Kellogg Company

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In THE MATTER OF KELLOGG COMPANY, ET AL.

Docket 8883. Interlocutory Order, April 19, 1978 Denial of Kellogg’s applications (1) for review of ALJ’s order denying motion to nullify subpoenas duces tecum for taking of depositions and production of documents, and (2) for stay of deposition program pending resolution of application for review.

ORDER DENYING APPLICATIONS OF KELLOGG COMPANY FOR REVIEW AND FOR A STAY On April 18, 1978, respondent Kellogg Company (“Kellogg”), filed with the Commission an Application for Review of Order Denying Its Motion to Nullify Subpoenas Duces Tecum for the Taking of Depositions and Production of Documents. With that Application, Kellogg also filed an Application for a Stay of the Commencement of Complaint Counsel’s Deposition Program Pending Resolution of Kellogg Company’s Application for Review. For the reasons briefly outlined below, the Commission denies both Applications. Kellogg’s Application for Review comes to the Commission without the certification of the Administrative Law Judge pursuant to Commission Rule 3.23(b). Under the Commission’s Rules, that certification is essential for interlocutory review unless the matter is one which falls within the provisions of Rule 3.23(a). Kellogg cites to Reorganization Plan No. 4 of 1961, H. Doc. No. 159, 87th Cong., Ist Sess., as support for its appeal without certification. Even that Plan, however, provides that the Commission shall retain its discretionary right to review “within such time and in such manner as the Commission shall by rule prescribe . . . .” In this instance, the Commission has explicitly provided for review under Rule 3.23(b) or after issuance of the Administrative Law Judge’s initial decision. The Commission’s Rules are designed to provide for the orderly and efficient conduct of a hearing. That process would be seriously undercut if the Commission were to interject itself into every dispute between the parties and the law judge. Interlocutory review is the exception to the rule that the Administrative Law Judge is vested with broad discretionary powers to conduct the proceeding. Rule 3.42(c).1 In fact, this is precisely the kind of matter which is peculiarly within the province of the Administrative Law Judge as the trier of fact. Accordingly, 1 As we have noted on other occasions, Kellogg Co., et al., 83 F.T.C. 1756 (1974); Warner-Lambert Co., 83 F.T.C. 485 dann KELLOGG CO., ET AL. 705 104 Interlocutory Order It is ordered, That the Application of Kellogg Company for Review of Order Denying Its Motion to Nullify Subpoenas Duces Tecum for the Taking of Depositions and Production of Documents, and the Application of Kellogg Company for a Stay of the Commencement of Complaint Counsel’s Deposition Program Pending Resolution of Kellogg Company’s Application for Review be, and the same hereby is, denied. a Complaint 91 FTC.