Caroly of Miami, Inc., et al.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF CAROLY OF MIA:vI, INC., ET AL.

CONSEKT ORDER, ETC., IX REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION AND THE TEXTILE FIBER PRODUCTS IDENTIFICATIOK ACTS Docket C-1280. Complaint, Dec. 1.967-Decision, f)ec, ! 1 V6'7 Consent order requiring a Miami, Fla., manufacturer of ladies' sportswear to cease misbranding and falsely guaranteeing its textile fiber products and failng to maintain required records. COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act and the Textile Fiber Products Identification Act, and by virtue of the authority vested in it by said Acts, the Federal Trade Commission, having reason to believe that Caroly of Miami, Inc. a corporation, and Lester Greger and Frances Greger, individually and as offcers of said corporation, hereinafter referred to as respondents, have violated the provisions of said Acts and the Rules and Regulations promulgated under the Textile Fiber Products Identification Act, and it appearing to the Commission Complaint 72 F.

that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

PARAGRAPH 1. Respondent Caroly of Miami, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Florida.

Individual respondents Lester Greger and Frances Greger are respectively president and secretary treasurer of the corporate respondent. They formulate, direct and control the acts, practices and policies of said corporate respondent, including the acts and practices hereinafter referred to.

Respondents are engaged in the manufacture and sale of ladics sportswear, with their offce and principal place of business located at 198 NW. 24th Street, Miami, Florida.

PAR. 2. Respondents are now, and for some time last past have been, engaged in the introduction, delivery for introduction, manufacture for introduction, sale, advertising, and offering for sale in commerce, and in the transportation or causing to be transported in commerce, and in the importation into the United States, of textile fiber products; and have sold, offered for sale, advertised delivered, transported and caused to be transported, textile fiber products, which have been advertised or offered for sale in commerce; and have sold, offered for sale, advertised, delivered, transported and caused to be transported, after shipment in commerce, textile fiber products, either in their original state or contained in other textile fiber products; as the terms "commerce" and "textile fiber product" are defined in the Textile Fiber Products Identification Act.

PAR. 3. Certain of said tcxtile fiber products were misbranded by the respondents within the intent and meaning: of Section 4 (a) of the Textie Fiber Products Identification Act and the Rules and Regulations promulgated thereunder, in that they were falsely and deceptively stamped, tagged, labeled, invoiced, adverlised, or otherwise identified as to the name or amount. of the constituent fibers contained therein.

Among such misbranded textie fiber products. but not limited thereto, were t.textile fiber products which were labeled to show the contents as "60'/; Cotton 40" ; Dacron 100'/; Coiton, " and 100)1, Arne1 " whereas in truth and in fact, said products contained substantially different fibers and amounts of fibers t.han as represented.

PAR. 4. Certain of said textile fiher products were further misbranded in that they were not stamped, tagged, labeled or CAROLY OF MIAMI, INC. , ET AL. 985 983 Decision and Order otherwise identified as required under the provisions of Section 4 (b) of the Textile Fiber Products Identification Act, and in the manner and form as prescribed by the Rules and Regulations promulgated under said Act.

Among such misbranded textile fiber products, but not limited thereto, were textile fiber products with labels which failed: 1. To disclose the true generic names of the fibers present; and 2. To disclose the percentage of such fibers by weight. PAR. 5. Respondents have failed to maintain proper records showing the fiber content of the textile fiber products manufactured by them, in violation of Section 6 (a) of the Textie Fiber Products Identification Act and Rule 39 of the Regulations promulgated thereunder.

PAR. 6. Respondents have furnished a false guaranty that certain of their textie fiber products were not misbranded or falsely invoiced, in violation of Section 10 of the Textile Fiber Products Identification Act.

