Yakima Fruit & Cold Storage Company

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IN THE l\IA TTER OF Y AIrlitfA FRUIT & COLD STOR-AGE COIHP ANY ORDER, ETC., IN REGARD TO THE ALLEGED VIOL.!\TION OF SEC. 2 ( c1) OF Tile CLA YTON ACT Docket /718. Complaint, Jun. 1960-Decision, Sept. , 1961 Order requiring a Yakima, Wash., packer-distributor of apples and other fresh fI' uit '\with annual sales approximating $3,000,000, to cease yiolating Sec. 2 (d) of the CIa yton Act by such acts as paying the Houston, Tex., operator of a large chain of retail stores in Texas, Louisiana, and Tennessee, sums of $192.50 ami $100 in connection with periodic sales promotion campaigns, while making no comparable payments available to its customers competing with said chain.

COMPLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly described, has violated and is now violating the provisions of subsection (d) of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act (U. C. Title 15, Sec. 13), hereby issues its complaint, stating its charges with respect thereto as follows: P ARAGHAPH 1. Respondent, Yabma Fruit & Cold Storage Company, is a corporation organized, existing and doing business under and by virtue of the laws of the State of 'Vashington, with its office and principal place of business located at First North and "\Vest B Streets, Yakima, "\Vashington.

PAR. 2. R.respondent is no\\ and 11fls been engaged in the business of packing, selling and distributing apples and other fresh fruits to retail chain store organizations and through brokers to other independent retail grocery stores and produce wholesalers throughout the United States. Sales made by respondent are substantial and amount to approximately $3 000 000 per annum. PAl~. 3. In the course and conduct of its business, respondent has engaged and is now engaging in commerce, :1S "commerce" is defined in the Clayton Act, as amended, in that respondent seJIs and causes its products to be transported from the respondents principal place of business, located in vVashington, to customers located in other statps of the United States and in the District of Colmnbia. PAn. 4. In the course and conduct of its business in commerce respondent paid or contracted for the payment of something of ,value to or for the benefit of some of its customers as compensation or in consideration for services or facilities furnished by or through such customers in connection with their offering for sale or sale of products ( Decision 59 F.

sold to them by respondent., and such payments were not made available on proportionally equal terms to all other customers competing in the sale and distribution of respondent's products. PAR. 5. For example, during the year 1955 respondent contracted to pay and did pay to J. "'\Veingarten, Inc., 1-Iouston, Texas, $192. and during the year 1958 $100 as compensation or as allowances for advertising or other services or facilities furnished by or through J, vVeingarten, Inc., in connection with its offering for sale or sale of products sold to it by respondent. Such c.ompensatioll or allowances were not oflered or othenYlse made available on proportionally equal terms to all other customers competing ,,'ith . T. "'\Veingarten, Inc. in the sale and distribution of products of like grade and quality purehasecl from respondent.

:\.H. 6. The acts and practices of respondent, as alleged above are in violation of subsection (d) of Section 2 of the Clayton Act as amended by the Robinson - Patman Act.

111 essrs. F1'ederic T. Suss and Thnothy J. 01'oni'7l ~ J,I'. for the Commission.

GaV'l~n, Robinson l( endriclc Yakima, "'\Vash., for respondent. INITIAL DECISION BY ~VALTER R. J OlIXSOX , IIEAnI::-;rG EXXl\fIXER The respondent is charged with having made discriminatory payments to some of its customers in violation of section 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act (D. C. Title 15 Sec. 13).

The ease of the Commission and respondent's defense was put at a. one-day hearing held at Seattle, "'\Vashington, on ~lay 6, 1960. At that hearing the only witness "as I-Ierbert L. Frank, secretarytre,asurer and operational manager of the respondent corporation. In addition to his testimony. stipulation "as agreed upon and included in the record and exhibits were rece.ived into evidence. The findings of fact and conclusions of law proposed by the parties, not hereinafter specifically found or concluded, are herewith rejected. The hearing examiner having considered the record herein, makes the following findings of fact and conclusions:

1. Respondent, Yakima Fruit & Cold Storage Company, is a corporation organized, existing and doing business under and by virtue of the laws of the State of"'\V ashington, with its office and principal place of business located at First North and "'\Vest B Streets, Yakima "'\Vashington.

