Pyramid Publications, Inc.

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

IN Tile MATTER OF PYRAMID PUBLICATION~S, mc.

CONSENT Order, ETC., IX REGARD TO THE ALLEGED VIOLATION OF SEC. 2( OF THE CLAYTON ACT Docket 0-187. Complaint July 18, 196Z-Decisi, July 18, If162 Consent order requiring a Kew York City publisher of magazines and paperback books, including "::lao g Magazine, to cease discriminating in price in violation of Sec. 2(d) of the Clayton Act by paying promotional allowances to certain retail customers-some of ,""horn operated chain retail outlets in railroad, airport, and bus terminals, and outlets in hotels and offce buildings and others of whom furnished services in connection with the handling of respondent' s publications such as taking purchase orders and distributing, biling, and collecting-while not making such payments available on proportionally equal terms to their competitors, including drug chains, grocery chains, and other ne\vsstands.

COJ\IPLAINT The Federal Trade COIllll1ission, having reason to believe that the party respondent named in t.he caption hereof and hereinafter more particularly designated and described, has violated and is now violating the provisions of subsection (d) of Section 2 of thc Clayton Act (V. C. Title 15, Sec. 13), as amended by thc Robinson-Patman Act hereby issues its complaint stating its charges with resped thereto as follows:

P AHAGRc\.PH 1. Respondent Pyramid Publicat.ions, Inc. (formerly known as Almat Publishing Corp. ), is fL corporate.ion organized and doing business under the Jaws of the State of New York, with its offce and principal place of business located at 444 :\iadison A venue, New has been engagedYork, N.Y. Said respondent, among other things, and is presently engaged in the business of publishing and distributing various publications including magazines and paperback books under copyrighted titles including "Man s l\lagazine . Respondent's sales of publications during the ca.lendar year 1960 exceeded one million eight hundred thousand dollars.

PAR. 2. Publications published hy respondent are distr;buted by said respondent to customers through its national distributors, Publishers Distributing Corporation, hereinafter referred to as PDC, flnd i\lncFnclc1en Publications, Inc. , hereinafter referred to ns :.lacFn(hlen. PDC and :.lacFadclen hate acted and arc nmv acj-ing a.s n !tiolla.l distributors for the publications of several independent publishers including- responde.nt publisher. PDC and :JIacFac1den, as national distributors of publications published by said respondent and other T2S-122- 65-- Complaint 61 F.

independent publishers, have performed and are now performing various services for these publishers. An10ng the services performed and still being performed by PDC and MacFadden for the benefit of these publishers are the taking of purchase orders and the distributing, billing and collecting for such publications from customers. PDC and MacFadden have also negotiated promotional arrangements with the retail customers of the publishers they represent, on behalf of and with the knowledge and approval of said publishers, including respondent publisher.

In their capacity as national distributors for said respondent, in dealing with the customers of said respondents, PDC and MacFadden served and are now serving as conduits or intermediaries for the sale, distribution and promotion of publications published by said respondent.

PAn. 3. Respondent Pyramid Publications, Inc., through its conduits or intermediaries, PDC nnd )facFadden, has sold and distributed and now sells and distributes its publications in substantial quantities in commerce, as "commerce" is defined in the Clayton Act, as amended to competing customers located throughout various States or the United States and in the District of Columbia. PAR. 4. In the COUTse and conduct of its business in commerce, respondent Pyramid Publications, Inc., has paid or contracted for the payment or something of value to or for the benefit of some of its customers as compensation or in consideration for services or facilities furnished, or contracted to be furnished, by or through such customers in connection with the handling, sale, or offering for sale of publications sold to them by said respondent. Such payments or allowances were not made aynilable on proportionally equal terms to all other customers of said respondent competing in the distribution of such publications.

PAR. 5. As an example of the pmctices alleged herein, respondent Pyramid Publications, Inc., has made payments or allowances to certain retail customers who operate chain retail outlets in railroad, airport and bus terminals, as well as outlets located in hotels and offce buildings. Such payments or allowa.nces were not offered or otherwise made available on proportionally equal terms t.o all other customers (including drug chains, grocery chains and other newsstands) competing with the favored customers in the sale and distribution of the publications of said respondent. Among the favored customers receiving payments in 1960 which were not offered to other competing customers in connection with the purchase and sale of respondent' publications were:

PYRA.\fid PUBLICATIONS , IKC. 151 149 Decision and Order Customers: Al1 lt; Union Xews Co.. Xe,y York. X. Y ------ _n-- -- $3 199. Gr(' 'hound Post Houses, Forest Parle Ill_ - 1 , :::3. 00 ABC Vending Corp., Long Island City, N.Y--_ --- 88. Respondent made such payments to its favored customers on the basis of individual negotiations. Among said favored customers such payments were not made on proportionally equal terms. As a further example of the practices alleged herein, respondent during 1960 and the first six months of 1961, paid a wtal of four hundred and forty dollars for cooperative newspaper advertising to Kroch's & Brentano s of Chicago, ll1inois. Such payments were not expressly offered or otherwise made available on proportionally equal terms to al1 other customers of respondent competing with Krach' s & Brentano s in the purchase, sale and distribution of respondent' s publications.

PAR. 6. The acts and practices of respondent as filleged above are in violation of the provisions of subsection (d) of Section 2 of the Clayton Act, as amended.

DECISIO:\ AND ORDER The Commission having heretofore determined to issue its complaint charging the respondent named in the caption hereof 'with violation of subsection (d) of Section 2 of the Clayton Act, as amended, and the respondent having been served with notice of said detcnnination and with a copy of the complaint the Commission intended to issue, together with a proposed form of order; and The respondent and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of al1 the jnrisdietional facts set forth in the com. plaint to issue herein, a statement that the signing of said agreement is for settlement purposes only a,nd does not constitute an admission by respondent that the law has been violated as set forth in such complaint, and waivers and provisions as required by the Commission rules; and The Commission, having considered the agreement, hereby a.ccepts same, issues its complaint in the form contemplated by said agreement makes the following jurisdictional findings, and enters the fo1Jowing order:

1. Respondent Pyrflmid Publications, Inc., is a corporation organized, existing and doing business under and by virtue of the )a\fS of the State of cw York, with its offce and principn1 place of busjnes 152 FEDERAL TRADE COMMISi)ION DECISIONS Syllabus 61 F.

located at 444 Madison Avenue, in the city of New York, State of New York.

