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

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,

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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

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(1984).

[FR Doc. 94-27011 Filed 10-31-94; 8:45 am]

BILLING CODE 6750-01-M