[Federal Register Volume 59, Number 210 (Tuesday, November 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27011]


[[Page Unknown]]

[Federal Register: November 1, 1994]


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FEDERAL TRADE COMMISSION
[File No. 911 0079]

 

New England Juvenile Retailers Association, et al.; Proposed 
Consent Agreement With Analysis To Aid Public Comment

AGENCY: Federal Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair acts and practices and unfair methods of competition, this 
consent agreement, accepted subject to final Commission approval, would 
prohibit, among other things, a Massachusetts association of retailers 
from combining, agreeing or conspiring to: fix or maintain prices or 
the terms of sale for juvenile products; engage in or threaten boycotts 
in order to influence a manufacturer's decision as to how or to whom it 
distributes its products; or use coercion by means of actual or 
threatened refusals to deal in order to compel a juvenile products 
manufacturer to adopt or refrain from adopting any marketing method for 
its products. The consent agreement also would require the dissolution 
of the association within sixty days.

DATES: Comments must be received on or before January 3, 1995.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:
Phoebe Morse, Boston, Regional Office, Federal Trade Commission, 101 
Merrimac St., Suite 810, Boston, MA. 02114-4719. (617) 424-5960.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the following consent agreement containing a consent order 
to cease and desist, having been filed with and accepted, subject to 
final approval, by the Commission, has been placed on the public record 
for a period of sixty (60) days. Public comment is invited. Such 
comments or views will be considered by the Commission and will be 
available for inspection and copying at its principal office in 
accordance with Section 4.9(b)(6)(ii) of the Commission's Rules of 
Practice (16 CFR 4.9(b)(6)(ii)).

    In the Matter of:

New England Juvenile Retailers Association, an association;
Elliot Young and Susan Young, individuals trading and doing business 
as The Baby Place, Inc.;
Baby's Room, Inc., a corporation, and
Stephen Brass, individually and as an officer of said corporation;
Baby Specialties, Inc., and Baby Specialties of Natick, Inc., 
corporations, and
George Koury, individually and as an officer of said corporation;
Boston Baby, Inc., Boston Baby of Avon, Inc., and Boston Baby of 
Hingham, Inc., corporations, and
Michael Slobodkin, individually and as an officer of said 
corporations;
Chapin Specialties Co., Inc., a corporation, and
Allan Broverman, individually and as an officer of said corporation;
Crib-N-Cradle Juvenile Furniture Inc., a corporation, and
Louis Avarista, Sr., individually and as an officer of said 
corporation;
Cribs and Cradles, Inc., a corporation, and
Robert Newhouse, individually and as an officer of said corporation;
Juveniles, Inc., and Waltham Slumber Shop, Inc., corporations, and
Timothy Precourt, individually and as an officer of said 
corporations;
Normand Poirier, an individual trading and doing business as Norm's 
Discount;
Small Wonders Limited, Inc. d/b/a Rooms To Grow, a corporation, and
Henry Ritchotte, individually and as a manager of said corporation;
Tiny Totland, Inc., a corporation, and
Jack Resnick, individually and as an officer of said corporation; 
and
Rudolph Mosesso, an individual.