ORDER It i8 ordel' That respondent Pyramid Publications, Inc., a corporation, its offcers, employees, agents and representatives, directly or through any corporate or other device, in connection with the distribution, sale or offering for sale of publications including magazines and paperback books in commerce, as "commerce" is defined in the amend1e, Clayton Act, do forthwith cease and desist from: Paying or contracting for the payment of an allowance 01' anything of yalue to, or for the beneHt of, any customer as com pen- 5a6on or in consideration for a,ny services or facilities fnrnishec1 by or through such customer in connection "ith the handling, offering for sale, sale or distribution of publications ine1nding magazines and paperback books publishec1 sold or offered for sale by respondent, unless such pa.yment or consideration is Rffrmatlvely offered and otherwise made available on proportionally f'qual terms to all of its other customers competing with such favored customer in the distribution of such publications including magazines and Tmperbflck books.

The word "customer,j as used above shall be deemed to mean anyone' who purchases from Pyramid Publications, Inc. , acting either as principal or agent, or from a distributor or wl101esaler where sllch transaction with such purchaser is essentially a sale by such respondent, Rcting either as principal or Rgent, It is f'nrtheT ord61' That the respondent herein shan: 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 this order.

IN THE L\TTEH OF LEEDS TRA VELWEAE, I~C., ET AL.

ORDER , ETC. ; IN REGAlm 'IO THE ALLEGED VIOLATION OF THE FEDERAL TfC\DE COJ,DIISSIO); ACT Doclcct S1-O. Complaint, Oct. LOGO-Decision, July 20. 1D(jf: Order l'cqniring a New York City distrilJUtol' of lng"gage and golf :mc1 bmyling bag' s to cease deceptively pricing its Dl"odncts. hy such practices as s1Jo,Yinghigher flilounts than the IJr Yailng retflil prices in the trade areas concerned 011 Twice tickets all golf bags sold in department ami spccialt:v s.stores, flm1 LEEDS TRAVEl.WEAR , IXC. ) ET AL. 153 152 Complaint ill catalog sheets furnished to catalog house customers which carried a retail" price and a substantially lower "coded" price at which the product ,yas sold.

COl\IPL.AIXT Pursuant to the provisions of the Feaeral Trade Commission Act and by virtue of the authority vested in it by said Act, the Federal Trade Commission, having reason to believe that Leeds Travelwear Inc., a, corporation, and Irving L. Braverman, individually rmd as an ofncer of said corporation hereinafter referred to as respondents, have \'iolatefl the provisions of said Act, and it appearing to the Commission that a, proceeding by it in respect thereof would be in the public interest:, he.reby issl1es its complnilJr, stating its charges in that respect as 1'ollows:

\IUGIUPl- 1. Respondent Leeds Travelwear, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the Stale of Delaware, with its offce and place of business located at 18:) ladison Awnue, Xmy York, X.Y.

lndiyidnal respondent Irving L. Braverman i an offcer of the corpor;He rpspondent and of its wholly owned subsidiary corporations. Ill-' participates in the fornl11ntion direction and control of the acts and practices of said corporate respondent and of its wholly owned !Subsitlinries. 1--1is address is also 185 ::Uac1ison Avenue ew York, N. 1'" \.1:. :? Respondents are. now, and for some time last past have been ngagetl in the l1anllfacture sale and distribution of Yrlrious types of luggage, golf bags and bo"wling bags to retail stores and jobbers for l'csaJe to the public. Such business is carried on by the respondent corporate.ion and through various wholly owned subsidiary corporations.

In the regular and usual.l course and conduct of their said business respondents cause, and have caused, said products, \vhen sold, to be transported to purchasers thereof located in various States of the United Sb,tes other than the State in which such shipments originate. Hespolldents maintain, and at all times mentioned herein have main taillcd it substantial course of trade in said products, in commerce as "commerce ' is defined in the Federal Trade Commission Act. \IL 3. In tho course and conduct of their business, said respondents have engaged in the practice of using fictitious retail prices of their said luggage and other products of various types sold lmcler several trade names, including but not limited to the following methods: 110 respondents attach, or caused to be attached, price labels or tickets to their lnggage or other products thereby representing, directly or by implication, that the price figures so attached arc the Complaint 61 F. T.

regular and usual retail prices for said luggage and other products. Respondents also distribute to jobbers and retailers, who sell by catalog, catalog sheets to be inserted in the catalogs of said jobbers and retailers. Said catalog sheets contain thereon pictures and descriptions of various types or luggage and other products with price listed in connection therewith as the retail prices thereof. Respondinents also distribute their own catalogs to jobbers and retailers, which retail price, are set out.

Respondents by the aforesaid practicoo represented, and now represent, directly or by implication, that the price figures so attached and so used are the regular and usual retail prices for said luggage and other products in the trade area or areas ,,,here the representations are made; when, in truth and in fact, the said price figures are not the usual and retail prices for said luggage and other products in the trade area or areas where the said representations are made but are fictitious and exaggerated prices.

By such acts and practices respondents place in the hands of retailers and jobbers means and instrumentalities by and through which they may deceive a.d mislead the purchasing public as to the usual and customary retail prices ofsaid luggage and other products. PAR. 4. Respondents, in the course and conduct or their business are in substantial competition in commerce with other corporations firms and individuals likewise engaged in the sale and distribution of luggage, golf bags and 'bow ling bags.

PAR. 5. The aforesaid acts and practices of respondents had, and now have, the capacity and tendency to mislead and deceive members of the purchasing public with respect to the usual and customary retail prices of their luggage, golf bags and bowling bags and into the t.hereof. As a conse-purchase of their said products as the result '1llmce there, , trade has been unfairly diverted to respondents from the.ir competitors and substantial injury has thereby been done, and is be,ing done, to competition in commerce. PAR. 6. The aforesaid acts and practices of respondents, as herein alleged, were, and are, all to the prejudice and injury of the public and of respondents' competitors and constituted, and now constitute unfair and deceptive acts and practict'E and unfair methods of competition, in C01nmerce, within the intent and meaning of the Federal Trade Commission Act.

Jh' Ga1'land 8. Fe'Jguson supporting the complaint. and JIr. E. Brooles Keefer, Jr. of Phil iih'. Alfred W. Putnam del phi", Pa., for respondents.

LEEDS TRAVELWEAR , INC. , ET AL. 155 152 Initial Decision INITIAL DECISION BY YALTER K. BENNETT, HEARING EXAMINER This proceeding was brought under Section 5 of the Federal Trade Commission Act by the issuance of a cOlnpla.int on October 12, 1960 charging the corporate respondent and the individual respondent, one of its offcials, with unfair acts and practices in the pricing of luggage golf bags, and bowling bags. Paragraph 3 of the complaint charges specifically that respondents issue catalogs or catalog sheets showing retail" prices and preticket the products sold to jobbers and retailers by affxing a tag showing " retajl" prices. These prices are allegedly fictitious and exaggerated, and are not the usual retail prices in the trade area in which the products are sold. It is further charged that members of the purchasing public tend to be deceived and that trade has ben unfairly diverted to respondents from their competitors. The allegations of the complaint containing the specific charge have been placed in issue by the answer, but the formal allegations concerning the identity of the respondents, the character of their business, the existence of jurisdiction because of interstate commerce and the existence of substantial competition are either admitted in terms 01' admitted in substance.

