Killarney Fruit Company, Inc., and Nathan Rubin doing business as Killarney Fruit Company

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IN THE )IA TTER OF KILLAHKEY Fruit COMPANY, IKC., A~D KATHAX R1 BIX DOIXG BUSINESS AS KILLAHNEY FRClT CO IPANY COXSEXT ORDER, ETC. , IK REGARD TO THE "\ALLEGED HaLATION OF SEC. 2(c) OF THE CLAYTON ACT Docket 8012. Complaint, J1tne 1960-Decision, May, 1961 Consent order requiring packers of citrus fruit in Ki1arney, Fla. , to cease vio lating Sec. 2(c) of the Clayton Act by paying brokerage, or its equivalent, to customers making purchases for their own accounts for resale. COJ\IPLAIXT The Federal Trade Commission, having reason to believe that the pmties nmnec1 in the caption hereof, and hereinafter more par- 926 FEDERAL TRADE COMMISSIO DECISIONS Complaint 58 F.

ticulady described, ha YO been and atc 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 with respect thereto as follows:

PARAGRAPll 1. Hesponc1ellt I\:lJarney Fruit Company, Inc. , is a corporation organized, existing, ttnc1 doing business under and by virtue of the laws of the SLate of Florida, with its principal oftce and place of business located at Killal'ney, Florida. Hcsponclent Kil1arney Fruit Company, Inc. , is also a copartner, along with individual1 respondent X athan R,ubin, doing lmsiness a,s Killal'ney ruit Company.

Respondent athan Hubin is an individual and is a copartner along "ith respondent IGllal'ney Fruit Company, Inc. , doing business as lci11al'lley Fruit Company under and by virtue of the laws of the State of Florida. All respondents named-corporate, individual, and partnership-are hereinafter sometimes referred collectively as respondents.

PAR. Q. Respondents are nm"\, and for the past several years have been, engaged primarily in the business of packing, sc11ing, and distributing citrus fruit, such as oranges, tangerines, and grapefruit, as well as other fruit products, a.1l of which are hereinafter somet.times referred to as citrus fruit. Hespondents sell and distrilmte their citrus fruit through brokers, as 'YCn as direct, to customers 10catec1ill 1Han)' sections of the United States. \Vhen brokers are utilizecl in making sa,les for respondents, t.he brokers are paid for their services, in connection therewith, a brokerage or commission, usually ftt the rate of 10 cents per 1% bushel box, or equivalent. nesponc1ents annual volume of business in the sale and clistriblltion of citrus fruit is substantial. PAIL g. In the course and conduct of their business for the past several years, but more particularly since October 1 , 1D57 , to date respondents have sold and distributed and are now selling and distributing citrus fruit in commerce, as "commerce is defined in the aforesaid Clayton c\.ct, as amended, to buyers located in the several states of the l;nitecl States other tha,n the State of Florida in ,,,hi('h respondents are located.

PAR. 4. Hcsponc1cnts transport or cause such citrus fruit, when sold to be transported from their place of business or packing plant in the St.ate of Florida, or from other places within the state, to such buyers or to such buyers' customers loeated in ntrious other states of the lJnitecl States. In many instances, respondents lTflke substantial sales to brokers or buyers located in the State of I' loricb. but shil) or cause the citrus fruit to be shipped to the buyers KILLARXEY FRUIT COMPANY 927 925 Decision customers located outside of said state. Thus, there has been at all times me,ntioned herein a continuous course of trade in commerce in said citrus fruit across state lines between said respondents and the respective buyers of such fruit.

PAR. 5. In the course and conduct of their business, as aforesaid for the past several years, and more pu,rticularly since October 1 1957, respondents have been and are now making numerous and substantial sales of citrus fruit to some, but not all, of their brokers and direct buyers purchasing for their o\vn account for resale, and on a la.rge number of these sales respondents paid, granted, or allmved, and are now paying, granting, or allowing, to these brokers and direct buyers on their own purchases ft commission, brokerage 01' other compensation, or an allowance or discount in lieu thereof in connection therewith.

PAR. G. The acts and practices of respondents in paying, granting, or allowing a brokerage or commission, or an allowance or discount in heu thereof, to buyers on purchases for their own account, as hereinabove alleged and described, are in violation of subsection (c) of Sedion 2 of the Clayton Ad, as amended (V. C. Title 15, Section 13).