    The Federal Trade Commission having initiated an investigation 
of certain acts and practices of the above-named corporations, 
proprietorships and individuals, hereinafter sometimes referred to 
as proposed respondents, and it now appearing that the proposed 
respondents are willing to enter into an agreement containing an 
order to cease and desist from the use of the acts and practices 
being investigated,
    It Is Hereby Agreed by and between the proposed respondents and 
their duly authorized attorneys, and counsel for the Federal Trade 
Commission that:
    1. Proposed respondent New England Juvenile Retailers 
Association (``NEJRA'') is an unincorporated association of 
retailers of juvenile products doing business in New England, with 
an office and principal place of business located in Boston, 
Massachusetts. The NEJRA's designated agent is Arthur Goldberg, 
Esq., c/o Nathanson & Goldberg, 10 Union Wharf, Boston, 
Massachusetts 02109.
    2. Proposed respondents Elliot Young (``E. Young'') and Susan 
Young (``S. Young'') have done business as and are proprietors of 
The Baby Place, Inc., a retail store engaged in the sale of juvenile 
products. Their principal offices or places of business are 50 
Worcester Road, Natick, Massachusetts 01760.
    3. (a) Proposed respondent Baby's Room, Inc. is a corporation 
organized, existing and doing business under and by virtue of the 
laws of the Commonwealth of Massachusetts, with its principal office 
located at 20 Garden Street, Danvers, Massachusetts 01923. Baby's 
Room, Inc. is engaged in the business of the retail sale of juvenile 
products.
    (b) Proposed respondent Stephen Brass (``Brass'') is president 
of proposed respondent Baby's Room, Inc. His principal office is 
located at 20 Garden Street, Danvers, Massachusetts 01923.
    4. (a) Proposed respondent Baby Specialties, Inc. is a 
corporation organized, existing and doing business under and by 
virtue of the laws of the Commonwealth of Massachusetts, with its 
office and principal place of business located at 100 Grove Street, 
Worcester, Massachusetts 01605, where it is engaged in the business 
of the retail sale of juvenile products.
    (b) Proposed respondent Baby Specialties of Natick, Inc. is a 
corporation organized, existing and doing business under and by 
virtue of the laws of the Commonwealth of Massachusetts, with its 
office and principal place of business located at 1276 Worcester 
Road, Natick, Massachusetts 01760, where it is engaged in the 
business of the retail sale of juvenile products.
    (c) Proposed respondent George Koury (``Koury'') is treasurer of 
proposed respondents Baby Specialties, Inc. and Baby Specialties of 
Natick, Inc. His principal office or place of business is 100 Grove 
Street, Worcester, Massachusetts 01605.
    5. (a) Proposed respondent Boston Baby, Inc. is a corporation 
organized, existing and doing business under and by virtue of the 
laws of the Commonwealth of Massachusetts, with its office and 
principal place of business located at 30 Tower Road, Newton, 
Massachusetts 02164, where it is engaged in the business of the 
retail sale of juvenile products.
    (b) Proposed respondent Boston Baby of Avon, Inc. is a 
corporation organized, existing and doing business under and by 
virtue of the laws of the Commonwealth of Massachusetts, with its 
office and principal place or business located at 15 Stockwell 
Drive, Avon, Massachusetts 02322, where it is engaged in the 
business of the retail sale of juvenile products.
    (c) Proposed respondent Boston Baby of Hingham, Inc. is a 
corporation organized, existing and doing business under and by 
virtue of the laws of the Commonwealth of Massachusetts, with its 
office and principal place of business located at 100 Derby Street, 
Hingham, Massachusetts 02043, where it is engaged in the business of 
the retail sale of juvenile products.
    (d) Proposed respondent Michael Slobodkin (``M. Slobodkin'') is 
treasurer of proposed respondents Boston Baby, Inc., Boston Baby of 
Avon, Inc., and Boston Baby of Hingham, Inc. His principal office or 
place of business is located at 30 Tower Road, Newton, Massachusetts 
02164.
    6. (a) Proposed respondent Chapin Specialties Co., Inc. is a 
