinced from an examination of the record that respondent’s cooperative newspaper advertising plan was not offered or made known to some customers competing with others who received payments under the plan. The record reveals that respondent’s salesmen offered the plan to certain of respondent’s larger customers but did not make the offer to smaller competing customers nor inform them of the existence of the plan. Respondent’s contention that advertising and other publicity in trade journals with respect to the plan constituted notice to all customers of the “availability” of the plan is refuted by the testimony of several of its customers. This argument also ignores the fact that publicity with respect to the plan, given in January and February, 1956, did not. occur until about sixteen months after the plan was put into effect in 1954.

The record also discloses that respondent’s premium plan was not offered to customers who received payments under the cooperative Opinion 57 FTC.

advertising plan. Since the two plans were not offered to all competing customers, they cannot be considered as alternative features or elements of a comprehensive plan. In Lever Brothers Company, 50 F.T.C. 494 (1953), we held that a seller may pay for promotional services of various types and that in some instances it might be his duty to do so in order to meet the test of availability. We also held that such a comprehensive plan does not have to be so tailored that every feature of it will be usable or suitable for all customers. However, the customer and not the seller should decide what is or is not usable and suitable for him and should have the opportunity to select that feature of a plan which suits him best. Liggett & Myers Tobacco Company, Inc., Docket 6642 (1959) ; Chestnut Farms Chevy Chase Dairy, 53 F.T.C. 1050 (1957). Since respondent’s customers were denied this choice, the aforementioned plans cannot be considered as alternatives but were in fact separate and distinct from one another. Respondent’s other two plans, namely, the furnishing of display material and store dispensers, were not offered in lieu of the advertising allowance but were available to customers receiving such allowance. It is our conclusion, therefore, that the various plans offered by respondent were not alternatively available to all competing customers. Consequently, we do not reach the question of whether the various plans could be legitimate components of a comprehensive plan or whether the terms of one plan were or could be proportionally equal to those of another. The allegation that respondent violated Section 2(d) is sustained by the showing that the cooperative advertising allowance was granted to some customers but was not offered to other customers competing in the distribution of respondent’s products. Respondent’s appeal on this point is also denied. Another point raised by respondent in this phase of its appeal concerns the hearing examiner’s rejection of its argument that its cooperative advertising allowances were granted in good faith to meet competition. The hearing examiner rejected this argument citing Federal Trade Commission v. Simplicity Pattern Company, 360 U.S. 55, 1959; The Great Atlantic & Pacific Tea Co. v. Federal Trade Commission, 106 F.2d 667 (3d Cir. 1939) and Henry Rosenfeld, Inc., 52 F.T.C. 1585 (1956) 22 12 Specifically the hearing examiner held that “it is now wel) settled that the defense set forth in Section 2(b) is not applicable to Section 2(d)" and that “this issue hax been definitely settled by the recent decision of the Supreme Court in the Simplicity Pattern case.” supra. He observed that the Court in the Simplicity Pattern case had held the good faith meeting of competition defense available in Section 2(e) situations but that it could not be offered defensively in cases brought under Sections 2(c) and 2(d).

EXQUISITE FORM. BRASSIERE, INC., 1051 1036 . Opinion The “services and facilities” amendment to the good faith meeting of competition defense originally took. form during the Senate debates and culminated in Senate passage of a bill containing only present Section 2(d) but not Section 2(e). (80 Cong. Rec. 8418- 8419). As initially proposed the. meeting. of competition defense appeared at the end of the bill and was numbered 2(d) following Section 2(c)(1) which is now Section 2(d). After the “services and facilities” language was added to the bill, however, the position of the subsection was changed and renumbered 2(b) and placed in the bill immediately following Section 2(a) which, then as now, relates only to price. Senator Moore of New Jersey in introducing the “services and facilities” amendment to Section 2(b) made no clear explanation as to why he added this language** to the bill,!4 but both the Senate and later the House amendments referred only to a seller furnishing the service or facility, as distinguished from payments by the seller to his customers which is, and was, the practice encompassed by what is presently Section In the House the “services and facilities” amendment was initially proposed on May 27, 1936 by Representative Miller on behalf of the Committee on the Judiciary during the debates on H.R. 8442 (80 Cong. Rec. 8139-8140). Representative Miller made no explanation as to why this amendment was offered but on May 28, 1936 Representative McLaughlin offered an amendment which was identical to the one offered by Representative Miller and stated: “Mr. Chairman. This is a committee amendment agreed to unanimously by the Committee and was explained yesterday. It simply allows a seller to meet not only competition in price of other competitors but also competition in services and facilities furnished.” (80 Cong. Rec. 8224-8295). The Conference Committee Report (No. 2951, 74th Cong., 2nd Sess., June 8, 1936) explained the. 2(b) proviso as: “A provision relating to the question of meeting competition, intended to operate only as a rule of evidence in a proceeding before the Federal Trade Commission, * * *”

In our Rosenfeld opinion, supra, we concluded that the 2(b) defense is not available in a proceeding involving an alleged viola- “Js an_ pertinent part the added language provided that: “nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his * * * furnishing of services or facilities * * * was made in good faith to meet vee the services or facilities furnished by a competitor.” [Emphasis provided.] 14 Senator Moore: “* * * The milk producers in New Jersey feel that unless this amendment is adopted all of their work for all these years will mean nothing; that they will go back again to where they were. The amendment merely provides that if they charge more to one person than to another. or are accused of discrimination, they shall have a right to prove justification. I think the amendment goes a little farther than the Borah-Van Nurs amendment or the amendment of the Senator from Oregon (Mr. MceNary).’’ (80 Cong. Rec. 64385.) Opinion 57 F.T.C.

