Exxon Corporation

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

IN THE MATTER OF EXXON CORPORATION, ET AL.

Docket 8934. Interlocutory Order, June 4, 1974 Order denying respondents’ motions for reconsideration of Commission’s prior denial of respondents’ motions to dismiss complaint.

Appearances For the Commission: Robert E. Liedquist.

For the respondents: William Simon, Wash., D.C., J. Wallace Adair, Wash., D.C., William Weitzel, New York, N.Y. Jesse P. Luton, Houston, Texas, John H. Chiles, Houston, Texas, Wickes, Riddell, Bloomer, Jacobi & McGuire, New York, N.Y., Oliver L. Stone, Houston, Texas, Frank R. O’Hara, Pittsburgh, Pa., Benjamin T. Richards, New York N.Y., Kaye, Scholer, Fierman, Hays & Handler, New York N.Y.

ORDER DENYING RECONSIDERATION By order dated February 1, 1974, the administrative law judge properly certified to the Commission certain oral and written motions to dismiss the complaint in this matter on the grounds that (1) the Commission lacked reason to believe respondents had violated the law at the time it issued the complaint and (2) the proceeding is not in the public interest. The Commission denied these motions by order of February 12, 1974, and respondents now urge reconsideration on those same grounds and, in addition, on an alleged denial of due process and the fact that complaint counsel are pursuing additional post-complaint investiga- Order 83 F.T.C.

tion. Complaint counsel urge the Commission to grant the request for reconsideration and clarify its policy in the area of post-complaint investigations.

Respondents’ argument that Congressional interest rather than the public interest prompted the issuance of this complaint is misplaced. None of the communications received by this agency from any member of Congress is even remotely of the character deemed improper by the courts. Pillsbury v. FTC, 354 F. 2d 952 (5th Cir. 1966); D.C. Federation of Civic Associations v. Volpe, 459 F. 2d 1231 (D.C. Cir. 1971). And it has long been settled that the adequacy of the Commission’s “reason to believe” a violation of law has occurred and its belief that a proceeding to stop it would be in the “public interest” are matters that go to the mental processes of the Commissioners and will not be reviewed by the courts. Once the Commission has resolved these questions and issued a complaint, the issue to be litigated is not the adequacy of the Commission’s pre-complaint information or the diligence of its study of the material in question but whether the alleged violation has in fact occurred. That is the posture of the instant matter. Nor is there any merit in respondents’ argument on the issue of post-complaint investigation. As we have said many times before and reiterated most recently in Food Fair Stores, Inc., Docket 8935, Order of April 23, 1974 [p. 1578 herein], the division of the Commission’s total investigative effort between the pre-complaint and post-complaint stages is entirely a housekeeping matter between the Commission and its staff, not one that can be used to challenge a post-complaint subpoena or the sufficiency of the Commission’s pre-complaint investigation and hence of its “reason to believe” a violation has occurred. Postcomplaint discovery by complaint counsel is entirely proper and the sole limits on its proper scope are the requirements of due process that govern in any judicial proceeding, ¢.g., definiteness of the demand, relevance of the data sought to the issues raised in the pleadings, etc. United States v. Morton Salt Co., 338 U.S. 632, 641 (1950). Nothing in the papers before us suggest that complaint counsel in this proceeding have exceeded these bounds in their discovery efforts. The Commission finds no grounds here for reconsidering its prior denial of respondents’ motions to dismiss the complaint in this matter. Accordingly, It is ordered, That respondents’ motions for reconsideration be, and they hereby are, denied.

Commissioner Nye did not participate.

BEAUTY-STYLE MODERNIZERS, INC., ET AL. 1761 1761 Complaint