Nevins Fruit Company, Inc., et al.

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v;-which it has complied with the order to cease and desist. Ix THE L\TTEH OF EVL' 'i FRl7TT COl\PANY l'C.. ET AL, C()NSEKT ORDER, ETC' IX HHL\RD TO THE .-\ALLEGED nOLATIOX OF SEC. 2 (c) OF THE CLAYTON ACT Docket SOl!)- Complaint, June 1960-Decision, May 1961 Consent order requiring citrus fruit packers in Titusvile, FJa. , to cease violating Sec. 2(c) of t.he Clayton Act by pa ying brokera, or its eqnivalent, to customers making purchases for their own accounts for resale. CO?lIPLATXT The Federal Trade Commission, having reason to believe that the partjes respollclent named in the caption hereof, fwd hereinafter more particularly desc.ribed, 11111'0 been and are now violating the provisions of subsection (c) of Section :2 of the Clayt.on Act as amended (V. C. Title 15, Section 13), hereby issues its complaint ting its charges 'with respect thereto as rollo\\s: PARAGRAPH 1. Respondent evins Fruit Company, Inc.. is a corporat.ion organized existing and doing business under and by virtue or t.he laws of the State of 1\;0'" York, ,,'ith it.s principal offce and place of business located at Titusville, Florida" with mailing address as Post Offce Box " , Titllsvine, Florida. Respondent Xevins Fruit Company, Iuc. owns fifty percent of thc stock of respondent Nevins- Iclea.l, Inc. , and directs and supervises its operations nnd hnncl1es t,he sales of fresh citrus fruit of both corporations.

Respondent Kcvins-Ideal, Inc. is a corporation organized, existing ancl doing business under and b T virtue or the 1a,ys of the State of FJori(ln \\ith its principal offce and placc or business 950 FEDERAL TRADE COMMISSroX DECISIONS Complaint 58 F.

located in Titusville, Florida, with mailing address as Post Offce Box " , Titusvile, Florida.

Both corporations arc hereinafter referred to jointly as respondent.s.

PAIL 2. Respondent.s are now, and for the past several years have been, engaged in the business of packing, selling and distributing citrus fruit, such as oranges, tangerines and grapefruit, all of which are hereinafter sometimes referred to as citrus fruit or fruit products. Respondents sell and dist.ribute their citrus fruit through brokers, as well as direct, to customers located in many sections of the United States. .When brokers are utilized in making sales for them, respondents pay them for their services a brokerage or commission, usually at the rate of 10 cents pcr 1% bushel box, or equiva, lent. Respondents' annual volume of business .in the sale and distribution of citrus fruit is substantial. PAn. 3. In the course and conduct of their business over the past several years, respondents have sold and distributed, and ate noVl selling and distrjbuting, their citrus fruit in commerce, as "commerce" is defined in the aforesaid Clayton Act, as amended t.o buyers located in the several States of the United States other than the State of Florida in which respondents arc Jocatcd. Respondents transport or cause such citrus fruit, when sold, to be transported from their place of business or packing plant in the State of Florida or from other places within the state, to such buycrs or 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 trade in commerce in said citrus frnit a,cross state lines between said respondents and the respective buyers of such fruit. PAR. 4. In the course and conduct of their business, as aforesaid for the past several years, but more particularly since January 1 1959, respondents have been and are now making numerous and substanti"l saes 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 are 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 Jieu thereof in connection therewith.

PAR. 5. The acts and practices of respondents in paying, granting or allowing a brokerage or commission, or a discount or an allow- NEVINS FRUIT CO. , INC. , ET AL. 951 949 Decision ance in lieu thereof, to buyers on purchases for their own account as hereinabove a1Jcged and described, are in violation of subsection (c) of Section g of the Clayton Act, as amended (lJ. C. Title 15 Section 13).

Mr. Cecil G. Aliles and AIr. ETnest G. Barnes for the Commission. Johnson c0 Johnson by lJh. Counts Johnson of Tampa, Fla., for respondents.

INITIAL DECISION BY "'VILLLnr L. PACK : IIEAIUNG EXA!lIIXER 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 the proceeding by means of a consent order has now been executed by respondents and the.ir counsel and counsel supporting the complaint and submitted to the hearing examiner for his consideration. Attached to and made a part of the agreement is a stipulation entered into by the same parties for the purpose of making clear the intent of the complaint and of the proposed order to cease a,nd desist. The TIord "agreement" as used hereinafter ,,'ill include the stipulation.

