Soundtrack Chevell Industries, Inc

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IN THE MATTER OV SOUNDTRACK CHEVELL INDUSTRIES, INC., ET AL. Docket 8998. Order, March 4. 1975 Complaint counsel ordered to show cause, within ten days, why complaint should not be dismissed as to individual respondent Tommie Tuhb. Appearances For the Commission: Richard H. Gately, Paul W. Turley and John Hemrick.

For the respondents: Pro se.

DISSENTING STATEMENT OF COMMISSIONERS M. ELIZABETH HANFORD AND STEPHEN NYE We dissent from the Commission s decision to require complaint counsel to show cause why this complaint should not be dismissed as to respondent Tommie Tubb.

, In certifying this matter lo the Commiss;"n, the ALJ recognized his al1thority to adopt the "Manila! for Complex Litigation" lis a guide and, of course, fix Ii prphcaring sehedul.. and date ror commencement of trial. However. in view of IIislackofauUlOr;ty lo grant the other relief re'loe5ted . he certified all of complaint e ounsel' s re'luests as they were " closely related as to warrant certification of the motion as an ' integrated package" Order of Certification. Ocl 27. 1974 406 VEDERAL TRADE COMMISSION DECISIONS Concurring Opinion 85 V. In American Chinchilla Corporation, Inc. , et at. 76 F. C. 1016 (1969), the Commission established that it would not countenance entry of an order against an indigent respondent unrepresented by counsel. To guard against a recurrence of the American Chinchilla situation the Commission on Dec. 15, 1970 issued a policy statement setting forth carefully designed procedures for the appointment of counsel for indigent respondents.' Thereafter, thanks to the gracious cooperation of the Antitrust Section of the American Bar Association, those procedures have been used to good effect on several occasions. We see no reason why the same procedures should not be followed' in this matter.

Indeed, the established procedures have been followed, to a degree. On or about Jan. 10, 1975, Mr. Tubb filed the prescribed "Statement of Financial Status " together with certain documents in support of his application for appointment of counsel. At that point, the appropriate procedure would have been for the administrative law judge to make findings on Mr. Tubb's financial ability to retain counsel, and forward those findings to the Commission." On Feb. 4, however, the administrative law judge certified the question to the Commission, without having made such findings.

Because the majority provides no explanation for its departure from the 1970 policy statement, widespread confusion is likely to ensue. When it issued its complaint in this matter, the Commission ascertained that the public interest would be served thereby. We see no information which casts doubt on that determination, nor is there any occasion to reexamine it at this juncture. All we have learned is that Mr. Tubb may be in financial difficulty at the present time. Unless we are to conclude that indigence as of the time of trial is a defense to a Section 5 charge, we ought not to disturb our determination to include Mr. Tubb in this complaint. We believe the proper course for us now is to return the matter to the law judge to permit him to make findings pertinent to the respondent' s financial ability to hire a lawyer. CONCURRING OPINION OF COMMISSIONER THOMPSON By THOMPSON Commissioner:

Having no desire to play the role of Hugo s relentless detective J avert and pursue some latter day J can Valjean across a decade or so of troubles for stealing a loaf of bread-or at least for being on the scene when one was stolen-I support this show cause order. The "vilain" we I Statement of Policy: Respondents Unable to Afford Counsel, 35 Fed. Reg. 18998 (nee. 15. 1970). . See, U"iverse Che",icals h.e.. el aI. 77 F. C. 163 (interlocutary order, 1970). . Such findings have been mad.. in other cases. See . e . S'e"",, Rizzi, d aI. dba Freight Liq"ida'ur Okt. 8937 finding On the fo'inanciallnsbili!.y of Sam Kah to Retain Counsel, Sept. 28, 1913)- BESTLINE CORPORATION, ET AL. 407 407 Order are now pursuing, a former salesman for these respondents, is now according to his affidavits, a $150 a week handyman with no significant assets and hence unable to employ counsel If he played a substantial role in these alleged deceptions, then I might be prepared to see him brought in with Jean Valjean. If not, I would free them both from the galleys and let the Federal Trade Commission get on with the serious business of trying to help the country s economy. ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED AS To RESPONDENT TUBB By order of Feb. 6, 1975, the administrative law judge has certified to the Commission the request of respondent Tommie Tubb that the Commission appoint counsel to represent him in this matter. Having considered this request, including Mr. Tubb's present employment and financial situation, the Commission believes that it would be in the public interest to consider further the question of whether this individual respondent is a necessary party to this proceeding. Accordingly, It is ordered That complaint counsel be, and they hereby are ordered to show cause, within ten (10) days of this order, why this complaint should not be dismissed as to respondent Tubb. Commissioners Hanford and Nye dissenting.