corporation organized, existing and doing business under and by 
virtue of the laws of the Commonwealth of Massachusetts, with its 
office and principal place of business located at 1140 Main Street, 
Springfield, Massachusetts 01103, where it is engaged in the 
business of the retail sale of juvenile products.
    (b) Proposed respondent Allan Broverman (``Broverman'') is 
president of proposed respondent Chapin Specialties Co., Inc. His 
principal office or place of business is 1140 Main Street, 
Springfield, Massachusetts 01103.
    7. (a) Proposed respondent Crib-N-Cradle Juvenile Furniture Inc. 
is a corporation organized, existing and doing business under and by 
virtue of the laws of the State of Rhode Island, with its office and 
principal place of business located at 1000 Bald Hill Road, Warwick, 
Rhode Island 02886, where it is engaged in the business of the 
retail sale of juvenile products.
    (b) Proposed respondent Louis Avarista, Sr. (``Avarista'') is 
president and treasurer of Proposed respondent Crib-N-Cradle 
Juvenile Furniture Inc. His principal office or place of business is 
1000 Bald Hill Road, Warwick, Rhode Island 02886.
    8. (a) Proposed respondent Cribs And Cradles, Inc. is a 
corporation organized and existing under and by virtue of the laws 
of the Commonwealth of Massachusetts. Cribs And Cradles, Inc. 
maintained an office and principal place of business located at 623 
Broadway, Route 1, Saugus, Massachusetts 01906, where, until 
approximately January 1992, it was engaged in the business of the 
retail sale of juvenile products.
    (b) Proposed respondent Robert Newhouse (``Newhouse'') is 
president and treasurer of proposed respondent Cribs And Cradles, 
Inc. Mr. Newhouse resides at 34 Garvey Road, Framingham, 
Massachusetts 01701.
    9. (a) Proposed respondent Juveniles, Inc. is a corporation 
organized and existing under and by virtue of the laws of the 
Commonwealth of Massachusetts. Juveniles, Inc. maintained an office 
and principal place of business located at 8 Bourbon Street, W. 
Peabody, Massachusetts 01960, where, until approximately May 1, 
1991, it was engaged in the business of the retail sale of juvenile 
products.
    (b) Proposed respondent Waltham Slumber Shop, Inc. is a 
corporation organized and existing under and by virtue of the laws 
of the Commonwealth of Massachusetts. Waltham Slumber Shop, Inc. 
maintained an office and principal place of business located at 879 
Main Street, Waltham, Massachusetts 02154, where, until 
approximately May 1, 1992, it was engaged in the business of the 
retail sale of juvenile products.
    (c) Proposed respondent Timothy Precourt (``Precourt'') is 
president of proposed respondents Juveniles, Inc. and Waltham 
Slumber Shop, Inc. Mr. Precourt resides at 998 Summer Street, 
Lynnfield, Massachusetts 01940.
    10. Proposed respondent Normand Poirier is an individual trading 
and doing business as Norm's Discount. Mr. Poirier maintains an 
office and principal place of business located at 55 Airport Road, 
Fitchburg, Massachusetts 01420, where he is engaged in the business 
of the retail sale of juvenile products.
    11. (a) Proposed respondent Small Wonders Limited, Inc. d/b/a 
Rooms to Grow is a corporation organized, existing and doing 
business under and by virtue of the laws of the State of Rhode 
Island, with its office and principal place of business located at 
117 Chestnut Street, Warwick, Rhode Island 02888, where it is 
engaged in the business of the retail sale of juvenile products.
    (b) Proposed respondent Henry Ritchotte (``Ritchotte'') is 
manager of the Warwick, Rhode Island store of proposed respondent 
Small Wonders Limited, Inc. d/b/a Rooms to Grow. His principal 
office or place of business is 117 Chestnut Street, Warwick, Rhode 
Island 02888.
    12. (a) Proposed respondent Tiny Totland, Inc. is a corporation 
organized, existing and doing business under and by virtue of the 
laws of the State of New Hampshire, with its office and principal 
place of business located at 1111 Elm Street, Manchester, New 
Hampshire 03101, where it is engaged in the business of the retail 
sale of juvenile products.
    (b) Proposed respondent Jack Resnick (``Resnick'') is president 
of proposed respondent Tiny Totland, Inc. His principal office or 
