Egan, Fickett & Co., Inc., et al.

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Tile MATTER OF EGAN , FICKETT & CO. lng, ET AL.

COXSEXT ORDER, ETC. J),'r REGARD TO THE ALLEGED VIOLATION OF SEC. 2(c) OF TUB CLAYTON -: ACT Docket 8005. Complaint, June 1960-Deci-sion, May, 1961 CODsent order requiring a wholesale distributor of fresh fruits and produce in Mountainside, N. , and its subsidiary packer of citrus fruit in Ocoee, Fla. to cease violating Sec. 2 (c) of the Clayton Act by paying brokerage, or its equivalent, to customers making purchases for their own accounts for resale.

CO).IPLAIXT The Federal Trade Commission, having reason to believe that the parties respondent named in the capt.ion hereof, and hereinafter more particularly described, have been and are now violating the provisions of subsection (c) of Section 2 of the Clayton Act, as amended (D. C. Title 15, Section 13), hereby issues its complaint stating its charges "ith respect thereto as follows: PARAGRAPH 1. Egan, Fid;:ett & Co., Inc. is a corporation organ. ized, existing and doing business under' and by virtue of the laws of the Stat.e of ~ew York, with its oilce and principal place of business located at 1248 R.oute #22, )Iountainside, New Jersey. R.respondent The, Lake Fruit Co., Inc. is a corporation organized existing and doing business under and by virtue of the laws of the State of Florida, wit.h its principal oflice and place of business located at Ocoee, Florida, with mailing address as Post Offce Box 547, Ocoee, Florida.

I11e" is R ,, h()lly owned PAR. 2. Respondent The, Lake Fr1lit. Co. subsidiary of respomle,nt Egan, Fickett & Co. , Inc. which controls and directs the activities and operations of respondent The Lake Fruit Co. , Inc., including its sales and distribution policies. Respondent Egan, Fickett & Co. , Inc., the parcnt corporation, is engaged in business primarily as a wholesale distributor of fresh fruits EGAK, FICKETT & CO. , INC. , ET AL. 903 902 Complaint and produce and is also, through its subsidiary, The Lake Fruit Co., Inc., engaged in the Imsille,'Js of packing, selling and distributing citrus fntit, surh as oranges, tangerines and grapefruit, an of which are hereinafter referred to as eitrus fruit or fruit pro duets. Both the parent corporation and the subsidiary are hereinafter sometimes referred t.o jointly as respondent.s. The primary activities involved in this complaint ate respondents' method of selling and distributing their citrus fruit and fruit products through the subsidiary earp oration, The Lake Fruit Co. , Inc.

PAR. 8. Re.sponclents, both parent and subsidiary, are now and since April ID57 have been engaged. in the business of packing, selling and distributing citrus fruit and fruit products. Respond- Bnts sell their citrus fruit through brokers, as well as direct, to customers located in many sections of the United States. "\Vhen brokers arc utilized in making sales for them, respondents pay them for their services a brokerage 01' commission, usually at the rate of 10 cents per 1% bushel box, or equivalent. Respondents annual.l volume of business in the sale and distribution of citrus fruit is substantial.

PAR. 4. In the course and conduct of their business over the past several years, respondents have sold and distributed and are now selling and distributing their citrus fruit in commerce, a,s "commerce," is defined in the aforesaid Clayton Act, as amended, to buyers Jocated in the several states of the United States other than the Stllt.e of Florida in which respondent The Lake Fruit Co. Inc. is located. Respondents transport, or cause such citrus fruit ,vhen sold, to be transported from their place of business or packing plant in the State of Florida, or from other pbces within the State to such buyers or to the buyers' customers located in various other states of the United States. Thus there has been, at all times mentioned herein, a continuous course of tra.de in commerce in such citrus fruit across state lines between said respondents and the respective buyers of such fruit.

