Kimbriel & Co., Inc.

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In tur Matrrer or KIMBRIEL & CO., INC.

CONSET ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF SEC. 2(c) OF THE CLAYTON ACT Docket 8317. Complaint, Mar. 14, 1961—Decision, Dec. 27, 1961 Consent order requiring a packer of citrus fruit in Pharr, Tex., to cease violating Sec. 2(c) of the Clayton Act by granting commission or brokerage on a large number of sales to direct buyers purchasing for their own accounts for resale.

CoxrpLAINT The Federal Trade Commission, having reason to believe that the party respondent named in the caption hereof, and hereinafter more particularly described, has been and is now violating the provisions of subsection (c) of Section 2 of the Clayton Act, as amended (U.S.C. Title 15, Section 13), hereby issues its complaint, stating its charges with respect thereto as follows:

Paragraph 1. Respondent Kimbriel & Co.. Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Texas with its offices and principal place of business located at 111 E. State Street, Pharr, Texas, with mailing address as Post Office Box 546, Pharr, Texas.

KIMBRIEL & CO., INC. 1429 1428 Complaint Par. 2. Respondent is now and for the past several years has been engaged in the business of packing, selling and distributing citrus fruit, such as oranges, tangerines and grapefruit, all of which are hereinafter referred to as citrus fruit or fruit products. Respondent sells and distributes its citrus fruit through company salesmen, brokers and wholesalers, 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 5 cents per carton or 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. 8. In the course and conduct of its business over the past several years, respondent has sold and distributed and is now selling and distributing its 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 Texas in which respondent is located. Respondent transports, or causes such citrus fruit, when sold, to be transported from its place of business or packing plant in the State of Texas, or from other places within the State, to such buyers or to the buyers’ customers located in various other states of the United States. Thus there has been, at all times mentioned herein, a continuous course of trade in commerce in such citrus fruit across state lines between said respondent and the re-. spective buyers of such fruit.

Par. 4. In the course and conduct of its business as aforesaid, respondent has been and is now making substantial sales of citrus fruit to some, but not all, of its brokers and direct buyers purchasing for their own 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 other direct buyers on their 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 to brokers and direct buyers a commission, brokerage or other compensation, or an allowance or discount in lieu thereof, on their own purchases, as above alleged and described, are in violation of subsection (c) of Section 2 of the Clayton Act, as amended (U.S.C. Title 15, Section 18).

Messrs. Cecil G. Miles and Basil J. Mezines for the Commission. Ewers, Toothaker, Hwers, Flick, Jones and Abbott, by Mr. Scott Toothaker and Mr. O. C. Hamilton, J7., McAllen, Tex., for respondents. Decision 59 F.T.C.

InrriaL Decision sy Herman Tocker, Hearine Examiner In a complaint issued March 14, 1961, the Federal Trade Commission charged respondent Kimbriel & Co., Inc. (a corporation organized and existing under the laws of the State of Texas and engaged in business in the City of Pharr, Texas), with having violated Section 2(c) of the Clayton Act, as amended, by paying, granting or allowing to some but not all brokers buying for their own account and direct buyers a commission, brokerage or other compensation, or an allowance or discount in lieu thereof, in the course of its sales and distribution of citrus fruits in commerce.

After the issuance of the complaint, respondent, by its president, with the advice and agreement of its attorneys, and counsel supporting the complaint entered into an agreement providing for the issuance of a consent order to cease and desist, thus disposing of all the issues in this proceeding.

In the agreement it is expressly provided that the signing thereof is for settlement purposes only and does not constitute an admission by the respondent that it has violated the law as in the complaint alleged.

By the terms of the agreement, the respondent admits all the jurisdictional facts alleged in the complaint and agrees that the record herein may be taken as if the Commission had made findings of jurisdictional facts in accordance with the allegations. By the agreement, the respondent expressly waives any further procedural steps before the Hearing Examiner and the Commission, the making of findings of facts or conclusions of law, and all rights it may have to challenge or contest the validity of the order to cease and desist to be entered in accordance therewith. Respondent further agrees that the order to cease and desist, to be issued in accordance with the agreement, shal] have the same force and effect. as if made after a full hearing. It is further provided in said agreement that the same, together with the complaint, shall constitute the entire record herein and that the complaint herein may be used in construing the terms of the order to be issued pursuant to said agreement and that such order may be altered, modified or set aside in the manner prescribed by the statute for orders of the Commission.

The Hearing Examiner has considered the agreement and the order therein contained, and, it appearing that said agreement and order provide for an appropriate disposition of this proceeding, the same is hereby accepted and shall be filed upon becoming part of the Commission’s decision in accordance with Sections 3.21 and 8.25 of the Rules of Practice applicable to this case. FOX KNAPP MANUFACTURING CO., ET AL. 14381 1428 Sylabus Now, in consonance with the terms thereof, the Hearing Examiner finds that the Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent named herein, and that this proceeding is in the interest of the public, and issues the following order:

ORDER It is ordered, That the respondent, Kimbrie] & Co., Inc., a corporation, and its officers, 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 commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, upon or in connection with any sale of citrus fruit or fruit products to such buyer for his own account. DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission’s Rules of Practice, published May 6, 1955, as amended, the initial decision of the Hearing Examiner shall, on the 27th day of December, 1961, become the decision of the Commission; and, accordingly : It is ordered, That respondent herein 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 the order to cease and desist.