tion of Section 2(d) because the statutory language does not so provide.4® This holding was affirmed on May 29, 1959 Jn the Afatter of Admiral Corporation (Docket 7094, CCH Trade Reg. Rep. Par. 28,083) where, in denying the respondent’s interlocutory appeal, we cited Rosenfeld and again declared that “the defense afforded in subsection (b) of Section 2 does not extend to other proceedings involving proved charges of violation of Section 2(d).” Our July 15, 1959 opinion in the same case alluded to our prior holding and stated that we would not there “reconsider or revise that ruling in any respect * * *” (CCH Trade Reg. Rep. Par. 28,175). ‘In our previous treatment of this issue we pointed to the hearings, debates, and Committee Reports and observed that there was little in the legislative history to explicate the meaning of the “services and facilities” amendment to Section 2(b). On the contrary we found that the discussion of the proviso in both the House and Senate appeared to be limited to situations involving price discrimination and that this was to be expected since neither the Robinson nor Patman bills, as originally introduced, provided for the defense of good faith meeting of competition and the proponents of the defense, in offering their amendments, initially limited its application to price. The addition of the language relating the defense to “services and facilities” apparently was not considered a significant change nor, for that fact, was the defense itself so considered, as it was interpreted as providing only a procedural as distinguished from a substantive defense. Respondent contends that subsections (d) and (e) are interchangeable, relate to similar practices and that therefore the same standards, including this defensive proviso, should apply to each. We believe, however, that “the provisions of all paragraphs of Section 2 are consistent and deal logically with their respective subjects.”?6 That there are obvious differences between a seller furnishing a service or facility and his providing only the remuneration for the many distinctive promotional activities of his customers can readily be seen by reference to this Commission’s 15 We observed that “judicial interpretation of Sections (c) and (d) had failed to integrate violations thereof with the standards applicable to the price discrimination — provisions of the Act’ and citing The Great Atlantic € Pacific Tea Company v. Federal Trade Commission, supra, we noted that the Court had stated that ‘The language of paragraph (b) related to proceedings brought pursuant to the provisions of paragraphs (a) and (e) but are not applicable to proceedings instituted under paragraphs (c) or (d).”

16 The Great Atlantic ¢ Pacific Tea Company v. Federal Trade Commiasion, 106 F. 2d 667, 677.

EXQUISITE FORM BRASSIERE, INC., 1053 1036 Opinion decisions.17 Each subsection has its own office and relates to specific and legally determinable and distinguishable practices. Since the specific language of Section 2(b) refers only to practices covered by Sections (a) and (e) we must therefore reject the argument that the subsection must also logically apply to Section 2(d). In confining our interpretation of this subsection to its precise language we are following previous interpretations of this same subsection, ie., Standard Oil Co. v. Federal Trade Commission, 340 U.S. 241. In that case, despite.a legislative history clearly indicating that Congress felt that the defense was to be construed as strictly procedural, the Supreme Court held that the language of Section 2(b) was clear and provided a complete defense to a charge of price discrimination. The dissent in the Standard case referred to the obviously different Congressional intent,’ but the majority held to a literal interpretation of the language of the statute.

“We cannot supply what. Congress has studiously omitted.” 7° Since subsection 2(b) refers only to a sedler’s furnishing a service or facility and since there is nothing in the history of the bill or in the language of the statute to support respondent’s contentions that this provision may be applied defensively to a charge of violation of Section 2(d) we must to this extent deny respondent’s appeal. Respondent has also taken exception to the hearing examiner’s ruling that it violated Section 2(d) through the payment of “push” or “prize” money, contending that the findings on this point are not supported by the record and that, in any event, the payment of push money does not come within the purview of Section 2(d). The record discloses in this connection that respondent transmitted a check to Rosenbaum’s, of Plainfield, New Jersey, by letter dated July 19, 1957, advising that “This check represents the prize monies due your Sales Personnel for the Exquisite Form P.M. Contest that was run in your store for the period of 4/15 thru 6/8/7.” Since this payment was granted by respendent to or, at least, “for the benefit of” a customer for promotional services lieg., see P. Lorillard Co. v. Federal Trade Commission, 267 F. 2d 439 (3d Cir. 1959), cert. den. 80 S. Ct. 293 (1960); Swanee Paper Corp., CCH Trade Reg. Rep. Par. 28, 212 (Dkt. 6927, 1959); Liggett & Myers Tobacco Co., Inc., CCH Trade Reg. Rep. Par. 28, 256 (Dkt. 6642, 1959).

18 Justice Reed in his dissent referred to the statement by Mr. Utterback, Chairman of the House managers, before the Conference Report was agreed to by the House wherein he received permission to print an explanation of his understanding of the proviso. He explained that the proviso ‘does not set up the meeting of competition as an absolute bar to a charge of discrimination under the bill. It merely permits it to be shown in evidence. * * * It leaves it a question of fact to be determined in each case, whether the competition to be met was such as to justify the discrimination given, * * *"' 340 U.S. 260, 261.

19 Federal Trade Commission v. Simplicity Pattern Company, 360 U.S. 55, 67. Opinion av F.T.C.

furnished respondent, it clearly comes within the scope of Section 2(d). The record also reveals that this payment was not made available on proportionally equal terms to other customers of respondent in the Plainfield, New Jersey, area. This showing is sufficient to sustain the charge in the complaint that respondent ‘violated Section 2(d) of the amended Clayton Act. The hearing examiner also held that respondent violated Section 2(e) by furnishing the services of “stylists” to certain purchasers without making such services available to competing purchasers on proportionally equal terms. He ruled further that respondent had ‘not justified this discrimination by showing that the services had been furnished in good faith to meet similar services provided by a competitor. Respondent has taken exception to both rulings. The record clearly establishes that the stylist services furnished by respondent to some of its larger customers were not offered or otherwise made available to other purchasers competing with such favored customers. Respondent’s contention that. the services were an alternative feature of a comprehensive promotional plan which included the cooperative advertising allowance, the premium plan, and the furnishing of the display material and store dispensers is rejected since the stylist services were not offered to all competing customers. Moreover, the evidence shows that some of the favored ‘customers received both the stylist. services and the cooperative advertising allowance. oo Oe . , In his consideration of the respondent’s defense that it was meeting competition in the furnishing of the services of the stylists, the hearing examiner applied substantially the same tests which have been applied by the Commission and the courts in cases where the ‘meeting competition defense has been raised to justify a price dis- ‘crimination under Section 2(a) of the Act. The record discloses that before the complaint was amended to include the Section 2(e) count, an employee of respondent testified that stylists were used at the discretion of respondent’s district managers for whatever promotional benefits were possible. After the amendment, however, he testified that a policy committee of respondent decided where to send the stylists and that the decision was governed by information as to the stores to which a competitor had supplied a stylist. The hearing examiner held that the earlier testimony of this witness was entitled to more weight than that given after the amendment and, on the basis thereof and upon a consideration of the other evidence of record, he concluded that the stylist plan was designed and used by respondent as a general method of sales promotion and not for the purpose of meeting similar services furnished by other brassiere EXQUISITE FORM BRASSIERE, INC., 1055 1036 Opinion manufacturers in individual competitive situations. We are convinced that the hearing examiner’s appraisal and evaluation of the evidence was correct and that his holding that respondent had not furnished the services of stylists in good faith to meet competition is fully supported by the record.

