[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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