Waverly Growers Cooperative, Inc.

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THE 1iatter OF WAVERLY GROWERS COOPERATIVE. INC.

COXSE T Order, ETC. , IN REGARD TO THE ALLEGED VIOLATI01\T OF SEC. 2(c) OF THE CLAYTON ACT Docket 8017. Complaint, June 1960-Decision, May, 1961 Consent order requiring a citrus fruit packer in Waverly, F1a., to cease violating Sec. 2(c) of the Clayton Act b:y paying brokerage, or its equivalent, to customers making purchases for their own accounts for resale. COl\l'LAINT The Federal Trade Commission, having reason to believe that the party named in the caption hereof, and hereinafter more particularly described, has been and is now violating the provisions of WAVERLY GROWERS COOPERATIVE, mc. 943 942 Complaint subsection (C) of Section 2 of the Clayton Act, as amended (L:S. Title 15, Section 13), hereby issues its complaint, stating its charges with respect thereto as follows:

PARAGRAPH 1. Respondent "'VaverJy Gro,,81' 8 Cooperative: Inc. hereinafter sometimes referred to as respondent or respondent "\Vaverly, is an agricultural cooperative corporation organized, existing, and doing business under a,nd by virtue of the laws of the State of Florida, with its offce and principal place of busine" lomted at Waverly, Florida.

PAR. 2. Respondent "'Va.verly is now, and for the past several years has been, engaged in business as a cooperative, representing approximately 250 member growers or packers in the sale ancl distribution of citrus fruit, such as oranges, tangerines, and grapefruit, as wen as other fruit products, all of which ate hereinafter sometime referred to as citrus fruit. Respondent's principal activities arc concerned with packing, selling, and distributing the citrus fruit produced by its members. It sells and distributes this citrus fruit through brokers, as well as direct, to customers located in many sections of the United States. .When brokers are utilized in making sales for it, respondent pays them for their services a brokerage or commission, usually at the rate of 10 cents per 1% bushel box, or equivalent. Respondent's annual volume of business in the sale and distribution of citrus fruit is substantial. PAR. 3. In the course and conduct of its business over the past several years, respondent has sold and distributed, and is now selling and distributing, citrus fruit in commerce, as "commerce" is defined in the aforesaid Clayton Act, as amended, to buyers located in the several states of the United States other than the State of Florida in which respondent is located. Respondent transports or causes such citrus fruit, when sold, to be transported from its place of business or packing plants in the State of Florida, or the places of business or the packing plants of its members located in said state, to such buyers or to the buyers' customers located in various other states of the United States. In many instances respondent sells to brokers or buyers located in the State of Florida, but ships or causes the citrus fruit to be shipped t.o the buyers' customers located outside of said state. Thus, there has been, at all times mentioned herein, a continuous course of trade in commerce jn said citrus fruit across state lines between respondent and the respective buyers of such fruit, or the buyers' customers.

PAn. 4. In the course and conduct of its business as aforesaid respondent has been and is now making numerous and substantial sales of citrns fruit to some, but not all, of its brokers and direct &, 944 FEDERAL TRADE C02\LVIISSION DECISIO Decision GS F.

buyers purchasing for their mvn account for resale, and on a large number of these sales respondent paid, granted, or allowed, and is now paying, granting, or allowing, to these brokers and direct buyers on their own purchases, a commission, brokerage, or other compensation, or an allowance or discount in lieu thereof, in connection therewith.

PAR. 5. The acts and practices of respondent in paying, granting, or allowing a brokerage or commission, or an allo-wance or discount in lieu thereof, to buyers on their own purchases, as hereinabove alleged and described, are in violation of subsection (c) of Section 2 of the Clayton Act, as amended (D. C. Title 15, Section 13). 11r. Cecil 0. Miles and Mr. Emest 0. Bames for the Commission. Johnson Johnson by MI'. Counts Johnson of Tampa, Fla., for respondent.

