Stein Brothers Fur Company, Inc.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF STEIN BROTHERS FUR COMPANY, INC., ET AL.

CONSENT Order, ETC. , IX HEGAlil TO ALLEGED \''"OLATION OF THE FEDEK'!L TRADE COfiUnSSION AND THE YCR PROD"CCTS LABELING ACTS Docket 156. Complaint, Jmte 1962-Decision, June, 1962 Consent order requiring furriers with places of business in Wichita, Kans. and Kansas City, Mo., to cease violating the Fur Products Labeling Act by labeling fur pro duds with fictitious prices represented thereby as the usual retail prices, and by advertising in newspapers which failed to describe fur products as "natural" when such was the fact, and which represented flu products falsely as stock of a lJusil1ess of a recently deceased indi,idl1al or as being sold for the benefit of the estate of a late owner of a iJusiness, 01' as distress merchandise or products 1111claillled from storage. COl\Il' LAIXT Pursuant to the provisions of the Federal Trade Commission Act and the Fur Products Labeling Act, and by virtue of the authority vested in it by said Acts, the Federal Trade Commission, having reason to believe that Stein Brothers Fur Company, Inc., a corporation, and Thforl'is S. Lavin, individually and as an offcer of said corporation and also trading as A. I\:eller Fur Company, hereinafter referred to as respondents, have violated the provisions of said Acts and the Bules and Regulations promulgated under the Fur Products Labeling )i. , and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues it.s complaint stating its charges in that respect as follows: PARAGIL PH 1. Respondent Stein Brothers Fur Company, Inc., is a corporation organized, existing and doing business under and by virtue of t.he la,ys of the State of 1\:ansa. s. forris S. Lavin is president of the corporate respondent and formulates, directs and controls its policies, acts and practices. Respondent :Morris S. Lavin also trades as A. Keller Fur Company. The offce and address of the respondents is at 201 South 1\lain Street, \Vichita, Kansas: although the address of A. Kellcr Fur Company is at 218 East 11th Street I\:ansas City, 1\10. The respondents are engaged in the retail sale of fur products.

PAR. 2. Subsequent to the effective date of the. Fur Products Labeling Act on August 8 1952, respondents have been and are now engaged in the introduction into commerce., and in the sale, advertising and offering for sale, in commerce, and in the. transportation and distribution in commerce, of fur products; and have sold, advertised, offered 710-603--64--119 , ;

Complaint 60 F.

for sale, transported and distributed fur products which have been made in whole or in part of fur which had been shipped and received in commerce, as the terms "commerce fur" and "fut' produce' are defined in the Fur Products Labeling Act.

\H. 3. Certain of saiel fur products were misbranded in that labels affxed thereto contained fictitious prices and misrepresented the regular retail selling prices of such products in that prices represented on such labels as the regular prices of the fur products were in excess of the retail prices at \,hieh respondents usually and regularly sold such fur products in the recent regular course of business, in violation of Section 4(1) of the Fur Products Labeling Act. PAIL 4. Certain of sa,id fur products \york misbranded in that labels affxed thereto contained a purported sale price which was in fact, fictit.ious in that such price was in excess of the price at which respondents actually sold such fur products during the period such products were represnted as being on sale, in violation of Section ':1(1) of the Fur Products Labeling Act.

PAR. 5. Certain of saiel fur products \were falsely and deceptively advertised in violation of the Fur Products Labeling Act in that respondents caused the dissemination in commerce, as "commerce" is defined in said Act, of certain newspaper advertisements concerning said products, \which were not in accordance with the provisions of Section 5(a) of the said Act and the Rules and Regulations promulgated thereunder; and which advertisements were intended to aid promote and assist, directly or indirectly, in the sale and offering for sale of said fur products.

PAR. 6. Among and included in the advertisements as aforesaid but not limited thereto, \were advertisements of the respondents which a ppearecl in issues of The ICansas City Times, a newspaper published in the city of Kansas City, State of Missouri, and having a wide circulation in said State and various other States of the 1 nitcd States. By means of said advertisements and others of similar import and meaning, not specifically referred to herein, respondents falsely and deceptively advertised fur products in that said advertisements: (a) Failed to describe as natural, :fr products which were not pointed, bleached, dyed, tip-dyed, or otherwise artificially colored, in violation of Rule 19 (g) of said Rules and Regulations. (b) Represented fur products as being from the stock of a business of an individual who had recently died, when such fur products were not, in fact, a part of the stock of such business, in violation of R.ule 44 (g) of said Rules and Reg-ulations.

STEI BROTHERS FUR CO. , INC., ET AL. 1877 1875 Decision and Order (c) Represnted that fur products were being sold for the benefit of the estate of the late owner of a business, when such was not the fact in violation of Section 5 (a) (5) of the Fur Products Labeling Act. (d) Represented, contrary to fact, that fur products were distress merchandise, or were fur products uncalled for or unclaimed from storage or were from a business or estate in the process of liquidation in violation of Section 5 (a) (5) ofthe Fur Products Labeling Act. PAR. 7. Respondents falsely and deceptively advertised fur products in violation of Section 5(a) (5) of the Fur Products Labeling Act, by affxing labels to such fur products which contained fictitious prices and misrepresented the regular retail selling prices of such fur products in that the prices represented on such labels as thc regular prices of the fur products were in excess of the retail prices at which respondents usually and regularly sold such products in the recent regular course of business.

PAR. 8. Respondents falsely and deceptively advertised fur products in violation of Section 5(a) (5) of the Fur Products Labeling Act, by affxing labels to such fur products which contained a purported sales price which was, in fact, fictitious in that such price was in excess of the price at which respondents actually sold such fur products during the period such products were represented as being on sale. PAR. 9. The aforesaid acts and practice of respondents, as herein alleged, are in violation of the Fur Products Labeling Act and the Rules and Regulations promulgated thereunder and constitute unfair and deceptive acts and practices and unfair methods of competition in commerce under the Federal Trade Commission Act. DECISION A:KD ORDER The Commssion having heretofore determined to issue its complaint charging the respondents named in the caption hereof with violation of the Federal Trade Conunission Act and the Fur Products Labeling Act, and the respondents having been served with notice of said determination and with a copy of the complaint the Commission intended to issue, together with a proposed form of order; and The respondents and counsel for the Commssion having thereafter executed an agreement containing a consent order, an -admission by respondents of all the jurisdictional facts set forth in the complaint to issue herein, a statement that the signing of said agreement is for set tlement purposes only and does not const.itute an aclmiss10n by respondents that the law has been violated as set forth in such c011plaint and waivers and provisions as required by the Commission s rules; and 1878 FEDERAL TRADE COMMISSIO DECISIO Decision and Order 60 P.