One of the arguments raised by the respondent in its appeal attacks the constitutionality of subsections (d) and (e) of Section 2 of the Clayton Act. This argument has not been considered, however, since we have no authority, as an administrative agency, to rule on questions involving the constitutionality of the statutes we are charged with administering.”° Al] other arguments made by respondent which have not been discussed herein are rejected. The appeal of respondent is denied. An appropriate order will be entered.

Commissioner Tait dissented in part to the decision herein. OPINION OF COMMISSIONER TAIT DISSENTING IN PART I disagree with the majority’s ruling that the defense set forth in the Section 2(b) proviso should not be recognized in a proceeding under Section 2(d).

The meeting competition defense was first raised in a Section 2(d) proceeding before the Commission in the matter of Carpel Frosted Foods, Inc., 48 F.T.C. 581 (1951). The Commission did not hold in that case that the defense was not available to the respondent, but ruled only that respondent had failed to show that it had granted disproportionate allowances in a good faith effort to meet competition. The meeting competition defense was also rejected for the same reason in the matter of Henry fosenfeld, Inc., 52 F.T.C. 1535 (1956), in which case the Commission stated, however, that the defense was not applicable to a respondent in a Section 2(d) case. This statement was made after some inconclusive consideration of the legislative history of the section, and was clearly based, in the words of the Commission, on the “bare-bones” language of the statute itself.

The holding in this case is essentially a reaflirmation of the ruling made in /rosenfeld, although the majority endeavors to supplement and bolster that decision by further consideration of the legislative history of Section 2(b) which, in Rosenfeld, was found ‘to be noninformative. It arrives at the same conclusion that was reached in Rosenfeld, however, and again the ruling is based on what the Supreme Court has referred to as “the infelicitous lan- 20 Engineers Public Service Co. v. Securities & Exchange Commission, 138 F. 2d 936 (D.C. Cir. 1943).

Opinion 57 EF.T.C.

guage of §2(b).” Automatic Canteen Co. v. Federal Trade Commission, 846 U.S. 61 (1953).

It is the majority’s position that the phrases “the furnishing of services or facilities” and “the services or facilities furnished” in Section 2(b) relate only to Section 2(e) which deals with the furnishing of services or facilities by a seller and not to Section 2(d) which deals with payments by the seller to or for the benefit of the customer for services or facilities furnished by or through the customer. This attempt to give a strict, literal interpretation to the language overlooks the decisions which have held that a seller who makes payments to a customer for demonstrator services is in reality furnishing such services to the customer. £lizabeth Arden, Inc. v. Federal Trade Commission, 156 F.2d 182 (2d Cir. 1946), and Elizabeth Arden Sales Corporation v. Gus Blass Co., 150 F.2d 988 (8th Cir. 1945). Both of these cases were brought under Section 2(e). The court in the latter case remarked that the situation might alternatively “have been regarded as a discriminatory payment of compensation” by the seller for services or facilities furnished by the customer and “so to constitute a violation of Section 2(d) of the Clayton Act, as amended by the Robinson-Patman Act * * #2 The court also observed that “whether the situation were construed as a discrimination under subsection (e) or as one under subsection (d) of Section 2 would not seem to be of any importance here” and that “even if subsection (e) had been invalid, we would not for that reason have reversed the judgment, because, as we have previously indicated, the situation could just as properly on the evidence have been treated as a violation of subsection (d) * * *#) These two cases raise a question to which J find no answer in the majority opinion. If the payment by a seller to a customer for services furnished by or through that customer can constitute the furnishing of a service by the seller under Section 2(e), why can not the payment by the seller for a service be considered the furnishing of a service under Section 2(b) ? The majority relies on Federal Trade Commission v. Simplicity Pattern Company, 860 U.S. 55 (1959), as authority for its position that the defense of meeting competition is not applicable to a proceeding under Section 2(d). They cite this case and quote the hearing examiner’s observation that “this issue has been definitely settled by the recent decision of the Supreme Court in the Simplicity Pattern case.” The following statement from that decision is quoted in the initial decision:

Thus, a discrimination in prices may be rebutted by a showing under any of the §2(a) provisos, or under the §2(b) proviso—all of which by their EXQUISITE FORM BRASSIERE, INC., 1057 1036 Opinion terms apply to price discriminations. On the other hand, the only escape Congress has provided for discriminations in services or facilities is the permission to meet competition as found in the §2(b) proviso, [Emphasis supplied. } In making this statement, the court had before it the question of whether the respondent should have been permitted under the justification provisions of Section 2(b) to rebut a Section 2(e) violation by showing an absence of competitive injury or by showing that its discrimination in services and facilities could be accounted for by cost differentials. The court held, in effect, that a Section 2(e) violation cannot be justified by a showing under any of the Section 2(a) provisos and that the only defense to such a violation is found in the Section 2(b) proviso. Since neither the meeting competition defense nor Section 2(d) was involved in this proceeding, the court’s holding cannot be construed as having any bearing whatsoever on the applicability of the defense of meeting competition to a Section 2(d) case.

