Best & Co., Inc

Text (OCR of the scan; may contain errors)

BEST & CO., INC.

Docket 8669. Order, June Q8, 1966 Order denying respondents' appeal from hearing examiner's order denying issuance of subpoenas duces tecum directed to complaint counsel's witnesses.

ORDER DENYING RESPONDENT S Appeal AND REQUEST

FOR A STAY OF THE PROCEEDING

Upon consideration of respondent' s appeal from the hearing examiner's order denying application for issuance of subpoenas duces tecum filed June 27, 1966, and respondent's request for a stay in the hearing pending disposition of this appeal, the Commission has determined that the appeal should be denied. The examiner denied respondent's request for subpoenas against complaint counsel's witnesses on the ground that it made an insufficient showing of relevance to justify their issuance at this time in view of the magnitude of the request for information. The examiner further determined that much of the data which respondent desires to subpoena is either patently irrelevant, its relevance has not been adequately demonstrated or is largely covered by the subpoenas issued on the application of complaint counsel. The examiner also took into consideration the fact that granting respondent's application to any substantial extent at this time would create a grave risk of a substantial postponement of the hearings.

We also note that the examiner recognized that respondent might more appropriately develop certain of the evidence which it seeks during its defense rather than in the course of crossexamination. In this connection, we further note that the examiner has stated his willingness, during the course of the hearings, to make compulsory process avai!able to respondent if necessary. What respondent requires in the way of additional information for cross-examination will become apparent during the course of the hearings and the examiner has indicated that he wi1 make ample provision to ensure that respondent wi1 be able to fully cross-examine complaint counsel's witnesses as it is entitled to do. (See our Order Denying Appeal and Request for Permission To File Interlocutory Appeal issued June 23 1966 (p. 1193 hereina.

In short, at this time there is no indication that the examiner has abused his discretion in denying respondent the subponeas which it seeks, and there is no reason for the commission to intervene at this stage and to interfere with his conduct of the proceedings. At this time the examiner is in a better position to make such determination than the Commission. Accordingly,

It is ordered That respondent's appeal from the hearing examiner's order denying application for issuance of subpoenas duces tecum filed June 27, 1966 be, and it hereby is, denied. Commissioner Elman not participating.

DEVCON CORPORA TIO:- ET AL.

Docket C-607. O?'de1', April 7, 1966 Order directing hearing examiner to receive evidence on question of whether Commission's order of Oct. 11, 1963, 63 F. C. 1034, should be changed to focus on the applied properties of the products in question rather than on their metal content.

ORDER DIRECTIC\G HEARINGS

The Commission on October 25, 1965, having issued its order to respondents to show cause why the order to cease and desist in this matter issued October 11, 1963 (63 F. C. 10341. should not be changed so that the order's proscriptions should focus upon the applied properties of the products in question rather than upon their metal content, and Respondents having filed a response to said order to show cause averring that the change proposed by the Commission raises questions of fact requiring evidentiary hearings, and The Commission being of the opinion that the public interest will be best served by reopening this proceeding for the reception of evidence for and against the alteration and modification of

Paragraph 1 (a) of its order to cease and desist dated October 11 1963, and setting aside Paragraph 1 (b) of said order in accordance with proposed order to cease and desist contained in its show cause order of October 25, 1965.

It is ordered That this matter be assigned to a hearing examiner for the purpose of receiving evidence in support of and in opposition to the question whether the public interest requires that the Commission's order to cease and desist of October 11 1963, be altered, modified or set aside in accordance with the Commission's order to show cause dated October 25, 1965.

It is further ordered That the hearings be conducted in accol' dance with Part 3, Subparts C, D, E and F of the Commission Rules of Practice.

It ':8 further o1'dered That the hearing examiner, upon conclusion of the hearings, certify the record together with his recommendation to the Commission for final disposition of this matter.