Itt Continental Baking Company

Volume 81 · 81 F.T.C. 1021

Citation: 81 F.T.C. 1021
Docket: 7880
Decision: 1972-08-01
Document type: interlocutory order
Case type: antitrust
Statutes: Clayton Act s7
Industry: bread and bread-type rolls
Outcome: other
Relief: other
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Itt Continental Baking Company, 81 F.T.C. 1021 (1972). Consumer Law Library, https://consumerlawlibrary.org/decisions/v081-0116

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Order status: unknown. Sunset may be extended by the latest qualifying federal-court complaint alleging an order violation; complaints, dismissal/appeal outcomes, and respondent-specific extensions are not fully tracked.

Cited by 0 later FTC decisions

Cites

60 F.T.C. 1183 — Ix THE 1\LVl'TEH OF ADVANCE .JTNIOR, INC., ET AL cited_neutral

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

INTERLOCUTORY, VACATING,; AND MISCELLANEOUS ORDERS irt CONTINEN FAL BAKING COMPANY - Docket 71880. Order; Aug. 1, 1972.

Order denying respondent's motion to set aside Show Cause Order ‘and assigning , ease to hearing examiner to consider whether Commission’s order of May : 11, 1962 [60 F.C. 1183], should: be modified and set aside. ; Onper Direcrine Hearing FOR Recerer OF EVvIDEnce.. .. The Commission on April 27, 1972, issued a show cause order to the above-named corporation, as successor of Continental Baking Company, the original respondent to a final, order issued in this matter oi May 11, 1962 [60 F.T.C. 1183], in a proceeding brought under Section 7 of the Clayton Act. The show cause order directed the corporation to show cause why the proceeding should not be reopened for the purpose of modifying Section 3 of the order, which had prohibited respondent for a period of ten years from acquiring any concern engaged in the production, and sile of bread and ‘bread-type rolls without Commission approval, by extending the prohibition £ for a an additional five years. ’ ‘In the show cause order it was asserted, among other things, that industry-wide ‘concentration in the production and sal of bread and bread-type rolls has increased since the issuance of the cease and desist order and that ITT Continental Baking Company (hereafter referred to as respondent) contributed to the increased concentration by reason of various asset acquisitions despite the Commission’s order and citing the fact that a United States District Court found respondent’s predecessor to have violated the order on two occasions. Respondent has filed an “Answer and Motion to Set Aside Show Cause Order” and counsel supporting the Show Cause Order have filed a response to said Answer.

In its Answer, respondent argues that since the order of May 11, 1962, was a consent order, the Commission lacks authority to alter it without the consent of the other party. It also argues that since Section 3 of the order expired by its own terms on May 11, 1972, it cannot be reopened and extended.

We cannot agree. Section 11(b) of the Clayton Act authorizes the Commission to reopen and alter, modify or set aside in whole or in part an order issued under that Act whenever in the opinion of the Commission “conditions of fact or law have so changed as to require 1022 FEDERAL TRADE’ COMMISSION : DECISIONS ; ; SO Geder (Fr 81 FTC.

such action or if the public interest shall so require.” The parties’ Agreement -Contaiting’ tlie Corsent! Order! in’ thig maftér states that the order entered ‘may | be altered, modified.or set, aside in the manner. provided for other orders. ” We do not believe that it can be seriously contested. ‘that’ the. ‘Commission has’ authority to” reopen aiid extend’ a consent order where a proper. showing of need.thereof is made, just as a court may so extend the terms of an antitrust consent decree where good cause is shown by the Government. See Chrysler'Oorp v. United States, 316:U.S, 556 (1942).: oy Oh pn titeedss con: ,,On the other hand, @( cannot, agree with Commission cou sels ar; argu. ment that Ky violation. of the final order prohibiting, acquisition ns is, an and of. itself, *,* * a, sufficient basis, for modification 1s proposed. modification, of the order i in this matter, 1 if adopted is; not to serve.as a, penalty | but. as. a remedial measure. to ensore th at, the yur pose of the. ‘original, ord. ; . In connection, % spondent. has controy: arted a number of statements of fact Rracinins in the. Show, Cause Order support of the, need fol g int is of the opinion ‘that the ‘public interest will be served by ref I ng this. matter to a hearing,examiner,, #8. provided in Section 3.7 2(b).¢ 3) of, its, Rules. of Practice, for. evidentiary hearings. on, this. issue. Accordingly, _ It is ordered, That respondent's motion to set aside the Show Cause Order at this time, or in the alternative for a-fur ther hearing on mat, ters of law set forth in its Answer, be and it hereby is, denied... It is further ordered, That this matter be assigned to a hearing eX; aminer, pursuant to Section 3.7 2(b) (3) of the Commission’s Rules of Practice, for the purpose of receiving evidence i in support: of and in opposition to the question of whether the public interest requires that this proceeding be reopened and the Commission’s order. of May 11, 1962, be altered, modified, or set.aside in accordance with. the Commission’s.Order to Show Cause herein. dated April 97,1972. Commissioner MacIntyre concurring in the result. INTERLOCUTORY: ORDERS; ETC. |: 10238 1021 - Ordér 1BOOR FAIR: STORES; IN: C., JET: AL:

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