The briefs for the Commission filed with the Supreme Court in Simplicity Pattern Company also show that the applicability of the 2(b) proviso to a 2(d) proceeding was not in issue in that case. ‘As a matter of fact, it was argued in our first brief that “The proviso to §2(b) clearly creates a meeting competition defense to §§ 2(d) and 2(e) as well as to §2(a).” While not departing from this position, a later brief for the Commission contained the following statement:

It is not clear whether §2(b) and its proviso apply also to charges under §2(d). We assumed that they did in our brief in No. 406 (eg., p. 17)— where the question was not in issue—but the Commission, in dealing specifically with the question, has held that they do not. Jn the matter of Henry Rosenfeld, Ine., decided June 29, 1956, 1956-57 CCH Trade Reg. Rep. Par. 26,068. That question is, of course, immaterial to any issue in this case. In its search for some indication of Congressional intent as to the scope of the Section 2(b) proviso, the majority glosses over that part of the legislative history of the Robinson-Patman Act which is most informative on this subject. House Bill, H.R. 8442, and Senate Bill, S. 8154, as originally introduced were identical in all respects. Both contained, as Section 2(d)(1), a provision which was the prototype of the present Section 2(d). Neither bill, however, provided for the defense of good faith meeting of competition and neither contained a provision similar to the present Section 2(e). Section 2(b) of the Clayton Act, as amended, first appeared in its present form as Section 2(b) in Senate Bill, S. 8154, when the bill was passed by the Senate. Although that bill contained the provision which ultimately became Section 2(d) of the amended Clayton Act, it did not contain any provision similar to Section 640968—63——68 Opinion aT ETC.

Q(e) of the amended Act, nor did it otherwise prohibit the disproportionate furnishing of services and facilities as distinguished from payments to customers who furnished such services or facilities. It thus appears that at that stage of the history, at least, the defense set forth in the proviso must have applied to payments for services and facilities furnished by a customer. Any other construction would mean that the reference to “services and facilities” contained in the proviso was meaningless.

HLR. 8442 was later amended by the House to extend the scope of the meeting competition defense by the use of language identical to that contained in Section 2(b) of the Senate Bill. There is nothing in the discussion of this amendment or elsewhere in the debates or Committee reports to indicate that the meeting competi- ‘tion defense should not apply to a Section 2(d) proceeding. In the Robinson-Patman Act, “Congress was dealing with competition, which it sought to protect, and monopoly, which it sought to prevent.” Staley Mfg. Co. v. Federal Trade Commission, 185 F. 9d 453, 455 (7th Cir. 1943); Standard Oil Company v. Federal Trade Commission, 340 U.S. 231 (1951). It is completely incongruous to say that Congress intended to protect competition by providing a seller with the right of self-defense against a competitor’s lower prices or its furnishing of services or facilities and at, the same time intended to eliminate competition in another area so closely related to the furnishing of services or facilities as to be almost indistinguishable from it.

As one commentator has stated, “each of these sections [2(d) and 2(e)] is directed at discriminatory treatment of customers competing in the resale of the seller’s goods, not at the purchase or furnishing of merchandising services as such.” ** The evil at which both sections are aimed is the granting of discriminatory concessions by sellers to favored customers through the medium of cooperative merchandising arrangements. It may be said that both sections prohibit discriminations in services and facilities which are furnished directly by the seller or indirectly through payments made to the customer or to a third person. They differ only in that they apply to different methods by which services and facilities may be furnished and this distinction has not always been maintained. Elizabeth Arden, Inc. v. Federal Trade Commission, supra, and Elizabeth Arden Sales Corporation v. Gus Blass Co., supra. Consequently, there is no sound or logical reason why a showing that competition was met in good faith should justify a prima facie violation of one section and not the other. 21 Austin, “Price Discrimination and Related Problems under the Robinson-Patman Act.’ Second Revised Edition (1959).