2. Respondent is now and has been engaged in the business of paeking, selling and distributing apples and other fresh fruits to retail chain store organizations and through brokers to other inde- YAKIMA FRUIT & COLD STORAGE CO. 695 693 Decision pendent retail grocery stores and produce wholesalers throughout the Vnitecl States. Sales made by respondent are substantial and amount to approximately $3 000 000 per annum. 3. In the course and conduct of its business, respondent has engaged and is nm"\' engaging in commerce, as "commerce" is defined in the Clayton Act, as amended, in that respondent sells and causes its products to be transported from the respondents principal place of business, located in \Vnshington, to customers located in other states the United States and in the District of Columbia. 4. Upon solicitation by J. 'Veingarten, Inc.. of l-Iouston, Texas, respondent agreed to and did participate in the 1955 Anniversary Sale of J. 'Veingarten, Inc. in the amount of $192.50 as payment for 1/16 page of newspaper advertising of respondents products in newspapers distributed in I-Iouston, Freeport, Bay town Texas City and Bryan, Texas, in connection with ,Yeingarten s offering for sale of products sold to ,Yeingarten by respondent. 5. At approximately the same time during the year 1955, respondent sold fresh fruit, including apples of like grade and quality to J. ,Veingarten, Inc. and to the Great Atlantic and Pacific Tea Co" Henke & Pillot, a division of The Kroger Company- and Childs Grocery Co. all of ,,' hom were then in competition with J. V\T eingarten in the purch::L~e, sale and distribution of respondents fresh fruit incJllC1ing apples of like grade and quality.

G. Respondent has not offered, at any time during the year 1955 any cooperative advertising, promotional allo,yances of any kind to any of its aforesaid customers who were competing 'with J. ,Veingarten, Inc. in. connection with the sale and distribution of fresh fruit including apples.

7. upon solicitation by tT. 'Yeingarten, Inc. of Houston, Texas, respondent agreed fo and did participate in the 1958 Anniversary Sale of T. \Veingnrten, Inc. , in the nrnonnt of $100 as payment for the a.c1vettisement of respondents products in connection with J. ,Veingart.en offering for sale of said products sold to \Yeingal'tcn by respondent. 8. At approximately the same time. during the year HH58, respondent sold fresh fruit. inclnc1ing apples of like grade and quality, to J. 1Veingarten, Inc, and to Henke & Pillot, It division of The. Kroger Company, and Childs Big Chain a1) of whom were. then in competition with tT. ,Yeingarten in the purchase, sale and distribution of respondents fresh fruit, including apples of like grade and quality. 9. Respondent has not oflerec1, at. any time during the year 1958 any cooperative advertising, promotional allowances of any kind to any of its aforesaid customers who \\ete competing with .J. ,Yeingarten, Inc. in c.onnec.tion with the sale a.nd distribution of fresh fruit including apples.

.opinion 59 F.

10. The evide.nce of record supports the following conclusions (a) The respondent has between 1955 and 1958 paid to one of its customers something of value as compensation and in consideration for services furnished by such customer in connection with its offering for sale or sale of products sold to it by respondent and such payments were not made available on proportionally equal terms to all other customers competing in the sale and distribution of products purchased from respondent.

(b) The acts and practices of respondent, as proved, are in violation of subsection (d) of Seetion 2 of the CJaytonAet as amended by the Robinson-Patman Act.

ORDER It is ordered That respondent, Yakima Fruit & Cold Storage Company, a corporation, its officers, employees, agents or representatives directly or through any corporate or other device, in or in eonneetion with the sale in commerce, as "commerce" is defined in the Clayton Act, as amended, of fresh fruits or other merchandise, do forthwith cease and desist from:

l\:taking or contraeting to make, to or for the benefit of J. ,Veingarten, Inc., or any other customer, any payment of anything of value as compensation or in consideration for adveliising or other services or fneilities furnished by or through such customer, in connection \\ith the handling, offering for resale, or resale of the responden(s products, unless such payment is made available on proportionally e.qual terms to all other customers competing in the distribution or resale of such products.