place of business is 1111 Elm Street, Manchester, New Hampshire 
03101.
    13. Proposed respondent Rudolph Mosesso (``R. Mosesso'') is an 
individual whose address is 132 Pine Street, Holbrook, Massachusetts 
02343. Mr. Mosesso was president of Welcome Baby Boutique Inc., a 
corporation that was organized, existed and did business under and 
by virtue of the laws of the Commonwealth of Massachusetts until 
approximately April 27, 1993, when it was formally dissolved. While 
it was in operation, Welcome Baby Boutique Inc. maintained an office 
and principal place of business located at 1500 Main Street, S. 
Weymouth, Massachusetts 02190, where it was engaged in the business 
of the retail sale of juvenile products.
    14. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint here attached.
    15. Proposed respondents waive:
    (a) Any further procedural steps;
    (b) The requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    (c) All rights to seek judicial review or otherwise to challenge 
or contest the validity of the order entered pursuant to this 
agreement; and
    (d) All claims under the Equal Access to Justice Act.
    16. This agreement shall not become a part of the public record 
of the proceeding unless and until it is accepted by the Commission. 
If this agreement is accepted by the Commission, it, together with 
the draft of complaint contemplated thereby, will be placed on the 
public record for a period of sixty (60) days and information in 
respect thereto publicly released. The Commission thereafter may 
either withdraw its acceptance of this agreement and so notify the 
proposed respondents, in which event it will take such action as it 
may consider appropriate, or issue and serve its complaint (in such 
form as the circumstances may require) and decision, in disposition 
of the proceeding.
    17. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondents of facts, other than 
jurisdictional facts, or of violations of law as alleged in the 
draft of complaint here attached.
    18. This agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by 
the Commission pursuant to the provisions of Sec. 2.34 of the 
Commission's Rules, the Commission may without further notice to 
proposed respondents, (1) issue its complaint corresponding in form 
and substance with the draft of complaint here attached and its 
decision containing the following order to cease and desist in 
disposition of the proceeding, and (2) make information public in 
respect thereto. When so entered, the order to cease and desist 
shall have the same force and effect and may be altered, modified or 
set aside in the same manner and within the same time provided by 
statute for other orders. The order shall become final upon service. 
Except for the proposed respondents listed below that are inactive 
corporations, delivery by the U.S. Postal Service of the decision 
containing the agreed-to order to proposed respondents' addresses as 
stated in this agreement shall constitute service. Delivery by the 
U.S. Postal Service of the decision containing the agreed-to order 
to proposed respondent Robert Newhouse's address as stated in this 
agreement shall constitute service upon proposed respondent Cribs 
And Cradles, Inc. Delivery by the U.S. Postal Service of the 
decision containing the agreed-to order to proposed respondent 
Timothy Precourt's address as stated in this agreement shall 
constitute service upon proposed respondents Juveniles, Inc. and 
Waltham Slumber Shop, Inc. Proposed respondents waive any right they 
might have to any other manner of service. The complaint may be used 
in construing the terms of the order, and no agreement, 
understanding, representation, or interpretation not contained in 
the order or in the agreement may be used to vary or contradict the 
terms of the order.
    19. Proposed respondents have read the proposed complaint and 
the order contemplated hereby. They understand that once the order 
has been issued, they will be required to file one or more 
compliance reports showing that they have fully complied with the 
order. Proposed respondents further understand that they may be 
liable for civil penalties in the amount provided by law for each 
violation of the order after it becomes final.