Respondents' first line of defense appen"s to be that unfair acts and practices cannot be established by proof of fictitious pricing where injury to competition is also not established. In respondents' view such injury cannot be esta,blished when all of respondents' compe6to engage in pricing practices of the same character. Respondents' reserve hnes of defense are: that it has not been proved that prices in the trade area were lower than the prcticketed prices, that the Commission s evidence with respect to bmvling bags is non-ex-jstent and that pertaining to luggage is limited to catalog sales by catltlog houses to incidental retail customers. Respondents claim that department store sales of luggage are customarily made at preticketed prices; hence, that any order issued should be limited in scope to the sale of golf bags if any order at all is to be issued. I-Iearings were held at the instance of counsel supporting the complaint in Philadelphia, Pa., on February 27 and 28 , ID61, and at K ew York, N ew York, March 1, 1D61. lIearings at respondents' request were held at ,Vashington, D.C., April 24 and 25, 1D61; at New York New York, June 27 and 28, 1961, and at Philadelphia, Pa., August 21 1961. At the Philadelphia hearing, counsel supporting the complaint alled an attorney examiner for the Commission in rebuttal. Proposed findings of fact and conclusions of law were filed September 20 1961.

156 FEDERAL 'trade COMMISSION DECISIONS Initial Decision 61 F.'l'.C. Counsel for respondents submitted a motion to dismiss in writing on April 24 , 1961, and a substantial brief in support thereof. The matter was argued at the hearing in \Vashington C. on that date and ruling was reserved. The motion is now denied. The cooperation of counsel in the authentication of documents and in the stipulation of statistical data was exceJ1ent and mOlteriaJ1y shortened the presentation.

As the evidence developed at the hearings, it became cleaT that there were in reality two different classes of alleged illegal pricing charges relating to Jug-gage. This circumstance deserves some preliminary discussion.

The first class dealt with luggage sold to catalog houses. This lng' gage was not preticketed but WOlS advertised in jobbers catalogs (made up with respondents' assistance) which were made available to indus trial cust.omers, their employees and to incidental retail customers as well as to smnJler retail dealers. These catalogs contained a. "retail' price Rnd a lower "coded" price. Merchandise was sold at the coded price to all comers, dealers, industrial customers, employees of indus trial customers and some customers who came " right off the street." This luggage was not identical to the "regular" line and was not preticketed.

The second class of luggage was that sold to substantial retailers such as department stores. This luggage was preticketed, and it wa, also included in a Leeds catalog which showed a "rebtiF' price identical to the pretiekeLed price. Except in a few special cases or where there wa.s a close-out, this luggage was generany sold at tile preticketed price.

There was no such differentiation shown in the case of sales of golf bags distributed by Leeds under the Fairway name, all bags were preticketed, and the bags were gcnem11y sold or offered for sale at a price lo\"er than the preticketed price which was identical to the catalog retail" price.

The evidence concerning the trade areas involved also deserves some preliminary discussion. From the sampling of catalog houses called for example, it would seem that these establishments sell by catalog nationally and also sell at their stores in Philadelphia. The retail trade at the stores is relatively small. These catalog houses have their stores in a.n area not described as a good retail area but "which is ,dthin easy walking distance of some of Philadelphia, s largest stores, Viewed from the standpoint of the Camden, New Jersey commuter into Philadelphia, his workaday market area includes these stores 8nd t.he large department stores. Viewed from the departme11 t store exec- , LEEDS TRAVELWEAR INC. ET AI., 157 152 Initial Decision utives point of vantage, the market area may extend as far as 100 miles. Viewed from the catalog honse, its competition is primarily another catalog house and their trade areas are co-extensive. JIowever, viewed from the point of view of the Commission which was created to prevent unfair acts and practices affecting commerce, the area would seem to include any point where there arc any reasonable number of merchants seeking the same customer s trade, and ,,,here, by unfair practices, one merchant could divert trade by false and misleading tactics. Hence, the issues concerning trade areas, while perhaps crucial in other situations, are here of 11luch less significftl1ce. On the basis of the entire record, the hearing examiner makes the fo1Jowing findings of fact, conclusions therefrom, and order. All Gndings and conclusions not specifically found or concluded jn terms or in substance arc disallowed as erroneous or immaterial. FINDINGS OF J. ACT 1. Respondent, Leeds Travelwear, Inc. , is a corporation organized existing and doing business under and by virtue of the laws of the State of Delaware, with its offce and place of husincss located at 185 liJdison A yenue, i'Tew York, N.

2. Individual.l respondent Irving L. Braverman, is an offcer of the corporate respondent nnd of its wholly owned subsidiary corporations. He participates in the formulation, direction and control of the a,ots and practices of said corporate respondent and or its wholly owned subsidia.ries. His address is also 185 lVraclison A venue, :New York, N.

3. Respondents are now, fmd for some time last past, have been engaged in the manufacture, sale and distribution of various types of luggage to jobbers and to various types of retail stores for resale to the public. They also distribute golf bags made to their order to jobbers and to retail stores. Such business is carried on by the respondent corporation and through various wholly owned subsidiary corporations.

In the regular and usna.l course and conduct or their business respondents cause, and have cnusecl, said products, when sold, to be transported to purchasers thereof located in various States or the United States other than the State in which such shipments originate. Respondents maintflin, and at all times mentioned herein have maintained, a substantial course of trade in said products, in com mcree, as " commerce ' is defined in the Federal Tntele Commission Act. During the year 11). , the volume or sales was in excess or seven million dollars, and in 1060 approximately nine million dollars. 158 FEDERAL TRADE CmfMISSION DECISIONS Initial Decision 61 F.

The corporate respondent describes itself as the world's largest manufacturer of zippered luggage.

4. Respondents, in the course and conduct of their business, are in substantial cOJnpetition in commerce with other corporations, firms and individuals Jjkewise engaged in the sale and distribution of luggage, golf bags and bowJjng bags.

5. For several years prior to and up to the time of fiing of the complaint herein, the corporate respondent (hereinafter sometimes referred to as Leeds) has affed bckets showing the " retail" price of its regular luggage Ene, its bowEng bags and its golf bags to such products prior to shipment of such products to purchasers for resale. Its promobonal and jobbers Ene of luggage was not preticketed, )lor were its line.s made up for sale under private label of others.