OPINION OF THE CO:lil\IISSION By TAIT, Commissioner:

This matter is before the. Commission for review following the issuance on September 1, 1960, of its order extending the date on which the hearing examiner s initial decision otherwise would become the de.cision of the. Commission. The complaint charges that respondent violated Seet.ion 2( d) of the Clayton Art, as amended. The eviclenee of record was received at a. one-day hearing helel :May 6, 1960. The hearing examiner round the charges in the complaint to have been sustained and on .July 20, 1960, issued his initial decision and an order to cease and desist.

The facts are uncomplicated and ""ere to a substantial extent stipulnted between counsel. In only one major ann is there disagreement concernincr a relevnnt fact. hut. as is so often the case. the thrust of t11E\ decision depends upon n resolution of the. filet in dispute. YAKIMA FRUIT & COLD STORAGE CO. 697 '693 Opinion The respondent is a packer of apples and other fruits which it sells in commerce to produce wholesalers and to food retail chain stores. The fruit is shipped from respondent's prac.e. of business in the State of \Vashington to buyers throughout the LJnited States. Respondent' s total sales approximate $3 000 000 per year. Among respondent's retail chain store customers is J. \Veingarten Inc. whose area of operation includes the Houston and Richmond- Rosenberg areas of Texas. It was e,stablished that respondent, in response to solicitation, made payments to 1Veingarten of $192.50 on J\11arch 2, 1955, and of $100 on February 20, 1958. Payments or offers on proportionally equal terms were not made to respondent's other customers competing \\i1.h "\Veingarten in these areas. The respondent' s reason for making the payments or, put another way, its consideration for the payments is the fact in dispute referred to above. Section 2( d) prohibits payments "* ';: * to or for the benefit of a customer * * * as compensation or in consideration for any services or facilities furnished by or through such customer in c.connection with the processing, hfll1calling, sale, or oflering for sale of any products or commodities manufactured, sold, or oflered for sale by * * *" the person making the payments unless the payments are made available on proportiona.lly equal terms to all other competing customers. As we read the Act there must be a showing that the payment was made as consideration for "services or facilities furnished by the customer in connection with the seller s product. Thus, payments made for other types of consider"dion or for which no tangible consideration was expected would not violate Section 2 (d). Cf. In the l\latter of New England Con!ectiol1e1'Y Co. 46 F. C. 1041 (1949) ; In the :l\latter of Ch((.1npion Sp((')' ~~ Pl1.lf; 00. 50 F. C. gO (1953); In the j\Iatter Ge'neTaZ Foods Corpol'att:o' 52 F. C. 798 (1056). In this matter respondent contends that the payments to vVeingarten were not made as compensation or consideration for services or facilities rendered by this customer but were made as ;;congratulatory good-\\ill gestures~' on the occasion of "\V eingarten ~s a,nniversaries. Counsel supporting the complaint contends that the payments were made to "\Veingarten for nei\spaper advertising of respondent' products.

There is no dired evidence in the record that respondent, in making the payments to "\Veingarten, either expected or requested that its products be advertised or that "\Veingarten render any other service or facility with respect to them. As a matter of fact, the only evidence on this crucial point is the testiIl10ny of the respondent's general manager that the payments were made as a "donfltion~' to ,Yeingarten anniversary celebration and not in the expectation that respondent' Opinion 59 F.

products would be advertised. At page 70 of the official transcript he summarized his earlier statements as follows: We didn t think that we were buying any specific type of advertising. As I aaid before, it was more of just a goodwill gesture, and we bad no idea of what was going in the space.

Actually, to repeat what I said, it could have said "Congratulations to 'Weingarten on its 55tb Anniversary, a friend.

but Respondent does no advertising, cooperative or otherwise, relies completely upon the efl'orts of the vVashington State Apple Advertising Commission, a state agency. This agency utilizes the proceeds of a tax or assessment of ten cents per lnmdredweight, levied against all growers, to engage in country-wide advertisement of Washington apples. No individual brand names are advertised but all media down to point of sale display materials are utilized. Counsel supporting the complaint relies upon respondent' s vouchers covering the payments and schedules of newspaper advertisement rates supplied to respondent by \Veingarten prior to each payment 1 to support a finding that respondent's payments to \Veiligarten were made to compensate the customer for advertising respondent' products.