Order

    For purposes of this order, the following definitions shall apply:
    A. ``New England Juvenile Retailers Association'' means New England 
Juvenile Retailers Association, and its directors, committees, 
officers, representatives, agents, employees, successors and assigns.
    B. ``Retailer respondents'' means the corporate and individual 
respondents named in PARAGRAPHS TWO through THIRTEEN of the complaint.
    C. ``Juvenile products'' means products or accessories to products 
that are used by or are intended for use by babies, children or 
juveniles.
I
    It Is Ordered that each retailer respondent, directly or 
indirectly, or through any corporate or other device, in connection 
with its activities in or affecting commerce, as ``commerce'' is 
defined in Section 4 of the Federal Trade Commission Act, as amended, 
forthwith cease and desist from entering into, attempting to enter 
into, organizing or attempting to organize, implementing or attempting 
to implement, or continuing or attempting to continue any combination, 
agreement or understanding, express or implied, with any other retailer 
respondent(s), or with any competing retailer(s) of juvenile products, 
to:
    A. Fix, maintain, or stabilize prices, or terms or conditions of 
sale of juvenile products;
    B. Take any action, directly or indirectly, including but not 
limited to any actual or threatened boycott or refusal to deal, that 
has the purpose or effect of interfering with any juvenile product 
manufacturer's decision as to how or to whom it distributes its 
product(s); and
    C. Coerce, compel, induce, or intimidate by means of actual or 
threatened refusals to deal, or attempt to coerce, compel, induce, or 
intimidate by means of actual or threatened refusals to deal, any 
manufacturer of juvenile products into abandoning, adopting or 
refraining from abandoning or adopting any marketing method, practice 
or policy with regard to the distribution of its product(s).
    Provide that this order shall not be construed to prohibit any 
individual retailer respondent from becoming or remaining a member of a 
bona fide trade association, buying cooperative, or joint venture, or 
from participating in any such organization's activities that are 
lawful under the antitrust laws.
II
    It Is Further Ordered that the retailer respondents shall dissolve 
the New England Juvenile Retailers Association within sixty (60) days 
after the date on which this order becomes final.
III
    It Is Further Ordered that respondent New England Juvenile 
Retailers Association shall:
    A. Within thirty (30) days after the date on which this order 
becomes final, and prior to the dissolution provided for in PARAGRAPH 
II of this order, mail to each manufacturer enumerated in ``Appendix 
A'' to this order a copy of the Commission's complaint and order in 
this matter and a letter, on the letterhead of its attorney, Arthur 
Goldberg, Esq., and signed by each of the respondent retailers, in the 
form shown as ``Appendix B'' to this order; and
    B. Within sixty (60) days after the date on which this order 
becomes final, and prior to the dissolution provided for in PARAGRAPH 
II of this order, file a verified written report demonstrating how it 
has complied with PARAGRAPH III.A. of this order.
IV
    It Is Further Ordered that:
    A. Each retailer respondent that is a corporation shall notify the 
Commission at least thirty (30) days prior to any proposed change in 
the corporation such as a dissolution, assignment, or sale resulting in 
the emergence of a successor corporation, the creation or dissolution 
of subsidiaries, or any other change in the corporation which may 
affect compliance obligations under this order.
    B. For a period of five (5) years after this order becomes final, 
each retailer respondent that is an individual shall notify the 
Commission in writing of each new affiliation with a business or 
employment, including self-employment, within seven (7) calendar days 
of such affiliation or employment. Each such notice shall include the 
individual retailer respondent's current business address and a 
statement of the nature of the business affiliation or employment which 
defines his/her duties and responsibilities in connection with such 
business affiliation or employment.
V
    It Is Further Ordered that, within ninety (90) days after the date 
on which this order becomes final, the retailer respondents shall file 
with the Commission a verified written report setting forth in detail 
the manner and form in which they have complied with this order. 
Thereafter, additional reports shall be filed at such other times as 
the Commission or its staff may, by written notice to the retailer 
respondents, require.

Appendix A

Aprica U.S.A., Inc., P.O. Box 25408--Zip 92825-5408, 1200 Howell 
Avenue, Anaheim, CA 92805, Attn: Douglas W. Dolansky, Executive, 
Vice President
Bandaks Emmaljunga Incorporated, 737 South Vinewood Street, 
Escondido, CA 92029, Attn: Sami Bandak, President
Bassett Furniture Industries, Inc., P.O. Box 626, Bassett, VA 24055, 
Attn: R. H. Spilman, President
Carlson Children's Products, Inc., 122 Kirkland Circle, Oswego, IL 
60543, Attn: Mark Flannery, President
Century Products Company, 9600 Valley View Road, Macedonia, OH 
44056-9989, Attn: Frank Rumpeltin, President
Child Craft Industries, Inc., P.O. Box 444, Salem, IN 47167-0444, 
Attn: David E. Branaman, President
COMBI International Corporation, 1401 N. Wood Dale Road, Wood Dale, 
IL 60191, Attn: Takashi Osato, President
Dutalier, Inc., 298 Chaput St. Pie, Quebec, CANADA J0H 1W0, Attn: 
Pierre Cloutier, President
Graco Children's products, Inc., Rt 23, Main Street, Elverson, PA 
19520, Attn: Derial Sanders, President
Lambs & Ivy, 5978 Bowcroft Street, Los Angeles, CA 90016-4302, Attn: 
Barbara Laiken, President
Noel Joanna Inc., 22942 Arroyo Vista, Rancho Santa Margarita, CA 
92688, Attn: Shirley A. Pepys, President
The Red Calliope & Associates, Inc., 13003 South Figueroa Street, 
Los Angeles, CA 90061, Attn: Neil Fohrman, President
Simmons Juvenile Products Co., 613 E. Beacon Avenue, P.O. Box 287, 
New London, WI 54961, Attn: John Moeller, President

