UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
In the Matter of
Fair Allocation System, Inc., a corporation.
File No. 971 0065
AGREEMENT CONTAINING CONSENT ORDER
The Federal Trade Commission, having initiated an investigation of certain acts and
practices of Fair Allocation System, Inc. ("FAS"), and it now appearing that
FAS, hereinafter sometimes referred to as "proposed respondent," is willing to
enter into an agreement containing an order ("Agreement") to cease and desist
from the use of the acts and practices being investigated and providing for other relief:
IT IS HEREBY AGREED by and between proposed respondent, by its duly authorized
officers and attorneys, and counsel for the Federal Trade Commission that:
1. Proposed respondent FAS is an incorporated association of franchised automobile
dealerships (primarily Chrysler, Plymouth, Dodge, Jeep and Eagle), organized, existing and
doing business under and by virtue of the laws of the State of Montana, and has a mailing
address at P.O. Box 1691, Helena, Montana 59624.
2. Proposed respondent admits all the jurisdictional facts set forth in the draft of
complaint here attached.
3. Proposed respondent waives:
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. any claim under the Equal Access to Justice Act.
4. This Agreement shall not become 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 with respect thereto
publicly released. The Commission thereafter may either withdraw its acceptance of this
Agreement and so notify the proposed respondent, 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.
5. This Agreement is for settlement purposes only and does not constitute an admission
by proposed respondent that the law has been violated as alleged in the draft of complaint
here attached, or that the facts as alleged in the draft complaint, other than
jurisdictional facts, are true.
6. 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
§ 2.34 of the Commission's Rules, the Commission may, without further notice to proposed
respondent, (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 with respect
thereto. When so entered, the order 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. Delivery by the U.S.
Postal Service of the complaint and decision containing the agreed-to order to proposed
respondent's address as stated in this Agreement shall constitute service. Proposed
respondent waives any right it may 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 the Agreement may be used
to vary or contradict the terms of the order.
7. Proposed respondent has read the proposed complaint and order contemplated hereby.
Proposed respondent understands that once the order has been issued, it will be required
to file one or more compliance reports showing that it has fully complied with the order.
Proposed respondent further understands that it may be liable for civil penalties in the
amount provided by law for each violation of the order after the order becomes final.
ORDER
I.
IT IS ORDERED that, as used in this order, the following definitions shall
apply:
A. "Respondent" or "FAS" means Fair Allocation System, Inc., its
officers, directors, employees, agents and representatives, successors, and assigns, its
subsidiaries, divisions, groups and affiliates controlled by FAS, and the respective
officers, directors, employees, agents and representatives, successors, and assigns of
each.
B. "Commission" means the Federal Trade Commission.
II.
IT IS FURTHER ORDERED that respondent, directly or indirectly, or through any
person or any corporate or other device, in or affecting commerce, as "commerce"
is defined in the Federal Trade Commission Act, shall forthwith cease and desist from
carrying out, participating in, inducing, suggesting, urging, encouraging, or assisting
any boycott or threatened boycott of, or concerted refusal to deal or threatened concerted
refusal to deal with, any automobile manufacturer or consumer.
III.
IT IS FURTHER ORDERED that respondent shall:
A. Within thirty (30) days after the date this order becomes final, distribute by
first- class mail a copy of this order and the complaint to each of its members;
B. Within sixty (60) days after the date this order becomes final, amend its by-laws to
incorporate by reference Paragraph II of this order, and distribute by first-class mail a
copy of the amended by-laws to each of its members;
C. For a period of ten (10) years after the date this order becomes final, provide each
new member with a copy of this order, the complaint, and the amended by-laws within thirty
(30) days of the new member’s admission to FAS; and
D. Within sixty (60) days after the date this order becomes final, and annually
thereafter for a period of ten (10) years on the anniversary of the date this order
becomes final, file with the Secretary of the Commission a verified written report setting
forth in detail the manner and form in which FAS has complied with and is complying with
this order.
IV.
IT IS FURTHER ORDERED that respondent shall notify the Commission at least
thirty (30) days prior to any change in respondent, such as dissolution or reorganization
resulting in the emergence of a successor corporation or association, or any other change
in FAS that may affect compliance obligations arising out of this order.
V.
IT IS FURTHER ORDERED that, for the purpose of determining or securing
compliance with this order, upon written request, respondent shall permit any duly
authorized representative of the Commission:
A. Access, during office hours and in the presence of counsel, to inspect and copy all
books, ledgers, accounts, correspondence, memoranda and other records and documents in the
possession or under the control of respondent relating to any matters contained in this
order; and
B. Upon five days’ notice to respondent and without restraint or interference from
it, to interview officers, directors, or employees of respondent.
VI.
IT IS FURTHER ORDERED that this Order shall terminate on , .
Signed this day of , 1998.
FAIR ALLOCATION SYSTEM, INC.,
a corporation
By:
Mike Marbut
President
Joe Billion
Secretary
R. J. "Jim" Sewell, Jr.
Counsel for Fair Allocation System, Inc.
FEDERAL TRADE COMMISSION
By:
K. Shane Woods
Attorney
Seattle Regional Office
Approved:
Charles A. Harwood
Director
Seattle Regional Office |