Dean Foods Comp Any

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Respondent Dean Foods Company filed a statement on April, 1966, in which it states it takes no position on whether the nding appealed from should be affirmed or reversed, but that it does not want to be prejudiced in the securing, at a 1ater time of the information obtained.

The hearing examiner, under 15 (c) of the Commission Rules of Practice, has the power and duty, inte,' alia to take aJ1 necessary action to avoid delay in the disposition of proceedings and has aJ1 powers necessary to that end, including, among others, the power to issue subpoenas. The examiner's authority to issue subpoenas in a particular proceeding begins the moment he is designated as the hearing examiner in the matter. Thus here the examiner had the power to issue the subpoenas requested by complaint counsel even though hearings had not yet been scheduled.

It seems to us that the examiner, considering complaint counsel' s representations to him that the subpoenas are necessary because of thc refusal or failure of four dairies to provide information necessary to such counsel in an attempt to obtain accurate market share data, took a very narrow view of his responsibilities in failing to provide such process so as to prevent future delay in the preparation for trial and in the trial of this case. We believe that it would be wholly appropriate in the circumstances to issue such subpoenas. The information sought would be obtained as an aid in the trial of the case. Such subpoenas are not considered, and are not to be considered, as investigational subpoenas.

This appeal wi1 be entertained because the ruling complained of involves substantial rights, wi1 materially affect the final decision, and because a determination of its correctness before the conclusion of the hearing wi1 better serve the interests of justice. Accordingly, It is O1'dered That complaint counsel's appeal from the examiner's ruling denying their request for subpoenas duces tecum, and it hereby is, granted.

It is further ordered That the hearing examiner's ruling denying the request of complaint counsel for subpoenas duces tecum be, and it hereby is, vacated.

It is further ordend That the hearing examiner forthwith reconsider, in the light of this order and the views of the Commission stated herein, the request of complaint counsel for the issuance of subpoenas duces tecum.

HU:\1PHREYS MEDICINE COMPANY, INC. , Docket No. 8640 E. C. DeWITT & CO., INC. , Docket No. 8642

GROVE LABORATORIES, INCORPORATED, Docket No. 8643 THE MENTHOLATUM COMPANY, Docket No. 8644 01'der, Apr. Q6, 1966 Order denying petitions of respondents that hearing examiner reconsider his denial of motion to suspend proceedings in all four cases pending the outcome of the American Home P1' oducts case, Docket 8641, and directing hearing examiner to offer respondents the opportunity to settle their cases through stipulation.

ORDER RULING ON MOTIONS CERTIFIED BY THE HEARING

EXAMINER

This matter is before the Commission on the certification to the Commission, on April 20, 1966, by the hearing examiner of motions by the respondents in HumphTeys Medicine Company, Inc. Docket 1\0. 8640 The Mentholatum Company, Docket 1\0. 8644, Grove LabomtoTies, Inc. Docket No. 8643, and E. DeWitt Co. , Inc. Docket 1\0. 8642. In each case respondent requested the hearing examiner to certify to the Commission its motion that the Commission permit reargument of; and reconsideration of, the motion of complaint counsel to suspend hearings in these proceedings pending issuance of the Commission's decision In the Matter of AmeTican Home Products Corporation Docket:'0. 8641 (70 F. C. 1524J. Complaint C0U11se1's motion to suspend was denied in each case by orders of the Commission, dated March 16, 1966.

Respondent E. C. DeWitt & Co. also moves, in the alternative that the proceeding in Docket No. 8642 be joined and consolidated with the Matter of AmeTican Home Products Corporation Docket No. 8641. In this connection, DeWitt requests permission to withdraw its answer and to file an amended answer by which respondent "shaH agree to be bound in the manner, and at the time and to the extent appropriate, by any order which the Commission may enter in said Matter of American Home Products Corporation. Such order, according to respondent's motion, may include an affirmation of the hearing examiner's initial decision in that proceeding but is not limited to such a result or the Commission may take substantiaHy the same action in

Docket 1\0. 8642 as it deems appropriate In the Matter of "DeWitt requests the Commission to authorize the hearing examiner to reinstate his order of February 14, 1966.

American Home P"oducts C01'pomtion Docket "'0. 8641. DeWitt' motion, in the alternative, further provides that the Commission may grant such additional relief as is deemed appropriate and in the public interest.

The hearing examiner, in the case of all four certifications recommended that the motions certified be granted. The Commission has determined that the motions certified have not stated grounds justifying further suspension of the hearings in these proceedings and that the hearing examiner should be directed to go forward with the hearings in these cases unless respondents are willing to stipulate in the course of the prehearing conferences that they wi1 submit these proceedings to the Commission for disposition on the basis of the record in Americnn Home Products COTpomtion Docket No. 8641, and that they waive any further intervening procedural steps before the hearing examiner. In this connection, if any of the respondents wish to dispose of their proceeding on that basis they should further stipulate, if they are able to, on the basis of the facts applicable in their proceeding, that:

1. The advertising of the particular respondent had no significantly different effect upon the reader than the effect of the advertisements in American llome PrOd1(cts;

2. The effect of the use of respondent's preparation is not significantly different from the use of the preparation of American Home Products;

3. If there are any significant differences between the advertisements of respondents and the advertisements in the record in Am, e1'ican H01ne Products then the Commission, in its order disposing of the case may include appropriate provisions to take into consideration such differences.

If any respondent wishes to avail itself of this procedure, it will also be necessary for it to attach to the stipulation the relevant advertising, which it has utilized, for inclusion in the record. Finally, those respondents desiring to conclude their proceeding without hearings before the examiner should include in their stipulations a provision that the Commission may dispose of their proceeding at the time A meTicnn Home Products is decided by such order as it deems necessary to the public interest in the light of the record of the particular case. Such stipulation should contain the further provision that the record, on which the Commission is to make its final disposition of this case and for the purposes of judicial review, is limited to the record of the proceeding at the time the stipulation is fied, the stipulation and the attached advertisements as wen as the record in American Home Products. Accordingly,

It is ordered That the hearing examiner is directed to proceed with the hearings in these cases forthwith: Provided, howev",' That the examiner wi1, without further action, certify the record in the particular case to the Commission if the respondent that proceeding and complaint counsel, within 30 days of the service of this order upon them, file a stipulation providing that:

1. They wi1 submit the case to the Commission on the record in Docket::0. 8641 AmeTican Home Products C01'poTation and such other facts and records as provided for below; 2. (a) The facts applicable to the case support the stipulation that advertisements in the case had no significantly different effect upon readers from the effect of the advertisements in American Hom,e PToducts

(b) The facts applicable to the case support the stipulation that the effect of the use of respondent's preparation is not significantly different from the use of American Home Products preparations;

3. To the extent that a respondent's advertisements differ significantly from those in AmeTican Home Products the Commission may, in its order disposing of the proceeding, include appropriate provisions to take into consideration such differences;

4. The advertisements attached to the stipulation are representative of respondent's advertising claims and are to be included in the record of such proceeding;

5. Respondent waives any intervening steps before the hearing examiner;

6. The Commission may, on the basis of the stipulation, the attached advertisements and the record in A merican Home Products issue such order as it deems necessary to the public interest;

7. The Commission is to issue its order disposing of such proceeding concurrently with the order setting forth its final decision in A me1' ican Home Products; and

8. The record on which the Commission is to make its disposition of such proceeding and for the purpose of judicial review is limited to the record at the time the stipulation is filed, the stipulation with the attached advertisements and the record in AlIwrican H01ne ProcZu.cts.

ALHAMBRA MOTOR PARTS ET AL.