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1245 108 24 96.017174 appears 1 5 1 1 7 981 1242 29 21 95.294632 to5 1 5 1 1 8 1031 1240 34 24 95.294632 be5 1 5 1 1 9 1084 1246 37 17 95.748878 an5 1 5 1 1 10 1142 1242 123 28 95.748878 attempts 1 5 1 1 11 1287 1244 29 22 95.807671 to5 1 5 1 1 12 1336 1243 82 24 96.804520 makes 1 5 1 1 13 1441 1242 110 26 93.266716 Sections 1 5 1 1 14 1573 1244 68 28 91.850769 2(e)5 1 5 1 1 15 1666 1246 141 23 94.428795 “services”5 1 5 1 1 16 1846 1252 14 17 96.725876 a4 1 5 1 2 0 553 1281 1308 35 -1 5 1 5 1 2 1 553 1281 157 24 94.045418 substitutes 1 5 1 2 2 733 1288 31 17 96.674026 or5 1 5 1 2 3 787 1283 174 22 96.302879 alternatives 1 5 1 2 4 984 1283 47 22 96.302879 for5 1 5 1 2 5 1056 1282 111 25 93.059868 Sections 1 5 1 2 6 1192 1283 71 30 92.031799 2(d)5 1 5 1 2 7 1293 1285 198 29 86.530334 “payments”;5 1 5 1 2 8 1518 1285 114 26 93.208328 Sections 1 5 1 2 9 1655 1286 71 30 68.679504 2(d)5 1 5 1 2 10 1754 1293 107 19 91.601143 encom-4 1 5 1 3 0 554 1324 1306 39 -1 5 1 5 1 3 1 554 1328 97 22 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96.554932 include4 1 5 1 5 0 553 1406 1307 37 -1 5 1 5 1 5 1 553 1406 47 23 96.072205 thes 1 5 1 5 2 625 1407 167 27 93.760994 furnishings 1 5 1 5 3 817 1408 31 22 96.648689 of5 1 5 1 5 4 872 1410 78 21 96.648689 stores 1 5 1 5 5 975 1409 165 28 95.007172 dispensers5 1 5 1 5 6 1166 1411 54 23 95.724258 ands 1 5 1 5 7 1249 1411 112 29 75.875061 displays 1 5 1 5 8 1388 1414 140 23 58.427509 material.5 1 5 1 5 9 1574 1413 114 26 87.250725 Sections 1 5 1 5 10 1714 1415 70 28 53.516876 2(d)5 1 5 1 5 11 1815 1421 45 19 68.442879 ex-4 1 5 1 6 0 552 1449 1308 36 -1 5 1 5 1 6 1 552 1449 110 27 91.860519 pressly5 1 5 1 6 2 681 1449 133 27 96.120079 provides5 1 5 1 6 3 832 1449 64 24 95.695229 that5 1 5 1 6 4 915 1450 68 23 95.695229 such5 1 5 1 6 5 1005 1453 152 26 96.128197 payments5 1 5 1 6 6 1175 1452 47 24 96.321976 for5 1 5 1 6 7 1242 1455 124 22 96.390831 services5 1 5 1 6 8 1385 1455 151 24 96.687141 furnished5 1 5 1 6 9 1556 1456 35 29 96.669632 by5 1 5 1 6 10 1612 1462 15 18 96.669632 a5 1 5 1 6 11 1648 1459 142 23 96.547081 customers 1 5 1 6 12 1810 1464 50 18 96.705650 area 1 5 1 7 0 553 1489 1303 38 -1 5 1 5 1 7 1 553 1489 92 28 21.485298 legal5 1 5 1 7 2 668 1491 96 22 93.217377 unless5 1 5 1 7 3 785 1491 84 22 47.487762 succh5 1 5 1 7 4 890 1494 134 24 95.264122 payments 1 5 1 7 5 1047 1493 23 22 93.831619 is5 1 5 1 7 6 1090 1494 145 24 68.037918 available’5 1 5 1 7 7 1255 1501 34 17 85.702438 on5 1 5 1 7 8 1309 1497 228 29 96.342583 proportionally5 1 5 1 7 9 1557 1500 83 27 96.062691 equals 1 5 1 7 10 1663 1502 88 21 96.728790 terms5 1 5 1 7 11 1771 1503 28 21 96.368874 to5 1 5 1 7 12 1819 1501 37 23 95.742180 all4 1 5 1 8 0 552 1531 1307 37 -1 5 1 5 1 8 1 552 1531 81 23 95.692520 others 1 5 1 8 2 657 1535 158 21 95.692520 customers5 1 5 1 8 3 838 1533 169 29 93.971146 competing.5 1 5 1 8 4 1049 1533 72 25 96.162903 This5 1 5 1 8 5 1145 1542 96 18 96.539444 means5 1 5 1 8 6 1266 1537 79 24 95.796120 what5 1 5 1 8 7 1370 1539 22 23 95.796120 it5 1 5 1 8 8 1416 1545 81 23 91.551208 says:5 1 5 1 8 9 1524 1546 35 17 95.257523 an5 1 5 1 8 10 1585 1541 175 25 95.257523 alternatives 1 5 1 8 11 1783 1545 76 22 96.705688 must4 1 5 1 9 0 552 1572 1305 42 -1 5 1 5 1 9 1 552 1572 31 23 93.071198 be5 1 5 1 9 2 606 1572 47 24 95.167244 thes 1 5 1 9 3 673 1577 134 24 96.001427 payments 1 5 1 9 4 829 1574 46 23 96.213936 for5 1 5 1 9 5 898 1575 123 24 96.649323 services5 1 5 1 9 6 1043 1576 152 25 95.275528 furnished5 1 5 1 9 7 1219 1579 56 23 95.596718 ands 1 5 1 9 8 1299 1582 47 20 94.679062 not5 1 5 1 9 9 1369 1581 47 23 94.679062 thes 1 5 1 9 10 1437 1583 167 28 95.837303 furnishings 1 5 1 9 11 1625 1584 31 22 96.861801 of5 1 5 1 9 12 1678 1586 122 22 91.826447 services5 1 5 1 9 13 1823 1587 34 27 91.826447 by4 1 5 1 10 0 552 1614 1305 39 -1 5 1 5 1 10 1 552 1614 47 22 96.989174 thes 1 5 1 10 2 619 1614 83 24 94.256058 sellers 1 5 1 10 3 