Lake Land Nurseries Sales Corp

Text (OCR of the scan; may contain errors)

respondents’ motion to dismiss that although some minor overlapping between the two matters was suggested, the issues raised ‘by the new complaint are essentially different from those in the old. There is, in fact, no similarity between the matters except, of course, that some of the named respondents are, or appear to be, the same.* The complaint in Docket No. 6666, the prior matter, was very narrowly drawn and brought into issue matters relating to only two plants, namely, the Shasta Daisy (Chrysanthemum Maximum) and the Lythrum Morden Gleam, and only on the latter were representations as to physical characteristics challenged. The order there is equally narrow in scope; its prohibitions are confined to representations concerning only the two plants named ' in the complaint and it prohibits representations as to physical characteristics (in issue as to other plants in the instant case) only as to Lythrum Morden Gleam. The present complaint, on the other hand, while it alleges misrepresentation as to the physical characteristics of plants, is limited in such connection to the Nearly Wild rose plant, the Scarlet Showers rose plant, the Wilson’s Climbing Doctor rose plant, the Azaleamum chrysanthemum plant, and the Fragramum chrysanthemum plant. The two complaints are otherwise completely different as to the practices charged.

Respondents significantly do not claim in their motion that any issue in the complaint proper was previously litigated. The only specific connection asserted other than the common identity of certain respondents is that the proposed order, apparently broader in scope than the old as to misrepresentations of physical characteristics, overlaps to some extent the prior order. However, it is clearly speculative to argue that this creates a conflict or inconsistency. The proposed order here was included with the complaint as a form of order which the Commission had reason to believe should issue if the facts are found to be as alleged (§ 3.3 (3) of the Commissions’ Rules of Practice). It is not necessarily the final order, even if the allegations are proved. Respondents will have ample opportunity to argue as to any asserted inappropriateness of the order. Furthermore, if a prohibi- *The prior complaint named the following parties: Lakeland-Deering Nurseries Sales, a corporation, and Henry L. Hoffman, Chester Carity, Lillian Zogheb and Allen Lekus, individually and as officers of said corporation. The present complaint does not include the individual respondents Lillian Zogheb and Allen Lekus. As to the differences in the corporate names, respondents, in a footnote in their motion, state: “Lakeland-Deering Nursery Sales Corp. is the same corporation. named in the instant proceeding as Lakeland Nurseries Sales Corp., the name ‘Lakeland-Deering Nursery Sales Corp.’ having been changed to Lakeland Nurseries Sales Corp. in 1957.” tory order issues here and there is a conflict as claimed, the remedy might be (1) a change in the proposed order (i.e., to exclude the Lythrum Morden Gleam plant) or (2) a reopening and modification of the prior order as to Lythrum Morden Gleam. Nevertheless, this proceeding has not reached the point where a determination should be made on the form of the order. This will come later. Clearly, the possibility of a relatively minor overlap between the proposed tentative order and the prior order is not an extraordinary circumstance requiring an immediate decision by the Commission.

Elmo Division of Drive-X Company, Inc. v. Dixon, 348 F. 2d 342 (D.C. Cir. 1965), the principal case relied on by the respondents, is not controlling in this matter since that holding was based upon a showing of the incorporation of a Commission Rule into the consent order which “vested” that respondent with the right to a reopening hearing. No such situation exists here. In addition, in Drive-X the court concluded that if it should appear the practices complained of varied significantly from those governed by the consent settlement, Drive-X could not ’‘object to a new complaint directed at new conduct. Likewise, the respondents here cannot object to a new complaint covering new conduct. See also Federal Trade Commission v. Motion Picture Ad. Service Co., Inc., 844 U.S. 392, 397-398 (1953); Exposition Press, Inc. v. Federal Trade Commission, 295 F. 2d 869, 872 (2d Cir. 1961).

In view of the above discussion, we conclude that respondents have not shown that they will be prejudiced in any way by the trial of this proceeding and that they have not shown the extraordinary circumstances which would require an immediate decision by the Commission to prevent detriment to the public interest.

An appropriate order will be entered.

ORDER DENYING REQUEST FOR PERMISSION TO FILE

INTERLOCUTORY APPEAL

This matter having come on to be heard upon the respondents’ motion requesting permission to file an interlocutory appeal from the hearing examiner’s order filed January 18, 1966, denying their motion to dismiss the complaint, and the Commission having determined, for the reasons stated in the accompanying opinion, that the request should be denied:

It is ordered, That respondents’ request for permission to file an interlocutory appeal from the aforesaid order of the hearing examiner be, and it hereby is, denied.

DEVCON CORPORATION ET AL.