Tingley Rubber Corp.

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BILLING CODE 6750-01-M 16 CFR Part 13 [File No. 791 0134] Tingley Rubber Corp.; Consent Agreement with Analysis To Aid Public Comment AGENCY: Federal Trade Commission. a c t io n : Consent Agreement. SUMMARY: In settlement of alleged violations of federal law prohibiting unfair acts and practices and unfair methods of competition, this consent order, accepted subject to final Commission approval, would require, among other things, a South Plainfield, N.J. manufacturer of molded rubber footwear, to cease withholding cooperative advertising credits or allowances from any dealer, or restricting the right of any dealer to participate in cooperative advertising programs either (1) because of the dealers’ advertised or selling resale prices of Tingley products, or (2) because of the dealers’, use of comparative prices in advertising or selling of Tingley products. d a t e : Comments must be received on or before September 2,1980.

ADDRESS: Comments should be directed to: Office of the Secretary, Federal Trade Commission, 6th St. and Pennsylvania Ave., N.W., Washington, D .C .20580.

FOR FURTHER INFORMATION CONTACT*. Paul W. Turley, Director, 3R, Chicago Regional Office, Federal Trade Commission, 55 East Monroe S t, Suite 1437, Chicago, 111. 60603, (312) 353-4423. SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721,15 U.S.C. 46 and § 2.34 of the Commission’s rules of practice (16 CFR 2.34), notice is hereby given that the following consent agreement containing a consent order to cease and desist and an explanation thereof, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of sixty (60) days. Public comment is invited. Such comments or views will be considered by the Commission and will be available for inspection and copying at its principal office in accordance with § 4.9(b)(14) of the Commission’s rules of practice (16 CFR 4.9(b)(14)). In the Matter of Tingley Rubber Corp., a corporation; File No. 7910134. Agreement Containing Consent Order to Cease and Desist.

The Federal Trade Commission having initiated an investigation of certain acts and practices of Tingley Rubber Corp., a corporation, and it now appearing that Tingley Rubber Corp., a corporation, hereinafter sometimes referred to as proposed respondent, is willing to enter into an agreement containing an order to cease and desist from the use of the acts and practices being investigated. It is hereby agreed by and between Tingley Rubber Corp., by its duly authorized officer and its attorney, and counsel for the Federal Trade Commission that:

1. Proposed respondent Tingley Rubber Corp. is a corporation organized, existing and doing business under and by virtue of the laws of the State of New Jersey, with its office and principal place of business located at 200 South Avenue, in the City of South Plainfield, State of New Jersey. 2. Proposed respondent admits all the jurisdictional facts set forth in the draft of complaint here attached.

3. Proposed respondent waives: (a) Any further procedural steps; (b) The requirement that the Commission’s decision contain a statement of findings of fact and conclusions of law; and . (c) All rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement.

4. This agreement shall not become a part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission, it, together with the draft of complaint contemplated thereby and related material pursuant to Rule 2.34, will be placed on the public record for a period of sjxty (60) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this agreement and so notify the proposed respondent, in which event it will take such action as it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision, in disposition of the proceeding. 5. This agreement is for settlement purposes only and does not constitute an admission by proposed respondent that the law has been violated as alleged in the draft of complaint here attached. 6. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of § 2.34 of the Commission’s Rules, the Commission may, without further notice to proposed respondent, (1) issue its complaint corresponding in form and substance with the draft of complaint here attached and its decision containing the following order to cease and desist in disposition of the proceeding and (2) make information public in respect thereto. When so entered, the order to cease and desist shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other

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Federal Register / Vol. 45, No. 128 / Tuesday, }uly 1, 1980 / Proposed Rules 44323 orders. The order shall become final upon service. Delivery by the U.S. Postal Service of the complaint and decision containing the agreed-to order to proposed respondent’s address as stated in this agreement shall constitute service. Proposed-respondent waives any right it may have to any other manner of service. The complaint may be used in construing the terms of the order, and no agreement, understanding, representation, or interpretation not contained in the order or the agreement may be used to vary jot contradict the terms of the order. 7.

Proposed respondent has read the proposed complaint and order contemplated hereby. It understands that once the order has been issued, it will be required to file one or more compliance reports showing that it has fully complied with the order. Proposed respondent further understands that it may be liable for civil penalties in the amount provided by law for each violation of the order after it becomes final. Order For the purposes of this Order, the following definitions shall apply: "Product” is defined as any item which is manufactured, offered for sale or sold by respondent.