6. During such period, Leeds has sup peed catalog sheets (for jobbers and catalog houses who preferred to compile their own catalogs), material from which catalog sheets could be printed (for jobbers and catalog houses who preferred to print up their own catalogs), and in addition has supplied its O\Y11 catalogs to many other customers or prospective customers who purchased Leeds' ll1crchandise for resale. In 1959 , 80mB 4 000 000 sheets were print.ed for distribution to 130 to 140 accounts.

7. The catalogs or catalog sheets and material from which cata.log sheets could be printed all contained " retail" prices. The retail' price for each article described in the mtalog was identical to the price on the tag affxed to the article by Leeds prior to shipment ,vhere such article was preticketed. In addition to the "retail" price a wholesale price, coded price, or dealer s cost priCB (hereinafter referred to as "coded" price) was also specified in catalog house catalogs. This "coded" price was less than the "retail" price but greater than the priCB which Leeds charged its jobber customers and listed on a confidential jobbers price sheet or the confidential store price sheet which was furnished to department stores who handled Leeds regular " line.

8. Among Leeds' customers arc: catalog houses, discount houses chain stores, department stores, industrial customers, and special.lty stores (sporting goods or luggage). Sales are also made to military and naval Post Exchanges a,nd to surplus stores. 9. Catalog houses are generally in the wholesale business. They are, however, in the retail business to this extent. They sen to industrial customers who do not sell but give away the products as awards or presents, and they also sell to identified employees of industrial LEEDS TRAVELWEAR , DIG., ET AL. 159 152 Initial Dl.'Cision customers. Some catalog houses will sell indiscriminately to anyone who seeks to buy from them. I-Io,vever, indiscriminate retail sales are relatively infrequent and the volume of such sales is small in COllparison to sales to dealers and to industrial customers and their employees.

10. :I number of catalog houses located in the center of Philadelphia sell to all classes of customers Leeds' luggage (made for jobbers), bowling bags and golf bags at the coded price which is less than the retail" price.

11. Department stores in y ashington, D. , in the Philadelphia area and in the Kew York area generally sen Leeds' regular luggage at the preticketed "retail" price except for discontinued, promotional, or irregular items.

12. The price at which sales of Leeds' luggage is made by luggap:e specialty stores in the New York and Philadelphia areas has not been established. In Washington, D. , according to uncontradicted testimony, a witness testified that his luggage and gift shop sold Leeds luggage at the preticketed price.

13. Sporting goods stores, discount houses, and certain department stores in the New Yark area sell Leeds' products at prices 10\\'e1' t.han the preticketed prices or catalog " retail" price. 14. The eaJalog hom es located in Philadelphia" whose represent:lthat sa.1estives te,stit-ed in support or the complaint in this proceeding or Leeds' merchandise "' ere made at. retail at Jess than the "retail" price purc.based approximat.ely S31 484.6H worth or merchandise in the year J9GO, out of total sa.!es in Philadelphia amounting to $30G 154.35. In the preceding year, such accounts purchased S21 045.83 out or total sales or $297 261.82.. Hence such purchases amounted to approximately seven percent or respondents' sales in PhiJadelphill in 1959 and ten percent in J 9GO.

15. The organizations located in the New York area, whose representatives testified in support of the compl tint that sales of Leeds merchandise were made at retail at less than the preticketed price purchased $156 041.07 worth or Leeds' merchandise in the calendar year 19GO, out of a total of $675 205. 65. The same accounts purchased 8230 445.35 worth of merchandise in the year 1959, out of total sales in New York City of $1 OIl 937.G6. Hence the sales in New York by such firms for both years were approximately twenty-three percent of the total sales in that area.

1G. Certain but not all of respondents' competitors utilized preticketing in the sale of their golf bags and luggage. , 160 FEDERAL TRADE CQ:nnssIOX DECISJO:VS Initial Decision 61 F.

17. The presence of the price tickets on merchandise constitutes a representation of the Inerchant making the sale that such price is the usual and regular price at which he sells the merchandise. 18. The inclivic1ual respondent and the corporate respondent, becfLuse of his knowledge were aware that merchandise so preticketed was not being sold currently at the prctickctecl price by merchants who sold it at retail.

19. The respondents preticketed the merchandise at the factory and placed the preticketed article in cartons which in many instances were not opcned until they wero clispb.yed by the retailer to the customer. 20. This method of pretickcting and packing the merchandise had a tendency to insure that the pretieketing would not be disturbed until the merchandise reached the hands of the retailer. 21. \Vhile pricing practices in the sale of luggage differ from the pricing practices utilized in the sales of sporting goods, respondents control and method of utilization of preticketing and of catalog preparation showing "retail" prices is substantially the same with respect to both prices in both instances, except that some luggage is not preticketed.

22. No special circumstances other than claimed industry practice have been established indicating reasons why respondents should price sporting goods merchandise in a manner different from luggage. 23. The prices of golf bags in both the Philadelphia area and the New York area were generally lower than the "reta.il" priecs contained in Leeds' catalog and catalog sheets.

24. The prices of Leeds' regular luggage in department stores in the Philadelphia and ew York areas were generally the same as the preticketed prices and the "retail" prices contained in the Leeds catalog. The prices of Leeds' jobber luggage in catalog houses in the Philadelphia area, 'I.'re generally substantially below the " retail" prices contained in the material or catalog sheets prepared by Leeels for inclusion in catalog house catalogs.

25. While the services rende.red by department stores differ materially from the services rendered by catalog houses to -incidental customers, and some of the witnesses from department stores did not regard the,m as competition, the physical propinquity of the department stores and the catalog houses in the Philadelphia area in dicate that ce,rtain of the customers are C011110n to both types of establishment.

26. There was no proof of actual divergence of tracle. 27. The use of "reiail" price in a catalog had a tendency to make the enstomcr belie.ve that he was seenring a bargain, not, generally LEEDS THAVELWEAR , I),TC. , ET AL. 161 152 Inital Decision available, when he was permitted to make purchases at the "coded" rather than the "retail" price; although in most instances, where the coded" prices were made available to customers, th coded:' price was the regular price at which the article ,",as sold by the establishment making the sale.

28. The af1ixing of tickets listing the "retail': price to merc11anc1isc placed in the hands of the distributor who was selling at the "coded" price or the supplying of catalog sheets showhlg "retail' and coded prices were instrumentalities for misrepresentation. 29. The downtown section of Philadelphia constitutes a competitive area insofar as persons whose offices are located in that area arc concerned; hence, customers woultl tend to go to both department stores and catalog stores in that area. The use of unfair and misleading practices would tend to divert customers from one store to another.

