Lakeland Nurseries Sales Corp Formerly Kkowk as Lakeland-Deeri",G N"Crseries Sales

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enter the nursery business at some future date, then the order would continue to protect the public interest against the deception to which it is directed.

Accordingly, the Commission having carefully considered the petition and the answer thereto and being of the opinion that the allegations in respondents' motion do not provide sufficient grounds to support the conclusion that conditions of fact have so changed since the issuance of the order to cease and desist as to require the setting aside of said order or that the public interest may now require such action:

It is Q)'dered That respondents' petition be, and it here is denied.

SUBURBAN PROPANE GAS CORPORATIO",

Docket 8672. 01' der and Opinio' , Sept. , 1.968 Order denying respondent' s motion to withdraw proceeding from adjudication for the purpose of considering voluntary compliance.

DISSENTI:\C OPINIO:\

SEPTEMBER 23, 1968

BY ELMAN Commissioner:

I would accept respondent' s assurance of voluntary compliance and terminate this proceeding.

This case arose out of an investigation begun almost a decade ago and involves transactions dating to 1957. The complaint alleges that respondent, a purchaser of liquefied petroleum gas (LP gas), violated Section 2 (f) of the Clayton Act, as amended, by knowingly inducing and receiving price concessions from Philips Petroleum Company that were not available to respondent' s competitors, Respondent, in a formal affidavit signed by its president now promises that it wil not again engage in this practice. There are numerous reasons for crediting this -promise and accepting the assurance. Respondent has severed its long-term contract with Philips, and the latter has largely withdrawn from the "'ortheast market where the alleged violations occurred. There is also reason to believe that sellers of LP gas are now at a bargaining advantage vis-vis buyers like respondent, making it difficult if not impossible for buyers to induce unlawful price concessions.

While compliance with the assurance is therefore likely, other factors also weigh in favor of its acceptance. Most important is that rejection of the assurance will prolong this proceeding at least

INTERLOCUTORY ORDERS, ETC. 1609

into the 1970' , and quite possibly for another decade, with the very real possibility that at the end of that time no order wil be entered. This proceeding has already been tainted, in my view, by the Commission's erroneous allocation of the burden of proof shifting to respondent the heavy burden and considerable expense of proving cost justification in disregard of the Supreme Court' decision in Automatic Canteen Co. v. Federal Trade Commission.' Should respondent' s position on this question ultimately be vindicated, a not unlikely result, this costly litigation, which is now almost three years old with respondent having barely begun to exercise its right to discovery, will have served no useful purpose. At a time when the Commission should be tightening .is belt and allocating its limited resources on the basis of a clearly perceived, rational set of priorities, rejection of this assurance seems to make little sense.

ORDER DENYING RESPONDENT S:l10TION TO WITHDRAW

PROCEEDING FROM ADJUDICA TIOK

This matter is before the Commission upon the hearing examiner's certification, without recommendation, filed August 26 1968, of respondent' motion to withdraw this matter from adjudication for the purpose of considering its "assurance of voluntary compliance" filed August 23, 1968. Complaint counsel filed directly with the Commission, on August 29, 1968, a brief in opposition to respondent' s motion.

The Commission has determined that Section 2.21 of its Rules of Practice, pursuant to which respondent has requested consideration of its motion, does not provide for disposition of a matter by the submission of an assurance of voluntary compliance subsequent to the issuance of the complaint. Section 2. is limited to the disposition of matters which have not yet reached the adjudicative stage. For this reason respondent's motion for withdrawal wiJ be denied. If the provisions of the proposed assurance of voluntary compliance were contained in a proposed consent order, they would constitute the requisite predicate for the Commission's granting of a motion under section 2.34 (d). Nevertheless, respondent has brought its motion under section, and has not made a sufficient showing to justify the form of relief requested in this motion. Accordingly,

It is ordered That respondent's motion for an order withdrawing this proceeding from adjudication on the basis of its: 346 v. s. 61 (1953): see S1/bllrban Propane Gas Corp.. Docket No. 8672 (June 3, 1968) assurance of voluntary compliance be, and it hereby is, denied. Commissioner Elman dissented and has filed a statement.

5.5.8. COMPANY

Docket 8646. Order, Sept. 26,1968 Order denying motion by respondent to stay the filing of compliance report.

ORDER DENYING MOTION TO STAY FILING OF COMPLIANCE REPORT

Upon consideration of the motion filed on September 17, 1968, by respondents to stay the filing of a compliance report pending final judicial determination of the validity of the order entered by the Commission in this proceeding, and It appearing that the motion is based on the mistaken premise that Section 3.61(a) of the Commission’s Rules of Practice does not operate to effect such a stay, and It further appearing that Section 3.61(a), which implements Section 5(g) of the Federal Trade Commission Act, 15 U.S.C. § 45(g), by its terms suspends the time for filing a report of compliance “when court review of an order of the Commission is pending” and provides: | Thereafter, the time for filing report of compliance shall begin to run de novo from the final judicial determination, except that if no petition for certiorari has been filed following affirmance of the order of the Commission by a court of appeals, the compliance report shall be due the day following the date on which the time expires for the filing of such petition. It is therefore ordered, That the motion be, and it hereby is, denied.

SUBURBAN PROPANE GAS CORPORATION

Docket 8672. Order and Opinion, Oct. 3, 1968 Order granting respondent leave to file response to comments filed by Phillips Petroleum Company (involving extension of time to respond