J.11'. Oecil G. J.liles and JII'. El' nest (J. Ba.rnes for the Commission. i1lr. Ed1CCTd J. Hanlon of .Winter Garden, Fla. , for respondents. INITL\L DECJSIOX BY \VILLL\l\I L. PACK, I-IEARIXG EX. )I1.:ER The complaint in this matter cJmrges the respondents with violation of Section 2 (c) of the Clayton Act, as amended. An agreement for disposition of the proceeding by means of a consent order has now been executed by re,spondents and their counsel and counsel supporting the complaint and submitted to the he,aring examiner for his consideration. Attached to and made a part of the agreement is a stipulation entered into by the same patt.ies for the purpose making clear the intent of the complaint and of the proposed order to cea,se and desist. The word "agreemene as used hereinafter ",vill include the stipulation.

The agreement provides, anlOng other things, that respondents admit all of the jnrisc1ictional allegations in the complaint; that the record on \\'which the initial decision and the decision of the Commission shRII be based shall consist solely of the complaint and the 1gl'eCment; that the inclusion of findings of fflet and conc1nsions of law in the decision disposing of this matter is waived, toget.her with a.ny further procedural st.eps before the hearing examiner and the Commission; that the order hereinafter set forth may be 928 EDERAL 1'TRADE CmnnSSIOX DECISIONS Order 58 F.

entered in disposition of the proceeding, such order to have the sa.me force and enect as if entered after a full hearing, respondents specifically waiving any and all rights to challenge or contest the validity or such order; that the order may be altered, modified or set a.side in the manner provided ror other orders or the Commis. sian; that the complaint may be used in construing the terms of the order; and that the agreement. is for settlement purposes only ane: does not constitute an admission by respondents that they have viohlted the law as alleged in the complaint, The hearing examiner having eonsic1erecl the agreement and the proposed order, and being of the opinion that they provide an adeqnat.e basis ror appropriate disposition of the, proceeding, the a.greement is hereby accepted, the follmying jurisc1ictional findings made and the following order issued:

1. Hesponclent Killarney Fruit Company, Inc. is a corporation and is also a copartner, along ,with the individual respondent Nathan Rubin, doing business as Killarney Fruit Company, existing and doing business under and by virtue of the laws of the State of Florida with their principal offce and place of business located in the City of Kil1arney, State of Florida.

Respondent :Nathan Rubin is an individual and is a copartner along with Killarncy Fruit Company, Inc. doing business as Killarney Fruit Company under and by virtue of the laws of the State of Florida with his principal offce and place of business located in the City of Killarney, State of Florida. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents. ORDER It is oTdm' That the respondents, lCillarney Fruit Company\ Inc. , a corporation, and as a copartner along \"ith X athan Rubin an individual, doing business as Killarney Fruit Company, and Nathan Rubin individually, and respondents' offcers, agents, representatives, and employees, directly or through any corporate, partnership, or other device, in connection ,with the sale of citrus fruit or fruit products in commerce, as "commerce" is deiined in the aforesaid Clayton Act, do forthwith cease and desist from: Paying, granting, or allmying, directly or indirectly, to any buyer 01' to anyone acting for or in beha,1f of, or ,,-ho is subject to the direct or indirect control of such buyer, anything of value as commission, brokerage, or othet compensation, 01' any al1myance or discount in lieu thereof, upon or in connection ""ith any sale of itrus fruit or fruit products to such buyer for his o,"n account. LAKE HAMILTO:. COOPERATIVE , IXC. 929 925 Complaint DECISION OF ' I-m CO::DIISSIOX "'lnd OHDEH TO FILE REPORT OF CO::IPLIANCE The Commission having now determined that the hearing examiner s initial deciston, filed January 18, 1961, is adequate and appropriate to dispose of this proceeding:

It is oTrle1'ed That said decision be and it hereby is, adopted as the decision of the Commission.

It is furthe/' oi'deied TJmt the respondents shall, within sixty (60) days a.after service upon them of this order, file with the Commission a report, in writing, setting forth in detail the ma11ne1' and form in which they have complied with the order to cease and desist contained in the aforesaid initial decision.