Appendix B

Dear ____________

    As you may be aware, the Federal Trade Commission (``FTC'') has 
been investigating certain activities of the New England Juvenile 
Retailers Association (``NEJRA'') and its member retailers. The 
NEJRA has voluntarily entered into an agreement with the FTC which 
resulted in the issuance by the FTC on (date) of a complaint and the 
entry of a consent order. The order requires that you be sent a copy 
of the complaint, the order and this letter.
    In accordance with the terms of the FTC's order, you are hereby 
notified that NEJRA will be dissolved. In addition, among other 
things, the retailers that were members of the NEJRA will cease and 
desist from entering into any agreement or understanding, express or 
implied, with any other retailer respondent(s), or with any 
competing retailer(s) of juvenile products, to:
    A: Fix, maintain, or stabilize prices, or terms or conditions of 
sale of juvenile products;
    B. Take any action, directly or indirectly, including but not 
limited to any actual or threatened boycott or refusal to deal, that 
has the purpose or effect of interfering with any juvenile product 
manufacturer's decision as to how or to whom it distributes its 
product(s); and
    C. Coerce, compel, induce, or intimidate by means of actual or 
threatened refusals to deal, or attempt to coerce, compel, induce, 
or intimidate by means of actual or threatened refusals to deal, any 
manufacturer of juvenile products into abandoning, adopting or 
refraining from abandoning or adopting any marketing method, 
practice or policy with regard to the distribution of its 
product(s).
    A copy of the complaint and the order are enclosed.

Sincerely,

----------------------------------------------------------------------
Arthur Goldberg, Esq.,
Attorney for the NEJRA.

Signatures of Members
Enclosures

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an agreement to a proposed consent order from proposed 
respondents New England Juvenile Retailers Association (``proposed 
respondent'' or ``NEJRA''), and the following of its individual members 
and their owners, officers or managers: Elliot Young, Susan Young; 
Stephen Brass, Baby's Room Inc.; George Koury, Baby Specialties, Inc., 
Baby Specialties of Natick, Inc.; Michael Slobodkin, Boston Baby, Inc., 
Boston Baby of Avon, Inc., Boston Baby of Hingham, Inc.; Allan 
Broverman, Chapin Specialties Co., Inc.; Louis Avarista, Sr., Crib-N-
Cradle Juvenile Furniture Inc.; Robert J. Newhouse, Cribs and Cradles, 
Inc.; Timothy Precourt, Juveniles, Inc., Waltham Slumber Shop, Inc.; 
Normand Poirier; Henry Ritchotte, Small Wonders Limited, Inc. d/b/a 
Rooms to Grow; Jack Resnick, Tiny Totland,Inc.; and Rudolph Mosesso.
    The proposed consent order has been placed on the public record for 
sixty (60) days for reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and the comments received and will decide whether it should 
withdraw from the agreement and take other appropriate action or make 
final the agreement's proposed order.