722 1618 28 20 96.075676 to5 1 5 1 10 4 771 1615 47 23 95.813248 thes 1 5 1 10 5 838 1618 150 23 91.225586 customer.5 1 5 1 10 6 1029 1617 73 24 70.658722 Such5 1 5 1 10 7 1123 1623 144 24 96.232986 payment,5 1 5 1 10 8 1288 1624 48 21 96.290176 not5 1 5 1 10 9 1357 1624 159 29 95.487526 something5 1 5 1 10 10 1535 1626 65 27 94.815025 else,5 1 5 1 10 11 1622 1629 76 21 95.705109 must5 1 5 1 10 12 1718 1627 33 23 92.941528 be5 1 5 1 10 13 1770 1629 87 22 33.944603 avail-4 1 5 1 11 0 550 1655 565 31 -1 5 1 5 1 11 1 550 1655 61 22 94.957214 able5 1 5 1 11 2 627 1662 33 16 94.957214 on5 1 5 1 11 3 676 1658 228 28 95.646034 proportionally5 1 5 1 11 4 919 1659 83 27 96.454781 equals 1 5 1 11 5 1018 1662 97 21 95.761559 terms.2 1 6 0 0 0 544 1713 1315 981 -1 3 1 6 1 0 0 547 1713 1312 355 -1 4 1 6 1 1 0 590 1713 1269 57 -1 5 1 6 1 1 1 590 1713 72 32 96.505798 Thes 1 6 1 1 2 688 1715 142 49 93.277809 hearings 1 6 1 1 3 855 1716 198 33 91.277908 examiner’s5 1 6 1 1 4 1080 1719 145 33 96.636894 reliance5 1 6 1 1 5 1252 1732 40 22 96.910736 on5 1 6 1 1 6 1321 1724 56 31 96.103889 thes 1 6 1 1 7 1403 1725 126 40 96.103889 precise5 1 6 1 1 8 1556 1728 157 42 96.029785 wording5 1 6 1 1 9 1738 1731 38 30 96.664276 of5 1 6 1 1 10 1802 1731 57 31 96.664276 thea 1 6 1 2 0 549 1764 1307 55 -1 5 1 6 1 2 1 549 1767 125 28 96.537148 statutes 1 6 1 2 2 691 1764 67 32 95.904587 ands 1 6 1 2 3 778 1765 52 31 95.904587 his5 1 6 1 2 4 850 1770 145 37 96.601547 attempts 1 6 1 2 5 1014 1773 35 26 96.704506 to5 1 6 1 2 6 1070 1765 207 46 93.911850 distinguish5 1 6 1 2 7 1297 1773 58 31 96.385818 thes 1 6 1 2 8 1375 1776 162 39 96.723206 practices5 1 6 1 2 9 1557 1779 140 30 96.662918 covered5 1 6 1 2 10 1718 1779 42 40 93.133881 by5 1 6 1 2 11 1782 1780 74 33 92.084053 Sec-4 1 6 1 3 0 550 1813 1306 57 -1 5 1 6 1 3 1 550 1813 88 33 92.944862 tions5 1 6 1 3 2 658 1816 81 40 91.861542 2(d)5 1 6 1 3 3 766 1816 65 32 92.988136 ands 1 6 1 3 4 852 1818 75 39 92.988136 2(e)5 1 6 1 3 5 955 1829 68 21 96.932472 was5 1 6 1 3 6 1044 1819 123 41 95.738663 logical5 1 6 1 3 7 1188 1821 35 32 96.688004 in5 1 6 1 3 8 1243 1822 58 32 96.696991 thes 1 6 1 3 9 1321 1823 88 42 96.966179 lights 1 6 1 3 10 1430 1825 36 32 96.960106 of5 1 6 1 3 11 1486 1827 58 31 97.012321 thes 1 6 1 3 12 1563 1827 187 43 73.450279 Rosenfeld5 1 6 1 3 13 1771 1830 85 32 92.604111 deci-4 1 6 1 4 0 549 1864 1309 52 -1 5 1 6 1 4 1 549 1864 83 42 96.892120 sion,5 1 6 1 4 2 658 1876 112 32 92.436394 supra.5 1 6 1 4 3 817 1867 73 32 95.908630 Thes 1 6 1 4 4 915 1868 127 42 96.208229 ruling,5 1 6 1 4 5 1069 1870 166 42 96.899406 however,5 1 6 1 4 6 1261 1873 29 32 96.930031 is5 1 6 1 4 7 1316 1874 123 42 96.753395 clearly5 1 6 1 4 8 1467 1876 35 32 96.562881 in5 1 6 1 4 9 1530 1878 136 32 79.270821 conflict.5 1 6 1 4 10 1690 1880 83 32 96.766800 with5 1 6 1 4 11 1801 1881 57 32 96.766800 thea 1 6 1 5 0 549 1915 1308 52 -1 5 1 6 1 5 1 549 1915 82 32 96.806122 views 1 6 1 5 2 654 1917 175 40 96.604958 expressed5 1 6 1 5 3 854 1918 42 40 96.893326 by5 1 6 1 5 4 918 1919 57 31 96.703491 thes 1 6 1 5 5 999 1920 223 34 95.769684 Commissions 1 6 1 5 6 1247 1935 42 20 96.950485 on5 1 6 1 5 7 1313 1925 69 32 97.001724 this5 1 6 1 5 8 1402 1926 99 41 96.898697 points 1 6 1 5 9 1522 1927 35 33 96.602646 in5 1 6 1 5 10 1580 1929 45 31 94.176376 its5 1 6 1 5 11 1648 1929 169 34 77.345810 “Guides”5 1 6 1 5 12 1828 1932 29 19 94.974968 224 1 6 1 6 0 547 1965 1309 61 -1 5 1 6 1 6 1 547 1965 56 31 96.667984 for5 1 6 1 6 2 621 1966 206 42 96.510902 compliance5 1 6 1 6 3 846 1968 82 31 96.936882 with5 1 6 1 6 4 948 1968 154 34 93.142967 Sections5 1 6 1 6 5 1119 1972 82 41 88.144104 2(d)5 1 6 1 6 6 1228 1974 66 31 92.355118 ands 1 6 1 6 7 1314 1975 77 41 89.763100 2(e)5 1 6 1 6 8 1417 1977 65 31 96.992638 ands 1 6 1 6 9 1502 1979 128 31 96.714615 certain5 1 6 1 6 10 1650 1976 206 50 96.695969 compliance4 1 6 1 7 0 548 2018 1042 50 -1 5 1 6 1 7 1 548 2021 129 37 60.698151 reports5 1 6 1 7 2 698 2018 155 40 96.809082 