“Dealer” is defined as any person, partnership, corporation or firm which purchases any product forTetail sale. “Resale Price" is defined as any price, price floor, price ceiling, price range, or any mark-up, formula or margin of profit used by any dealer for pricing any product. Such term includes, but is not limited to, any retail price suggested or established by respondent, any customary resale price or the retail price in effect at any dealer.

“Cooperative Advertising" is defined as advertising which invites the public to purchase respondent's products at dealer’s place of business, whether me cost of the advertising is borne by respondent alone or is shared by dealer and/or wholesaler and respondent.

I It is ordered that respondent Tinglgy Rubber Corp., a corporation, its successors and assigns; and respondent's officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with the designing, implementing, conducting, administering or auditing of any cooperative advertising program or any other promotional assistance program, or portion thereof, in or affecting commerce, as “commerce” is defined in the Federal Trade Commission Act, shall cease and desist from: 1. Threatening to withhold or withholding cooperative advertising credits or allowances or any other promotional assistance payments from any dealer, or limiting or restricting the right of any dealer to participate in any cooperative advertising program or any other promotional assistance program for which it would otherwise qualify, because of the resale price at which said dealer advertises or sells any product, or proposes to advertise or sell any product. 2. Threatening to withhold or withholding cooperative advertising credits or allowances or any other promotional assistance payments from any dealer, or limiting or restricting the right of any dealer to participate in any cooperative advertising program or any other promotional assistance program for which it would otherwise qualify, because said dealer has advertised or sold, or proposes to advertise or sell, any product using or featuring any resale price comparison.

II It is further ordered that respondent shall: 1. Within thirty (30) days after service of this Order, mail under separate cover a copy of the enclosure set forth in the attached Exhibit A to each of its present wholesalers and to all publications soliciting advertising for respondent’s products. An affidavit shall' be sworn to by an official of respondent verifying that the attached Exhibit A was so mailed.

2. Mail under separate cover a copy of the enclosure set forth in the attached Exhibit A to any person, partnership, corporation or firm that becomes a new wholesaler or solicits advertising for respondents products within three (3) years after service of this Order.

III It is further ordered that respondent shall forthwith distribute a copy of this Orderto all of its operating divisions, and to present or future personnel, agents or representatives having sales, advertising or policy responsibilities with respect to the subject matter of this Order, and that respondent secure from each such person a signed statement acknowledging receipt of said Order.

IV It is further ordered that respondent notify the Commission at least thirty (30) days prior to any proposed change in the corporate respondent, such as dissolution, assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation which may affect compliance obligations arising out of the ^ Order.

V It is further ordered that respondent shall within sixty (60) days after service upon it of this Order, file with the Commission a report, in writing, setting forth in detail the manner and form in which it has complied with this Order.

Exhibit A Dear Wholesale Distributor/Publisher: Tingley Rubber Corp., without admitting any violation of the law, has agreed to the entry of an Order by the Federal Trade Commission regulating its cooperative advertising programs. In connection therewith, the Company has agreed to send you this letter describing the Order. The order provides, among other things, as follows:

1.

Dealers are free to participate in any cooperative advertising program or any other promotional assistance program conducted by Tingley Rubber Corp. regardless of the retail price at which they advertise or sell any Tingley product.

' 2. Dealers will receive reimbursement under any Tingley cooperative advertising program or any other promotional assistance program regardless of the retail price featured in otherwise qualifying advertisements.

If you have any questions regarding the Order or this letter, please call at Tingley.

For Tingley Rubber Corp.

Analysis of Proposed Consent Order to Aid Public Comment The Federal Trade Commission has accepted an agreement to a proposed consent order from Tingley Rubber Corporation, a leading manufacturer of molded rubber footwear.

The proposed consent order has been placed on the public record for sixty (60) days for reception of comments by interested persons. Comments received during this period will become part of the public record. After sixty (60) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement’s proposed order. The complaint in this matter alleges that Tingley has restrained trade by administering a cooperative advertising program which limits and restricts the rights of retail dealers to obtain cooperative advertising credits or allowances for merchandise which is advertised at sale, discount, promotional, reduced, off-price, or prices less than the suggested retail prices or is advertised using a price comparison. The consent agreement provides as follows:

1. Tingley cannot threaten to withhold or withhold cooperative advertising credits or allowances or in any way limit or restrict dealers from participating in any cooperative advertising program because of the resale price at which dealers advertise or sell any product.