Description of Complaint

    A complaint prepared for issuance by the Commission along with the 
proposed order alleges that proposed respondent's members, all of whom 
are retailers of juvenile products, agreed to act in concert to 
restrict the competition that they faced from the New Hampshire Buyer's 
Service catalog. The complaint alleges that in furtherance of this 
agreement the retailers formed the NEJRA. It is further alleged in the 
complaint that, on its members' behalf, the NEJRA wrote letters to 
thirteen manufacturers of juvenile products in which it directly or 
impliedly threatened that its members would refuse to deal with them if 
the manufacturers continued to do business with the New Hampshire 
Buyer's Service catalog.
    The complaint alleges that these actions constituted a combination 
or conspiracy to threaten to boycott juvenile product manufacturers 
that do business with the New Hampshire Buyer's Service catalog. This 
conduct, it is alleged, had the purpose or effect, or the tendency or 
capacity, to restrain competition unreasonably and injure consumers. 
Among other things, it is alleged that the conduct restrained 
competition among members of the NEJRA and between the proposed 
respondent's members and other retailers of juvenile products, 
including the New Hampshire Buyer's Service catalog; restrained the 
ability of manufacturers of juvenile products to distribute their 
products through mail order catalogs; and deprived consumers of the 
benefits of additional price, quality and service competition in 
connection with the sale of juvenile products.

Description of the Proposed Consent Order

    The proposed order prohibits the retailers from entering into any 
combination, agreement or understanding to fix, maintain or stabilize 
prices or the terms or conditions of sale of juvenile products. The 
proposed order also prohibits the retailers from combining, conspiring 
or agreeing to engage in any actual or threatened boycotts or refusals 
to deal in order to affect a juvenile product manufacturer's decision 
as to how or to whom it distributes its products. Finally, the proposed 
order prohibits the retailers from combining, conspiring or agreeing to 
use coercion or threatened refusals to deal in order to compel or 
induce a manufacturer of juvenile products to adopt or refrain from 
adopting any marketing method, practice or policy with regard to the 
distribution of its products.
    The proposed order contains a safe harbor provision which provides 
that the order shall not be construed to prohibit the retailers from 
becoming and remaining members of a bona fide trade association, buying 
cooperative, or joint venture, or from participating in any such 
organization's lawful activities.
    The proposed NEJRA order requires two remedial actions to be taken 
after the agreement becomes final. First, the proposed order requires 
the dissolution of the NEJRA within 60 days after the order becomes 
final. Second, the proposed order requires that, prior to dissolution, 
the NEJRA send a letter to the manufacturers it had threatened to 
boycott in which it acknowledges the consent order and outlines its 
principal terms.
    Finally, the proposed order requires the NEJRA and the other 
proposed respondents to file compliance reports, and to notify the 
Commission of certain changes in status or employment.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify in any 
way their terms.
    The proposed consent order has been entered into for settlement 
purposes only and does not constitute an admission by the proposed 
respondents that the law has been violated as alleged in the complaint.
Donald S. Clark,
Secretary.

DISSENTING STATEMENT OF COMMISSIONER MARY L. AZCUENAGA in New England 
Juvenile Retailers Association, File 911-0079, and Baby Furniture Plus 
Association, Inc., File 911-0097

    In these cases, two trade associations complained to manufacturers 
about free riding by a catalogue seller, and the Commission charges 
them and the retailer members of one association with directly or 
impliedly threatening a concerted refusal to deal with the 
manufacturers. Although the letters of complaint were ill-advised, 
evidence that the retailers (many of whom were not represented by 
counsel during our investigation) were committed ``to a common scheme 
designed to achieve an unlawful objective''\1\ (i.e., a coercive, 
concerted refusal to deal) is thin at best. Given the dearth of 
evidence of unlawful agreement, the arguably procompetitive purpose, 
and the absence both of market power and of anticompetitive effects, I 
do not find reason to believe that the challenged conduct unreasonably 
restrained trade or that the imposition of an order is in the interest 
of the public. I dissent.

    \1\Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 768 
---------------------------------------------------------------------------
(1984).

[FR Doc. 94-27011 Filed 10-31-94; 8:45 am]
BILLING CODE 6750-01-M