The agreement provides, among other things, that respondents admit all of the j1lisdictional allegations in the complaint; that the record on which the initial decision and the decision of the Com. mission shall be based shall consist solely of the complaint and the agreement; that the inclusion of findings of fact and conclusions of law in the decision disposing of this matter is waived, together with any further procedural steps before the hearing examiner and the Commission; that the order hereinafter set forth may be entered in disposition of the proceeding, such order to have the same force and eflect as if entered after a full hearing, respondents specifica1Jy TIaiving any and a1l rights to challenge or contest the validity of such order; that the order may he altered, modified or set aside in the manner provided for other orders of the Commission; that the complaint may be used jn 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 the proposed order, and being of the opinion that they provide an adequate basis for appropriate disposition of the proceeding, the 952 FEDERAL 'l' HADE COMMISSIOK DECISIONS Order 58 F.

agreement is hereby accepted, the following jurisdictional.l findings made, and the follo\"\ing order issued:

1. Respondent Nevins Fruit Company, Inc. is a eOl'pol'ation existing and doing business under and by virtue of the laws of the State of Kcw York, wit.h its offce and principal place of business 10cntec1 in the City of Tit.usville: State of F'florida, \with mailing address as Post Offce Box " \ Titus,'ille, Florida. Hespondcnt Xevins-Icler:l, Inc. is a corponltion existing and doing business under anrl by virtue of the laws of the State of Florida with its offce and principal place of business located in the City of Titusville, St.ate of Florida, with mailing address as Post Offce Box " , Titusvil1e, Florida.

2. The Federal Trade Commission has jurisdiction of the subject ITUltter of this proceeding Hnd of the respondents. ORDER It ? s ordered That the respondents Yevins Fruit Company, Inc. a corporation, and :\' l'Tins- Icleal, Inc. , a corporation, and respondents offcers, agents, representatives and employees, directly 01' through any corporate 01' other device, in connection with the sale of citrus fruit or fruit products in commerce, as "commerce defined in the aforesaid Clayton Act do forthwith ceasp, flnd desist. from:

Paying, g:::nting or allo'\'ing, directly or indirect.ly, to any buyer or to anyone acting for 01' in behalf of, or ,,'ho is sllbjed. to the direct 01' indirect control of such buyer, a,anything of value as a commission, brokerage, or other compensation, or a.ny allowance 01' discount in lieu thereof, upon or in connection "ith any sale of citrus fruit or fruit p1'odllctS to such buyer for his own account. DECISIQX OF THE cmDIISSIQX AXD Order TO FILE REPORT OF CO::r:PLIAXCE The Commission having nmy determined that the hearing examiner s initial decision: filed T anuary 18 , 1961 is adequate and appropriate to dispose of this proceeding: It i8 olde1' That said decision be, and it hereby is, adopted as the decision of the Commission.

It is fUJ,ther (inlered TJmt the respondents shall, within sixty (60) days after service upon t.hem of this order me ,,"it.h the Commission a report, in writing, setting forth in detail the manner and form in \which they have complied with the order to cease flnd desist contained in the aforesaid initial decision. LAKE ALFRED PACKING COMPANY 953 953 Complaint I:s THE Lh. TTER OF LAKE ALFRED PACKING COMPANY CONSENT Order, :t:Tc. , IX HEGMm TO THE ALLEGED YlOLATlQX OF SEC. 2(e) OF THE CLAYTON ACT Docket 8020. Com.pla,int, June 1.960-Decision, May 1.9, 1.961 Consent order requiring a Lake Alfred, Fla. , citrus fruit packer to cease violating Sec. 2(c) of the Clayton Act by paying brokerage, or its equivalent, to customers making purchases for their mvn accounts for resale. C01\fpr,AINT The Federal Trade Commission, having reason to believe that the part:y respondent named in the caption hereo-f, and hereinafter more particularly described, has been and is nmy violating the provisions of su bsedion (c) of Section :2 of the Clayton Act, as amended (U. C. Title 15 , Section 18), hereby issues its complaint, stating its charge.s with respect thereto a.s follows: PARAGR.U'H 1. Respondent Lake AJfred Packing Company is a corporation organized, existing and doing business under and by virtue of the laws of the State of Florida, ".ith its offce and prin. cipal place of business located at Lake A1frcd, Florida, with mailing address as Post Offce Box 968, Lake Alfred, Florida. PAR. 2.. R.esponclent is no\y and for the past several years has been engaged in the business of packing, selling ftnd distributing eitrus fruit, such as orn.nges tangerines and grapefruit, an of which ilre hereinafter sometimes referred to as citrus fruit or fruit products. Respondent sells anrl distrilmtes its citrns fruit through brokers, as well as direct, to customers located in many sections of the rnitec1 States. \Vhen brokers are utilized in making sales for , respondent pays them for their services a brokerage or commission, usually at the. rate, of 10 cents per 1% bushel box, or equivalent. Respondent's anTlual volume of business in the sale and distribution of citrus fruit is substantial.