In our view a factual chasm of frightening width stands between the exhibits and the requested finding. On the voucher covering the $192.50 payment of ~farch 2, 1955, the disbursement description is Ji6 page-Section I-Iouston Area. This reference.e is clarified by the schedule of ne\\spaper advertising rates supplied to respondent at the time this payment was solicited. On the schedule a cost of $192. is listed for YI(3 of a page in the I-Ionston area. \With respect to this is ab-payment the e\Tic1entiary chain ends at this juncture. There solutely no evidence to show what, if anything, ,,-as advertised. The only evidence of what the parties intended is found in the testimony of respondent' s general manager which was quoted above. , de- The voucher covering the $100 payment of January 20, 1958 seribes the payment simply "Advertisement. This exhibit. also has a companion newspaper rate schedule supplied to respondent by \Yeingarten but no rate of exactly $100 appears on the schedlllc. Thus, these t\yO exhibits might be considered as corroboration of the testimony of respondents general manager.

One further item of evidence merits discussion, On Febnmry 26 1958, approximately one month after the last payment, a ",Veingarten anniversary sale advertisement in the Houston Chronicle utilized approximately t,,"O inches of space with this notation "I-IAPPY APPLE BRAND, Ya.kima Fruit & Cold Stora.ge Company, Yakima, \Vash- .1 Commission Exhibits 7 , 8, 12, 13.

, ,, YAKIMA FRUIT & COLD STORAGE CO. 699 693 Order ington." With respect to this advertisement, testimony disclosed that the trade or brand name "Happy Apples" had been discontinued by respondent sometime prior to 1958 and no npples were sold under that name during 1958. It was further testified that respondent in making the $100 payment did not request the wording for the adandvertisement 01: * had no idea what the context would be" "* * * just presumed that it was for congratulations on their 55th anniversary.

Thus, there is no evidential connection between the advertisement and the payment upon which to base a finding that the payment was made in the expectation that respondent's name or product would appear in the advertisement. An inference or presumption of connection is not permissible in these circumstances for inferences must be based upon substantial evidence. The substantial evidence rule "* * * is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences. A 7Ypalackian Electric Power Co. v. National Labo1' Relations Boa1yl 93 F, 2d 985, 989 (4th Cir. 1938). In summary, we. do not fee.l that the record establishes by reliable and probative evidence that the respondent' s payments to ""\Veingarten were made in consideration for a service or facility furnished in connection with the. marketing of its products. The record shows no more than that in response to a solicitation to "participate" in a. eustomer s anniversary sale respondent made payments to the customer. Such a showing is inadequate to support a finding that respondent has violated Section 2 (d) and we so hold.

In deciding this matter, we are not unmindful of the fact that during the period from 1955 to 1960 the two payments in question were the only payments made by respondent to ""\Veingarten or any other customer and rather than increasing in amount with the passage of time showed a decrease. ""\Vhile certainly not controlling, the sporadic and apparently diminishing nature of the payments should be given some weight especially " hen, ns here., the other facts are in substantial conflict.

In keeping with the foregoing, an order will issue vacating the initial decision and dismissing the complaint. Commissioners Anderson and Kern concur in the result. ORDER VAC.\TI:KG INITIAL DECISION AND DIS~IISSING CO1\IJ'LA!NT This matter having been considered by the Commission upon its review of the hearing examiner s initial decision filed July 20, 1960 which found the respondent in violation of Section 2 (d) of the Clayton Act, as amended; and &;

Order 59 F.

The Commission, for the reasons stated in the accompanying opinion, having concluded that said initial decision should be vacated and the complaint dismissed:

I t is ordered That the hearing examiner s initial decision be, and it hereby is, vacated and set aside.

It is further m'dered That the complaint be, and it hereby is, dismissed.

By the COlmnission, Commissioners Anderson and Kern concurring in the result.

OCTOBER 10, 1960.