The Commission, having considered the agreement, hereby accepts same, issues its complaint in the form contemplated by said agreement makes the following jurisdictional findings, and enters the following order:

1. Respondent Stein Brothers Fur Company, Inc., is a corporation organized, existing and doing business ilder and by virtue of the Jaws of the State of Kansas, with its offce and principal place of business locat.ed at 201 South Main Street, jn the city of 'Wichita, State of Kansas.

Respondent :Morris S. Lavin is an offcer of the aforesaid corporation ,md his address is the same as that of the said corporate.ion. He further trades as A. Keller Fur Company with his address at 218 East 11th Street, in the cit.y of Kansas City, State of Missouri. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding a.nd of the respondents, and the proceeding is in the public interest.

ORDER It is ordered That respondent Stein Brothers Fur Company, Inc. and its offcers, and respondent :\Iords S. Lavin, individually and as an offcer of said corporation and also trading as A. Keller Fur Company or lUlder any other trade name, and respondents ' repl'esentntives agents and employees, directly or through any corporate or other device, in connection with the introduction into commerce, or the sale advertising, or offering for sale in commerce, or the transportation or distribution in commerce, of any fur product; or in connection with the sale, advertising, offering for sale, transportation, or distribution, of any fur product which is made in whole or in part of fur which has been shipped and received in commerce, as "commerce fur" and "fur product" are defined in the Fur Products L'a.beJiI g Act, do forth- "Tith cease and desist from:

1. Misbranding fur products by:

A. Falsely or deceptively labeling or otherwise identifying such products by any representation, directly or by implication: (1) That the regular or usual prices of such products are any amount in excess of the prices at which respondents have usual.11y and customarily sold such products in the recent regula.r course of business. (2) That the prices of such products "rc reduced from the prices at which respondents have usually or customarily sold such products when such is not the case.

(3) That any amount is the sale price of any fur product, when such amount is in excess of the. price at "which such fur product is actually STEI1\T BHOTHERS FUR CO. INC. E'l' AL. 1879 1875 Order sold during the period such product is bbelecl or otherwise repre- 8en ted as being on sale.

(4) That savings are Rvailable to pUl'chnsel's of re.spondents' fur products, when such is not the case.

2. Falsely or deceptively advertising fur products through the use of any advertisement, representation, public a,nnouncemcllt, or notice which is intended to aid, promote or assist, directly or indirectly, in the sale, or offering for sale of fur products and 'which: A. Fails to describe fur products ",which are not pointed, bleached dyed, tip-dyed, or othexwise artificially colored, as natural. B. Represents directly or by implication, contrary to fad, that any such products are the regular stod;; of a business. C. Hepresents in any manner, contrary to fact, that fur products are being sold for the benefit of any aile other than the owners of such business.

D. Represents in any manner, contrary to fact., directly or by implication, that fur products are distress merchandise, or are fur products uncaJled for or unclaimed from stonLge or are fur products from a business or estate in the process of Equidation. E. Re.presents in any manner, contrary to fact, directly or by implication, that prices of such products arc reduced from the prices at ,,,hieh respondents have usual.lly or customarily sold such products in the recent regular course of business.

F. Represents in any manner, directly or by implication, that any amount is the sale price of any fur product, when such amount is in excess of the price at which such fur product is actually sold during the period the fur product is l'e_presented ns being on sale. G. Hepresents in any manner that savings ate availa,ble to purchasers of respondents' products, \,hen such is not the fact. It is fifether o1'dered That the respondents herein shad, 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 whh this order.

, INTERLOCUTORY VACATING, AND MISCELLANEOUS ORDERS LIGGETT & MYERS TOBACCO CO;\ipany, INC.

Docket 6642. Order, Jan. , 1.962 Order vacating prior order reopening proceeding. The Commission, on August 4, 1961., upon motion of counsel supporting the complaint, having reopened this proceeding for reconsideration of its disposition of the issue concerning certain pro- Inotional payments made by respondent to cigarette vending machine operators, and having heard the matter on the brief and oral argument of counsel supporting the complaint requesting that the Commission vacate its conclusion all this issue in its opinion and hold that Section 2 (d) of the amended Clayton Act was violated in connection with the making of the aforementioned payments, and the opposing brief and oral ar.6:rment of the respondent; and The Commission having determined that there has been no sho\Vlng of any change in conditions of law or fact or showing of any other circumstance requiring the action sought in the public interest and therefore, that modification of the Commission s opinion in the manner requested has not been justified:

It i8 ordered That the order of August 4, 1961, reopening this proceeding be, and it he.reby is, vacated without implying any views as to the merits of its prior opinion dated September 9, 1959, and without prejudice to the statutory right and duty of the Commission to take such further action, if any, as may be appropriate, whenever in the opinion of the Commission conditions of fact or of law have so changed as t.o require such action or if the public interest shall so require.

Commissioner ICern not participating and Commissioner l\1:aclntyre dissenting.

AMERICAN CYANAMID COMPANY ET AL.

Docket 7211. Order, Feb. , 1962 Order (jellying motions to reconsider the COllmission s orrler of December 20, 1961, denying motions to disqualify, ::lE)IOHAXDU::I OF CHAIRl\L-\X DIXOX IN REGARD TO RESPONDENTS' J1fOTIONS THXr Hl BE DISQUALIFIED By separate motions supported by affdavits the respondents he.rein have requested that I be disqualified from participating in this 1'1'0- 1882 FEDERAL TRADE CO:l:1ISSlOK DECISlOKS ceeding. All of the motions were fied pursuant to Scetion 7 (a) of the Administrative Procedure Act and allege in substance that my prior position and duties as Counsel and Staff Director of thc Antitrust and Monopoly Subcommittee of the Committee on the Judiciary of thc United States Senate disqualify me from further participation in this matter.