2. Tingley cannot threaten to withhold or withhold cooperative advertising credits or allowances from any dealer or restrict the right of any dealer to participate in cooperative advertising programs because the dealer has advertised or sold any product using a price comparison.

The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of

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44324 Federal Register / Vol. 45, No. 128 / Tuesday, July 1, 1980 / Proposed Rules the agreement and proposed order or to modify in any way their terms. Carol M. Thomas, Secretary.

|FR Doc. 80-19765 Filed 6-30-80; 8:45 am) BILLING CODE 6750-01-M 16 CFR Part 13 [File No. 801 0036] Totes Inc.; Consent Agreement With Analysis To Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Consent Agreement. SUMMARY: In settlement of alleged violations of federal law prohibiting unfair acts and practices and unfair methods of competition, this consent order, accepted subject to final Commission approval, would require, among other things, a Loveland, Ohio manufacturer of umbrellas and related rainwear to cease withholding cooperative advertising credits or allowances from any dealer, or restricting the right of any dealer to participate in cooperative advertising programs either (1) because of the dealers’ advertised or selling resale prices of totes’ products, or (2) because of the dealers’ use of comparative prices in advertising or selling of totes’ products.

d a t e s : Comments must be received on or before September 2,1980. ADDRESS: Comments should be directed to: Office of the Secretary, Federal Trade Commission, 6th St. and Pennsylvania Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT: Robert B. Greenbaum, Acting Director, 9R, San Francisco Regional Office, Federal Trade Commission, 450 Golden Gate Ave., San Francisco, Calif. 94102, (415) 556-1270.

s u p p l e m e n t a r y INFORMATION: Pursuant to Section 6(f) of the Federal Trade Commission Act, 38 Stat. 721,15 U.S.C. 46 and § 2.34 of the Commission’s Rules of Practice (16 CFR 2.34), notice is hereby given that the following consent agreement containing a consent order to cease and desist and an explanation thereof, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of sixty (60) days. Public comment is invited. Such comments or views will be considered by the Commission and will be available for inspection and copying at its principal office in accordance with § 4.9(b)(14) of the Commission’s rules of practice (16 CFR 4.9(b)(14)). In the Matter of totes incorporated a corporation; File No. 801 0036, Agreement containing consent order to cease and desist. The Federal Trade Commission having initiated an investigation qf certain acts and practices of totes incorporated, a corporation; and it now appearing that totes incorporated, a corporation, hereinafter sometimes referred to as proposed respondent, is willing to enter into an agreement containing an order to cease and desist from the use of the acts and practices being investigated. IT IS HEREBY AGREED by and between totes incorporated, by its duly authorized officer and its attorney, and counsel for the Federal Trade Commission that: 1. Proposed respondent totes incorporated is a corporation organizaed, existing and doing business under and by virtue of the laws of the State of Ohio, with its office and principal place of business located at 10078 East Kemper Road, in the City of Loveland, State of Ohio.

2. Proposed respondent admits all the jurisdictional facts set forth in the draft of complaint here attached.

3. Proposed respondent waives: (a) Any further procedural steps; (b) The requirement that the Commission’s decision contain a statement of findings of fact and conclusions of law; and (c) All rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement.

4. This agreement shall not become a part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission it, together with the draft of the complaint contemplated thereby and related material pursuant to Rule 2.34, will be placed on the public record for a period of sixty (60) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this agreement and so notify the proposed respondent, in which event it will take such action as .it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision, in disposition of the proceeding. 5. This agreement is for settlement purposes only and does not constitute an admission by proposed respondent that the law has been violated as alleged in the draft complaint here attached.

6. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 2.34 of the Commission’s Rules, the Commission may, without further notice to proposed respondent, (1) issue its complaint corresponding in form and substance with the draft of complaint here attached and its decision containing the following order to cease and desist in disposition of the proceeding and (2) make information public in respect thereto. When so entered, the order to cease and desist shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery by the U.S. Postal Service of the complaint and decision containing the agreed-to order to proposed respondent’s address as stated in this agreement shall constitute service. Proposed respondent waives any right it may have to any other manner of service. The complaint my be used in construing the terms of the order, and no agreement, understanding, representation, or interpretation not contained in the order or the agreement may be used to vary or contradict the terms of the order. 7.

Proposed respondent has read the proposed complaint and order contemplated hereby. It understands that once the order has been issued, it will be required to file one or moer compliance reports showing that it has fully complied with the order. Proposed respondent further understands that it may be liable for civil penaltie's in the amount provided by law for each violation of the order after it becomes final. Order v For the purposes of this Order, the following definitions shall apply: “Product” is defined as any item which is manufactured, offered for sale or sold by respondent.

