9810386
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
COMMISSIONERS: Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary
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)
In the Matter of )
)
NINE WEST GROUP INC., ) DECISION AND ORDER
a corporation. )
) DOCKET NO. C-3937
)
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The Federal Trade Commission having initiated an investigation of
certain acts and practices of Nine West Group Inc., hereinafter sometimes
referred to as Respondent, and Respondent having been furnished thereafter
with a copy of a draft of Complaint that the Northeast Regional Office
presented to the Commission for its consideration and which, if issued by
the Commission, would charge Respondent with violations of Section 5 of the
Federal Trade Commission Act, as amended, 15 U.S.C. Section 45; and
Respondent, its attorneys, and counsel for the Commission having
thereafter executed an Agreement Containing Consent Order ("Consent
Agreement"), containing an admission by Respondent of all the jurisdictional
facts set forth in the aforesaid draft of Complaint, a statement that the
signing of said Consent Agreement is for settlement purposes only and does
not constitute an admission by Respondent that the law has been violated as
alleged in such Complaint, or that the facts as alleged in such Complaint,
other than jurisdictional facts, are true, and waivers and other provisions
as required by the Commission's Rules; and
The Commission having thereafter considered the matter and having
determined that it had reason to believe that the Respondent has violated
the said Act, and that a Complaint should issue stating its charges in that
respect, and having thereupon accepted the executed Consent Agreement and
placed such Agreement on the public record for a period of thirty (30) days
for the receipt and consideration of public comments, now in further
conformity with the procedure described in Commission Rule 2.34, 16 C.F.R.
Section 2.34, the Commission hereby makes the following jurisdictional
findings and issues the following Order:
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1. Respondent Nine West Group Inc. is a corporation organized, existing
and doing business under and by virtue of the laws of the State of
Delaware. The mailing address and principal place of business of
Respondent Nine West Group is Nine West Plaza, 1129 Westchester
Avenue, White Plains, New York 10604-3529.
2. The Federal Trade Commission has jurisdiction of the subject matter
of this proceeding and of the Respondent, and the proceeding is in
the public interest.
ORDER
I.
IT IS ORDERED that for the purpose of this order, the following
definitions shall apply:
(A) "Nine West" means Nine West Group Inc., its parent, Jones Apparel
Group, Inc., and their affiliates, subsidiaries, divisions and other
organizational units of any kind, that sold or sell Nine West Products as
defined herein, their successors and assigns and their present officers,
directors, employees, agents, representatives and other persons acting on
their behalf. As used herein, "Nine West" shall not be construed to bring
within the terms of this order any product that bears or is marketed in
packaging that bears a trademark owned by Jones Apparel Group, Inc. or any
of its predecessors, subsidiaries, units, divisions or affiliates other than
Nine West Group Inc.
(B) "Respondent" means Nine West.
(C) "Nine West Products" means all women's footwear sold under brand
labels owned by Nine West, including, but not limited to, the following:
Amalfi, Bandolino, Calico, Capezio, cK/Calvin Klein, Easy Spirit, Enzo
Angiolini, Evan-Picone, Joyce, Nine West, Pappagallo, Selby, Westies, and 9
& Co., that are offered for sale to consumers located in the United States
of America and U.S. territories and possessions, or to dealers, by Nine
West.
(D) "Dealer" means any person, corporation or entity not owned by Nine
West, or by any entity owned or controlled by Nine West, that in the course
of its business sells any Nine West Products in or into the United States of
America.
(E) "Resale price" means any price, price floor, minimum price, maximum
discount, price range, or any mark-up formula or margin of profit used by
any dealer for pricing any product. "Resale price" includes, but is not
limited to, any suggested, established, or customary resale price.
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II.
IT IS FURTHER ORDERED that Nine West, directly or indirectly, or through
any corporation, subsidiary, division or other device, in connection with
the manufacturing, offering for sale, sale or distribution of any Nine West
Products in or into the United States of America in or affecting "commerce,"
as defined by the Federal Trade Commission Act, forthwith cease and desist
from:
(A) Fixing, controlling, or maintaining the resale price at which any
dealer may advertise, promote, offer for sale or sell any Nine West Products.
(B) Requiring, coercing, or otherwise pressuring any dealer to maintain,
adopt, or adhere to any resale price.
(C) Securing or attempting to secure any commitment or assurance from
any dealer concerning the resale price at which the dealer may advertise,
promote, offer for sale or sell any Nine West Products.