PAR. 7. The acts and practices of the respondents as set forth above were, and are, in violation of the Textile Fiber Products Identification Act and the Rules and Regulations promulgated thereunder, and constituted, and now constitute, unfair methods of competition and unfair and deceptive acts or practices, in commerce, under the Federal Trade Commission Act. DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondents named in the caption hereof, and the respondents having been furnished thereafter with a copy of a draft of complaint which the Bureau of Textiles and Furs proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondents with violation of the Federal Trade Commission Act and the Textile Fiber Products Identification Act; and The respondents and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission s Rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respond- Decision and Order 72 F.

ents have violated the said Acts, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of thirty (30) days, now in further conformity with the procedure prescribed in 34 (b) of its Rules, the Commission hereby issues its complaint, makes the foJ1owing jurisdictional findings, and enters the foJ1owing order: 1. Respondent Caroly of Miami, Inc., is a corporation organized, existing and doing business under and by virtue of the Jaws of the State of Florida, with its offce and principal place of business located at 198 NW. 24th Street, Miami, Florida. Respondents Lester Greger and Frances Greger are offcers of said corporation and their address is the same as that of said corporation.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER It is ordered That respondents Caroly of Miami, Inc., a corporation, and its offcers, and Lester Grege'y and Frances Greger;' individually and as offcers of said corporation, and respondents representatives, agents and employees, directly or through any corporate or other device, in connection with the introduction, delivery for introduction, manufacture for introduction, sale, advertising, or offering for sale in commerce, or the transportation or causing to be transported in commerce, or the importation into the United States of any textile fiber product; or in connection with the sale, offering for sale, advertising, delivery, transportation or causing to be transported, of any textile fiber product, which has been advertised or offered for sale in commerce; or in connection with the sale, offering for sale, advertising, delivery, transportation or causing to be transported, after shipment in commerce of any textie fiber product, whether in its original state or contained in other textile fiber products, as the terms "commerce" and "textile fiber product" are defined in the Textile Fiber Products Identification Act, do forthwith cease and desist from: A. :vis branding tcxtile fiber products by: 1. Falsely or deceptively stamping. tagging, labeling, invoicing, advertising, or otherwise identifying sucn products as to the name or amount of the constituent fibers contained therein.

2. Failing to affx a stamp, tag, label or other means CAROLY OF MIAMI, INC. , ET AL. 987 983 Decision and Order of identification to each such product showing in a clear legible and conspicuous manner each element of information required to be disclosed by Section 4 (b) of the Textie Fiber Products Identification Act. B. Failing to maintain and preserve proper records showing the fiber content of textile fiber products manufactured by them, as required by Section 6 (a) of the Textile Fiber Products Identification Act and Rule 39 of the Regulations promulgated thereunder.

C. Furnishing false guaranties that textile fiber products are not misbranded or falsely invoiced, under the provisions of the Textile Fiber Products Identification Act. It is further or.dered That the respondents herein shall, within sixty (60) days after service upon them of this order, file with the Commission a report in writing setting forth in detail the manner and form in which they have complied with this order. INTERLOCUTORY , V ACA TING, AND MISCELLANEOUS ORDERS SL'BURBAN PROPANE GAS CORPORATION Docket 867:2. Onl61., July ;20, 1067 Order denying complaint counsel's request to appeal from examiner s ruling re: cost justification, and respondent's request to join Phillips Petroleum Company as a party respondent.

ORDER RULING OX REQCEST TO FILE AN INTERLOCUTORY Appeal AND REQUEST FOR RECONSIDERATION These matters are he fore the Commission upon complaint counsel's request for permission to fie an interlocutory appeal from the hearing examiner s " Ruling on Respondent' s Motion Re Cost Justification, " respondent's answer in opposition thereto, and complaint counsel' s reply. In addition, respondent has filed a request that the Commission reconsider its Order of May 25, 1967 171 F. C. 1695), ruling on Suburban s interlocutory appeal from the examiner s denial of Sliburban s motion to join Phillips Petroleum Company as a party respondent, which is opposed by complaint counsel.

1. Complaint Counsel's Request for Permission to File an Interlocutory Appeal from the Hearing Examiner s Ruling on Respondent's 2Vlotion Re Cost Justification On May 25, 1967, the Commission ruled on respondent' s interlocutory appeal on the issue of allocation of the burden of proof on the cost justification issue.' With that order, the matter was returned to the hearing examiner for an appropriate pretrial order on this issue. It is from the resulting pretrial order issued by the examiner on June 27' that complaint counsel request permission to me an interlocutory appeal.