ORDER REOPENING PROCEEDING AND RE:;\IANDING CASE TO HE~\RING EXAJ\IINEH The Commission, by order entered November 30, 1960, having afforded the respondent an opportunity to file an appropriate memorandum or brief setting forth the reasons, if any there be, why this proceeding should not be reopened fwd the Conllnission s order of October 10 19GO vacated and the case remanded to the hearing examiner; and The responc1enj, by letter dated December 5, 1960, having noted its objection but having set forth no specific reason, either legal or factual, ",hy the proposed action should not be taken; and The Commission having fleterminec1 that its order of October 10 1960, may not be appropriate to dispose of this proceeding and that the public. interest requires that the case be reopened: I t is ordJl'ed That the Comm ission s order of October 10, logo, vacating the hearing examiner s initial decision and dismissing the c.omplaint be, and it hereby is, -vacated and set aside. It is fudher ordered That the case be, and it hereby is, remanded to the hearing examiner for the purpose of receiving such additional evidence as may be otl'f'Ted by counsel in support of the complaint and suc.h evidence in rebutt,al thereof as may be ofl'eTed by the respondent. I t is f1l1,thel' Oi'dei' Tlmt after the receipt oJ such evidence, the hearing examiner shall make and file a new initial decision in accordance ,with the provisions of 2 3.21 of the Commission s Hule,s of Practice.

By the Commission. COljlmis~iollel' ~\Jill;;; not. partiei pating. DECE:\rBER 28 , 1D60.

Messrs. Frederic J', SUSS. Tinwthy J. Clm/. : J i' and Philip F. Zeidman for the Commis~;jon.

Grwin, Robin'Jon Ii endticl: Ynkima, ,Vash., for respondent. YAK~A FRUIT & COLD STORAGE CO. 701 693 Decision INITIAL DECISION BY WALTER R. JOHNSON, HEARING EXAMINER In the complaint, which was issued on January 5, 1960, the respondent is charged with having made discriminating payments to some of its customers in violation of Section 2 (d) of the Clayton Act as amended by the R.obinson-Patman Act (D. C. Title 15, Sec. 13). The case of the Commission and the respondent's defense were put in at a one-day hearing held at Seattle, "\Vashington, on :May 6, 1960. Thereafter the parties submitted proposed findings and on .J uly 21 1960, the hearing examiner issued his initial decision, finding the acts and practices of the respondent to be violative of the statute. The initial decision was not appealed but the Commission placed the case on its own docket for review, and on October 10, 1960, the Commission, for reasons stated in its opinion, ordered that the hearing examiner s initial decision be vacated and the complaint dismissed. On November 8, 1960, counsel supporting the complaint filed a motion to reopen the proceeding, stating, among other things, that the opinion of the Commission contains findings which are not in accord with the evidence of record and was issued without affording counsel supporting the complaint an opportunity to be heard. It was further requested that the order vacating the initial decision and dismissing the complaint be vacated and one of the following alternative courses of action be taken: (1) Enter a final order adopting the initial decision; (2) Permit the submission of briefs and oral arguments to the Commission, or (3) R.emand the case to the hearing examiner for the ofi' ering of additional evidence.

The Commission, by order entered November 30, 1960 , afi'ordecl respondent opportunity to set forth reasons why this proceeding should not be reopened and remanded to the hearing examiner. The respondent by letter dated December 5, 1960, requested the Commission to adhere to its order setting aside the examiner s initial decision but did not set forth specific reasons, legal or otherwise, why the proposed action should not be taken.

On December 28, 1960, the Commission set aside its order of October , 1960, and directed that the case be remanded to the hearing examiner for the purpose of receiving such additional evidence as might be offered by the parties.

Pursuant to notice given to the parties, a hearing was held at Houston, Texas, on February 22, 1961, at which time additional testimony was received in support of the complaint. No appearance was made by the respondent or its attorneys. One of the attorneys for the Commission stated on the record at the outset of said hearing that he Decision 59 F.

had talked to the respondent by telephone and was advised no ap.; pearance would be made by it in any further hearings. Due to such absence, the hearing examiner, on the record at such hearing and by subsequent written order which was served upon respondent, directed the respondent, on or before l\iarch 10, 1961, to file notice of intention to present evidence in rebuttal, and if no such notice was filed, the record would be closed for the receipt of evidence and the parties would be allowed to file proposed findings on or before April 7, 1961. The respondent did not file such a notice and did not ofter additional evidence. Counsel in support of the complaint filed proposed findings to supplement proposals previously submitted. The findings of fact and conclusions of law proposed by the parties, not hereinafter specifically found or concluded, are herewith rejected. The hearing examiner having considered the record herein, makes the following findings of fact and conclusions:

Respondent, Yakima Fruit & Cold Storage Company, is a corporation organized, existing and doing business under and by virtue of the laws of the State of 'Vashington, with its office and principal place of business located at First North and 'Vest B Streets, Yakima vVashington.