PAR. 5. In the course and conduct of the.1r business as aforesaid TI,spondents have been and are now making substantial sales of citrus fruit to some, but not all, of their brokers and direct buyers purchasing for their own account for resale and on a large number of these sales respondents paid, granted or allowed, and ate now paying, gnmting or allowing to these brokers and othet direct buyers on the-ir purchases, a commission, brokerage, or other compensation or an allmYHnce or discount in lieu thereof, in connection therewith. 904 FEDERAL TRADE COMMISSIO DECISIONS Decision 58 F, PAR. 6. The acts and practices of respondents, as above alleged and described, are in violation of subsection (c) of Section 2 of the Clayton Act, as amemled (V. C. Title 15 , Section 13). Ml'. Cecil G. 111il68 and 1Jh. Ernest G. Bumes for the Commission. Gurney, A1cDonald cD Handley, of Orlando, Fla. , by Mr. J. Thornas Gurney, for respondents.

I::ITIAL DECISION BY 'VILLLDf L. PACK , HEARING EXAl\n The complaint in this matter charges the respondents with violation of Section 2 (c) of the Clayton Act, as amended. An agreement for disposition of t.he pracer,ding by means of a consent order has now been executed by respondents and their connse.l and counsel supporting the complaint and submitted to the hearing examiner for his consideration. Attached to and made a part of the agreement a stipulation entered into oy the same parties for the purpose of making clear the intent of the complaint and of the proposed order to cease and desist. The word "agreement"' as used hereinafter will include the stipulation.

The agreement provides, among ot.her things, that respondents admit all of the jurisdictional allegations in the complaint; that the record on "which the initial decision and the decision of the Commission shan be on,sed shall consist solely of the complaint and the agreement; that the inclusion of findings of fflct and conclusions of law in the decision disposing of this matter is v1 waived, together with any further procedural steps before the hearing cx uniner flnd the Commission; that the order hereinafter set forth may be entered in disposition of the proceeding, such order to have the same force and effect as if entered after a full hearing, respondents specifically waiving any and all rights to challenge or contest the validity of such order; that the order ma,y be altered, modified or set aside in the manner provided for other orders of the Commission; that the complaint. may be used in construing the terms of the order; and that the agreement is for settlement purposes only and does not constitute an admission by respondents that they have violated the law as alleged in the complaint.

The hearing examiner having considered the agreement and proposed order, a.nd being of the opinion that they provide an adequate basis for appropriate disposition of the proceeding, the agreement, is hereby accept.ed, the following jurisdictional findings made, and the follo,,;ing ol'derissue(1:

1. Respondent Egan, Fickett & Co., Inc. is a Dela-ware corporation with its offce and principal place of business located at 1248 Route No. 22 Iounta,inside, New J ereey. EGAN, FICKETT & CO. , INC" ET AL. 905 902 D€cision Respondent The LQke Fruit Co. , Inc., is a Florida corporation with its offce and principal place of business located at Ocoee Florida, and with mailing address as Post Office Box 547, Oeoee Florida.

2. The Federal Trade Commission has jurisdiction of the subject mattor of this proceedi.ng and of the respondents. ORDER It is ordered That. t.he respondents Egnn, Fickett & Co., Inc. , a corporation, and The Lake Fruit Co., Inc., (l corporation, and their offcers, a,gents, representatives and employees, directly or through any corporate or other device, in connection with the saJe of citrus fruit 01' fruit products in commerce fis "commerce" is defined in the aforesaid Clayton Act, do forthwith cease and desist from: Paying, granting or allowing, directly 01' indirectly, to any buyer or to anyone, acting for or in behalf of, or ,,,ho is subject to the direct or indirect control of such buyer, anyt.hing of value as a commission, brokerage, 01' other compensation, 01' any allowance discount in lien thereof, upon or in connection with any sale of citrus fruit or fruit products to such buyer for his own account. DECISION OF THE cmDIISSION AXD OHDEH TO FILE REPORT 01" CQ)IFLL\NCE The Commission having considered the hearing examiner s initial decision, filed February 20, 1861, accepting an agreement containing a consent order t.heretofore executed by the respondents and counsel in support of (he complaint; and It appearing that through inac1vcrte,nce the word "acting" in the secondlinc of the order to cease and desist contained in the consent agreement has been misspelled in the initial decision and should be corrected:

It 1:8 o1Ylered That the initial decision be, and it hereby is a.mended hy snbstituting the \vord "acting ' for the seventh word in the second line of the order to cease and desist. It i8 fnrthcT o'/'Clcl'ed That the init.ial decision, as so amended shall, on the 10th day of May, 1061, become the decision of the Commission.