As the motions disclose, the Subcommittee for which I acted as Counsel and Staff Director did, during 1939 and 1960, conduct an investigation, including public hearings, into certain pricing flnd ot.her pract,ices of the ethical drug industry. As leading members of that industry, the respondents herein \were requested to, and did furnish documents and other information to the Subcommittee. As counsel, I played an active role in the accmnuhLtion and pl'esentati0l1 of this factual data to the members of the Subcommittee. IVhile the motions inaccurately describe the role I played in thc aforesa.id investigation as "advocacy, ' it should be unnecessary for me to point out that hearings before Congressional committees are paTte and in no sense adversary in nature. Further, they cannot be said to be adjudicative, since they have as their sale purpose the amassing of facts in order that the Congress may be adequately informed concerning the desirability or need for legislation. The entire extent of my participation in the Subcommittee s investigation of the ethical drug industry is a matter of public record. I stand on that record but, of course, do not consider myself bound by the writings or statements of others \Vho participated in that investigation including Subcommittee members or employees. :\Iy duties with the Subcommittee staff definitely did not involve the making of decisions or judgments on the facts accumulated. ,vas my duty to assist in adducing all of the facts with respect to the subject being investigated and to refrain from presenting Oldy one side of controversial subjects.

Respondents' 111otions refer to the phrasing of questions \Which I directed to witnesses during public hearings before the Subcommittee. as indicating my advocacy of positions opposed to those of the respondents herein. It is elementary that the questions of a lawyer engaged in eliciting facts from a witness do not necessarily indicate his state of mind but are couched in terms best calculated to adduce the truth.

The points ra,ised by the respondents against my pa.rticipation in this proceeding a.re not unlike the charge of bias raised against the complete membership of the Commission in the case of Federal Trade Commission v. Cement Institute, et al. 333 U.S. 683 (1948). In that case, after thc taking of testimony had been concluded and ,,,while the proceeding was still pending before the Commission, one INTERLOCL"TORY ORDERS, ETC. 1883 of the respondents asked the Commission to disqualify itself from passing upon the issues involved, alleging that the Commission had previously prejudged the issues and 'was prejudiced and biased ftgail1st the Portland cement industry generally. The Commission refused to disqualify itself, and the contention was subsequently presented to and rejected by both the Circuit Court of Appeals for the Seventh Circuit and tlle Supreme Court. Because the situation there dealt with is so analogous to the situation in which I now find myself and because the Supreme Court' s consideration of this point is so clear and so complete, I quote from that opinion (pp. 700-702 supra): )'larQuette introduced numerous exhibits intended to support its charges. In the main these exhibits were copies of the Commission s reports made to Congress or t.o the President, as required by 6 of the Trade Commission Act. 15 V. C. 46. These reports, as well as the testimony given by members of the Commission before cong-ressional committees make it clear that long before the filing of this complaint the members of the COilni.'3sion at that tilne, or at least some of them, were of the opinion that tbe operation of t.he multiple basing point 8ystP11 as they had studied it was the equi,alent of a price fixing restraint of trade in violation of t.he Sherman Act. \Ve therefore decide this contention as rull the Circuit Court of Appeals, on the assumption that such an opinion had been formed br the entire memuership of the Commission as a result of its prior offcial investigations. But "e also agree with that court's holding ihat this iJelief did not. disqualify t.he Commission. In the first place, the fact t.hat the Commission had entertained such views as the result of its prior ex parte iuvestigations did not necessarily mean that the minds of its members were irrevocably closed all the subject of the respondents' basing point practices. Here, in contrast to the Commission s in- ,esLigations, members of the cement industry 'were legally authorized participants in the hearings. They 11l'oduced evidence-volumes of it. They ,were free to point out to the Commission by testimony, by cross-examination of witnesses, and by arguments, conditions of the trade practices under attack ""which they thought kept these practices witbin the range of legally permissible business activities.

)'loreover, JTal'quette s position, if sustnined, would to a large extend (sic) defeat the congressional purposes .which promoted passage of the Trade Com mh:sjon Act. Had the entire membership of tbe Commission disqualified in the proceedings f1against tlle respondents, this complaint: could not have been He-t('(l upon b.\ tl1C Commission or by any other government agency. Congre"s has provic1rr1 for no such cOJlti1Jgenc.\. It ha" llot (lirected that tbe C011 mission rlisqualify itself under any circumstances, has not proYidecl for S11hstitllte commissioners sbonld any of its members dis!)ua1ify, and has not au- 1"lOl'izc(l .any other goyernment agency to hold hearings, make findings. and is.'me cease fmd desist orders in proceedings against unfair lrQlle practices. Yet if ::lnrqnette is right, the Commission, by making studies and filing reports iij obedience to congressional command, completely immunized the practices illye.stigatec1 , even though they are "unfair " from any cease and desist onler by the Commission or any other g'oyermuent.aJ agency. 'l' here is no warrant in the Act for reaching a conrlusioll which would thus frustra te its purposes. If the Commission s opinions expressed in congression ally required reports would bar its members from acting in unfair trade proceedings, it would appear that opinions expressed in the first basing :pint unfair trade proceeding would similarly disqualify them from ever passing on another. See Morgwn v. United States 313 U. S. 409, 421. Thus experience acquired from their work as commissioners would be a handicap instead of an advantage. Such was not the intendment of Congress. For Congress acted on a committee report stating: "It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience." Report of Committee on Interstate Commerce, No. 597, June 13, 1914, B3d Cong., 2d Sess. l0-11. Marquette also seems to argue that it was a denial of due process for the Commission to act in these proceedings after having expressed the view that industry-wide use of the basing point s 'stem was ilegal. A number of cases are cited as giving support to this contention. Tumey v. Ohio 273 U. S. 510, is among them. But it provides no support for the contention. In that case Tumey had been convicted of a criminal offense, fined, and committed to jail by a judge who had a direct, personal, substantial, pecuniary interest in reaching bis conclusion to convict. A criminal conviction by such a tribunal was held to violate procedural due process. But the Court there pointed out that most matters relating to judicial disqualification did not rise to a constitutional level. I d. at 523.

Keither the Tumey decision nor any other decision of this Court would require us to hold that it would be a "violation of procedural due process for a judge to sit in a case after he bad expressed an opinion as to whether certin types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and fact. Certainly, the Federal Trade Commission cannot possibly be under stronger constitutional compulsions in this respect than a court.

The Commission properly refused to disqualify itself. We thus need not review the additional holding of the Circuit Court of Appeals that Marquette s objection on the ground of the alleged bias of the Commission was filed too late in tbe proceedings before that agency to warrant consideration. Should I accede to thc respondents' motions here, I might also find myself barred from consideration of cases in other industries investigated while I served as Counsel and Staff Director to thc Senate Antitrust and Monopoly Subcommittee of the Committee on the the steel, auto-Judiciary. These industries include, among others, mobile, milk, bread and roofing industries. I would thus find myself in the position where my experience acquired from working as a legislative counsel would be a handicap instead of an advantage. This in my opinion, would dcfeat the very intendmcnt of Congress in creating a Commission to be manned by con111i88ioner8 with some degree of expertise.