Respondent is now and has been engaged in the business of packing, selling and distributing apples and other fresh fruits to retail chain store organizations and through brokers to other independent retail grocery stores and produce wholesalers through the United States. Sales made by respondent are substantial and amount to approximately $3 000 000 per annum, In the course and conduct of its business, respondent has e,ngagec1 and is now engaging in commerce, as "commerce" is defined in the Cla,yton Act, as amended, in that respondent sells and causes its products to be transported from the respondent:s principal place of business located in 'Vashington, to customers located in other sta tes of the United States and in the District of Columbia. One of respondent's customers, J. 'Veingarten, Inc. , of J-Iouston Texas, is engaged in the operation of a large chain of retail stores located in the States of Texas, Louisi:uul, and Tennessee. For a number of years 'Veingarten has been having anniversary sales and in connection ",ith such sales its suppliers are requested to participate by 111aking payments in return for which tlh~Y are to receive newspaper advertising and other promotional services. A typical letter sent by 'V!:~ingarten to its suppliers is one received by the respondent early in February of 1958 which reads (CX 10) :

. .

YAKIMA FRUIT & COLD STORAGE CO. 703 693 Decision Yaldma Fruit & Cold Storage Co.

O. Box 91 Yakima, Wash.

'Veingarten s is on the move! Your products are now getting greater dispeople than at any time in ourtribution through more units, serving more history.

We are highlighting this progress with our great annual event this year. the 57TH ANNIVERSARY SA. LE. Thirty-nine great big units are taking part and we are sure that you will want to ayail yourself of the opportunity to participate.

We will use proven advertising, merchandising and promotional facilities to create maximum traffic during this mammoth sales concentration. There will be newspaper coverage, radio and television employed, plus personnel enthusiasm and carefully laid plans for presentation of all merchandise to insure success on an overall basis.

Many of our suppliers have asked us concerning this event, and we are, therefore, extending to you an opportunity to participate. The attached sheet shows the prices of participation in the entire promotional program with theclifferences in prices being due to the different size ads in the various cities which will be included in a newspaper section. Please mall the attached card indicating your intentions, and we would ap-preciate it if jt would reach us no later than February 3rd, so we may formulate our plans accordingly.

Thanks very much in advance for your consideration. :l\Iostsincerely, s/ R. A. Plummer R. A. PllUllmer RAP ;bjm Ends.

10) respondent's On the top right hand eorner of said letter (eX is regular annual broker in I-Iouston penned a lnemorandum: "This suppliers. Felt you request and being sent only to their regular Please want to participate in some limited,d ,,-ay, say, arOlmd $100.00. advise promptly to what extent. ThLnks ~lorris. In response to such letters, respondent made payments to \VeingaTten in the sums of $192.50 on :March 2, 1955, and $100.00 on Fe: ruary 20, 1958.

issued for R.espondenfs invoice (C:X 8) in connection with a. cheek J-Iouston Area $192. i)0~~ the 1955 payment reads: " i6 page-Section 13) for the 1958 payment reads "Advertisement and the invoice (CX $100.00.

Re.spondent admits and the evidence show that no payments of any amount were paid or made available at any time upon any terms \\hatsoever to respondent's customers '\\'ho compete with \Veingarten. I~:\' the testimony of the. vice president of \Veingarten it is est;lbby its suppliers in con- lishecl that in consideration of payment made ne.ct.ion \'with the anniversary sales, \Veingarten agreed to and did give . .

