RSR Corporation

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In THE MATTER OF RSR CORPORATION Docket 8959. Interlocutory Order, Dec. 2, 1976 Commission rules on motions and counter motions with respect to material contained in complaint counsel’s reply brief; accords in camera treatment to certain information on pp. 19-25 of the reply brief; and restores the brief to the public record.

Appearances For the Commission: K. Keith Thurman, Annthalia Lingos, and James C. Egan, Ji.

For the respondent: Robert L. Wald, Wald, Harkrader & Ross, Washington, D.C.; and Merrill L. Hartman, Hewett, Johnson, Swanson & Barbee, Dallas, Tex.

Order Denying Motion To STRIKE, ETC.

The initial decision of the administrative law judge in this matter was greeted with appeals by both sides. Pursuant to the Commission’s Rules of Practice, each party was entitled to submit an Appeal Brief (in support of its appeal), an Answer Brief (in response to the other side’s Appeal Brief), and a Reply Brief (in response to the other side’s Answer Brief.) Each of these briefs, three for each side, three for each appeal, was duly prepared and submitted.

And there it might have ended, except that respondent subsequently filed a “Motion to Strike” pages 19-25 of complaint counsel’s Reply Brief, arguing that it contained inaccurate and misleading statements. Complaint counsel struck back with the observation that respondent’s Motion constituted nothing more than an unauthorized answer to their Reply Brief, expressly forbidden by Section 3.52(d) of the Rules of Practice. In ease the Commission were inclined to consider this “Fourth Brief,” however, complaint counsel appended a “Reply to Respondent’s Unauthorized Answer.” (“The Fifth Brief”’) Not to be outdone, respondent thereupon filed for “Leave to Respond to ‘Complaint Counsel’s Reply to Respondent’s Unauthorized Answer’ ”, appending thereto, “The Sixth Brief.” Complaint counsel rejoined with what we might term, for ease of reference, their “Answer to Respondent’s Answer to Complaint Counsel’s Answer to Respondent’s Unauthorized Answer to Complaint Counsel’s Reply to Respondent’s Answer to Complaint Counsel's Appeal Brief, etc.” Therein complaint counsel observed that respondent had no right to “yet another unauthorized pleading” in this matter, and that the time for Order 8&8 F.T.C.

briefing having long passed, complaint counsel would not declaim further, except to request the right to file a “Seventh Brief” if the Commission should decide to consider respondent’s “Sixth Brief.” Respondent has allowed these observations to go unanswered, and the various motions summarized above are thus before us for disposition. The Law of the Last Word, like the Doctrine of Judicial Repose, is a mainstay of Anglo-American jurisprudence. Briefly, it prescribes that in any dispute between two parties, one of them must be allowed to have the Last Word, in order that both of them may stop talking. A corollary of the rule is that the Last Word is not always the Best Word, nor necessarily the Word that prevails.

Section 3.52 of the Commission’s Rules of Practice makes clear that the Last Word in any matter on appeal belongs by right to the party with the burden of sustaining the appeal. In this case both sides were blessed with a Last Word as of right since each prosecuted an appeal, but complaint counsel were clearly entitled to the Last Word with respect to their appeal.

We agree with complaint counsel that Respondent’s Motion to Strike is little more than a substantive answer to complaint counsel’s Reply Brief. Although it seeks in camera treatment of pages 19-25 of complaint counsel's brief, the bulk is devoted simply to a recitation of arguments in opposition to those made by complaint counsel, and the n camera request could easily have been made without argument as to the substance of the Reply Brief arguments. The Commission recognizes that there may be certain extraordinary circumstances in which an exception to Section 8.52 of its Rules is warranted. When a party believes such circumstances have arisen, the appropriate way to proceed is via a request that the Commission exercise its discretion to make an exception to Section 3.52 rather than via a ruse designed to circumvent the express mandates of the Rule. Although we thus do not believe that respondent’s use of a Motion to Strike in this instance is appropriate, we have determined to treat it as a Motion to Waive Section 3.52(d) of the Rules in order to permit the lodging of a supplemental brief.

There is an extraordinary circumstance in this case which warrants the relief requested. The material to which respondent’s argument is principally addressed concerns the financial status of RSR, details of which were the subject of in camera treatment by the ALJ. For this reason, counsel for respondent could not prudently have discussed this matter at oral argument, as Counsel in an ordinary case would be able to do were he or she to choose to address an opponent’s reply brief in that forum. Under these circumstances, the Commission has determined to admit respondent's Motion, and complaint counsel’s response RSR CORP. 799 797 Order thereto, as supplements to the briefs in this case. However, the “Sixth Brief” is rejected since the Last Word still belongs to complaint counsel. [16 CFR §3.52(d) ] Respondent also requested in its Motion to Strike that certain portions of complaint counsel’s Reply Brief be maintained in camera since they were derived from in camera exhibits in the record. By order of July 28, 1976 [p. 206, herein] the Commission temporarily placed pages 19-25 of complaint counsel’s brief 7 camera pending receipt from respondent of specific indication of the portions which it believed merited such treatment. That response having been received, it appears that seven figures on pp. 19-25 are drawn from in camera exhibits and these figures will be accorded in camera treatment co-extensive with that previously ordered by the ALJ for the exhibit from which they are drawn. The rest of pp. 19-25 of complaint counsel’s brief will be restored to the public record. Therefore, It ts ordered, That pp. 19-25 of complaint counsel’s Reply Brief be, and they hereby are, restored to the public record, except that the below-referenced figures shall be accorded in camera treatment to the extent ordered by the ALJ for RX 111 from which they are drawn: 19, line 17, word 6 19, line 20, word 12 20, line 19, word 9 20, line 20, word 4 20, footnote, line 6, word 7 22, line 14, word 3 » . 24, line 4, word 4 It is further ordered, That respondent’s Motion to Strike pp. 19-25 of complaint counsel’s Reply Brief be denied, and that respondent’s “Request for Leave to Respond to ‘Complaint Counsel’s Reply to Respondent’s Unauthorized Answer’ ” be denied, but that respondent’s “Motion to Strike” and Complaint Counsel’s Reply thereto shall be added to the briefs previously filed in this matter. TU TU TU TO UU Complaint 88 F.T.C.