30. Catalog houses customarily sold products at the oo(lcd price rather than at the "retil.il" price.

31. Sale at such coded price in thb presence of price tickets or cata.log sheets showing the higher " tail" price has a tem1eney to deceive purchasers unto believing that they are securing :1. saving from the usual and customary price of the person making the sale or from the usual and customary price at which similar goods are sold in the trade area by merchants of a similar class. 32. There was no stJving from the usual and customary prices charged by fhe catalog 110use concerned or by other catalog houses in the sale of luggage, all customarily selling to all comers at tho coded" price.

33. The " coded" price, insofar as luggage was concerned, represented a saving from the price uSlmlly chaTged by depart.ment stores. 34. The "retail': price for golf bags is an entirely theoretieal price at which golf bags were never, or almost never, sold. It ,vas customary to sell golf bags below that price.

35. R.respondents ceased preticketing golf bags with " retail" prioe tags following the commencement of the investigation into this mat. tel' , and after the complaint was filed.

36. Other manufacturers of luggf1ge and of golf bags hf1ye supplied catalog sheets and material for catalogs to catalog houses and they ha.ve also prcbekctcd luggage nncl golf bags from time to tjU1C. 37. HespoJldent Braverman testified that respoJldeJlt Leeds attached tickets only to mcrc1uU1c1ise where ':W6 can influence the moral aspect of the price Ive put on our merchandise. " This indicates that he was ftware tllat the catalog h011ses \Tcro not following t.he "reta.iP Initial Decision 61 F.

prices in their catalogs in making sales at retail. Clearly, however Braverman was referring to luggage items only as his later testimony showed. The physical evidence and testimony from both Commission and respondents' witnesses demonstrates that Leeds' price tickets were attached to golf bags offered for sale at less than the preticketed price unt.il recently, The attorney examiner who conducted the invest.igation of this matter testified that Braverman had told him that the prices represented on the price tickets did not represent the usual and regular sellng price for the golf bags. The price represented a higher price than t.he merchandise generally sold for. This pract.ice was also known to Addis, the Eastern Sales Manager of respondent Leeds.

CONCLUSIONS OF LAW 1. The Federal Tmde Commission has jurisdiction of the person of the respondents and of the subject matter of this proceeding. is defined inRespondents are engaged in commerce as "commerce" the Federal Trade ComrnissiDll Act, and the acts and practices hereinafter referred to take place in commerce within the meaning of sllch Act. The proceeding is in the public interest. 2. The findings of fact heretofore made have been made on the basis or substantial and reliable evidew3c.

3. The llse by respondents of "retail' price-s in preticketing operations and in catalogs ,,,here it is kno,vn that such prices are not the usual or customary "retail' price is an unfair method of competition in commerce. The Glinton Watch Company et al. v. June 19 , Inc,1961 (7th Cir. ), (F. C, Docket. 7434); Nireslc Industries 278 F. 2d 337 , 340 (7th Cir, 1960), cert. denied 364 U.S, 883; , Inc. v. 263 F, 2d 396, 397 (2d Cir,Harsam Distribut01' 1959), and Gonsumer Soales Corporation v. 198 ,, . 2d 404 (2d Cir, 1952).

4. The use by respondents of preticketing and the listing of "retail" prices in catalogs, material for catalogs or catalog sheets places in the hands of retailers and catalog houses the means of misleading members of the purchasing public into the erroneous belief t.hat the retail" price or preticketed price is the price at which purchasers from respondents' customers sell their product and that the purchasing public is rcaEzing a saving. The use of preticketing flnd the labeling of a "retail" price in catalogs distributed in the circumstances present in this case, are accordingly unfair or deceptive acts or practices in commerce. Ghicaqo Board Go. v. 253 F. 2d 78 (7th Cir. 1958) and Winsted Hosiery v. 258 U.S. 483 (1922). LEEDS TRAVELWEAR, INC., ET AL. 163 152 Initial Decision 5. It is unecary to establish that there has been any divergence of trade because there is a natural tendency, by reason of the inherent character of respondents' acts and practices, that commerce will be direrted. F.T. O. v. Winsted H08iC1') 00. 258 U.S. 483 (1922); Oharles of the Ritz v. 143 F. 2d 676 (2d Cir. 1944) Rudin & Roth et al. 53 F. C. 207 (1956), and The OTloff 00., Inc., et al., 52 709 (1956).

6. The fact that others in the industry may be engaged in activities which are substantially similar does not justify respondents' adopting a similar ilegal method or practice. O. v. A. E. Staley Mfg. 00. , et al. 324 U. S. 746 (1945) and International Art 00. et al. F.TO. 109 F. 2d 393 cert. deleied 310 T S. 632. 7. The prcticketing, showing the "retail" price, has a tendency to mislead the purchaser into believing that the reduced price which he is securing from the catalog house is a reduction from the prevailing price for the product elsewhere in the same trade area, and it is immaterial that in other places and in stores of another character the preticketed price may be charged. The Baltimore Lug,gage OOinpany, et al. Dockct K o. 7683, .March 15 , J 961. 8. It is immaterial that the corporate respondent does not preticket all classes of its merchandise, or that all of its pretickcted merchandise is not regularly and customarily sold at Jess than the prcticketed price. It is suffcient to justify issuance of an order that the respondents with knowJedgc that certain of their dealers or jobbers are utilizing the preticketecl merchandise of a particular.r class in a manner calculated to deceive retail customers into the belief that such retail customers are securing a bargain price not available to all retail customers, continue to supply preticketed merchandise to such dealers or jobbers.

9. It is sufficient to justify the issuance of an ordcr that the respondents, with know ledge that their catalog house customers are seJ1ing to retail customers at less t.han the "retail" price stated in their catalogs continue to supply to such catalog houses catalog sheets and material for catalogs which have be,en used as instrumentalities tending to mislead retail customers into the mistaken belief that such retail customers arc securing a bargain price, when, in fact, they are securing the re,gular catalog house price.

10. I1 is not necessary to establish actual sales made to particular customers of the catalog houses; the testimony of proprietors as to the prices charged on sales is adequate for the purpose of establishing such prices.

p.

164 F.iDERAL TRADE COMMISSION DECISIONS Initial Decision 61 F.

11. The cessation of the practice of pretieketing golf bags does not constitute abandonment in the circumstances of this proceeding. O. v. Wallace 75 F. 2d733 , 738 (8th Cir. 1935); ii. T.O. v. Goodyear 1'Te ci Rubber' :104 U. S. 257 (1938); IIershey Ohocolate 001'pomt.ion v. 121 F. 2d 968 (3d Cir. 1941), and Stanley Labomt01';e8 , Inc. v. 138 F. 2el 388 (9th Cir. 1943). 12. The doctrine of de 1ni.ninis has no application to this proceeding. Oons",ne1' Sales 001"). v. 198 F 2d404 (2d Cir. 1952). 13. In the absence of special circumsta.nces justifying different treatment (d. SWa1we Paper OOl'pomtion v. F.1. O. (2d Cir. J une 22, 1961), Matter of Quaker Oats, Docket 8IID), an order sufficicntly brand to prevent fictitious pricing of all products is proper even though in its regular' line of luggage respondents ' preticketing was not utilized for purposes of misleading ret.ailers customers. It is suffcient that preticketing in the golf bag line was used in a. manner tending to mislead retail customers, and that respondents assisted in the preparation of cat.along house catalogs ,which also had :1 tendency to mislead customers into a mistaken belief that they were making wings from the catalog houses ' regular ret.ail prices. C. v. Rubeaid :143 U.S. 470 , 473 (1952) and Ni1' esk Industries et al. v. 278 F. 2d 337 (7th Cir. 1959).

