Everest & Jennings, Inc

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

In roe MatTreR OF _. EVEREST & JENNINGS, INC.

- CONSENT ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF sucs. 2(a), 2(d) and 2(¢) OF THE CLAYTON ACT Docket C-1868. - Complaint, Feb. 16, 1971—Decision, Feb: 16, 1971 Consent order requiring a Los Angeles, California, manufacturer and distributor of medical and surgical apparatus to cease discriminating in: price ‘between competing customers, and failing to pay: for. or to make services and facilities available to all competing customers on a proportionally equal basis.

ComMPLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly designated and described, has violated, and is now violating the provisions of subsections (a), (d) and (e) of Section 2 of the Clayton Act, as amended (U.S.C., Title 15, Sec. 13), hereby’ issues its complaint, stating its charges with respect thereto as follows:

Count I> Paracrary 1. Respondent Everest & Jennings, Inc., is a corporation organized, existing, and doing business under and by virtue of the laws-of the State of California, with its office and principal 470-536—T3 22 Complaint 7 F.T.C.

place of business located at 1803 Pontius Avenue, Los Angeles, California. ;

Par. 2. Respondent has been and is now engaged. in the manufacture, sale and distribution of medical and surgical apparatus. Respondent sells its said products to a large number of customers located throughout the United States purchasing such products for use, consumption, or resale therein. Respondent’s sales of its products are substantial, exceeding $17,000,000 annually. Par. 3. Respondent sells and causes its products to be transported from its principal place of business in the State of California to purchasers located in other States of the United States. There has been at all times mentioned herein a continuous course of trade in said products in commerce, as “commerce” is defined in the Clayton Act, as amended.

Par. 4. In the course and conduct of its business in commerce, respondent sells its products of like grade and quality to purchasers who are in substantial competition with each other in the resale and distribution of respondent’s like products. Par. 5. In the course and conduct of its business in commerce, respondent has been, and is now discriminating in price between. different purchasers of its products of like grade and quality by selling said products to some purchasers at higher and less favorable prices than the prices charged competing purchasers for such products of like grade and quality.

Par 6. The effect of such discriminations in price made by respondent in the sale of its products, as hereinbefore set forth, may be substantially to lessen competition or tend to create a monopoly in the lines of commerce in which the favored purchasers from respondent are engaged, or to injure, destroy or prevent competition with the favored purchasers from respondent who receive the discriminatory lower prices.

Par. 7. The discriminations in price made by respondent in the sale of its products, as hereinbefore alleged, are in violation of subsection (a) of Section 2 of the Clayton Act, as amended bv the Robinson-Patman Act.

Count IT Par. 8. Paragraphs One through Four of Count I hereof are hereby set forth by reference and made a part of this Count II as fully and with the same effect as if quoted here verbatim, Par. 9. In the course and conduct of its business in commerce, respondent paid or contracted for the payment of something of value EVEREST & JENNINGS, INC. 329 327 Decision and Order to or for the benefit of some of its customers as compensation or in consideration for services or facilities furnished by or through such customers in connection with their offering for sale or sale of products sold to them by respondent, and such payments were not made available on proportionally equal terms to all other customers competing in the sale and distribution of respondent’s products. Par. 10, The acts and practices of respondent, as alleged herein, are in violation of subsection (d) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act.

Count TIT Par. 11. Paragraphs One through Four of Count I hereof are hereby set forth by reference and made a part of this Count III as fully and with the same effect as if quoted here verbatim. Par. 12. In the course and conduct of its business in commerce, respondent has discriminated in favor of certain of its purchasers buying its products by contracting to furnish, or furnishing, or by contributing to the furnishing of such favored purchasers services or facilities connected with the handling, sale, or offering for sale of such products so purchased while not according such services or facilities to all other competing purchasers on proportionally equal terms.

Par. 13. The acts and practices of respondent, as alleged herein, are in violation of subsection (e) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act.

Decision AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the Bureau of Competition proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation of subsections (a), (d) and (e) of Section 2 of the Clayton Act, as amended; and The respondent and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the complaint to issue herein, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such com- Decision and Order 78 F.T.C.

plaint, and waivers and other provisions as required by the Commission’s Rules; and The Commission having considered the agreement and having accepted same, and the agreement containing consent order having thereupon been placed on the public record for a period of thirty (30) days, now-in further conformity with the procedure prescribed in § 2.34(b) of its Rules, the Commission hereby issues its complaint in the form contemplated by said agreement, makes the following jurisdictional findings, and enters the following order: 1. Respondent Everest & Jennings; Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of California, with its office and principal place of business located at 1808 Pontius Avenue, Los Angeles, California. 9. The Federal ‘Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent. GRDER It is ordered, That respondent Everest & J ennings, Inc., a corporation, and its officers, employees, agents. and representatives, directly or through any corporate or other device, in or in connection with the offering for sale, sale or distribution of any of its products in commerce, as “commerce” is defined in the Clayton Act, as amended, do forthwith cease and desist from discriminating, directly or indirectly, in the price of such products of like grade and quality: coe By selling such products to any purchaser at net prices higher than the net prices charged any other purchaser who competes in the resale or distribution of such products with the purchaser paying the higher price. . 7 It is further ordered, That respondent Everest & Jennings, Inc., a corporation, and its officers, employees, agents and representatives, directly or through any corporate or other device, in or in connection with the offering for sale, sale or distribution of any of its products in commerce, as “commerce” is defined in the Clayton Act, as amended, do forthwith cease and desist from: 1. Paying or contracting for the payment of anything of value to, or for the benefit of, any customer of respondent as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the offering for sale, sale or distribution of respondent’s products, unless such payment or consideration is made available on pro- MUG EPROM DLA, LNG. ool 327 Complaint portionally equal terms to all other customers competing in the distribution of such products;

2. Furnishing, contracting to furnish, or contributing to the furnishing of services or facilities in connection with the handling, processing, sale or offering for sale of respondent’s products to any purchaser from respondent of such products bought for resale, when such services or facilities are not accorded on proportionally equal terms to all other purchasers from respondent who resell such products in competition with such purchasers who receive such services or facilities. It. is further ordered, That the respondent corporation shall forthwith distribute a copy of this order to each of its operating divisions.

It is further ordered, That respondent notify the Commission at least 30 days prior to any proposed change in the corporate respondent such as dissolution, assignment or sale-resultimg in the emergence of a successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation which may affect compliance obligations arising out of the order.

It 7s further ordered, That respondent herein shall, within sixty (60). days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form of its compliance with this order.