It i8 fw.that ordered That the respondents shall, ,,'within sixty (60) days after service upon them of this order, iile with the Commission a report, in \\Titing, setting fort.h in detail the manner a,nct form in which they have complied with the order contained in the aforesaid initial decision, fls amended.

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Complaint 38 F.

IN TITE rATTER OF S:YIITH E'iTERPIUSES IKCORPORATED ET AL.

COXSEXT ORDF.R ETC.. IN REGARD TO TI-IE \LLE(mD YIOLXl'lON OF SEC. 2 ( C) OF THE CLAYTON ACT Docket 800G. Compla,int, June 1960-Dec:ision, May 1961 Consent order requiring parent and subsidiary corporations in Vera Beach, Fla. packers of citrus fruit, to cease violating Sec. 2(c) of the Clayton Act by paying brokerage, or its equivalent, to customers making purchases for their own accounts for resale.

CO:l\PL\IXT The Federal Trade Commission, baving reason to believe that. the parties respondent named in the caption hereof, and hereinafter more particularly described, have been and arc now violating the provisions of subsection (c) of Section 2 of tbe Clayton Act, as amended (U. C. Title 15, Section 13), hereby issues its complaint stating it.s charges with respect thereto as follo\'fs: PARAGRAPH 1. Respondent Smith Ent( l'prises Incorporated is a corporation organized, existing and doing business under and by virtue of the Ja.ws of the State of Florida with its offce and principal place of business Jocated at Vera Beach, Florida, with mailing address as Post Offee Box 2226, Vera Beach, Florida. Respondent ),fagic River Assochtes is a corporation organized of theexisting find doing business under and by virtue of the laws State of Florida, with its office and principal place of business located at Vera Beach, Florida, with mailing address as Post Offce Box 2226, Vera Beach, Florida.

PAR. 2. R.respondent J1magic Ii,lver Associates is a wholly-owned subsidiary of respondent Smith Euterprises Incorporated which controls and direct.s the activities and operations of respondent 1Yfagic River Associates, including its sales and distribution policies. The parent corporation and the subsidiary are hereinafter.r sometimes referred to jointly a.s respondents. Respondents are now, and for the past several years ha VB been, engage.d in the business of packing, selling and distributing citrus fruit, such as oranges, tangerines and grapefruit, al1 of which are hereinafter sometimes referred to as citrus fruit or fruit products. R.respondents sell and distribute their citrus fruit through 111'011('1'8, ns well ns dirpct, to customers located in many sections of the lJnited States. ,Vhen urokers are utilized in making sales, respondents pay them for their services a brokerage or commission, llsua.lly at t.he rat.e of 10 c.ents per 1% bushel box S:\hih EX'IEHPRISES IKCORPORATED ET AL. 907 906 Decision or equivalent. Respondents' annual volume of business in the sale and distribution of citrus fruit and fruit products is substantial. PAR. 3. In the course and conduct of their business over the past several years, respondents have sold and distributed, and are now selling and distributing, their c.itrus fruit in commerce, as "commerce is defined in the aforesaid Clayton Act, as amended, to buyers located in the several States of the United States other than the State of Florida in which rcspondcnts are located. Respondents transport or cause such citrus fruit, when sold, to be transported from their places of business or packing plant in the State of Florida, or from other places within the State, to such buyers or to t.he buyers' eustOlleI'S located in various other States of the United States. Thus, there, has been at all times mentioned herein a continuous course of trade in comme.rce in said citrus fruit across state lines bety,een sflid responclellts and the respective buyers of such fruit.

PAR. 4. In the course and conduct of their business as aforesaid respondents have been, and arc no\Y, making substantial sales of citrus fruit to some, but not an, of their brokers and other direct buyers purchasing for their mnl account for resale, and on a large number of these sales respondents paid, granted, or allowed, and are nmv paying, granting or allowing to these brokers and direct buyers on their own purchases, a commission, brokerage, or other compensation, or an allowance or discount in lieu t.hereof, in connection therewith.