Following the respondents' contentions to their ultimate conclusion, the Commission itself might be alleged to be disqualified from ultimately judging a proceeding because of the fact that, under its ba.sic responsibilities, it reviews, prior to the issuance of a complaint investigational records. Such investigational records are not unlike INTERLOCUTORY ORDERS, ETC. 1885 1881 Order investigative records of legislative bodies. They are both ex parte. However, after the issuance of a complaint by the COllDnission and the joinder of issues, it is clear that the proceedings then become adversary and the record must be finally judged in this climate. myself in a position not greatly diiTerent from that of my fellows find Commissioners.

The respondents' motions are founded upon the ass1mption that I have prejudged the issues here involved, and I am incapable of rendering an impartial decision. Thus, what is here involved is the present state of my mind with respect to these issues. The state of a man mind is by the nature of things known only to him and to his 11aker. I have careful1Jy and conscientiously considered the question here presented and have concluded, and hereby state, that I have not formed a definite opinion with respect to any of the material issues involved in this procecding and honestly believe that I have a free and open mind with respect thereto, and I am fully capable of rendering a completely impartial decision based solely upon the facts contained in the record. Accordingly, I shall not withdraw from participation in this proceeding.

In view of the nature of these motions, I am not participating in the Commission s deliberations and decision upon them. ORDER On December 13 , 1961, all of the respondents in this proceeding fied seperate motions requesting the Commission to disqualify Commissioner Dixon from participating in the appeal from the initial decision of the hearing examiner. These motions were based on an alleged prejudgment of the issues of fact and law to be presented in the appeal. On December 20, 1961, the Commission issued an order denying these motions. Assuming that it had the power to disqualify one of its members from participating in an appeal froln an initial decision, the Commission found that the showing made by respondents was insuffcient to warrant exercise of such power in the particular circumstances presented here. The ordcr stated inter alia: The inquiry called for by a motion for disqualification is necessarily subjective in nature. It is extremely diffcult and delicate for a tribunal to assume the responsibility of weighing, objectively, the ability of one of its own members to make an objective judgment in a case. Further, the existence of such a power to disqualify carries with it an inherent danger of abuse, as a potential instrument for suppression of dissent.

1886 FEDERAL TRADE COMMISSIO"I DECISIONS Under the Commission s practice, disqualification is treated as a matter primarily for determination by the individual member concerned, rcsting within the exercise of his sound and responsible discretion. The Commission believes this practice to be proper and consistent with the law . In t.he instant proceeding, no basis for departing from the normal practice has been shown. On January 17, 1962, the respondents filed ":Uotions to Disqualify and to Reconsider . The full text of these motions is as follows: The undersigned respondents, being uncertain as to the proccduTaJ st.atus resulting from the COllllnission s order of December 20, 1961 and as to the procedural steps which they m"y be required to take pursuant thereto, respectfully move the Honorable Chairman to disqualify himself because of the matters set forth in the affdavits attached to the respondents' motions filed on December 13 , 1961; and, in the 8yent that the Chairman should reach the decision that he is not disqlmJified, th"t the Commission reconsider its order of December 20, 1961 on the grounds that, irrespective of the a.pplicability of the Administrative Procedure Act, the Commission has inherent power to regulate the course of proceedings hcfore it and that the f"cts sct forth in the s"id a.ffida.vits show that the Chairman is disqualified from acting in this cause, not only by virtue of said Administ.rative Procedure Act but also under principles of law applicable to the disqualification of judici"l offcers generally and to the right to a fair and impartial hearing guaranteed by the due process clause of the Constitution. In acc-ordance ,with the Commission s order of December 20 IDOl the instant motions filed by respondents are acldresscc1 primarily Commissioner Dixon ,dlo, 011 this date, has filed a memoranchml in regard thereto. For the reasons stated by him in that memorandum Commissioner Dixon has determined not to withdraw frolll participation in t.his proceeding.

To t.he ext.ent that respondents' motions are addressed to the Commission, they present no new grounds in support of the request to disqualify Commissioner Dixon. There is no basis or justification therefore, for the Commission to reconsider its action of December 20 1961.

/lccordin,qly, it is orde')'ed That the motions to reconsider the Commission s order of December 20, 1961, be, and they hereby are, denied. Commissioner Dixon not participating.

IK"TERLOCUTORY ORDERS, ETC. 1887 1881 Opinion THE TEXAS COMPANY Ducket 6898. Order and Opinion, Mar. , 196'2 Order denying respondent' s application for disclosure of confidential documents. OPIXIO:; OF THE CO),B:ISSIOX By the Co nnssIO" :

Respondent, pursuant to 131 and 1.134 of the Commission Rules of Practice, has applied for the disclosure of certain documents and materials, and pursuant to g 3.17 of the Commission s Rules, published May 6, 1955, as amended, has applied for issuance of a subpoena to the Secretary of the Commission directing him to appear and to testify and to bring with him the documents and materials requested in this application.

The documents sought are in two general categories: (a) those having to do with "the administrative construction of the meeting competition provisions" of the amended Clayton Act or any other statute barring price fixing and (b) alleged "ex parte communications . . . made outside the regular adjudicativc process" with respect to this proceeding and other "communications" between the Commission or any lnember or employee in the decisional process in the proceeding and any agent or "employee engaged in investigative or prosecutive functions with respect to (1) any investigation of respondent's pricing activities in 1957 and 1958 in Detroit, Michigan; (2) any enlargement of the scope of the hearings herein; (3) any amendment or supplementation of the complaint; and (4) the merits of this or a factually related proceeding.

In determining the action to take on a request for the release of documents, the Commission wil consider not only the confidential and privileged nature of the material, but also the purpose for which the respondent intends to use it. Postal Life and Oa8ualty In8umnce Oompany, 52 F. C. 651 (1956).

Here respondent contends that the decision in 8,tn Oil 00. FedemlTmde Oommission 294 F. 2d 465 (7 S. & D. I91) (5th Cir. 1961), indicates the importance of cleve10ping facts bearing upon the administrative construction of relevant statutes. A petition to review in this case was fied with the 'Cnited States Supreme Court by the Solicitor General on behalf of the Federal Trade Commission, December 22 1961.