14. The individual responclenfs continuation of the misleading practices for ,which he hftd responsibi1it.y with knowledge of their misleading character fully just.ifies the issuance of an order against him personally, as ,yell as in his capa.cit.y a.s an offcer of the corporate respondent. Oons",ne,. Sales Om' v. 198 F. 2d 404 (2d Cir. 1952).

OHnEH It i8 ordoTed That Leeds Travehvcar, Inc. , a corporation, and Irving L. Braverman, individually and as an oincer of said corporation, a.nd respondents' agents, representatives, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale and distribution of luggage" golf bags, bowling bags or any other product in commerce, as "commerce" is defined in the Federal Trade Commission Act, do fort.hwith cease and desist from: 1. R.representing, directly or by implication, by means of pleticketing or in any other manner, t,hnt flny flmount is the usual and customary l'eJail price of merdwndise Tlllen such amount. is i11 excess of the price at Tlh1ch said merc.handise is l1usual1y and customarily sold at retail in the trade area or are,as where the representations are made.

LEEDS TRAVEL WEAR, INC" ET AL. 165 152 Opinion 2. Furnishing to ot.hers any means or inst.rumentality by or through ,,,which t.he public may be misled as to the usual and customary prices of respondents' merchandise.

3. Putting into operation a.ny pIau through the use of which retailers or others ma.y misrepresent t.he usual a,nel cllstomary retail price of mercha.ndise.

QpINIOX OF THE CO::\I1IIISSIOX By Dixon Cm1Uni,ssioneT:

The complaint ill this matter charges respondents with misrepresenting reta.il prices in their sale of luggage golf bags and bowling bags in violation of Sect.ion 5 of the Federal Trade Commission Act. In his initial decision, the herring examiner found that the alleglLtions of the complaint ,were sustained by the evidence and ordered respondents to cease and desist from this practice. The matter is before the Commission upon exceptions to the initia.l decision filed by respondents.

Respondents manufacture and distribute three c1iiIerent lines of luggage, a regular line, a jobber line and a special or so-called "promotional line. Their golf bags are manufactured for them on a contract basis in substantially the same three sepa.rate Jines. It is undisputed that luggage and golf bags in their regular line, which is sold to retail outlets such as department stores and chain stores, are preticketecl with an amount which purports to be the retail price the article. Although the hearing examiner concluded that t.he luggage in respondents' regular line was generally sold at retail at the preticketccl price, he found that the generally prevailing prices for golf bags in respondents' regular line were substantially below the prices set forth on the tickets attached to such items. Respondents contend that the evidence does not support this finding. Six witnesses from New York City testified as to their retail sales of respondents' regula-r line of golf bngs. \VitJlOut exception, these witnesses stated that they always sell these products to the public at less thftn the prices set forth on respondents' tickets. Hespondents introduced evidence showing that their sales of golf ba.gs to tlle six :K e"\y York witnesses in 1960 amounted to about $14 000, whereas their total sa.les of these items in Kew York City in the same year were about $75 000. Thus, they argue that the volume of sales by these six witnesses is not sufficient to establish a. pattern of retail sales of goH bags below the pretieketed price. ,Ve think that it is. .foreover, other evidence of record leaves no doubt that the preticketec1 prices on respondents' golf bags were in excess of the 728-122-05- 166 FEDERAL TRADE COMMSSION DECISIONS Opinion 61 F.

generally prevailing prices for these items not only in the K ew York City area but in all trade areas in which these products were sold. Respondents) own witnesses, testifying as to their experiences in the sale of respondents' golf bags in department and specialty stores in Philadelphia and Kew York City, stated that they always sold these items at pITeBS lower than the preticketed price. 1\1'. Addis, respondents' sales manager, acknowledged that this \Vas generally the case in his sales territory which includes ~ew York City, Philadelphia, BaltilTIOre, vVashington, D. , and New .Jersey. )Ioreover, there is evidence in the nature of an admission by individual respondent, :V11'. Irving L. Braverman, that the preticketecl prices were higher than the prices at 'which respondents' goH bags 'were usually and regularly -sold. Respondent.s' argwnent on this issue must be rejected. Respondents next argue that no violat.ion of law has been established since the record contains no evidence of actual injury to competition as a result of the preticketing practice. In substance, they contend that since the misrepresentation here involves prices rather than the nature or character of a product, it. is incumbent upon counsel supporting t.he cornphtint t.o prove competitive injury. This argmnent is 'Nit-hout merit. As we stated in our opinion inthe BalthnoJ'e Lug- 1 a representation that a product is being offered for salegage case at ft reduced price is an impoliant fa-ctol' in efreding the sale of Blat product. \Ve think it clear that sllch a representation may well induce a person to purchase a product. It is ,yell settled that the use of fictitious and excessive price on a ticket or tag attached to a product has a tendency to deceive the public as to the usual and customary reta.il price of the product and as to the savings afforded by the purchase thereof. 2 Section 5 of the Federa.l Tra,cle Commission Act de, .darcs such deceptive practices lU1lawful \\without regard to their a.actual effect on competition. J\Ioreover, thc courts have repeatedly held that injury to competition ma.y be inferred from the use of such practices.:! Hespondents ' further cont.e,ntioll that such an infere.nce cannot be made here for the reason that the pret.iclmting practice is generally followed in the golf bag industry is also without substance. This same argument was rejected by the court in the Internationa 4 wherein it stated that "It is also immaterial that com-Art 00. case petitors employ the same or similar methods. If such be the case, it 1 III tbe Matter of The Baltmore Luggage Company, Doci,et KD. 7683 (1961), 296 F. 21\ 608 (4th Cir. 1961).

The Clinton Watch Company v. Fede' rat Trade Commission 291 F. 2d 838 (7th Clr. 1961).