accepted5 1 6 1 7 3 875 2018 41 41 96.996452 by5 1 6 1 7 4 937 2019 58 32 96.532990 thes 1 6 1 7 5 1015 2019 223 36 96.532990 Commissions 1 6 1 7 6 1260 2023 35 33 96.909050 in5 1 6 1 7 7 1315 2025 156 43 96.979820 litigated5 1 6 1 7 8 1492 2038 98 22 96.842705 cases.3 1 6 2 0 0 544 2070 1311 495 -1 4 1 6 2 1 0 588 2070 1266 48 -1 5 1 6 2 1 1 588 2070 69 32 96.937164 For5 1 6 2 1 2 676 2072 58 31 96.618561 thes 1 6 2 1 3 753 2072 160 41 96.094292 majority5 1 6 2 1 4 934 2077 35 27 97.013718 to5 1 6 2 1 5 988 2073 80 31 96.723785 takes 1 6 2 1 6 1088 2084 20 20 96.055733 a5 1 6 2 1 7 1126 2074 148 41 96.588058 positions 1 6 2 1 8 1295 2082 157 36 96.604675 contrary5 1 6 2 1 9 1473 2082 35 28 96.604675 to5 1 6 2 1 10 1528 2079 78 33 96.792244 that5 1 6 2 1 11 1624 2080 40 32 96.988472 of5 1 6 2 1 12 1683 2081 56 32 93.275826 thes 1 6 2 1 13 1760 2082 94 32 93.107101 hear-4 1 6 2 2 0 546 2120 1307 50 -1 5 1 6 2 2 1 546 2120 59 42 96.752876 ings 1 6 2 2 2 625 2121 171 32 95.756233 examiners 1 6 2 2 3 814 2122 113 33 96.952736 would5 1 6 2 2 4 949 2122 99 41 96.789749 points 1 6 2 2 5 1068 2134 47 31 96.376694 up5 1 6 2 2 6 1138 2135 18 21 95.317291 a5 1 6 2 2 7 1178 2125 74 31 95.408546 lacks 1 6 2 2 8 1275 2126 38 31 96.630493 of5 1 6 2 2 9 1334 2127 206 43 96.417976 consistency5 1 6 2 2 10 1563 2130 35 31 96.466072 in5 1 6 2 2 11 1621 2130 44 32 93.288170 its5 1 6 2 2 12 1687 2137 166 27 92.949089 construc-4 1 6 2 3 0 548 2172 1307 43 -1 5 1 6 2 3 1 548 2172 69 31 96.692596 tions 1 6 2 3 2 647 2173 38 30 96.692596 of5 1 6 2 3 3 714 2172 57 31 95.978752 thes 1 6 2 3 4 799 2178 135 27 94.452393 statute.5 1 6 2 3 5 985 2174 37 32 95.524818 It5 1 6 2 3 6 1051 2175 111 31 95.740074 would5 1 6 2 3 7 1193 2176 80 32 95.740074 then5 1 6 2 3 8 1303 2177 40 32 96.514084 be5 1 6 2 3 9 1373 2178 114 32 96.796776 forced5 1 6 2 3 10 1517 2184 34 27 95.324509 to5 1 6 2 3 11 1582 2181 82 31 95.324509 holds 1 6 2 3 12 1693 2183 76 32 95.059601 that5 1 6 2 3 13 1798 2184 57 31 95.059601 thea 1 6 2 4 0 546 2221 1309 54 -1 5 1 6 2 4 1 546 2221 119 41 96.527534 phrases 1 6 2 4 2 693 2222 100 32 96.693413 “such5 1 6 2 4 3 821 2224 181 39 96.664452 payment”5 1 6 2 4 4 1030 2224 34 31 96.891792 in5 1 6 2 4 5 1094 2224 135 33 93.270279 Sections 1 6 2 4 6 1258 2227 82 40 92.381760 2(d)5 1 6 2 4 7 1372 2227 152 34 96.196518 includes5 1 6 2 4 8 1550 2231 58 30 96.350540 thes 1 6 2 4 9 1636 2232 219 43 92.031967 “furnishing4 1 6 2 5 0 545 2271 1308 53 -1 5 1 6 2 5 1 545 2271 36 32 96.998657 of5 1 6 2 5 2 600 2273 141 32 96.934982 services5 1 6 2 5 3 760 2284 37 20 97.015495 or5 1 6 2 5 4 817 2273 181 32 94.941544 facilities”5 1 6 2 5 5 1016 2285 36 21 95.909050 as5 1 6 2 5 6 1071 2286 20 19 95.909050 a5 1 6 2 5 7 1110 2286 125 31 96.666039 proper5 1 6 2 5 8 1255 2277 209 42 96.961143 alternative,5 1 6 2 5 9 1484 2279 60 33 96.514931 but5 1 6 2 5 10 1561 2280 77 33 84.504562 that5 1 6 2 5 11 1657 2283 56 31 95.621536 thes 1 6 2 5 12 1732 2284 121 40 96.555481 phrase4 1 6 2 6 0 544 2323 1309 49 -1 5 1 6 2 6 1 544 2323 76 31 96.490211 “thes 1 6 2 6 2 644 2323 197 42 96.722328 furnishings 1 6 2 6 3 866 2325 37 31 96.402893 of5 1 6 2 6 4 927 2325 142 31 97.006584 services5 1 6 2 6 5 1093 2337 37 21 96.986984 or5 1 6 2 6 6 1156 2327 181 32 94.781166 facilities”5 1 6 2 6 7 1363 2329 33 31 96.802818 in5 1 6 2 6 8 1422 2328 134 34 92.925949 Sections 1 6 2 6 9 1581 2332 80 40 92.925949 2(b)5 1 6 2 6 10 1693 2333 78 33 96.752060 does5 1 6 2 6 11 1793 2341 60 27 95.749847 nota 1 6 2 7 0 546 2373 1306 54 -1 5 1 6 2 7 1 546 2373 122 40 96.930031 permits 1 6 2 7 2 695 2374 99 31 96.753014 “such5 1 6 2 7 3 826 2375 181 40 91.951881 payment”5 1 6 2 7 4 1036 2386 37 21 96.344284 as5 1 6 2 7 5 1102 2387 41 20 95.462967 an5 1 6 2 7 6 1174 2378 211 32 93.814072 alternative.5 1 6 2 7 7 1435 2380 72 32 96.438690 Thes 1 6 2 7 8 1533 2382 162 42 96.759293 majority5 1 6 2 7 9 1725 2388 127 39 92.963303 tempo-4 1 6 2 8 0 544 2423 1307 51 -1 5 1 6 2 8 1 544 2423 105 