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UNITED STATES v. HENRY LOHREY CO.

May 15, 1953

UNITED STATES
v.
HENRY LOHREY CO. et al.



The opinion of the court was delivered by: GOURLEY

This is a motion for dismissal of an information pursuant to rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

 Defendants contend:

 1. The information is defective in form and substance in that it sets forth twenty-five separate counts of alleged violations under section 409(b) of the Defense Production Act of 1950, when in fact, the alleged acts upon which the information is based constitute but a single violation.

 2. The information as drawn is a duplication and multiplication of a single offense under the alleged violated section 409(b) of the Defense Production Act of 1950.

 The defendants herein are charged with twenty-five separate alleged violations of section 409(b) of the Defense Production Act of 1950, said violations being based upon the contention that the defendants required divers customers on separate and distinct dates to purchase quantities of bacon before they would be allowed to purchase other cuts of meat which they desired. The violation alleged is commonly referred to as a tie-in sale or tying agreement, which practice is prohibited by Ceiling Price Regulation 24, which reads as follows:

 'Section 8. Evasion. (a) You shall not evade the provisions of this regulation, by direct or indirect methods in connection with an offer, solicitation or agreement relating to the sale, delivery, purchase, transfer or receipt of beef, along or in conjunction with any other commodity or service, or by way of any commission, service, transportation, wrapping, packaging or other charge or discount, premium or other privilege, or by tying-agreement or other trade understanding, or by changing the selection, grading, or the style of dressing, cutting, trimming, cooking or otherwise processing, or the wrapping or packaging of beef, or otherwise.

 '(b) Among others, the following practices are considered evasions and are prohibited:

 '(1) Falsely or incorrectly grading or invoicing beef.

 '(2) Selling or invoicing kosher beef to purchasers who are not bona fide buyers of kosher beef, or kosher meat.

 '(3) Selling or invoicing fabricated beef cuts to buyers other than purveyors of meals, hotel supply houses, combination distributors, ship suppliers, or peddler truck sellers.

 (Subparagraph (3) amended by Amdt. 3.)

 '(4) Offering, selling or delivering a beef product on condition that the buyers purchase another beef product or any other commodity or service.'

 This regulation was issued by the Office of Price Stabilization under authority contained in section 405(a) of the Defense Production ...


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