Federal Trade Commission v. Winsted llo 'ie1' Y Co. 258 U. S. 483 (1!.22); Federal Trade Gommi9Bion Razor/am Co. 316 U. S. 149 (1942). International A1. t Go. v. Fer/en;,l Trade Comm-ission 109 F. 2d 3D3 (7th Cir. 1940). LEEDS TRAVELWEAR, INC., ET AL. 167 152 Opinion would afford the basis for an argument that such competitors should be dealt with likewise, not that petitioners should escape. The evidence clearly establishes that respondents have misrepresented the retail prices of the golf bags in their relo,rular line and by their preticketing practice have placed a means of deception in the hands of their dealers.

vVe turn next to a consideration of respondents' sales of their jobber line of merchandise. The testimony of respondents' witnesses disdoses that those customers which respondents designate as jobbers are principal11y, if not exclusively, catalog houses. The products in this lille, which include luggage, golf bags and bowling bags, have certain differences in construction from those in the regular line and are Bpeeia11y produced exclusively for these jobbers. The catalog house jobbers distribute their catalogs and resell respondents' products along with those of other manufacturers, to four general classes of purchasers, i. , industrial accounts which distribute the items as premiums or as incentive awards; individual employees of industrial firms; small rewilcrs, and persons wIw "just walk in off the street. Hespondents furnish many of their catalog house customers ''with pa.ges or sheets advertising Leeds' products for insertion in the customers' catalogs. For each item offered on these sheets there is an amount, placed there by respondents, which is designated as the Retail" price. In addition, respondents set forth a "coded" price for each article. This "coded" price is actually a combimLtion of the identification or stock number of the item with certain price figures. In an example taken from one of respondents' catalog sheets in evidence, the designation 30J'1350' in connection with an item means that the identification number is 30J and the price amount is $13.50. This "coded" price is ahvays substantially lower than the "Retail" price for an item. In the example just given, the advertised "Retail" price is 822.50. The catalog houses are furnished a confidential price list by respondents and purchase at less than the "coded" price. In 1960, respondents distributed approximately 2 300 000 insert sheets, advertising all three of their jobber Jine products, to about 130 catalog house customers throughout the country. The testimony of record discloses that these catalog houses distribute as many as 25 000 catalogs yearly and that all four c1asscs of cust.omers to whom they sell had access to and used these catalogs in making their purchases. Hepresentative.s from six of respondents catalog house customers located in the city of Philadelphia testified in this proceeding. Five of these six use catalog insert sheets supplied by respondents. It appears from their tesUmony that the line of luggage which these customers purchase from respondents is not preticketed. However ! &;

Opinion 61 1."''1. oile of these witnesses testified that the golf bags which he purchased from respondents were preticketed by respondents with a price which was the same as the "Retajl" price given on the catalog insert sheet furnished by respondents for the same item. It is the testimony of each of t.he six catalog house \vitnesses that they always sell the products olTercd in their catalogs at t.he "coded" price. R,esponclents contend, however, that these catalog houses are wholesalers and, therefore, the prices at which they sell are not determinative of retail prices. A review of the testimony of these six witnesses leads to L contrary conclusion. T,,' o -of these \vitnesses testified that approximately fifty per ce,nt of their sales are at retajl a third estimated his volume of retail sales at forty per cent, and of the remaining three, one est.imated b,entry-five per e-ent and the ot.her two l1mde no estima te.

A small percentage of the sales which these witnesses classified as being at retail are to that. class of customer which I,hey identified as persons "who "just "walk in .oll the street. :: The largest part of their retail sales arc to employees of industrial firms. These persons have bee.n issued identiflcahon cards by their e.employers pursuant to an arrangement with the catalog houses. Each such employee is thereby entitled to make individual purchases for his own use directly from the catalog house. The fact that such a. person is required to have a means of ide.ntificati.on in order to make the purchase obviously does not mean that such a sale is not a retail: as respondents seem to argue. As TIe have previously noted, the catalog houses in addition to their retail sales, sell to industrial concerns and to small dealers. This. hO\\'ever, constitutes only a smaH percentage of their .over- all sales estimated by one witness as ranging from twelve per cent to eight.een per cent of his sales. Thus, the fact that there is no evidence in this record from which it can be determined ,\whether or not these dealers resell at the "R.etail prices represented on respondents' catalog t:heets is immaterial.l.

In contrast wit.h their volume of sales to dealers, all six witnesses testified that a substantial portion of their total sales are rnmIe to industrial accounts for use as premiums or as incentive awards. As to these sales, respondents strongly urge that they ate Ivholesale transactions, citing in support of their a.argument the conrfs de.finition of a "wholesale-r in the L. C. I1fayeTS case. This argument JikC'yise i A wholesaler * * is one who sells to the trade for resale and seldom, if e\'er, to the purcbasing public, with the exception that sales to in(1ustrial concerns, pubhe utilities banks, and other similar organizations ,\'11ic11 purchase jn quantity lots, i.e., simultaneous sales of more than one of a gi'len itew, not for resale, out for nse by such organizations. are cOJJsidere(1 fir wholesale transactions. (L. C. Mayers Co., hlc. v. Fer/eruZ Trade Commission 97 F. 2d 365 (2nd Cir. 1938)).

LEEDS TRAVELWEAR , J:0T' ET AL. 169 152 OpilUon of no avail to respondents. In OHr view, it makes no difference y,whether these sales are treated as wholesale or retail sales. The point at issue here is \vhether or not the items offered in respondents' catalog sheets which are sold at retail are usually an(l regularly sold at the represented "Retail" price. Considering the fact that a large percentage of sales by catalog houses are made at retail, and the further fact that an such sales admittedly are mr1.le at the "coded" prices the conclusion is inescapable that the generally prev Liling retail price of responde,nts' catalog house merchandise is substantially less than that represented by respondents on their catalog sheets as the "Retail" price. In this connection, it is to be noted that the individual respondent Ir. El'flVermrm, acknowledged t.hat respondents have no way of knowing and no way of controlling the ultimate selling price to the public of the merchandise they sell to catalog houses. Be this as it may, it is nevertheless clear that by furnishing insert sheets to the catalog hOllses, respondents have provided t.these customers with a mea,ns of deceiving the public as to the usual and regular retail price of the line of products which respondents designate as their jobber line. :\s we stated in the Rayece case G respondents may not so casnally and indifferently phlce a tool of deception at the disposal of their dealers. The complaint charges that the retail price amounts on respondents' cntaJog sheets are not the usual and reguhu prices for the items in t.he t.trade area or areas where the representations are made. To sustain this charge, it is not necessary to limit the l.r illg area to the ctowntor':n section of Philadelphia, as did the hearing examiner. As 'VB hilYB previously noted, the products which respondents sell to catalcg houses diiJer in construdion from those in their regular line and are specially made for the eataJog houses. The two Jines arc sold to ontirely different classes of purchasers. The evidence supports a finding t.hat the represented "Retail" prices of respondents' catalog house merchandise were not the usual and regular prices of such merchan disc in t.he Philadelphia trading area nnd the init.ial decision win be modifie,(l in this respect.