Em. 5. The acts and pmctices of respondents, as above alleged and described, are in violation of subsection (c) of Section 2 of the Clayton Aet, as amended (U. C. Title 15, Section 13). Mr. Cecil G. JIiies and Mr. E''nest G. Barnes supporting the complaint.

Respondents pro se.

ITIAL DECISION OF .John LF.W' HEARI:NG EXAMr:.. The Federal Trade COllmission issued its complaint against the above-named respondents on ,Tune 27, HJ60, charging them with having violated Seetion 2(c) of the Clayton Act, as amended. After being served with said complaint, respondents entered into an agreement: dated September 21, 1960, conta.ining a consent order to cease and desist purporting to dispose of all or this proceeding as to all parties. Sa.id agreement, which h8S be,en signed by respondents and by caunseJ supporting the complaint, and approved by the Di- 908 FEDERAL TRADE CO:VIMISSION DECISIONS Decision 58 F.

rector and Associate Director of the. Commission s Bureau of Litigation, has been submitted to the above-named hearing examiner for his consideration, in accordance with Section 3.25 of the Commission' Rules of Practice for Adjudicative Proceedings. Respondents, pursuant to the aforesaid agreement, have admitted all the jurisdictional allegations of the complaint and agreed that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations. Said agreement further provides that respondents \Vaive any further procedural steps before the hearing examiner and the Commission, the making ,of findings of fact or conclusions of 1aw and all of the rights they may have to challenge or contest the validity of the order to cease and desist entered in accorda.nce ,vit.h such agreement. It has been agreed that the order to cease and desist issued in accordance with said agreement shall have the ;-tllne force and effect as if entered after a full hearing and that the complaint may be used in construing the terms of said order. It has also been agreed that the record herein shan consist solely of the complaint and said agreement, and that said agreement is for settlement purposes only and does not constitute an admission by respondents that they have violated t.he law as a.alleged in the complaint. This proceeding luwing now come on for final consideration on the complaint and the aforesaid agreement containing consent order and it appearing that the order provided lor in said agreement covets all the allegations of the complaint and provides for an appropriate disposition of this proceeding as to all parties, said agreement is hereby accepted and is ordered filed upon this dccision s becom ing the decision of the Commission pursuant to Sections 3.21 and 25 of the Commission s Rules of Practice for Adjudicative Proceedings, a,nd the, hearing examiner, accordingly, makes the following jurisdictional.1 findings and order:

1. Respondent Smith Enterprises Incorporated is a corporation existing and doing business under and by virtue of t.he laws of the, State of Florida, with its offce and principal place of business located at Vera Beach, State or Florida. Respondent. :Magic River Associates is a corporation existing and doing" business under and by virtue or the IfLWS of the State of 1"Joridn, with its offce and principal place of business located at Vera Beach. State of Florida. 2. The Federal Trade Commission has jllrisc1iction or the subject matter or this proceeding and of the respondents hereinabove named. The complaint states a cause of action against said respondents under the provisions of the Clayton Act.

SOI;1' H LAKE APOPKA CITRUS GROWERS ASSK. 909 906 Complaint miler 1 t i8 ordel' That respondents Smith Enterprises Incorporated, a corporation, and la,gic H.ivcr Associates, a corporation, and their offcers, agents, representatives, and employees, directly or through any corporate or other device, in cOlmection with the sale or citrus fruit or fruit products in commerce, as "commerce" is defined in the aforesaid Clayton Act, do forthwith cease and desist from: Paying, granting, or allowing, directly or indirectly, t.o any buyer or to anyone acting ror or in behaH or or who is subject to the direct or indirect control or such buyer, anything or value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, upon or in connection with any sale of citrus fruit or fruit products to such buyer for his own account. DECISION OF THE CO::fMISSION AND OIUJER TO FILE REPORT OF CO:MPLIANCE Pursuant to Section 3.21 of the Commission s Hules of Practice, the initial decision of the hearing examiner shall, on the 19th day of lay 1961, become the decision of the Commission; and, accordingly: It is ordered That the respondents herein shan within sixty (60) days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which they have complied wjth the ordcr t.o cease and desist.