Harbor Banana Distributors, Inc

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

IN Tile MA'IR HARBOR BANANA DISTRIBUTORS, INC.

MODIFIED ORDER, ETC., IN REGARD TO ALLEGED VIOLATION OF SEC. 7 OF Tile CLAYTN ACT Docket 8795. Complaint, July, 1969 - Modified Jan. , 1975 Order modifying an earlier order dated Jan. 12, 1973, 3R F. R. 5160, 82 F. C. 5.'l pursuant to order of Aug- 22, 1974, of the United States Court of Appeals for the Fifth Circuit ** denying enforcement of the portion of the ord(!r under Counts I and II of the complaint alleging violations of Sections 2(a) and 2(f) of the Clayton Act, as amended, and ordering enforcement of the portion of the order under Count IV of the complaint charging a violation of Section 7 of the Act.

Appearances For the Commission: James T. Halvenwn. For the respo!ident: Deutsch, KerrgfLn & Stiles New Orleans, La. Title of case changed by Commi ion din-tinn of Apr. 11 , 1975, so that in the future nn r..fprenee wi\! appear in thetitl.. to any P'rti..s that hav..b.ndi misse. H N..itherpartyfiledpetitionfnr erl;ornr;

Order 85 F.

MODH' IED ORDER TO CEASE AND DESIST Respondents having fied in the United States Cour of Appeals for the Fifth Circuit petitions to review the order to cease and desist issued herein on Jan. 12, 1973(82 F. C. 53); and the Court, on Aug. 22 1974 (499 F.2d 395 (1974)), having rendered its decision, denying enforcement of the portion of the order under Counts I and II of the complaint alleging violations of Sections 2(a) and 2(1) of the Clayton Act, as amended, and ordering enforcement of the portion of the order under Count IV of the complaint charging a violation of Section 7 of the Act; and the time in which to fie a petition for certiorari having expired without cither party having filed such a petition; Now therefore it is ordered That the aforesaid order to cease and desist be modified, in accordance with said final order of the Cour of Appeals, to read as follows:

It is ordered That Counts I-III of the complaint be dismissed. It is further ordered That:

1. Respondent Harbor Banana Distributors, Inc., a corpration, and its officers, directors, agents, representatives, employees, subsidiares affiliates, successors, and assigns, within six (6) months from the date of service upon it of this order, shall divest, absolutely and in good faith, subject to the approval of the Federal Trade Commission, all assets, properties, rights and privileges, tangible and intangible including, but not limited to, all plants, equipment, and machinery acquired by Harbor Banana Distributors, Inc., as a result of its acquisition of the Charles C. McCann Company, and Trdewinds Produce, Inc., together with the goodwill created by the use of such assets, and all additions and improvements thereto, of whatever description, so as to restore that which fonnerly made up the Charles C. McCann Company, and Tradewinds Produce, Inc. as a viable competitive entity in the business of processing, selling and distrihuting bananas.

2. None of tJ1e assets, properties, rights or privileges, described in Paragraph IV , 1., of this order, shall be divested, directly or indirectly, to any person who is, at the time of the divestiture, an officer, director employee, or agent, or under the control or direction of, respondent Harbor Banana Distributors, Inc. or any of respondent' s subsidiar or affiliated corporations, or owns or controls, directly or indirectly, more Order than one (1) percent of the outstanding shares of common stock of Harbor Banana Distributors, Inc.

3. Pending divestiture, respondent Harbor Banana Distributors I nc. shall not make or permit any deterioration in any of the plants machinery, buildings; equipment or other property or assets of the companies to be divested that may impair their present capacity or market value, unless such capacity or value is restored prior to divestiture.

It is further ordered That respondent Harbor Banana Distributors Inc. shall not, for a period of ten (10) years from the date of service of this order, acquire, directly or indirectly, through subsidiaries, joint ventures, or otherwise, without the prior approval of the Federal Trade Commission, the whole or any part of the stock, share capital, or assets of any concern engaged in the processing, sale, or distribution of bananas.

It is further ordered That respondent Harbor Banana Distributors Inc. shall notify the Federal Trade Commission at least thiry (30) days prior to any proposed change in its corporate organization, such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiares, or any other change in the corporation that may affect compliance obligations arising out of this order.

It is further ordered That Harbor Banana Distributors, Inc., shall within sixty (60) days after servce on it of this order, and every sixty (60) days thereafter until it has fully complied with the provisions of this order, submit in writing to the Federal Trade Commission a report setting forth in detail the manner and form in which it intends to comply, is complying, and/or has complied with this order. All compliance reports shall include, among other things that will be from time to time required, a summar of all contacts and negotiations with potential purcha.,ers of the stock and/or assets to be divested under this order, the identity of all such potential purchasers, and copies of all written communications to and from such potential purchasers. "tl ?9" 0 - ?G - 2 Complaint 85 F.