The operative part of the hearing examiner s pretrial order provides:

(A) that complaint counsel shall have the burden of showing, as part of their prima facie case, that the difference in the methods by which Suburban S1lburbun P?")jJane (Jas Corp. (Order Ruling On lnteJ' loc\;toJ' Y Appeals, May 25 , 1967), Docket Ko. 86i2 l71 F. 16951 Suburban Propane Gas Corp. (Hearing Examiner s Ruling On R",spondent s -"lotion Rc Cost Justification, June27 , 1967), DocketNo. 8(,72. was served by Philips and the difference in the quantities purchased by Suburban from Phillips, as compared with the alleged disfavored competitors, could not give rise to suffcient savings in the cost of manufacture, sale or delivery to justify the alleged differential in prices paid to Phillips by Suburban as compared \'with prices paid to Phillips by the alleged disfavored competitors and that Suburban knew or should have known that the difference in the methods by which it was served and the difference in the quantities which it purchased could not give rise to suffcient savings in the cost of manufacture, sale or delivery to justify the aforesaid price differentials; and (B) that complaint counsel file within thirty (30) days after the date of this order, an amendment to the Trial Brief of complaint counsel previously filed herein with respect to the issue of cost justification and Suburban knowledge thereof as provided in paragraph A, in which they shall specifically:

(1) allocate Commission exhibits from the Commission Exhibit List heretofore filed to proof on (a) the issue of cost justification and (b) Suburban knowledge thereof with reference to the specific text of the particular exhibit relied upon;

(2) state the names, addresses and occupation of their cost justification \vitnesses and give a hrief narrative statement of the facts as to which such witnesses wil testify;

(3) set out all other evidence to be offered in connection vdth the issues of cost justification and Suburban s kno\vledge thereof. Complaint counsel takes the position that the pretrial order is contrary to precedent, contrary to our Order of May 25 and erroneous as a matter of law. Specifically, complaint counsel interpret the pretrial order to mean tha, as a part of their initial burden, i.e. a showing that the difference in methods and quantities could not have given rise to cost savings suffcient to justify the differential, they are required to introduce into evidence a cost study which indicates statistically that the discriminatory prices accorded to Suburban were not cost justified. If this interpretation is correct, the pretrial order would indeed be incorrect part of as inconsistent with the case law on this point. It is not a complaint counsel' s burden, as the Commission s order of May 25, 1967, stated, to show that the differences cannot in fact be cost in the justified. In applying the test of Automatic Canteen Alharabm case, the Commission expressly stated that no formal cost study is required. We do not, however, interpret the pretrial order to place this burden upon complaint counsel inasmuch as on its face it seems to be in conformity with the applicable case law and our Order of May 25. We cannot therefore conclude at this time that the inferences which complaint counsel draw as to the implementation of the pretrial order are correct. We must Automatic Canteen Company of America v. 34(; t:. S. 61. Alhambm Motor Parts. Docket Ko. 6S!:W (Transfer Binder 19G,'i- 1U67) : 17410 l6 1039J.

