Associated Merchandising Corporation

Text (OCR of the scan; may contain errors)

ASSOCIATED MERCHANDISING CORPORATION ET AL.

Docket 8651. Order, June 10, 1965 Order rejecting respondent’s offer to negotiate a consent settlement and remanding the case to hearing examiner.

Orpvrer Regecring Orrer or Consent SETTLEMENT This matter is before the Commission on the certification of the hearing examiner on May 18, 1965, of the motion of respondent Federated Department Stores, Inc., filed April 22, 1965, requesting that the Commission waive the provisions of § 2.4(d) of the Rules of Practice and proposing a consent order for the consideration of the Commission. The Commission waived § 2.4(d) of the Rules of Practice and carefully reviewed the offer of settlement and the statement of respondent in support thereof. The Commission has determined that the proposal of respondent Federated Department Stores, Inc., for a consent settilement should be rejected as inadequate. Accordingly, It 7s ordered, That the proposed consent settlement of respondent. Federated Department Stores, Inc., be, and it hereby is, rejected.

It is further ordered, That this matter be, and it hereby is, remanded to the hearing examiner for further proceedings in accordance with the Commission’s Rules of Practice.

Commissioners Elman and Jones dissent. In their view, Federated’s offer provides a reasonable basis for working out a settlement without protracted litigation on terms that would effectively prevent continua- Orpver Provipinc ror REARGUMENT or APPEALS ON REMAND On June 7, 1965, the Supreme Court vacated the judgment of the Court of Appeals for the District. of Columbia Circuit which had set aside the Commission's order to cease and desist entered in the abovecaptioned proceeding, and remanded the case to that court “with instructions to remand it immediately to the Federal Trade Commission for further proceedings, without the participation of Chairman Dixon, in light of Atlantic Refining Co. v. Federal Trade Commu, 381 U.S. 357 (1965).” Pursuant to the mandate of the Supreme Court, the Court of Appeals on June 16, 1965, remanded the case to the Commission. “In accordance with the directions of the Supreme Court and the Court’of Appeals, Tt is ordered, That:

(1) The Commission’s decision and order of April 15, 1968 [62 F.T.C. 117 72], 3 in which Chairman Dixon participated, be, and it hereby is, vacated.”

(2) The appeals fromthe hearing exaiminer’s initial” decision of September 24, 1962, are set down for oral argument on July 8, 1965, at 2:00 p.m., in Room ‘532 of the Federal Trade Commission Building, W ashington, D.C., with 45 minutes allowed for each side. All questions of law and fact presented by the appéals will be considered by the Commission on the basis of the entire record. The Commission’ suggests that the oral argument. will be most useful if counsel focus on the question whether “the facts of record in the present case bring it within the Supreme Court’s decision in the Atlantic Refining Co. case.

(3) Both sides may submit supplemental ‘briefs with respect to the issues involved in the appeals, pre ovided that ‘such br lefs” are > filed 1 no later than August 9, 1965.

Commissioners Dixon and MacIntyre not participating.