Hcspondent also asserts, on the question of relevance and materiality, that the United States Supreme Court has been persuaded to reject a statutory construction urged by the Commjssion, by the fact, among 1888 FEDERAL TRADE COMll1:SSION DECISIONS Opinion 60 F.

others, that it was inconsistent with the interpretation previously placed upon the critical language by that body. The cases cited to support this argument are: Federal Trade Corri8sion v. Bunte Bros. 312 U.S. 349, 351-52 (3 S. & D. 337J (1941); and Standard Oil Co. v. Federal Trade Commision 340 U.S. 231, 246 (5 S. & D. 221J (1951). In the B"nte Bros. case, the want of ,an assertion of power by the Commission was considered in determining whether such power was actually conferred. There the court referred to the Commission unsuccessful attempt to secure the particular authority from Congress. In the Standard Oil decision, the court mentioned the "widespread understanding" as to the construction of the law and said that this understanding was reflected in "actions and statements of lTBnlbers and counsel" of the Commission. In docunlenting tlus observation in a footnote, the court referred only to public information and, in fact seemed to emphasize the offcial action of the Commission itself in issuing cease and desist orders in which were inserted "savings clauses bearing on the construction of the statute. Compare United States v. E. I. d"Pont de Nenw"r8 il Company, 353 U.S. 586 (1957). There the comt stated that the failure of the Commission to act was not a binding administrative interpretation on the issue lmder consideration. (Id. 590.

The information and documents considered by the Court in Burnte Bros. and Standard Oil Co. are on a different footing from the kind of materials here sought. The former were publicly lmown; the latter involved the in11e1' workings of the agency. The implication of a thoroughlless of consideration could not be drawn in the case of purely internal papers as it might be for docwnents or statements issued or made public by the Commission or one of its members. IVe conclude that the confidential documents here considered would not be relevant to any issue. in this proceeding. :M:moreover, such documents might include, among other things, correspondence or other material relating to or identifying applicants or complaining parties. Such material treated with strict confidentiality by the Commission. See g 1.5 of the Commission s Rules of Practice.

Respondent, as to the second category of documents requested, asserts that enough has been disclosed to make it clear that there are materials wluch have not been made a part of the public record bearing upon the possible commingling of the adjudicative and enforcing flu1ctions and the receipt of ex parte communications. In the principal instance referred to, it appears that a former chairman of the Commission and a l11member of the Commission s staff met with certain industry members. Respondent makes no assertion that the meeting INTERLOCUTORY ORDERS, ETC. 1889 1881 Order itself was in any way improper and states that it seeks only to ascertain the facts. IVe cannot open up confidential files on such vague and speculative grounds.

Moreover, respondent's contention appears to be mainly against alleged contacts involving certain third party organizations or persons. These organizations and individuals, however, are not parties to this proceeding. Information received from such sources on an parte basis does not come within S 4.27 of the Commission s Rules of Practice dealing with em parte comu1unications. The documents in the second category of the request also might involve the name of applicants or complaining persons, although we here make no reference to the individuals and organizations listed; and such inforu1atiol1, as above indicated, is held in strict confidence. For the above-stated reasons, we will not grant oa release of the requested documents and materials. vVe need not discuss the applicarion for the issuance of a subpoena directed to the Secretary of the Commission since, without the documents, the subpoena would serve no purpose.

Accordingly, respondent's application for access to documents and materials and for the issuance of a subpoena wil be denied. Commissioner Eln1an, being of the view that the opinion fails to deal adequately with the issues raised by respondent's application does not concur in the Commission s disposition of the matter. ORDER Respondent having file,l an application requesting disclosure of cerbtin confidential docmnents and materials and the issuance of a subpoena directed to the Secretary of the Commission; and The Commission having determined, for reasons stated in the accompanying opinion, that said application should be denied: It i8 ordered That the aforesaid application of the respondent for the disclosure of documents and materials and the issuance of a subpoena be, and it hereby is, denied.

Commissioner Elman not concurring.

CHATHAM RESEARCH LABORATORIES ET AL.

Docket 760.9. Order, Apr. 5, 1962 Order reopening matter, vacating order, amending complaint, and remanding for further proceedings.

The Commission, by order of J anuary 19, 1962, havi.ng given respondents opportunity to shm\" cause, if any there be, why the public 1890 FEDERAL TRADE CO::LvIISSI01\" DECISIONS interest does not require: (1) that this proceeding be reopened, (2) that the order to cease and desist and actions bearing on its interpretation be vacated and set aside, (3) that the complllint be, amended in the manner set out in the shmy cause order, (4) that the amended complaint be accompanied by a, proposed order in the form contained in the show cause order, and (5) tllat the matter be assigneel for further appropriate proceedings under the complaint as so amended; and Hespondents, on )Iarch 26 lD6:2 having filed a. paper desig11atcd Hespondents 1emoralldunl Sho,ving Cause; and The Commission, after notice and opportunity for hearing as above desc.ribed, having considered the lnatt.er, and having c1et:Bl'mined that the pubhc interest requires that the proposed action as set. forth in the aforementioned order to shmy cause be taken: 1 t ordered That this proceeding be, and it hereby is, reopened. I tis fltTtheT O'ylel'cd That the order to cease and desist, issued April 8, 19GO * and subsequent actions bearing on the interpretation of such order, be, and they hereby are, vacated and set aside. I t fil1thel' onlcred. That the eOllplaint be, and it hereby is amended by modifying paragraphs 4-, ;) and G to read, respectively, as follows:

PAR. 4. In the. c.course and conduct of their businesses, and for the purpose of inducing the sale of their synthetic stones, respondents have made certain statements with respect to the nature of the synthetic stones offered for sale and sold by them, in advertisements in ma,gazines of national circulation and by other means, of \which the following are typical:

Chatham Emeralds Chatham Created Emeral(ls Chatham Cultured Emeralds These stones are ident.ical to natural e,meralds in all their properties: chemically, physicany, optica,lly, with the same cryst.al faces, atomic a.rrangement, and even the same inclusions and ' ga,rdens m. 5. Through the use of the aforesaid statements, by positiyc assertion ancl by the failure to re,ccfll the material fact that the products \ycre synthetic. and not. natural stones: respondents yariously presentecl that their sftld synthetic stones or synthetic emerald ploduds had been cultured, \were e,meralds and 'iycre identical to emeralds. PAIL G, Said statements and representations, including the failure to disclose the material fact that the products were synthetic and not nat.ural stones, \were exagge.rated, false, misleading, and deceptive. truth and in fact, said synthetic st.ones 01' synthetic emerald products 56 F. C. 119u.