(;, INTERLOCUTORY ORDERS, ETC. 991 assume that the hearing examiner wil apply the pretrial order in accordance with our Order of May 25. The hearing examiner is charged with the conduct of pretrial matters and of the actual hearing. In the absence of unusual circumstances, intervention by the Commission is not warranted at this stage of the proceeding. Such unusual circumstances do not appear to be present in this instance especially in light of the examiner s statement that "this order does not pretend to set out in advance the course which the introduction of evidence must follow at the hearing. " Complaint counsel' s fears expressed in the request for permission to file an interlocutory appeal appear to be premature. Therefore, complaint counsel' s request will be denied. II. Request for Reconsideration of Order of May 25 , 1967, Ruling on Suburban s Interlocutory Appeal from the Denial of Suburban s Motion to Join Phillips as a Party Respondent On May 25, 1967, we denied respondent' s request to join Philips Petroleum Company as a party respondent. Respondent requests reconsideration and amplification of this ruling. Suburban contends that it needs to know the reasons for the denial and, as a matter of due process, is entitled to a disclosure of these reasons. This is apparently based upon respondent' s belief that the decision whether or not to issue a complaint, in this case, to join Philips as a party respondent, must be accompanied by "findings and conclusions, and the reasons and basis therefor. The reasons underlying the decision not to join Phillips are set forth in the Commission s Order of May 25 l71 F.. C. 1695 , 1696J-" The Commission s views have not changed in the meanbme. In addition, the administrative determination whether or not to join Philips in the complaint is not the proper subject for further inquiry. Certainly, "findings " on the determination not to join Philips in this proceeding, as respondent seems to suggest, are not required nor do them seem appropriate." F.inally, in the absence pondent. although asserting that it would be inconvenienced in making its defen e, has not shown that it could not withollt Phi,lips make an adequate defense on th,. matter of pos ible cost justification 01' any other issue. It has available to it all the inve5tigativ(' and di6covery techniques provided by the Commission s Rules, including the use of subVoeTIa, if nece6 1ll Thus, it is not dependent upon the voiuntaly cooperation of the seller in the preparation of its defl"TIH" . FUJ'thermore, Philips, if it w.,re charged with a Section 2(a) violation as urged by respondent, might not seek to defend it elf l;nder the C05t j"5tification proviso and o the naming of Philips, in that event, would be of no help to nspondent. Finally.. the Commis ilJn issues a complaint lJnly when it believes that ecti()n of the law6 it lIdIl.ini ters has been violated and that a proce€ding in respect tberet.o wuuld be in the interest of the pub\ic. The Commission wotlld not consider it an appropriate exerci'ie of its discretion to issue a comvlaint. pl'imllri y as a matter of convenience to another charged with a law viola ion. For such rea5ono; respondent' requi"cit to nam€ Philiips in the complaint. wiJ be denied. Cj. SfJCbnTg Corporatjon (Order Ruling on Hearing Examin(' s Certification, October 25 J966), Docket No. 8682 (70 F. C. HIS); H. H. Alacy Co. , Inc. (Order R\;ling On Questiom Certified And Denying :Motion To Strike Certification, September 30 , 1965), Docket )\' 0. %50 l68 F. 1179j.

of new facts supporting the request for reconsideration it wil be denied. Accordingly, It is ordered That complaint counsel's request for permission to file an interlocutory appeal from the hearing examiner s ruling filed June 27, 1967, be, and it hereby is, denied. It is further ordered That respondent's request for reconsideration of the Commission s decision of May 25, 1967 (71 F. 1695), denying the rcquest to join Phillips Petroleum Company as a party respondent in this proceeding be, and it hereby is, denied. Commissioner' Elman concurring in the result. ASSOCIATED 1fERCHA;\DISING CORPORATIO:\ ET AL. Docket 8651. Order, Aug. , 1%7 Ordcr denying respondents' requests for oral argument on examiner s ruling to complete discovery by a fixed date, renewed application tor subpoenas to seven resources, and joining of seven resources as parties respondent. ORDER DENYING RESPONDENTS' REQUESTS This matter is before the Commission upon three separate requests of respondents. On August 3, 1967, they requested permission to file an interlocutory appeal from the hearing examiner order of July 24, 1967, requiring them to complete their discovery pursuant to the hearing examiner s ruling of April 27 , 1967, on or before September 1 , 1967. Complaint counsel have filed an appeal opposing such request and respondents have filed a reply to such answer. Secondly, respondents, on August 8, 1967, filed , 1967,an appeal from the hearing examiner s order of August 2 denying their renewed application for subpoenas duces tecum to seven resources. Complaint counsel, on August 15 , 1967 , filed a brief in opposition to this appeal. Gibson Greeting Cards, Inc. , sub-SCM Corporation, and Royal Typewriter Company, Inc. opposition to thepoenaed resources, also filed separate briefs in appeal. Finally, respondents, in connection with their renewed application for subpoenas duces tecum, filed an alternative motion to join seven resources as parties respondent, \which motion was certified to the Commission without recommendation by the hearing examiner on August 3, 1967. Briefs in opposition to such joinder were filed by Gihson Greeting Cards, Inc., SCM Corporation, and Royal Typewriter Company. Inc. Respondents, in connection with t.he request for permission to appeal from t.he examiner s order requiring completion of discovery by September 1, 1967, assert t.hat such time limit is impossible INTERLOCUTORY ORDERS, ETC. !J93 of compliance. They claim, among other things, that 2100 manhours of accountants' time is needed to complete the discovery authorized, in addition to another estimated 1000 man-hours of related attorneys' work. Respondents ' argument, in sum, is that the examiner s decision is a gross abuse of discretion and that his ruling necessitates an immediate decision by the Commission to prevent detriment to the public interest. Respondents also seek oral argument on the issue and request that the examiner s order of July 24 , 1967, fixing the completion date for discovery September 1, 1967, be stayed.