704 FEDERAL TRADE CUMMl:::;SION DECISIONS Opinion 59 F.

its suppliers an "entire merchandising package" which includes advertising and promotional services of them and their products. In the original answer to the complaint, respondent stated in part . all payments referred to in said PARAGRAPH FIVE were made as Respondent's cost incurred in connection with periodic sales promotion campaigns carried on by J. 1Veingarten, Inc. for which Respondent received full value.

The amounts paid by the respondent in the instant case may in themselves be regarded as small but considering the various payments made to 1Veingarten by its many suppliers, the effect Call1lot be regarded as inconsequential.

The evidence of record supports the following conclusions: (a) The respondent has between 1955 and 1958 paid to one of its customers something of value as compensation and in consideration for services furnished by such customer in connection with its offering for sale or sale of products sold to 'it by respondent and such payments were not made available on proportionally equal terms to all other customers competing in the sale and distribution of products purchased from respondent.

(b) The acts and practices of respondent as proved, are in violation of subsection (d) of Section 2 of the Clayton Act as amended by the Robinson-Patman Act..

ORDER It ,is ordel' That respondent, Yakima. Fruit & Cold Storage Company, a corporation, its officers, employees, agents or representatives directly or through any corporate or other device, in or in connection with the sale in commerce, as "commerce" is defined in the Clayton Act, as amended, of fresh fruits or other merchandise, do forthwith cease and desist from:

~taking or contracting to make, to or for the benefit of J. 1Veingarten, Inc" or any other customer, any payment of anything of value as compensation 01' in consideration for advertising or other services' or facilities furnished b:v or through such customer, in connection with the handling, ofi'Cl'ing for resale, or resale of the respondent' products, unless such payment is made a vnibble on proportionally equal terms to all other customers competing in tlle distribution or resale of such products.

OPIXIOX OF THE CO3BIISSIO~ By the Commission:

The complaint in this proceeding was issued on .January 5 , 1960. It ehargec1 that respondent had made discriminatory payments to one of its customers in consideration for achertising services furnished by YAKIMA FRUIT & COLD STORAGE CO. 705 693 Order such customer, in violation of Section 2( d) of the Clayton Act as amended by the Robinson-Patman Act (15 U. 13). On July 21 , 1960, the hearing examiner issued his initial decision finding the charges of the complaint to have been sustained. This decision was vacated by the Commission, which had on October 10 1960, placed the case upon its own docket for review. The Commission fmmd that the record failed to establish that the payments in question were made in consideration for services furnished in COIlnection with the marketing of its products. Upon motion of counsel in support of the complaint, the proceeding was subsequently reopened by order of the Commission dated N ovembel' 30 , 1960. After the taking of additional evidence, the examiner on August 15, 1961, issued a new initial decision in which he found that the payments made by respondent to its customer, J. vVeingarten Inc., were made in consideration for advertising services performed by the latter in connection with the sale of respondent' s products. 'Within 10 days of service upon it of the examiner s initial decision and order, respondent requested the Commission, by a letter addressed to the Chairman, to review this matter and to dismiss the proceeding. This request for review was not made in the form of a brief as required by 8 3.22 of the applicable Rules of Practice, and was not served upon the Commission in the manner prescribed by 9 3.4 (b) of such Rules. Noting, horrever, that respondent was not at this stage of the proceeding represented by counsel, we have thought it appropriate to review the case in accordance with its request.

Upon this review, we conclude that the record adequately supports the finding of the examiner upon the only issue remaining in the proceeding, i. , whether the payments in question were made in consideration for advertising services rendered by J. 'Veingarten, Ine. The initial decision and order are adopted as the decision and order of the Commission.

ORDER This matter having come on to be heard upon respondent's request for the Commission to review the initial decision and order of the hearing examiner entered on August 15, 1961 ; And, the Commission having examined the record in this proceeding, and having concluded for the reasons set forth in its opinion that the initial decision and order are adequately supported by the record: It is o1'de1' That the inital decision and order are adopted as the decision and order of the Commission.

It is fu.rthe?' o'i'dated That respondent, Yakima Fruit & Cold Storage Company, shall, within sixty (60) days after service upon it of this order, file with the Commission a report, il1 writing, setting forth 693-490--64---- , , Complaint 59 F.

in detail the manner and form in which it has complied with the order to cease and desist.