PAR. 3. In the course and conduct of its business over the past several years, respondent has sold and distributed and is now selling n.nd distributing its citrus frnit in commerce, as "commerce.e is defined in the aforesaid Cla.yton Act, as amended, to buyers locater1 in the several states of thc United States other than the State of Florida in i"which respondent is lac.ated. Respondent transports or callses such citrns fruit, ",hen sold, to be iTansported from Decision 58 F.

its place of business or packing plant in the State of Florida, or from other places within the State, to such buyers or to thc buyers customers located in various other states of the United States. Thus there has been, at an times mentioned herein, a continuous course of trade in commerce in said citrus fruit across state lines between said respondent and the respectivc buycrs of such fruit. PAR. 4. In the course and conduct of its business as aforesaid for the past several years, but more particularly since anuary 1 1959, respondent 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, and on a large number of these sales respondent paid, granted, or allowed and is now paying, granting or allowing to these brokers and direct buyers on their purchases, a commission, brokerage, or other compensation, or an allowance or discount in lieu thereof, in connection therewith.

PAIL 5. The acts and practices of respondent in paying, granting or allowing a brokerage or commission, or a discount or an allowance in lieu thereof, to buyer.rs on purchases for their own account, as hereinabove alleged and described, are in violation of subsection (c) of Section 2 of the Clayton Act, as amended (U. C. Title 15 Section 13).

Mr. Oecil G. Miles and ilr. Ernest G. Barnes for the Commission. il1r. J. Hardin Peterson of Lakeland, Fla., for respondent. INITIAL DECISION BY V\TILLIAl\I L. PACK, I-IEARING E.XA:\IINER The complaint )n this matter cha.rges the respondent 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 respondent and its counsel and counsel supporting the complaint and submitted to the hearing examiner for his consideration. Attached to and made a part of thc agreement is a stipulation entered int.o by the same parties for the purpose of making clear the intent of the complaint and of the proposed order t.o cease and desist. The word " a,agreement" as used hereinafter will include the stipulation. The agreement provides, among other things, that respondent admits all of the jurisdictional allegations in the complaint; that the record on which the initial decision and the decision of the Commission shall be based shall consist solely of the complaint and the agreement; that the inclusion of findings of fact and conclusions of law in the decision disposing of this matter is waived, together wit.h any further procedural steps before the hearing examiner and the LAKE ALFRED PACKING co:vrpA-'Y 955 Decision 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, respondent specifically waiving any and all rights to challenge or contest the validity of such order; that the order may 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 thc order; and that the agrcement is for settlement purposes only and doe,s not constitute an admission by respondent that it has violated the law as al1cged in the complaint.

The hearing examiner having considered the agreement and the proposed order, and being of the opinion that they provide an adequate basis for appropriate disposition of the proceeding, the agreement is hereby accepted, thc following jurisdictional findings made and the following order issued:

1. Respondent Lake Alfred Packing Company is a corporation existing and doing business under and by virtue of the laws of the State of Florida, with its offcc and principal place of business located in (he City of Lake Alfred, State of Florida, with mailing address as Post Offce Box 968, Lake Alfrcd, Florida. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of thc respondent. onDEH It is ordered That the respondent Lake Alfred Packing Company, it corporation, and its offcers, agents: representatives and employees, directly or through any corporate or other device, in connection with the sale of 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 a.llowing, directly or indirectly, to any buyer or to anyone acting for or in behalf of, or who 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 discount in lieu thereof, upon or in connection with any sale citrus fruit or fruit products to such buyer for his own account. DECISION OF THE IMISSION AND ORDER TO FILE REPORT OP COMPLIANCE The Commission having now determined that the hearing examiner s initial decision, filed January 18, 1961, is adequate and appropriate to dispose of this proceeding:

It i8 ordered That said decision be, and it hereby is, adopted as thc decision of thc Commission.

956 FEDERAL TRADE COMMISSIOK DECISIOKS Complaint 58 F.

It i8 further ordered 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 manner and form in which -it has complied with the order to cease and desist contained in the aforesaid initial decision.