Roswil, Inc.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF ROSWIL, INC.

trading and doing business as RAMEY SVPER MARKETS CONSENT ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9172. Complaint Dec. 1983-Decision, Nov. , 1986 This consent order requires a Springfield, Mo. grocer, among other things, to cease engaging in concerted action that restricts the gathering or reporting of comparative grocery price data. Additionally, respondent is prohibited from: (1) requiring price checkers to buy the surveyed items; (2) denying price checkers the same access to Roswil' s stores as customers; and (3) coercing any price checker, publisher or broadcaster into discontinuing price reporting. Further, respondent is required to take several steps to increase the likelihood that price surveys wil be resumed in Springfield, Missouri. According to the order, the company must reimburse the local cable television station up to $1 000 of its costs if it decides to broadcast a comparative grocery price program and notify the public that such program wil be aired.

Appearances For the Commission: Patricia A. Bremer. For the respondent: Donald W. Jones, Hulston, Jones Sullivan Springfeld, Mo.

DECISION AND ORDER The Commission having heretofore issued its complaint charging the respondent named in the caption hereof with violation of Section 5 ofthe Federal Trade Commission Act, as amended, and the respondent having been served with a copy of that complaint, together with a notice of contemplated relief; and The respondent, its attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such com- . Complaint previously published at 104 r' C. 526 (1984). 174 Decision and Order plaint, and waivers and other P!Qvisio required by the Commission s Rules; and The Secretary of the Commission having thereafter withdrawn this matter from adjudication in accordance with 25(c) of its Rules; and The Commission having considered the matter and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, and having duly considered the comment fied thereafter by an interested person pursuant to 25 of its Rules, now in further conformity with the procedure prescribed in 25 of its Rules, the Commission hereby makes the following jurisdictional findings and enters the' following order:

1. Roswil, Inc., is a Missouri corporation, trading and doing business as Ramey Super Markets. Its registered agent is Flavius Freeman I -130 Corporate Square, Springfeld, Missouri. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and ofthe respondent, and the proceeding is in the public interest.

ORDER For the purpose of this order, the following definitions shall apply: A. Roswil means Roswil, Inc., its divisions and subsidiaries, offcers directors, representatives, agents, employees, successors and assigns. B. Price check or price checking means the collecting, from information available to customers, of retail prices of items offered for sale by any retail grocery store (SIC 5411), which is done neither by nor on behalf of a person engaged in the sale of groceries, and which information is used in price reporting.

C. Price checker means any person engaged in price checking. D. Price reporting or price report means the dissemination to the public of price checking information through any medium by any person not engaged in the sale of groceries. E. Springfield means the counties of Christian and Greene, Missouri.

F. Customer means any individual who enters a retail grocery store for the purpose of grocery shopping, whether or not that individual actually makes a purchase.

G. Person means individuals, corporations, partnerships, unincorporated associations, and any other business entity. H. Geographic area means: (1) a Standard Metropolitan Statistical Decision nd Ord 108 F. TC. Area as defined by the Bureau of the Census, V.S. Department of Commerce, as of October 1, 1982; or (2) a county. 1. Supermarket means any retail grocery store (SIC 5411) with annual sales of more than one milion dollars ($1 000 000.00). II.

It is ordered That:

A. Roswil shall forthwith cease and desist from taking any action in concert with any other person engaged in the sale of grocery products which has the purpose or effect of restricting, impeding, interfering with or preventing price checking or price reporting. B. Except as provided in Paragraphs II.C. and I1.D., until September , 1989, Roswil shall cease and desist from taking or threatening to take any unilateral action that would:

1. Require price checkers to purchase items to be price checked as a condition of allowing them to price check; or 2. Deny price checkers the same access to Roswil's supermarkets as is provided to customers; or 3. Coerce, or attempt to coerce, any price checker, publisher or broadcaster into refraining from or discontinuing price checking or price reporting.

C. 1. Nothing in Paragraph I1.B. shall prevent Roswil from adopting reasonable, non-discriminatory rules governing the number of price checkers in its supermarkets at anyone time for the purpose of preventing disruption of Roswil's normal business operations. 2. Nothing in subparagraph II.B.3. shall prevent Roswil from publicly commenting upon or objecting to any price report in which its prices are compared to those of any other grocery retailer. 3. Whenever Roswil believes that conditions exist that justify the exclusion of a price checker, it may submit to the Federal Trade Commission a sworn statement setting forth with particularity the facts that Roswil believes meet such conditions. For purposes of this order, the only conditions justifying the exclusion of a price checker are that another supermarket operator with whose prices Roswil's prices are compared in a price report has knowingly tampered with or manipulated the results of such price report for its own competitive gain either (a) by the use of information wrongfully obtained and not available to all supermarket operators whose prices are being compared, or (b) by inducing any price reporter or price checker to cause false information to be published or broadcast. Following the Federal Trade Commission s actual receipt of such statement, Roswil may exclude the price checkers from its supermarkets in the geographic ROSWIL, INC. 177 174 Decision and Order area(s) covered by the affected price report for so long as the conditions set forth in Roswil's statement shall exist. In any civil penalty action against Roswil for a violation of subparagraph ILB.2. occurring after notice to the Federal Trade Commission was given by Roswil as provided in this subparagraph, Roswil shall have the burden of proving, by a preponderance ofthe evidence, that the conditions justifying the exclusion of a price checker as set forth in this subparagraph have been met. In meeting its burden, Roswil may offer evidence only for the purpose of proving the facts set forth in its statement to the Federal Trade Commission. Nothing in this subparagraph shall be construed to be an exception to the prohibitions of Paragraph ILA. of this order.