We will deny respondents' request for permission to appeal on this issue. Setting a time limit for the completion of discovery is a matter peculiarly within the examiner s province and responsibility. Having been in direct contact with the parties and having heard their arguments, he clearly is best able to decide their discovery needs and to evaluate the diligence and urgency with which they have pursued the opportunities granted them. On such matters as this the examiner has a broad discretion, and the Commission will not ordinarily overrule him. (See our decision herein of June 26, 1967 C71 F. C. 1711J, and pertinent cases cited. ) We are not persuaded by respondents' argument that the examiner s time limitation is unreasonable or that his decision constitutes an abuse of his discretion. We hold, therefore, that respondents have not, on this issue, met the requirements of S 3. of the Commission s Rules of Practice (replacing S 3.20 of the Commission s former rules). The requests for oral argument and a stay of the discovery completion date likewise will be denied. Respondents' appeal from the hearing examiner s order denyinga renewed application for subpoenas duces tecum to seven resources concerns an issue previously considered by the Commission and disposed of by order of the Commission of .lune 26, 1967, denying, inter alia respondents' interlocutory appeal. Nothing has been presented which would convince us that this question should be reconsidered. We note that even the allegedly limited discovery authorization has permitted respondents to engage in an extensive investigation. This is borne out by the sizable amount of discovery which respondents assert they have already engaged in or have planned. Moreover, the examiner s ruling that respondents were entitled to know that the tabulated prices are in fact "net prices seems to have given respondents substantial lee\vay in obtaining the information which they originally sought. In such circumstances we will not overrule the hearing examiner. Respondents have not met the requirements of S 3. 35 (b) (replacing former , .

994 FEDERAL TRADE COMMISSIOK DECISIONS S 3. 17 (f) of the Commission s Rules of Practice). We wil, accordingly, deny this appeal.

Finally, we come to the respondents' alternative request to join the seven resources as parties respondent, which request has been certified by the hearing examiner. This joinder is sought in the event that the original subpoenas are not reinstated, and, as we have indicated above, they will not be. Accordingly, we now consider the alternative sought. Respondents appear to believe that somehow, if the seven resources arc joined, they wil be aided in their defense by such new respondents, who would then have to defend against amended Clayton Act, Section 2 (a) charges. Such assistance, however, would not be assured. See discussion in Suburban P,'opane Ga" Cm' Docket Ko. 8672 (order issued May 25, 1967) f71 F. C. 1695J, More importantly, respondents are entitled to a fair hearing and discovery to the extent provided in the Commission s rules which discovery may, of course, be limited by the hearing examiner and these rights may in no way depend upon the Commission s action against a third party by the issuance of a complaint or otherwise. Thus, the issuance of a complaint is a separate matter and not relevant to any issue herein. Respondents' request for joinder of the seven resources wil be denied. Accordingly, It is ordered That respondents' request for permission to file an interlocutory appeal from the hearing examiner s order of July 24, 1967, their request for oral argument thereon, and their further request for a stay in the date of completion of discovery ordered by the hearing examiner be, and they hereby are, denied, It is furthe1' ordered That respondents' appeal from the hearing examiner s order denying their renewed application for subpoenas duces tecum to seven resources be, and it hereby is, denied. It is ju..ther ordered That respondents' alternative request to join seven resources as parties respondent, certified by the examiner, be, and it hereby is, denied.

Commissioner Elman not participating.

NATIONAL BISCUIT COMPA:'Y Docket 5018. ()nleT and OpinioJl, Aug. 1.47 Order denying respondent' s motion to reopen and modify a modified order of April 26, 1954 , 50 F. C. BB2 which respondent contends \vas invalid for the reason that the mod.ification \vas contrary to the terms of the original order of February 2: , 1944, 38 F. C. 213 , which \vas entered pursuant to a consent settlement.