41 92.371765 rarily5 1 6 2 8 2 673 2424 105 32 96.962807 solves5 1 6 2 8 3 799 2424 45 32 96.870064 its5 1 6 2 8 4 867 2424 159 36 94.566330 dilemma5 1 6 2 8 5 1046 2426 44 41 96.776581 by5 1 6 2 8 6 1113 2427 144 43 96.719635 holdings 1 6 2 8 7 1278 2429 77 32 97.003677 that5 1 6 2 8 8 1376 2430 28 31 96.972977 it5 1 6 2 8 9 1425 2430 28 31 96.799362 is5 1 6 2 8 10 1475 2442 222 32 96.196335 unnecessary5 1 6 2 8 11 1719 2440 35 26 93.088676 to5 1 6 2 8 12 1777 2446 74 21 92.181564 con-4 1 6 2 9 0 544 2474 1306 50 -1 5 1 6 2 9 1 544 2474 88 32 96.996964 sider5 1 6 2 9 2 656 2475 57 31 96.950409 thes 1 6 2 9 3 738 2475 161 40 95.712730 question.5 1 6 2 9 4 946 2476 84 32 96.753853 This5 1 6 2 9 5 1055 2487 77 31 96.811142 may5 1 6 2 9 6 1159 2478 40 31 96.595909 be5 1 6 2 9 7 1223 2488 53 30 96.677673 so;5 1 6 2 9 8 1303 2479 61 32 96.896591 but5 1 6 2 9 9 1386 2480 57 31 96.659081 thes 1 6 2 9 10 1466 2481 246 43 96.659081 inconsistency5 1 6 2 9 11 1738 2485 28 32 92.612129 is5 1 6 2 9 12 1791 2487 59 31 92.025383 im-4 1 6 2 10 0 544 2524 592 41 -1 5 1 6 2 10 1 544 2524 96 41 96.085800 plicit5 1 6 2 10 2 658 2526 66 31 96.443466 ands 1 6 2 10 3 745 2526 144 32 96.485283 remains5 1 6 2 10 4 907 2528 229 31 96.350327 unanswered.3 1 6 3 0 0 584 2578 1163 42 -1 4 1 6 3 1 0 584 2578 1163 42 -1 5 1 6 3 1 1 584 2579 18 30 94.606735 I5 1 6 3 1 2 624 2578 112 32 94.606735 would5 1 6 3 1 3 757 2590 131 21 95.980522 reverses 1 6 3 1 4 908 2580 58 31 96.897331 thes 1 6 3 1 5 988 2581 112 31 96.890137 initials 1 6 3 1 6 1124 2581 146 33 96.735481 decisions 1 6 3 1 7 1294 2595 41 20 95.692871 on5 1 6 3 1 8 1359 2584 77 33 95.692871 both5 1 6 3 1 9 1461 2587 38 30 96.826981 of5 1 6 3 1 10 1521 2587 91 32 96.826981 these5 1 6 3 1 11 1635 2588 112 32 95.694855 issues.3 1 6 4 0 0 574 2662 1276 32 -1 4 1 6 4 1 0 574 2662 1276 32 -1 5 1 6 4 1 1 574 2662 22 15 24.121803 225 1 6 4 1 2 607 2662 92 21 24.121803 Guides5 1 6 4 1 3 721 2663 40 19 96.667709 for5 1 6 4 1 4 782 2663 163 24 95.502403 Advertising5 1 6 4 1 5 967 2664 159 20 95.997681 Allowances5 1 6 4 1 6 1147 2666 49 20 95.914070 ands 1 6 4 1 7 1222 2665 77 21 96.263084 Others 1 6 4 1 8 1322 2668 205 26 96.219666 Merchandising5 1 6 4 1 9 1548 2671 137 23 95.780373 Payments5 1 6 4 1 10 1707 2672 49 20 93.048996 ands 1 6 4 1 11 1780 2673 70 20 92.810501 Serv-2 1 7 0 0 0 541 2697 1308 59 -1 3 1 7 1 0 0 541 2697 1308 59 -1 4 1 7 1 1 0 542 2697 1307 34 -1 5 1 7 1 1 1 542 2697 63 20 78.093994 ices:5 1 7 1 1 2 626 2697 158 23 96.477898 Compliance5 1 7 1 1 3 804 2698 60 19 96.216179 with5 1 7 1 1 4 886 2698 115 20 93.202774 Sections5 1 7 1 1 5 1021 2698 61 23 91.990341 2(d)5 1 7 1 1 6 1104 2700 49 19 91.057899 ands 1 7 1 1 7 1173 2700 58 23 91.057899 2(e)5 1 7 1 1 8 1255 2702 25 19 96.252487 of5 1 7 1 1 9 1301 2701 41 21 96.860313 thes 1 7 1 1 10 1363 2702 105 24 96.207054 Clayton5 1 7 1 1 11 1489 2704 54 23 96.025620 Act,5 1 7 1 1 12 1564 2710 28 14 96.025620 as5 1 7 1 1 13 1610 2707 127 19 96.001587 Amended5 1 7 1 1 14 1757 2708 30 23 96.103119 by5 1 7 1 1 15 1807 2707 42 21 96.449219 thea 1 7 1 2 0 541 2731 658 25 -1 5 1 7 1 2 1 541 2731 242 20 91.433968 Robinson-Patman5 1 7 1 2 2 799 2732 55 22 95.066170 Act,5 1 7 1 2 3 870 2731 113 24 96.150398 Adopted5 1 7 1 2 4 1000 2732 58 24 95.281364 May5 1 7 1 2 5 1074 2733 38 23 96.155815 19,5 1 7 1 2 6 1128 2734 71 20 96.155815 1960. 1060 FEDERAL. TRADE COMMISSION DECISIONS Complaint 57 F.T.C.

FINAL ORDER This matter having been heard by the Commission upon respondent’s appeal from the hearing examiner’s initial decision, and upon briefs in support thereof and in opposition thereto, and the Commission having rendered its decision denying the appeal: It ts ordered, That the initial decision of the hearing examiner be, and it hereby is, adopted as the decision of the Commission. It is further ordered, That respondent, Exquisite Form Brassiere, Inc., 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.

Commissioner Tait dissenting in part.