Federal Register / Vol. 60, No. 29 / Monday, February 13, 1995 / Notices 8237

1Copies of the Complaint and the Decision and

Order are available from the Commission’s Public

Reference Branch, H–130, 6th street & Pennsylvania

Avenue NW., Washington, D.C. 20580.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair acts and practices and unfair

methods of competition, this consent

order prohibits, among other things, a

Pennsylvania company and its president

from misbranding any textile product by

mentioning or implying that the product

contains a fiber without using the

generic fiber name required by the

Textile Fiber Products Identification Act

and the Federal Trade Commission

rules, or by mentioning or implying that

it contains a fiber when it, in fact, does

not. The respondents also are required

to file with the Commission a

continuing guaranty applicable to all

textile products they handle in the

future.

DATES: Complaint and Order issued

January 18, 1995.1

FOR FURTHER INFORMATION CONTACT:

Katharine Alphin, Atlanta Regional

Office, 1718 Peachtree Street NW.,

Room 1000, Atlanta, GA. 30367. (404)

347–4837.

SUPPLEMENTARY INFORMATION: On

Monday, October 31, 1994, there was

published in the Federal Register, 59 FR

54462, a proposed consent agreement

with analysis In the Matter of Notations,

Inc., et al., for the purpose of soliciting

public comment. Interested parties were

given sixty (60) days in which to submit

comments, suggestions or objections

regarding the proposed form of the

order.

No comments having been received,

the Commission has ordered the

issuance of the complaint in the form

contemplated by the agreement, made

its jurisdictional findings and entered

an order to cease and desist, as set forth

in the proposed consent agreement, in

disposition of this proceeding.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interpret

or apply sec. 5, 38 Stat. 719, as amended; 72

Stat. 1717; 15 U.S.C. 45, 70)

Donald S. Clark,

Secretary.

[FR Doc. 95–3541 Filed 2–10–95; 8:45 am]

BILLING CODE 6750–01–M

[File No. 942 3029]

Orchid Technology; Proposed Consent

Agreement With Analysis To Aid

Public Comment

AGENCY: Federal Trade 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 California-based

company from falsely representing that

any of its computer peripheral products

had been rated, reviewed or endorsed by

any person or publication, and from

misrepresenting the results of any test,

study or evaluation in connection with

marketing its computer peripheral

equipment. The consent agreement also

would require the respondent to possess

competent and reliable evidence to

substantiate performance claims.

DATES: Comments must be received on

or before April 14, 1995.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th Street and Pennsylvania

Avenue NW., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Matthew Gold or Jeffrey Klurfeld, San

Francisco Regional Office, Federal

Trade Commission, 901 Market St.,

Suite 570, San Francisco, CA 94103.

(415) 744–7920.

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 comment 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)).

Agreement Containing Consent Order

To Cease and Desist

The Federal Trade Commission

having initiated an investigation of

certain acts and practices of Orchid

Technology, a corporation, (‘‘proposed

respondent’’), and it now appearing that

the proposed respondent is 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

Orchid Technology, a corporation, by its

duly authorized officer, and its attorney,

and counsel for the Federal Trade

Commission that:

1. Proposed respondent Orchid

Technology is a corporation organized,

existing and doing business under and

by virtue of the laws of the State of

California, with its office and principal

place of business located at 45365

Northport Loop West, Fremont,

California 94538.

2. Proposed respondent admits all the

jurisdictional facts set forth in the draft

of complaint.

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; and

c. All rights to seek judicial review or

otherwise to challenge or contest the

validity of the order entered pursuant to

this agreement.

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 in 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 of

facts, other than jurisdictional facts, or

of violations of law as alleged in the

draft of complaint.

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 Section 2.34 of the

Commission’s Rules, the Commission

may, without further notice to proposed

respondent, (a) issue its complaint

corresponding in form and substance

with the draft of complaint and its

decision containing the following order

to cease and desist in disposition of the

proceeding and (b) 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. 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. The proposed respondent
8238 Federal Register / Vol. 60, No. 29 / Monday, February 13, 1995 / Notices

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. The proposed respondent has read

the proposed complaint and order

contemplated hereby. The 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. The 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 it becomes

final.