The linal issue presented by respondents relntes to the scope of the order. Thev contend that the hearing examiner s order is too broad in that it pl ohibits price misre.present:ttion in the sale of all of their procIncts. It is their position that an order limited to the golf bag aspect of their business is adequate to protect the public interest. view of our finding that in the insert sheets furnished to catalog houses, respondents llnve misrepresented the retail prices of theil' lug- I!J the Muttcr of Raile:; COTfJomtion Docl;:et Ko. 7346 (1962). Opinion 61 F.

gage and bowling bags as ,,' ell a.s their golf bags, this argument must be rejected.

Respondents in this case are shown to have engage,cl in the unfair trade practice of price misrepresentation, thereby placing a means of deception in the hands of ot.hers. Specifically, respondent.s have misrepresented the usual and regular retail price of the golf bags in their regular line and the golf bags, luggage and bowling bags in the line which they sell to catalog houses. It is settled law that. where a respondent has been shown to have engaged in an ilega.! practice in the 8,110 of ono product, the Commission may prohibit the future use of that practice in the sale of all of the respondent' s products.' ,Ve think that such a remedy is appropriate and necessary here. 'Ve recognize, of course, that sneh an order would encompass respondents regular line of luggage ,\which is preticketed with a retail price which has not been shown to be deceptive. However, our ordei' is not directed against preticketing in and of itself, but is intended t.o prevent tho llse of tickets bearing prices which a.rc in excess of the generally prevailing retail prices of the items. This is the practice ,,,hieh the Commission is authorized to prohibit. From the standpoint of public interest, having once established that respondollts have. engaged in that practice a separate suit shoulclnot be J10CessRry 8hon1(1 respondents in the future misrepresent the retail price all the tickets attached to the Jugga.ge in their re6J"ubr line.

VVe have determined that the hearing examiner s onler I:: appropriate in scope. HO'tv8ver, we behove that certain r('v1 ion:3 in fonn are necessary to more clearly dehneate the practices proscribed. Our order will conta.in the iiecess 11'Y modifications. The hearing examiner concluded thflt respondents kne.;y that t.their represented retail prices were excessive.. '17hi1e we agree t.hat the evidence supports this conclusion, such knowledge is 110t necessary in order to establish a violation of Section 5. Viie IHlve found thatbot.h the tickets and the catalog sheets are prepared and furnished by respondents for the purpose of being displayed to members of the purchasing public to induce the purchase of respondents: products. Thelmounts set forth on the t.ickets and the amounts designated as "Retail" in the cat.along sheets constitute respondents: representation to the public that these are the generally prevailing retail prices for the articles in the trade area or areas where used. "There: as here, such amounts arc in excess of the generally prevailing retail prices: the prac- Nir6sk Ind'-II-strfes, Inc. v. Federal Trarle Gom-mission 278 F. 2d 337 (7th Cir. 1960). R 15 D. C. 45(h).

g In the Matter of Golgate-Palmolive Company, Docket No. 7736 (1961). , ;

LEEDS TRAVELWEAR , INC., ET AL. 171 152 Final Order tice has a tendency or capacity to dcccivc. This is the test of legahty under Section 5. Knowledge on the part of respondents is not a material consideration under these circumstances. In vimv of the foregoing, respondents' exceptions to the initial decision arc denied. As modified in accordance with this opinion, the initial decision will be adopted as the decision of the Commission. FINAL ORDER This matter having been heard by the Commission upon respondents' exceptions to the init.ial decision and upon briefs and oral argument in support thereof and in opposition thereto, and the Commission having ruled on said exceptions, and having determined that the initial decision should be lnoc1ified to conform with the views expressed in the accompanying opinion:

It u ordered That the initial decision be modified by striking therefrOTH the second sentence of fincbng Dumber 24 on page 160. It is further ordered That the initial decision be modified by striking therefrorn finding number 25 OIl page 160 a.nd substituting the followmg :

25. Luggage, goH bags and bowling bags are included in TC. sponc1cnts' jobber line of merchandise which they sell to catalog houses. The product,s in this line difI'er in construction from !"'/ those in respondents' regular line and are speciany made for the catalog houses. The two Jines are separate and distinct from each other and arc sold by respondents to entirely different classes of customers. A substantia,l portion 01 the retail sales of re sponclents' special1ine of cn.ta.log house merchandise in the Philadelphia area is made by t.he catalog houses at the "codeer' price. The represented retail prices in catalog sheets furnished by respondents to catalog house customers in the Philadelphia urea for display to retail purchasers a.re substantially in excess of the generally pre,'ailing re.tail prices of the products in that line merchandise in that area.

It is further ordered That the initial decision be modjfied by striking the efrom finding number 20 on page 161 and finding number 33 on page 161 and by renumbering the remaining paragraphs accordingly.

1 tis f'1Jrlher onle1' That the order contained in the ini6aJ decision , and it hereby is, modified to read as follows: It ordered That Leeds Travelwear, Inc., a corporation, and Irving L. Braverman, individually and as an offcer of said corporation, and respondents' agents, representative'-s, and employees directly or through any corporate or other device, in connection Syllabus 61 F.

with the offering for sale, sale or distribution of luggage golf bags, bowling bags, or any ot.her product in commerce, as "COlnmeree" is defined in the Federal Trade COlmnission Aet, do forthwith cease and desist from:

1. The act or practice of pre6cketing merchandise at an incljcatec1 retail price when the indicated retail price is in excess of the generally prevailing retail price for such merchandise in the trade area or when there is no generally prevailing retail price for such merchandise in the trade area. 2. Supplying to, or placing in the hands of, any distributor dealer or other purchaser, catalog sheets or other materials which are displayed to the purchasing public and which contain an indicated retail price for respondents' me.rchandise when the indicated retail price is in excess of the generally prevailing retail price for such merchandise in the trade area or when there is no generally prevailing retail price for such merchandise in the trade area..

3 B'urnishing to others any means or -instrumentality by or through which the public may be misJed as to the generally prevailing retail prices of respondents' merchandise. 4. Putting into operation any plan through the use of which retailers or others may misrepresent the genera,lly pre vailing retail price of respondents' merchandise. It is fu,TtheJ' oJ'leTed That t.he hearing examiner s initial decision as modified and supplemented by the Commission s opinion, be, and it hereby is, adopted as the decision of the Commission. It is .hwther oJYlered That. respondents, Leeds Travehvear, Inc. , and Irving L. Braverman, shall, within sixty (60) days after service upon them of this order, fie with the Commission a report, in writing, setting forth in detail the manner and form in which they have