INTERLOCUTORY ORDERS, ETC. 995 OPINIOK OF THE COMMISSION This matter is pending with the hearing examiner pursuant to Commission order issued April 14, 1967 in C. 1674J, directing that public investigational hearings be conducted to determine compliance with the modified order to cease and desist issued under Section 2 (a) of the Clayton Act, on April 26, 1954 l50 F. 932J. The matter is now before the Commission upon certification by the hearing examiner of respondent's motion, filed July 13 1967, requesting the Commission to reopen the proceeding and modify the order issued on April 26, 1954. Commission counsel have filed an answer in opposition to respondent' s motion. The original order to cease and desist was issued on February 23, 1944 f38 F. C. 213J, and contained three numbered paragraphs directed at prohibiting further price discriminations by respondent. The order issued on April 26 , 1954 , on motion of Commission counsel and opposed by respondent, retained the first two numbered paragraphs of the original order and modified paragraph number 3.

Respondent now contends that the 1954 modification of the cease-and-desist order was invalid for the reasons that the original order was entered pursuant to a consent settlement arrangement accepted and ratified in 1944 by the Commission and the modification is contrary to the terms of the original settlement; that the 1954 modification deprives respondent of a fair hearing in violation of due process of law; and that the modification improperly broadened the scope of the order to cease and desist. On this basis, respondent requests that we reopen the proceeding and substitute paragraph number 3 of the original 1944 order in lieu of the currently outstanding modified paragraph. After the issuance of the complaint in this matter on July 20 1943, respondent filed an answer in general denying the facts alleged. Thereafter, on January 31 , 1944 , respondent and the Commission s Chief Counsel entered into a stipulation as to the facts which conformed generally to the facts alleged in the complaint. Based on these stipulated facts the Commission made its findings as to the facts and conclusion, and issued its order to cease and desist.

In its present motion, respondent contends that the original order "was entered in 1944 under the then applicable consent settlement procedures. " In substance, respondent states that in addition to the stipulation as to the facts, it also negotiated with the staff an order to cease and desist and a compliance report setting forth a new and revised price structure. Respondent has attached to its motion an affdavit of one of its former employees 996 FEDERAL TRADE COMMISSION DECISIO'-S who participated in the compliance negotiations. Respondent argues that the Commission issued the order which it had negotiated with the staff, that the Commission "received and filed" the compliance report which was filed by respondent about a week after the order issued, and that by these actions, the Commission ratified the entire settlement.

In furtherance of its argument that the 1954 modification of the order was invalid, respondent states that the Commission opinion accompanying that order " ignored the consent nature of the 1944 settement." We do not agree. That issue was raised in the answer and reply to the motion leading to the modification and it is clear from the opinion that the Commission considered respondent' s consent order argument to be without substance. While not expressly ruling on this argument, the Commission rejection thereof is apparent in its stated reliance on the evidence of record (the stipulated facts) in justification of the modification. lVloreover, the Commission s rules did not provide for a consent order procedure between the time the complaint and original order issued. At that time, to obviate a trial of the facts, Commission procedure provided for an admission answer or a stipulation as to the facts. Respondent, however, contends that a stipulation of facts was only a procedural requirement for a consent order settlement, and ref€ys to a description of the Commission s "consent settlement procedures" in a 1940 treatise by the Attorney General's Committee on Administrative Procedure. As Commission counsel points out, respondent' s argument is, in fact, refuted in this report which states in part that:

Recently, the Commission instructed its attorneys that stipulations must thereafter be filed unconditionally jf filed at all. The Commission s attorneys however, stil consult informally with respondents concerning: the content of the findings and orders likely to be issued on the basis of the proposed stipulation" But they can go no further than to state that approval of findings and orders agreed upon by the parties wil be recommended to the Commission. The Commies ion did approve the stipulation as to the facts negotiated between the staff and respondent in this case. However at best, respondent has shown only that it negotiated with the staff. Even assuming that the Commission entered an order recommended to it on the basis of an approved stipulation of facts, that order does not thereby become a consent order. The element essential to a consent settement, the conditioning of the submiseion to the Commission of the stipulated facts upon the entry of a specific order, is lacking.

1 Adminish"ative Proe"r1\ne in Gov"rDment Agencips, Monog-raph of the Attol' TIf"" General' Cummittee on Arlmini triltive P:'Oef'dlil'e-Fed('raj Trade Commissiun, Part (j Sen. Doc. IHIi 76th Cong., 2d Se s. (1940).