Order

Definition

For purposes of this Order, the term

‘‘computer peripheral equipment’’ shall

mean graphics cards, sound cards,

adaptor cards, memory expansion cards,

or other hardware products that

enhance the capability and performance

of personal computers.

I

It is ordered that respondent Orchid

Technology, a corporation, its

successors and assigns, and its officers,

agents, representatives and employees,

directly or through any corporation,

subsidiary, division or other device, in

connection with the manufacturing,

labelling, advertising, promotion,

offering for sale, sale or distribution of

the Celsius Windows Accelerator, or

other computer peripheral equipment,

in or affecting commerce, as

‘‘commerce’’ is defined in the Federal

Trade Commission Act, do forthwith

cease and desist from representing, in

any manner, directly or by implication,

that such product has been rated,

endorsed, recommended, reviewed or

evaluated by any person or publication,

unless such is the case.

II

It is further ordered that respondent

Orchid Technology, a corporation, its

successors and assigns, and its officers,

agents, representatives and employees,

directly or through any corporation,

subsidiary, division or other device, in

connection with the manufacturing,

labelling, advertising promotion,

offering for sale, sale, or distribution of

the Celsius Windows Accelerator, or

other computer peripheral equipment,

in or affecting commerce, as

‘‘commerce’’ is defined in the Federal

Trade Commission Act, do forthwith

cease and desist from misrepresenting,

in any manner, directly or by

implication, the existence, contents,

validity, results, conclusions,

interpretations or purpose of any test or

study.

III

It is further ordered that respondent

Orchid Technology, a corporation, its

successors and assigns, and its officers,

agents, representatives and employees,

directly or through any corporation,

subsidiary, division or other device, in

connection with the manufacturing,

labelling, advertising, promotion,

offering for sale, sale, or distribution of

the Celsius Windows Accelerator, or

other computer peripheral equipment,

in or affecting commerce, as

‘‘commerce’’ is defined in the Federal

Trade Commission Act, do forthwith

cease and desist from making any

representation, in any manner, directly

or by implication, about the

performance or attributes of any such

product, unless such representation is

true and, at the time of making such

representation, respondents possess and

rely upon competent and reliable

evidence, which when appropriate must

be competent and reliable scientific

evidence, that substantiates such

representation. For purposes of this

provision, ‘‘competent and reliable

scientific evidence’’ shall mean tests,

analyses, research, studies or other

evidence based on the expertise of

professionals in the relevant area, that

has been conducted and evaluated in an

objective manner by persons qualified to

do so, using procedures generally

accepted in the profession to yield

accurate and reliable results.

IV

It is further ordered that for five (5)

years after the last date of dissemination

of any representation covered by this

Order, respondent, or its successors and

assigns, shall maintain and upon

request make available to the Federal

Trade Commission for inspection and

copying:

A. All materials that were relied upon

in disseminating such representation;

and

B. All tests, reports, studies, surveys,

demonstrations or other evidence in its

possession or control that contradict,

qualify, or call into question such

representation, or the basis relied upon

for such representation, including

complaints from consumers.

V

It is further ordered that respondent

shall notify the Commission at least

thirty (30) days prior to any proposed

change in the respondent such as

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 arising

under this Order.

VI

It is further ordered that respondent

shall, within ten (10) days from the date

of service of this Order upon it,

distribute a copy of this Order to each

of its officers, agents, licensees,

representatives, independent

contractors, and employees involved in

the preparation and placement of

advertisements or promotional

materials, or who is in communication

with customers or prospective

customers, or who has any

responsibilities with respect to the

subject matter of this Order.

VII

It is further ordered that respondent

shall, within sixty (60) days from the

date of service of this Order upon them,

and at such other times as the

Commission may require, file with the

Commission a report, in writing, setting

forth in detail the manner and form in

which it has complied with this Order.

Analysis of Proposed Consent Order To

Aid Public Comment

The Federal Trade Commission has

accepted an agreement, subject to final

approval, to a proposed consent order

from respondent Orchid Technology, a

California corporation.

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.