IXITL\L DECISION BY ABNER E. LIPSCOl\IB, HEARING EXAl\fIKEH The complaint herein \Vas issued on .June 27 , 1860, charging Respondent with violation of 82(c) of the Clayton Act, as amended by paying, granting, or allowing commission, brokerage, compensation or an allowance or discount in lieu thereof: to certain of its brokers and direct buyers, on purchases for their own account for resale.

, R,esponclent. , its counsel, and Thereafter, on December 23 , 1860 counsel supporting the complaint herein entered -into an Agreement Containing Consent Order To Cease And Desist, which was approved by the Director and Associate Director of the Commission Bureau of Litigation, and thereafter, on January 6, 196L submitted to the Hearing Examiner for consideration. Attached to n,ncl made a part of the agreement is a stipulation entered into by the se, parties for the purpose of maj\:ing clear beyond any possible doubt the intent of the compla.int and of the proposed order to cease and desist.

The agreement identifies R.respondent ,'T averly GroTIers C08perative, Inc. as a Florida corporation, with its oilce and principal plaec of business located in "\Vaverly, Florida. Respondent admits an the jurisdictional facts alleged in the comt.taken as if findings ofplaint, and agrees that the record may be jurisdictional facts had been duly made in accordance wit.h such allegations.

Respondent waives any further procedure before the Renring Examiner and the Commission; the making of filldings of fact and WAVERLY GROWERS COOPERATIVE , IXC. 945 942 Decision conclusions of law; and all of the rights it may have to challenge or contest the validity of the order to cease and desist entered in accordance with the agreement. All parties agree that the record on which the initial decision and the decision of the Commission shall be based shall consist solely of the complaint and the agreement; that the order to cease and desist, as contained in the agreement, when it shall have become a part of the decision of the Commission, shall have the same force and effect as if entered after a full hearing, and may be altered, modified or set aside in the manner provided for other orders; that the complaint herein may be used in construing the terms of said order; and that the agreement is for settlement purposes only and does not constitute an admission by Respondent that it has violated the law as alleged in the complaint. After consideration of the allegations of the complaint, and the provisions of the agreement and the proposed order, the I-Iearing Examiner :is of the opinion that such order constitutes a satisfactory disposition of this proceeding. Accordingly, in consonance vlith the terms of the aforesaid agreement, the Hearing Examiner accepts the Agreement Containing Consent Order To Cease And Desist; finds that the Commission has jurisdiction over the Hespondcnt and over its acts and practices as alleged in the complaint; and finds that this proceeding is in the public interest. Therefore It is ordeJ'ed That the Respondent, IV,everly Growers Cooperative, Inc., a corporation, and its offcers: agents, representatives and employees, directly or through any corporate or other device, in connection with the sale of citrus fruit or fruit products in commerce, as "commerce" is defined in the- aforesaid Clayton Act, do forthwith cease and desist from:

Paying, granting or allowing, directly or indirectly: to any buyer or to anyone acting for or in behalf of, or who is subject to the direct or indirect control of such buyer, anything of value as a corn mission, brokerage, or other compensation, or any allowance or discount in lieu thereof, upon or in connection with the sale of citrus fruit or fruit products to such buyer for his own aCCOW1t. DECISION OF T1U: CO DnsSlON AND ORDER TO FILE REPORT OF co rPLIANCE The Commission having now determined that. the hearing exfl11iner s initial decision, filed J ftnuary 17 , 19G1 is adequate and appropriate to dispose of this proceeding: It ,is QiYlererl That said decision be: and it hereby is, adopted as the decision of the Commission.

6S1-2::7-G0- , , 946 FEDERAL TRADE COMMISSIOK DECISIONS Complaint 58 F.

It is That the respondent shall, ,within sixty (60) furthe?' ordered days after service upon it of this order, file with the Commission ,t report, in writing, setting forth in detail the manner and form in which it ha,s complied \with the order to cease and desist contained in the aforesaid initial decision.