INTERLOCCTORY ORDERS , ETC. 997 Finally, the terms of the fact stipulation as executed by respondent, make it clear that the order entered by the Commission in 1944 was not subject to any consent agreement. Thus, the stipulation provides, in part, that:

* "" * the following statement of facts may be taken as a part of the record herein and may be taken as the facts in this proceeding and in lieu of all testimony in support of the charges stated in the complaint or in opposition thereto; and that the said Commission may proceed upon such statement of facts to make its report stating its findings as to the facts (including inferences which it may dru\y from said stipulated facts) and its conclusion based thereon and enter its order disposing of the proceeding without the presentation of argument or the fiing of briefs. Under the foregoing circumstances, respondent' s position that the 1954 modification of the order is invalid for the reason that the original 1944 order was entered pursuant to a consent settement, is rejected. ::Vloreover, we conclude that respondent has failed to make a suffcient showing in support of its request that we direct the holding of evidentiary hearings to resolve any factual issue concerning the entry of the original order. Respondent further argues that the 1954 modification deprived it of a fair hearing and improperly broadened the scope of the order. In commenting on this same argument in its opinion accompanying the 1954 order. the Commission stated, in part, that: If the (1944) order, for one reason or another, is inadequate or inappropriate for that purpose (to prohibit the respondent from continuing or resuming the unlawful practices it was found to have engaged in), we have not only the statutory authority but also the duty to modify the order in the respects necessary. Obviously, any modified order to cease and desist "which we might enter must be supported. and justified by the facts disclosed by the evidence in the record. ::0 substantive rights of the respondent will be affected by any modified order which is fully supported and justified by the evidence in the record.

Respondent not having appealed from the 1944 decision, the statutory authority referred to in the Commission s opinion was embodied in Section 11 of the Clayton Act which then provided that:

Until a transcript oi the record in such hearing- shall have been filed in a circuit court of appeals of the United States, as hereinafter provided, the commission, authority, or board may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in ,vhoJc or in part any report or any order made or issued by it under this section. The record in this case discloses that not only was respondent served with notice of the proposed modification but that at respondent' s request, it was granted a delay until after the Supreme Rule XXVI of the Commission s Hules of Practice, in effect c.t the time of the modif.eatior. foliowcd this stat;Jtory procedure Court' s decision in the Ruberoid case " within which to file an answer to Commission counsel's motion. Thereafter, on June 30, 1952, respondent filed an answering brief setting forth in detail its objections to the proposed modification. In addition to allowing respondent to fully brief its opposition, the record further discloses that the Commission granted and heard oral argument on the notice of proposed modification. The Commission then issued its order reopening the proceeding "solely for the purpose of modifying the order to cease and desist in the respects and in the particulars set out in said I Commission counsel'sJ motion. " The Commission reached its determination that modification was warranted on the evidence in the record only after giving full consideration to respondent' s brief and oral argument in opposition thereto. It is thus obvious from this record that the Commission went far beyond the statutory requirement of notice to respondent and, in fact, permitted respondent to be fully heard in opposition to the proposed modification. Accordingly, respondent' s argument on this issue is rejected.

On the basis of the foregoing, respondent's motion is denied. An appropriate order will be entered.

Commissioner Elman did not concur.

Commissioner MacIntyre did not participate. ORDER DE'-YING RESPONDENT S MOTION TO REOPEN PROCEEDlKGS AND :vODIFY ORDER This matter having come before the Commission upon the hearing examiner s certification of respondent' s motion, filed July , 1967, requesting that this proceeding' be reopened and the outstanding order issued April 26 , 1954 C50 F. C. 932J, be modified, and upon Commission counsel '8 answer in opposition thereto; and The Commission, for the reasons stated in the accompanying opinion, having determined that respondent' request should be denied:

It is ordel'ed, That respondent' s motion, filed July 13, 1967, be and it hereby is, denied.

Commissioner Elman not concurring and Commissioner Th1ac- Intyre not participating.

:1 Ruberoid Co. v. Federal Trade CUl'".n;. ion :)4:- U. S. 470 (1952).