INTERLOCUTORY ORDERS , ETC. 1891 1881 Order had not been cultured, were not emera.lds and ,were not identical to emeralds.

It is further ordered That thc amended complaint bc accompanied by a proposed order reading as follows:

DIilER It is ordered That respondents, Carroll F. Chathmn, an individual trading as Chatham Rcsea.rch Laboratories, or under any other name; E. IayersAnglomex, Inc. L corporation, and its officers, and Dan individually a.nd as an officer of said corporation; Ipekdjian, Inc., a corporation, and its offcers, ancl Cultured Gem Stones, Inc. , a corporation, and its offcers, and Adam lpekcljian and Georges Ipekdjian inch vidually mlCl as oflcers of said corporations, and respondents' representatives, agents and employees, elirectly or through any corporate or other device, in connection with the ofiering for sale, sale or clistribution in commerce, as "commerce" is defined in the Federal Trade Commission Act, of stones now known as Chatham Emeralds Clultham Created Emeralds or Clmthall Cultured Emeralds, or any other manufactured stone having essentially the same optical, physical.l ancl chemical properties, or any other manufactured stone IHLYing essent.ially the same optical, physical and chemical propert.ies as a. natural stone, do forthwith cease a.nd desist from: 1. Representing, directly or by implication, that such stones have been cultured, are natural stones, or are ic1entiea.l to natural stones; 2. Using the \yord "emerald" or the name of any other precious or semi-precious stone as descriptive of such stones, unless such word or name is irrunediately preceded, ,,'ith equal conspicuity, by the word synthetic It is fUl'that ordered That the mat.ter be assigned to the hearing examiner for furt.her appropriate proceellings under the complaint as so amended.

Commissioner Elman dissenting.

CHATHAM RESEARCH LABORATORIES ET AL.

Docket 7609. Order, May, 1962 Order denying motion to rescind order of April 5, lD(\ By motion filed April 23 , 1062, the respondents have requested the Commission to reconsider and to rescind, set aside or vacate its order of April 5, 1062. The Commission in said order directed that this proceeding be reopened; that the order to cease and desist theretofore ent.ered herein be vacated; that the complaint be amended; and 719-603--64--120 , that the case be remanded to the hearing examiner for fllrther appropriate proceedings under the complaint as amended. The ground for the motion is that the Commission was without authority to issue the order of April 5 and that such order is void and of no effect, for the stated reason that the respondents were not afforded an "opportunity for hearing.

Acting under the authority of Section 5 (b) of the Federal Trade Commission Act, the Commission, on January 19, 1962, had issued and. had thereafter served upon the respondents, an order in which it had recited that the then outstanding order to cease and desist was deficient in that it failed to provide clear and definite guidance to the respondents or to adequately protect the public. The order further informed the respondents of the Commission s tentative conclusion that in the circumstances the order to cease and desist should be vacated and additional proceedings conducted. And finally, the order provided that the respondents, within thirty (30) days after service thereof (which time was subsequently cxtended at the respondents request to March 26), might file with the Commission a memorandum showing cause 'lhy the public interest did not require the proposed actions.

In response to this invitation, the respondents, on March 26, 1962 did file with the Commission a memorandum, twenty-three pages in length, supported by affdavits executed by respondents Carrol F. Chatham and Georges Ipekdjian and by Edward G. Coyne, an employee of the respondent corporations, and t\venty-four exhibit.s and attachments. In these documents the respondents discussed in some detail the nature and characteristics of their product, Tcvjewed the history of this proceeding, set forth their argument that the advertising under' attack in the proposed complaint does not have the tendency or capacity to mislead or deceive prospective purchasers and expressed the conclusion that the public interest does not require further action by the Commission.

The Commission, on April 5, 1962, after hltving fully considered the material submitted, determined that the public interest does require the actions proposed in its order of January 19, and, ltccordingly, entered the order complained of.

Section 5 (b) of the Federal Trade Commission Act provides, in part, t.hat after expiration of the time aJlowcd for the filing in a United States Court of Appeals of a petition for review of an order of the Commission issued under said section, t.he Commission may at any time after notice and opportlmity for hearing':' reopen and alter, modify, or set aside, in whole or in part any such order, whenever in the opinion of the Commission conditions of fact or of law L'lERLOCUTORY ORDERS, ETC. 1893 1881 Opinion have so changed as to require such action or if the public interest shall so require.

In light of all of the foregoing, the Commission has concluded (1) that its authority to issue its order of April 5, 1962, is clear and specific; (2) that all of the statutory requirements preliminary to the issuance of said order, including the provision for "notice and opportunity for hearing," were fully complied with; and (3) that the respondents' motion to rescind the order is without merit. Accordingly, it is ordered That said motion be, and it hereby is denied.

Commissioner Elman dissenting.

UXITED BISCUIT COMPANY OF AMERICA Docket 781/. Order and, opinion, June 28, 1962 Order vacating initial decision and remanding proceeding to hearing examiner. OPINION OF THE C01'n.nSSlON By ANDERSDX Oommissioner:

This matter is before the Commission upon the appeal of counsel supporting the complaint from the hearing examiner s initial decision as to Count I, filed K member 13 , 1961, dismissing the comphlint as to Count 1. The hearing examiner in the aforementioned initial decision sustained the respondent's motion of April 28 , 1961, made at the close of the case in chief in support of the complaint, to dismiss Count I, stating that the ground for his action "as the failure of the evidence to prove the competitive injury required to be shown under Section 2 (a) of the amended Clayton Act.

Counsel in support of the complaint appeals, averring (1) that the examiner erred in failing specifically to fid that respondent discriminated in price between competing customers, and (2) that he erred in failing to find that the price discriminations charged had the adverse effects proscribed by the statute and that a prima facie case had been proved. Said counsel requests that the initial decision be reversed and the case be remanded.

