Newbern Groves, Inc.

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v,which they have complied with the order to cease and desist. IN TI-IE MATTER OF NEWBERN GROVES, INC.

CON"SENT miler, ETC. IX REGARD TO THE ALLEGED VIOLATIO:- OF SEC. 2 ( c) OF THE CLA YTOX ACT Docket 8016. Complaint, June 1960-Decision, May 1961 Consent order requiring a Tampa, Fla. , packer of citrus frnit to cease Yiolating Sec. 2(c) of the Clayton Act by paying brokerage, or its equivalent, to customers making purchases fol' theil' o,vn accounts for resale. CO?lIPLAINT The Federal Trade Commission, having reason to believe that the party named in the caption hereof, and hereimdter more particularly described, has been and is now violating the provisions of subsection (c) of Section 2 of the Clayton Act, as amended (C. Title 15, Section 13), hereby issues its complaint, stating its charges with respect thereto as follows:

PARAGRAH 1. Respondent Newbern Groves, Inc. , hercinaHer sometimes referred to as respondent or respondent Kewbern, is corporation, organized existing and doing business under and by virtue of the laws of the State of Florida, with its offce and principal place of business located at Tampa, Florida, ,with mailing address as Post Offce Box 9157, Tampa 4, Florida. PAR. 2. Respondent is nO\v, and for the past sevcra1 years has been, engaged in the business of packing, selling and distributing citrus fruit, such as oranges, tangerines and grapefruit, as well as other fruit products, all of which are hereinafter referred to as citrus frit or frit products. Respondent sells and distributes its citrus fruit through brokers, as well as direct, to customers located 940 FEDERAL TRADE COMMISSIOK DECISIOXS Decision 58 F.

in many sections of the United States. ,"l,ere brokers are utilized in making sales for it, respondent pays them for their services a brokerage or commission, usually at the rate of 10 cents per bushel box, or equivalent. Respondent's annual volume of business in the sale and distribution of citrus fruit is substantial. PAn. 3. In the course and conduct of its business over the past several years, respondent has sold and distribut.ed, and is now selling and distributing, its citrus fruit in commerce, as "commerce': is defilled 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 respondent is located. Respondent trausports or causes such citrus fruit, when sold, io be t.transported from its place of business or packing plant in t.he State of Florida or from other places within the State, to such buyers or to the buyers' customers located in various other states of the United States. In many instances respondent sells to brokers or buyers located in the State of Florida, but ships, or causes the citrus fruit to be shipped, to the buyers' customers located outside of said State. Thus there has been at an times mentioned herein a continuous course of trade in C011merce in said citrus fruit and fruit products across state lines between said respondent and the respective buyers of suel1 fruit, or the buyers' customers.

PAR. 4. In the course and conduct of its business as aforesa, , respondcnt has been and is now making numerous and substantial sales of citrus fruit to some, but not all, of its brokers and direct buyers purchasing for their own account for resale, a.nd on a large number of these sa,les respondent paid, granted or allmved, and is now 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 thereof, in connection therewith.

PAR. 5. The acts and practices of respondent in paying, granting or allowing a brokerage or commission, or an allo\'ance or discount in lieu thereof, to buyers on their own purchases, as hereinabove ,,!leged and described, are in violation of subsection (c) of Section 2 of the Clayton Act, as amended (U. C. Title 15, Section 13). Mr. Cecil G. Miles and Mr. Ernest G. Ba1'nes for the Commission. Johnson Joh7lon by Mr. Cmcnts Johnson of Tampa, Fla., for respondent.

INITIAL DECISlOX BY AB:-mn E. LIPSCO:\IB, HEARING EXA::IPrER The complaint herein was issued on June 27 , 1960, charging Respondent with violation of \;2 (c) of the Clayton Aet, as amended, by NEWBERN GROVES , D,'" 941 939 Decision paying, grantjng, or allowing commission, brokerage, compensation or an allowance or discount in lieu thereof, to certain of its brokers and direct buyers, on purchases for their own account for resale. Thereafter, on December 9, 1960, Respondent, its counsel, and counsel supporting the complaint herein entered into an . agreement Containing Consent Order To Cease And Desist, which was approved by the Director and Associate Director of the Commission s Bureau of Litigation, and thereafter, on January 4, 1961, submitted to the Hearing Examiner for consideration. Attached to and made a part of the agreement is a stipulation entered into by thc same parties for the purpose of making clear beyond any possible doubt the intent of the complaint and of the proposed order to cease and desist. The agreement identifies Respondent Newbern Groves, Inc. as a Florida corporation, with its offce and principal place of business locat.ed in Tampa, Florida., with mailing address as Post. Offce Box 9157, Tampa 4, Florida.

Respondent admits all thc jurisdictional facts alleged in the complaint, and agrees that the record may bc taken as if findings of jurisdictional facts had been duly made in accordance with such allegations.

Respondent waives any further procedure before the Hearing Examiner and the Commission; the making of findings of fact and conclusions of Jaw; and all of the rights it may have to challenge or contest the validity of the order to cease and desist entered in accordance with the agreement. All parties agree that thc record on which the initia.1 decision anel the decision of the Commission shall be based shall consist solely of the complaint and the agreement; that the order to cease and desist, as contained in thc agreement, when it shall have become a part of the decision of the Commission, shall have the same force and effect as if entered after a full hearing, and may be altered, modified or set aside in the manner provided for other orders; that the complaint herein may used in construing the terms of said order; and that the agreement is for settlement purposes only and does not constitute an admission by Respondent that it has violated the law as alleged in the complaint.

After consideration of the allegations of the complaint, and the provisions of the agreement and the proposed order, the I-Iearing Examiner is of the opinion that such order constitutes a satisfactory disposit.ion of this proceeding. .iiccordingly, in consonance with the terms of the aforesaid agreement, the hearing Examiner accepts the Agreement Containing Consent Order To Cease And Desist; finds that the Commission has jurisdiction over the Respond- 942 FEDERAL TRADE CO IMISSIOK DECISIONS Complaint 58 F.

cnt and over its acts and practices as alleged in the complaint; and finds that this proceeding is in the public interest. Therefore It i8 ordered That the Respondent Newbern Groves, Inc., a corporation, and its offcers, agents, representatives and employees, directly or through any corporate or other device, in connection "ith the sale or citrus fruit or fruit products in C01l11Crce as "commerce is defined in the aforesaid Clayton Act, do forthwith cease and desist from:

Paying, granting, or allowing, directly or indirectly, to any buyer or to anyone acting for or in behalf of, or "ho is subject to the direct or indirect control of such buyer, anything of value as a commission, brokerage, or other compensation, or any allowance or cliscount in lieu thereof, upon or in connection with the sale of citrus fruit or frit products to such buyer for his own account. DECISION OF TH COMMISSION AND ORDER TO FILE REPORT OF C01.IPLIAKCE The Commission having now dctcrmJnec1 that the hearing examiner s initial decision, filed January 17, 1961, is adequate and appropriate to dispose of this proceeding:

It 03 ordered That said decision be, and it hereby is, adopted as the decision or the Commission.

It i8 further o1'dered That the respondent 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 n:mnner and form in which it has complied with the order to cease and desist contained in the aforesaid initial decision.