Orders Swift & Company

Text (OCR of the scan; may contain errors)

INTERLOCUTORY, VACATING, AND MISCELLANEOUS

ORDERS

SWIFT & COMPANY

Docket 8304. Order and Opinion, July 11, 1962 Interlocutory order denying motion to disqualify Commissioner MacIntyre from participating in proceeding.

MEMORANDUM OF COMMISSIONER MACINTYRE IN REGARDS TO RESPONDENT'S

MOTION THAT HE WITHDRAW FROM THIS PROCEEDING

Respondent, by Motion filed: herein July 8, 1962, has requested that I withdraw from this proceeding and that I not participate or advise the Commission regarding its decision herein. Respondent’s Motion refers to the fact that I was Chief of the Commission’s Division of Investigation and Litigation during the period from 1951-1954 and that before the end of that period an investigation had been made of respondent’s practices, the results of which were transferred to the Department of Agriculture for a proceeding there. Apparently respondent considers that the investigation made of Swift & Company in the period of 1951-1954 served as a basis for and out of which developed the present proceeding in Federal Trade Commission Docket 8304. Moreover, respondent takes the position that it would be improper for me to have been responsible for the conduct.of an investigation of Swift & Company at that time and to now participate in a decision by the Commission in a formal case which the respondent believes developed out of that investigation. There are pertinent facts not publicized heretofore regarding my connection or lack of connection with the present proceeding in Federal Trade Commission Docket 8304. I am informed that an investigation of Swift & Company was undertaken by the Commission under its informal investigational File No. 1-24619 prior to 1952. In 1954 the file number of that particular investigation became File No. 541 0207. Also, I am informed that the Commission’s investigation of that matter and the files in connection therewith were discontinued and marked “Closed” November 15, 1955. Considerably in advance of that date, February 15, 1955, I resigned from the:staff of the Federal Trade Commission and had no connection with the activities of the Commission, either at staff level or at the Commission level, until I took the oath of office as a Member of the Fideral Trade Commission on September 26, 1961. Iam informed that in the meantime, in 1959, the Commission docketed for investigation under File No. 591 0158 a new investigation of Swift & Company, and that out of the ensuing investigation has developed the proceedings involved in Federal Trade Commission Docket No. 8304. With that investigation and the present formal proceedings I have had no connection nor responsibility. I was not a Member of the Commission in 1961 at the time it issued its complaint in this matter. Therefore, I was not informed, as were the other Commissioners, regarding the results of the investigation conducted commencing in 1959 into the activities of Swift & Company. Consequently, I was not in a position to conclude, as were the other Commissioners, that there was reason to believe that Swift & Company was engaging in unfair acts and practices in violation of the laws administered by the Commission. In view of these circumstances, to the extent that I should participate in any decision by the Commission in Docket No. 8304, I would do so without as much information regarding the underlying background of the proceeding as evidently is possessed by each of the other Commissioners who: participated in the decision to issue the complaint in Docket No. 8304. In view of the foregoing and other facts and circumstances known to me, I am aware of no reason why I should withdraw from the proceeding and refrain from participating with the Commission in any decision in this proceeding. One thing is clear: I am determined that whatever I do in this proceeding shall be without bias or prejudice, but on the contrary, be expressive of sound and fair judgment.

ORDER DENYING MOTION TO DISQUALIFY

Respondent, by motion filed July 3, 1962, having requested that Commissioner MacIntyre withdraw from this proceeding, or, in the alternative, that the Commission determine that Commissioner Mac- Intyre is disqualified with respect to any and all proceedings in this matter; and The Commission being of the opinion for the reasons set forth in the accompanying memorandum that the grounds stated in respondent’s motion are insufficient to support a determination that Commissioner MacIntyre be disqualified:

It is ordered, That the motion directed to the Commission requesting that it disqualify Commissioner MacIntyre fr« om participating in: this proceeding be, and it hereby is, denied. By the Commission, Commissioners Elman and MacIntyre not participating.