The complaint alleges in part that respondent discrin1inated in price between different purchasers of its biscuit products of like grade and quality and that such discriminations have been e:fectuated through the use of respondent' s cumulative discount systems based on 1 The hearing examiner refers to the filing of his initial decision as to Count II, under which decision, subject to Commission review, Count II would be disposed of pursuant to 21 and 3.25 of the Commission s Rules of Practice, published May 6, 1955. _______ 1894 FEDERAL TRADE COMMISSION DECISIO Opinion 60 F.

the dollar volume of the customer s monthly purchases. Respondent' answer does not challenge the fact that its Sawyer Division used in the designated periods the several discount schedules set out in the complaint. These schedules provided graduated discounts up to 6% for varying amounts of monthly purchases. They are as follows: For' the Pe1'iod July 1958 to June 30, 1959: DiRCD!mt Monthly purchases, percoot $00. 00 to $24.99- - $25,00 to $39, 99------- --- ----- $40.00 to $69, 99------------------ ---- $70. 00 to $99,99------------------------ $100.00 to $124,99______- $125.00 and o.er__ Fo?' the Period July, 1959 to Date of 18S1wnce at Complaint March 10, 1960:

Discount .M01!,thly pJirchases PCI"OCl!t $00, 00 to $24.99---------------------- $25,00 to $4,99-- lY2 $45.00 to $59.99______--- $60.00 to $74.99__----------- 272 $75.00 to $89,99---------------- $90. 00 to $109.99------------------------- 3Y2 $110, 00 to $129,99-- $130. 00 to $149.99-------------------- $150.00 and over______ In the ease of t purchaser with more than one store, such as a corporate chain with multiple retail outlets, the discount to such purchaser under these schedules was calculated on the basis of the aggregated purchases of all the stores operated by the purclm,er. The discounts under these schedules will be referred to hereinafter as volume discounts.

The hearing examiner failed to make a specific finding that, as a result of such volume discounts, some customers were charged higher prices for like goods than others competing with such customers and that this constituted price discrimination under Section 2 (a) of the amended Clayton Act. However, he clearly assumed such to be the fact; otherwise he would not have reached the injury question. The present record amply supports a finding that respondent did discriminate in price as chargec1. The evidence, while not limited to a single division of respondent, largely concerns the Sawyer Biscuit Company Division of United Biscuit Company of America (Sawyer 2 A price discrimination within the meaning of the phrase "discriminate in price " In Section 2(a) Is merely a price dIffereI1cc. Federal Trade Commission Y. Anheuser-Busch Inc. 363 U.S. 536, 549 (1960) (6 S. & D. 817). IKTERLOCUTORY ORDERS, ETC. 1895 1881 Opinion Division), and so the following references are generally to the activities of that division. Sawyer Division s net sales for 1959 amounted to $12 215 665. In January of that year, Sawyer Division sold to 773 customers operating 23 664 outlets. It should be noted that the number of customers and outlets varies from month to month. During January 1959 , 8 057 Sawyer Division customers earned a volume discount, i. , the amount was credited to them which they also reeeived at that time or later, and 13 716 neither earned nor received such a discount. Of those receiving volume discounts, lllany received less than 6%. For instance, in Janua.ry 1959, retail grocery customers of respondent earned and, either then or later, received volume discount payments as follows:

OU8tomcra Percent 718- - -- 2 287---- - - -- 3 704- - - 4 310--- - - - 5 038- - - 6 Certain of the customers receiving no volume discount or less than 6% discount were in competition with one or more customers receiving the full 6%. These favored customers included chain store organizations such as The Kroger Company (Krogcr), The Great Atlantic & Pacific Tea Co. (A & P), and Xational Food Stores (Kational) .' The evidence of record includes a showing as to price discriminations bet\veen and among competing customers in the trading area, of Gary, Indiana; South Bend, Indiana; and Burlington, 'Visconsin. Specific examples for two of the areas wil be discussed below. In Gary, Indiana, one customer paying a, higher price for respondent' s products was vVally s Fifth A venue Mart. The record shows that vVally s earned, i. , it was creditecl with, and then or later received, the following volume discounts in various months in 1959: 0% in January and February, 2.0% in March, 0% in October 1.5% in November, and 2.0% in December. There is no specific evi- J Counsel snpporting the complaint has included with his brief an appendix showing a comparison of purchase volumes and discounts of individual chain stores and independent grocery stores. Respondent apparently does not contest the accuracy of the figures in the appenrlix although it does contend that the schedule is not complete. Thc record shows that of the 43 chain group purchasers listed in Commission Exhibit 120- , including Kroger. A & P and l\;ational, all received 6% volume discounts for 1959 purchases except that for certain months-January, April, May, August, November and December-onc corporate chain, not identified, did not receive the full 6% discount. Accordingly, thc record wil sustain a finding that, for 1959 purchases, all chains so listed in the months other than those mentioned received 6% ; for the remaining months all chains so listed other than one received the 6%. Opinion 60 F.

dence as to the other months of 1959, although the owner of the store, Walter Pall, testified, in effect, that Wally s earned only low volume discounts. Other stores in Gary, Indiana, receiving discounts under 6% included Better Foods, Inc. (e.g. , 1.5%, earned October 1959), Gene s Super Market (e.g. , 3.5%, earned December 1959), and Tobe s Super Market (e. , 3.5%, earned November 1959). These stores were each competing with one or more of respondent' customers receiving 6% discounts Tor purchases made at the same time, which favored customers included Kroger and A & P. In South Bend, Indiana, in 1959, certain independent store customers of the respondent failed to earn any volume discounts or earned and received discounts of less than 6%. Such customers and the volume discounts earned in January 1959, if any, included the following:

Percent Horvath' s Self Service----__ --------------- 3 Vince s Super Saver______ --- 3 Food Center ------ --- ---- 2 A & J 1farket---__-- ---- 0 K & F Food Markel__--___--------------------- ------- 4 Those who earned also received payments. Discounts under 6% or no discounts are also shown for other months in 1959 for these customers. Each competed with one or more customers of respondent receiving 6% volume discounts Tor purchases made at the same time. which favored customers included Kroger and National. In many instances, the grocery stores receiving the smaller discounts purchased more goods from respondent in a particular month than did the individual competing chain store outlet receiving 6%. For example, in October 1959, Gene s Super Market in Gary, Indiana, received a 12% volume discount on biscuit purchases from respondent of $66. , while A & P received a 6% volume discount on smaller purchases of $26.28 delivered to one of its outlets competing with Gene s. As another example, in October 1959, Food Center in South Bend, Indiana, received no discount on biscuit purchases from respondent of $24. , while National received a 6% discount on purchases of $3.00 delivered to National Store #44 competing with Food Center. This inequality in payments was due to the fact that the chains were given volume discounts based on the aggregated purchases of their multiple outlets.