D. 1. Nothing in Paragraph ILB. shall prohibit Roswil from requiring any company to pay a fee for collecting in its stores information that is not available to customers.

2. Nothing in Paragraph ILB. shall prohibit Roswil from requiring any company to pay a fee for collecting information in its stores, if said company is presently or has been under contract to Roswil to pay such a fee for collecting such information, or if the primary purpose of collection such information is not to disseminate it to the public. II.

It is further ordered That, upon the resumption of price reporting by TeleCable of Springfeld that is similar in quality and coverage to that broadcast by it prior to October 14, 1981, and that includes any Roswil supermarket, and upon receipt by Roswil of written request for payment from TeleCable, Roswil shall reimburse TeleCable for its actual cost of obtaining a price reporting program up to the amount of two hundred fifty dollars ($250.00) per week. Roswil's obligation under this Part (lid shall terminate either when it has reimbursed TeleCable in the total amount of one thousand dollars ($1 000.00) or three (3) years following the date on which this order becomes final whichever occurs first. Roswil shall not reimburse TeleCable for costs incurred by TeleCable during any week for which TeleCable s costs are reimbursed by any other person.

IV.

It is further ordered That, within seven (7) days following the date on which this order becomes final, Roswil shall send a letter, a copy of which is attached here as Exhibit A, together with a copy of this order, to TeleCable of Springfeld, informing TeleCable of Roswil' obligations under Parts II and V of this order, TeleCable s rights Decision and Order 108 F. under Part III, and the notices that Roswil must receive from TeleCable before certain order provisions become binding upon Roswil. It is further ordered, That, if at any time during the two years following the date on which this order becomes final, Roswi) is notified in writing by TeleCable of Springfeld that price reporting that includes any of Roswil's supermarkets has resumed in Springfeld: A. For a period of sixty (60) days following the receipt of such notice Roswil shall post signs no smaller than 30 inches by 40 inches in a front window in each ofRoswil' s supermarkets in Springfield, stating: GROCERY PRIC" SURV"Y A price survey comparing prices of selected grocery items at Ramey s and other Springfeld grocery supermarket..'; is being broadcast over cable television. 'rhis comparative price survey can be seen on channel and is broadcast from B. For a period of sixty (60) days following the receipt of such notice whenever Roswil places food advertisements of one-half page or larger in any printed advertising medium with circulation of 15 000 or more copies in Springfeld, Roswil shall publish an announcement as a part thereofin the same language provided in Paragraph V.A. This announcement shall be no smaller than 3 inches high by 3 inches wide and shall be printed in conspicuous type. In each week in which Roswil does not place a one-half page or larger food advertisement in such printed advertising medium, Roswil shall place this announcement as a display advertisement in any printed advertising medium with circulation of 15 000 or more copies in Springfeld. VI.

It is further ordered That Roswil shall, within seven (7) days after the date on which this order becomes final, and once a year thereafter for three years, provide a copy of this order to each of its offcers actively engaged in the operation of its supermarkets in Springfeld and to each manager of a Ramey supermarket located in Springfeld and secure from each such individual a signed statement acknowledging receipt of this order.

174 Decision and Order VII.

It is further ordered That Roswil shall, within sixty (60) days after the date on which this order becomes final, fie with the Commission a verified written report, setting forth in detail the manner and form in which Roswil has complied with this order. Additional reports shall be fied at such other times as the Commission may by written notice require. Each compliance report shall include all information and documentation as may be required by the Commission to show compliance with this order.

VIII.

It is further ordered That Roswil shall notify the Federal Trade Commission at least thirty (30) days prior to any proposed change in it such as dissolution, assignment or sale resulting in the emergence of a successor corporation, or any other proposed change in the corporation or its retail grocery operations, which may affect compliance obligations arising out of this order.

EXHIBIT A TeleCable of Springfield 1533 South Enterprise Springfield, Missouri 65801 Dear Sir or Madam:

This is to notify you that Roswil, Inc. ("Roswil"), which operates Ramey Super Markets in Springfield, Missouri, has entered into a consent order with the Federal Trade Commission in which it has agreed that it will not interfere with efforts by independent parties such as TeleCable of Springfeld to engage in price reporting or price checking in Roswil's grocery stores in Springfeld. Roswil has agreed that it wil not require price checkers to purchase the items being price checked, wil not deny price checkers the same access to its supermarkets as is provided to customers, and wil not attempt to coerce any price checker, publisher or broadcaster into refraining from or discontinuing price checking or price reporting. The terms of and limitations on Roswil's agreement are set forth in a consent order issued by the Federal Trade Commission, a copy of which is enclosed herewith. If TeleCable of Springfield institutes a price reporting program similar or superior in quality and coverage to the one broadcast by TeleCable in 1981, and if the program includes any of Roswil's grocery stores in Springfeld, Missouri, Roswil wil reimburse TeleCable for its actual costs of obtaining price reports, up to the amount of $250 per week, and up to $1 000 in total. Roswil wil also place notices in its Springfeld grocery stores and in its weekly advertisements, informing consumers of TeleCable s price surveys. The precise terms of Roswil's obligations to place such notices, and to reimburse 'leleCable for certain of its costs, are set forth in the enclosed consent order. In order to receive any funds to which you may be entitled and to effect the placement of the notices described above, please notify Roswil in writing, clo President, Ramey Decision and Order 108 F,'I, Super Markets, 3259 East Sunshine, Springfeld, Missouri 65804, stating when the program began or is scheduled to begin, the time and channel on which the survey wil be broadcast, and TeleCable s costs, if any, of obtaining the survey information. Very truly yours President Ramey Super Markets Enclosure GENERAL RAILWAY SIGNAL CO., ET AL. 181 181 Modifying Order