"Dealer” is defined as any person, partnership, corporation or firm which is authorized by respondent to purchase any product.

"Resale Price” is defined as any price, price floor, price ceiling, price range, or any mark-up, formula or margin of profit used by any dealer for pricing any product. Such term includes, but is not limited to, any retail price suggested or established by respondent, any customary resale price, or the retail price in effect at any dealer.

It is ordered that respondent totes incorporated, a corporation, its successors and assigns; and respondent’s officers, agents, representatives and employees, directly or indirectly, or through any corporation, subsidiary, division or other device, in connection with the designing, implementing, conducting, administering or auditing of any cooperative advertising program, or portion thereof, in or affecting commerce, as “commerce” is defined in the Federal Trade Commission Act, shall cease and desist from:

1. Threatening to withhold or withholding cooperative advertising credits or allowances from any dealer, or limiting or restricting the right of any dealer to participate in any cooperative advertising program for which it would otherwise qualify, because of the resale price at which said dealer advertises or sells any product, or proposes to advertise or sell any product.

2. Threatening to withhold or withholding cooperative advertising credits or allowances from any dealer, or limiting dr restricting the right of any dealer to participate in any cooperative advertising program for which it would otherwise qualify, because said dealer has advertised or sold, or proposes to advertise or sell, any product using or featuring any resale price comparison. II It is further ordered that respondent shall within thirty (30) days after service of this

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Federal Register / Vol. 45, No. 128 / Tuesday, July 1, 1980 / Proposed Rules 44325 Order, mail under separate cover a copy of the enclosure set forth in the attached Exhibit . A to each of its present accounts. Respondent, however, need not send said enclosure to any account of its “XIIX Karat,” A; J. Bergren, Eastman Products, or L. P. Henryson divisions. An affidavit shall be sworn to by an official of respondent verifying that the attached Exhibit A was so mailed.

III It is further ordered that respondent shall forthwith distribute a copy of this Order to each of its operating divisions; and, for a period of three (3) years from the date of service of this Order, to each of its personnel, agents or representatives having sales, advertising or policy responsibilities with respect to the subject matter of this Order. IV It is further ordered that respondents notify the Commission at least thirty (30} days prior to any proposed change in the respondent, such as dissolution, assignment or sale resulting in the emergency of a successor corporation, the creation or dissolution of subsidiaries or any other change in the corporation which may affect compliance obligations arising out of the Order. V It is further ordered that respondent shall within sixty (60) days after service upon it of this Order, file with the Commission a report, in writing, setting forth in detail the manner and form in which it has complied with this Order.

Exhibit A Dear Retailer: totes incorporated, without admitting any violation of the law, has agreed to the entry of an Order by the Federal Trade Commission regulating its cooperative advertising programs. In connection therewith, the Company has agreed to send you this letter describing the Order. The Order provides, among other things, as follows:

You are free to participate in, arid receive reimbursement under, any totes incorporated cooperative advertising program regardless of the Tetail price you feature in otherwise qualifying advertisements. If you have any questions regarding the Order or this letter, please call---------- at totes.

For totes incorporated -------------------------- Analysis of Proposed Consent Order to Aid Public Comment The Federal Trade Commission has accepted an agreement to a proposed consent order from totes incorporated,* a prominent manufacturer of umbrellas and related rainware.

The proposed consent order has been placed on the public record for sixty (60) days for reception of comments by interested persons. Comments received during this period will become part of *The firm’s corporate name uses only lower case letters.

the public record. After sixty (60) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement’s proposed order. The complaint in this matter alleges that totes restrained trade by controlling and manipulating the resale prices at which its dealers advertise, offer for sale and sell totes products through the following method: it has conducted cooperative advertising programs pursuant to which it denies cooperative advertising funds to dealers who do not feature totes’ suggested retail prices in otherwise qualifying advertisements. The consent agreement provides as follows:

1. totes cannot withhold advertising credits or allowances from any dealer, or restrict the right of any dealer to participate in any cooperative advertising program for which it would otherwise qualify, because of the resale prices at which the dealer advertises or sells any totes product.

2. totes cannot withhold advertising credits or allowances from any dealer, or restrict the right of any dealer to participate in any cooperative advertising program for which it would otherwise qualify, because the dealer has advertised or sold any totes product using a resale price comparison. The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify in any way their terms. Carol M. Thomas, Secretary.

[FR Doc. 80-19766 Filed 6-30-80; 8:45 am)