As a result of the aforementioned differences in volmne discounts respondent charged some customers a higher price for like goods than it charged a competing customer or competing customers. &, INTERLOCUTORY ORDERS, ETC. 1897 1881 Opinion The hearing examiner, in his consideration of whether the price discriminations so disclosed resulted in the competitive effect defined in the Act, erred in failing to apply the proper test to make this determination. He first cites Anheuser-Busch, Inc. v. Federal T1'1ie 001nmi8sion 289 F. 2d 835 (7th Cir. 1961) (7 S. & D. 19), and General Foods Oorp. 50 F. C. 885 (1954), to support his decision, but in light of the specifically applicable judicial authority to be mentioned hereafter, these cases are not controlling for this proceeding. While the hearing examiner refers to Oorn Products Refining Oompany, et al. Y. Federal Trate Oommission 324 U.S. 726 (1945) (4 S. & D. 331), and Federal Trade Oommission Y. Morton Salt Oompany, 334 U.S. 37 (1948) (4 S. & D. 716), as well asp. Sorensen Mfg. 00., Inc. 52 F. 1659 (1952), aff'd per curiam, P. Sorensen Mfg. 00. , Inc. Y. Federal Trate Oowmission 246 F. 2d 687 (D.C. Cir. 1957) (6 S. & D. 332), he does not apply the principles set forth in these cases and, in effect, rejects the holdings.

Section 2(a) of the amended Clayton Act does not require a finding that price discriminations have in fact had an adverse effect on competition (there is no need, for instance, to show that a competitor has suffercd financial losses or has been forced out of business) ; it is enough that they may have the prescribed effect. Federal T"ate Oommission v. Morton Salt 001npany, supra. The " gone out of business" test is not a part of Section 2 (a). To insist on any such requirement would be contrary to the purposes and intention of Congress in passing this legislation. A showing in the Alorton Salt case that certain merchants had to pay the respondent therein substantially more for like goods than their competitors justified a finding of competitive injury within the meaning of the Act. In Moog Industries, Inc. Y. Federal Trate Oommission 238 F. 2d 43 (8th Cir. 1956) (6 S. & D. 91), the court in considering the question of injury to competition held in part as follows:

With competition so keen, margins so small and over-all net profits so low, it as clearly open to the Commission to find that rebates denied to some purchasers (well more than half in all lines) but granted to others, ranging up to 19%. may Drobably result in substantial injury to competition. (Id. 51) See also E. Edelmann 00. Y. Federal Trade Commission 239 F. 2d 152 (7th Cir. 1956) (6 S. & D. 113J Whitaker. Oable Oorp. Federal Trade Oommission 239 F. 2d 253 (7th Cir. 1956) (6 S. & D. 107J; Standard Motor Products, Inc. Y. Federal Trate Oommission 265 , F. 2d 674 (2nd Cir. 1959) (6 S. & D. 553J; P. Sorensen Mfg. Co. Inc. v. Federal Trade Oommission, supra. Recently in Tri- Valley Packing Assocition Docket Nos. 7225 and 7496 (1962) (60 F. 1898 FEDERAL TRADE CO MISSION DECISIONS Opinion 60 F.

1134J, we held that in any case involving thc effect of a price discrimination on competition between buyers, the requisite injury may be inferred from a showing that a purchaser paid substantially Jess than its competitor for goods of like grade and quality sold by the respondcnt and that the question of substantiality must be determined from the fads in each case.

Fred BTonner OorpoTation, et al. Docket Ko. 7068 (1960) f57 C. 771J, a Section 2(a) matter dismissed by the Commission for lack of a showing of competitive injury, differs from the =ondary line injury cases cited above because the evidence in that matter .was not such n8 to "warrant a finding that the price differential \Vas substantial or eompetitiveJy significant in the market. CJearly, the test for competitive injury set forth in Morton Salt and applied in the automotive cases above mentioned should govern this proceeding.

,Ve turn 110\, to the facts shown in the present record. The majority of respondent's customers received no volume discount. lnde.pendent store 0"n81'8 testified generally as to the highly competitive nature of the retail food business. Net profits ate low and cash discounts and other n.110wances are importrmt. One store (y\yncr witness testified: . . . we have to fight not only for pemlics but for fractions. " There are a number of examples of low net profits shown in the record, such as 2%, 3 to 5% ancl4 to 5%. A number of independent store witnesses testified that price \YflS a very import.ant, if not the most important factor in enabling them to compete. There is testimony from such witnesses to the effect that if they could buy cheaper they could sell for less, and that customers will, in the over-all picture, buy there the prices are lower. Considering the highly competitive nature of the market and the other factors mentioned, a volume discount of 6%, tanta.TIount to a difierence in price of 6%, was clearly substantial. Likewise substantial were the lesser discounts Sho\Yll ranging up to 6%.

On the basis of these facts, there is in the present record suffcient evidence to find that the competiti'Te opportunities of certain purchasers \were injured when they had to pay re,spondent substantially more than their competitors had to pay and that, the efiect may substnntirtlly to injure, destroy or prevent competition with the purchasers receiving the beneiit of such discriminations. '\Ve believe that the examine.r s failure to so find \yas clearly erroneous. 1;n1es8 the shmying in the record is rebutted or justifled, the evidence is snffcient to support an order against respondent to cease and desist the price discrimination practice charged.

INTERLOCUTORY ORDERS, ETC. 1899 1881 Order The appeal of counsel supporting the complaint is granted. It directed that the initial decision a.s to Count I be vacated and set aside and that the matter be rcmanded to the hearing examiner for further proceedings in conformity with the views herein expressed. An appropriate order ,,'il be entered.

Commissioner Elman concurred in the result of the decision of this matter.

ORDER VACATING INITIAL DECISION AXD RElIIANDIXG CASt; TO IIE,\HIXG EXA1!INER This matter having been heard by the Commission upon the appeal of counsel supporting the complaint frolll the hearing examiner initial decision as to Count filed NoVelnbel' 13 , 1961, and upon the briefs and oral argument in support thereof and in opposition thereto; and The Commission, for the reasons appearing in the accompanying opinion, having granted the appeal, and having directed t.hat the initia,l decision as to Count I be vacated and set aside and that the matter be remanded to the hearing exanliner for further proceedings in conformity with the vie\fs expressed in the opinion: It is ordered That the initial decision as to Count I, fied November 13, 1961, be, and it hereby is, vacated and set aside. It is further ordered That the matter be, and it hereby is, remanded to the hearing exa,miner for further proceedings in conformity with the views expressed in the COllnission s opinion. Commissioner Elman concurring in the result.