This matter concerns the advertising

of the ‘‘Celsius/VLB Windows

Accelerator,’’ a circuit board that both

increases the speed at which a personal

computer displays complex graphical

images, and improves the quality of the

graphical images. The Commission’s

complaint charges that respondent’s

advertising represented that excerpts

from computer periodical reviews

referred to the Celsius, when, in fact,

they referred to products manufactured

by Orchid’s competitors.
Federal Register / Vol. 60, No. 29 / Monday, February 13, 1995 / Notices 8239

The proposed consent order contains

provisions designed to remedy the

violations charged and to prevent the

respondent from engaging in similar

acts and practices in the future.

Part I of the proposed order prohibits

respondent from falsely representing

that any computer peripheral

equipment, as defined in the order, has

been rated, endorsed, recommended,

reviewed or evaluated by any person or

publication.

As fencing-in relief, Part II of the

proposed order prohibits respondent,

when advertising computer peripheral

equipment, from misrepresenting the

existence, contents, validity, results,

conclusions, interpretations or purpose

of any test or study. Part III provides

that, if respondent makes any

representation about the performance or

attributes of any computer peripheral

equipment, the representation must be

true and respondent must possess

competent and reliable evidence, which

when appropriate must be competent

and reliable scientific evidence, to

substantiate the representation.

The proposed order also requires

respondent to maintain materials relied

upon to substantiate claims covered by

the order; to provide a copy of the

consent agreement to its employees

involved in the preparation and

placement of respondent’s

advertisements, or in communication

with respondent’s customers or

prospective customers; to notify the

Commission of any change in the

corporate structure that might affect

compliance with the order; and to file

one or more reports detailing

compliance with the order.

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.

Donald S. Clark,

Secretary.

[FR Doc. 95–3542 Filed 2–10–95; 8:45 am]

BILLING CODE 6750–01–M

[File No. 951 0009]

The Penn Traffic Company; Proposed

Consent Agreement With Analysis To

Aid Public Comment

AGENCY: Federal Trade 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 permit,

among other things, the Penn Traffic

Company to acquire a number of Acme

supermarkets from American Stores

Company, but would require it to divest,

to a Commission approved acquirer or

acquirers within twelve months, one

supermarket in each of the three

Pennsylvania areas designated

(Towanda, Mount Carmel, and Pittston).

If the divestitures were not completed

on time, the consent agreement would

permit the Commission to appoint a

trustee to complete the transactions. In

addition, the consent agreement would

require the respondent, for ten years, to

obtain Commission approval before

acquiring any interest in any entity that

owns or operates a supermarket in any

of the three areas designated.

DATES: Comments must be received on

or before April 14, 1995.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th Street and Pennsylvania

Avenue NW., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Ronald Rowe or Marimichael Skubel,

FTC/S–2105, Washington, D.C. 20580.

(202) 326–2610 or 326–2611.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade

Commission Act, 38 Stat. 721, 15 U.S.C.

45 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)).

Agreement Containing Consent Order

The Federal Trade Commission

(‘‘Commission’’) having initiated an

investigation of The Penn Traffic

Company’s (‘‘Penn Traffic’’) proposed

acquisition of certain assets of American

Stores Company (American), and it now

appearing that Penn Traffic hereinafter

sometimes referred to as ‘‘proposed

respondent,’’ is willing to enter into an

agreement containing an order to divest

certain assets and to cease and desist

from certain acts, and providing for

other relief,

It is hereby agreed by and among

proposed respondent, by its duly

authorized officers and attorneys, and

counsel for the Commission that:

1. Proposed respondent The Penn

Traffic Company is a corporation

organized, existing, and doing business

under and by virtue of the laws of the

State of Delaware, with its office and

principal place of business located at

1200 State Fair Boulevard, Syracuse,

New York 13221–4737.

2. Proposed respondent admits all the

jurisdictional facts set forth in the draft

of complaint.

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 in

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 the complaint, 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 Section 2.34 of the

Commission’s Rules, the Commission

may, without further notice to the

proposed respondent, (1) issue its

complaint corresponding in form and

substance with the draft of complaint

and its decision containing the

following order to divest and 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 time

provided by statute for other orders. The