(D) For a period of ten (10) years from the date on which this order
becomes final, adopting, maintaining, enforcing or threatening to enforce
any policy, practice or plan pursuant to which Respondent notifies a dealer
in advance that: (1) the dealer is subject to warning or partial or
temporary suspension or termination if it sells, offers for sale, promotes
or advertises any Nine West Products below any resale price designated by
Respondent; and (2) the dealer will be subject to a greater sanction if it
continues or renews selling, offering for sale, promoting or advertising any
Nine West Products below any such designated resale price. As used herein,
the phrase "partial or temporary suspension or termination" includes but is
not limited to any disruption, limitation, or restriction of supply: (1) of
some, but not all, Nine West Products; or (2) to some, but not all, dealer
locations or businesses; or (3) for any delimited duration. As used herein,
the phrase "greater sanction" includes but is not limited to a partial or
temporary suspension or termination of greater scope or duration than the
one previously implemented by Respondent, or a complete suspension or
termination.
PROVIDED that nothing in this order shall prohibit Nine West from
announcing resale prices in advance and unilaterally refusing to deal with
those who fail to comply. PROVIDED FURTHER that nothing in this order shall
prohibit Nine West from establishing and maintaining cooperative advertising
programs that include conditions as to the prices at which dealers offer Nine
West Products, so long as such advertising programs are not a part of a
resale price maintenance scheme and do not otherwise violate this order.
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III.
IT IS FURTHER ORDERED that, for a period of five (5) years from the date
on which this order becomes final, Nine West shall clearly and conspicuously
state the following on any list, advertising, book, catalogue, or
promotional material where it has suggested any resale price for any Nine
West Products to any dealer:
ALTHOUGH NINE WEST MAY SUGGEST RESALE PRICES FOR
PRODUCTS, RETAILERS ARE FREE TO DETERMINE ON THEIR OWN
THE PRICES AT WHICH THEY WILL ADVERTISE AND SELL NINE WEST
PRODUCTS.
IV.
IT IS FURTHER ORDERED that, within thirty (30) days after the date on
which this order becomes final, Nine West shall mail by first class mail the
letter attached as Exhibit A, together with a copy of this order, to each
director, officer, dealer, distributor, agent, and sales representative
engaged in the sale of any Nine West Products in or into the United States
of America.
V.
IT IS FURTHER ORDERED that, for a period of two (2) years after the date
on which this order becomes final, Nine West shall mail by first class mail
the letter attached as Exhibit A, together with a copy of this order, to
each new director, officer, dealer, distributor, agent, and sales
representative engaged in the sale of any Nine West Products in or into the
United States of America, within ninety (90) days of the commencement of
such person's employment or affiliation with Nine West.
VI.
IT IS FURTHER ORDERED that Nine West shall notify the Commission at
least thirty (30) days prior to any proposed changes in Nine West such as
dissolution, assignment or sale resulting in the emergence of a successor
corporation, or the creation or dissolution of subsidiaries or any other
change in the corporation which may affect compliance obligations arising
out of the order.
VII.
IT IS FURTHER ORDERED that, within sixty (60) days after the date this
order becomes final, and at such other times as the Commission or its staff
shall request, Nine West shall file
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with the Commission a verified written report setting forth in detail the
manner and form in which Nine West has complied and is complying with this
order.
VIII.
IT IS FURTHER ORDERED that this order shall terminate on April 11, 2020.
By the Commission.
/s/ Donald S. Clark
Donald S. Clark
Secretary
SEAL:
ISSUED: April 11, 2000
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EXHIBIT A
[NINE WEST LETTERHEAD]
Dear Retailer:
The Attorneys General of [x number] of States, and the Federal Trade
Commission have conducted investigations into Nine West Group Inc.'s sales
policies. To expeditiously resolve the investigations and to avoid
disruption to the conduct of its business, Nine West Group Inc. has
agreed, without admitting any violation of the law, to the entry of a
Consent Order by the Federal Trade Commission and a Final Judgment and
Consent Decree by the States prohibiting certain practices relating to
resale prices. Copies of the Consent Order and the Final Judgment and
Consent Decree are enclosed. This letter and the accompanying Orders are
being sent to all of our dealers, sales personnel and representatives.
The Orders spell out our obligations in greater detail, but we want you
to know and understand the following. Under both orders you can advertise
and sell our products at any price you choose. While we may send materials
to you which may contain our suggested retail prices, you remain free to
sell and advertise those products at any price you choose.
We look forward to continuing to do business with you in the future.
Sincerely yours,
___________________________
President of Sales and Marketing
Nine West Group Inc.