STATEMENT OF COMMISSIONER AZCUENAGA
Concurring in Part and
Dissenting in Part
I concur in the Commission's final decision and order in this matter except to the extent that The Life Fitness Companies, L.P. (the parent company of Life Fitness), although not named in the complaint or in the caption of the order, is included in the order's substantive provisions. Rather than consenting to be named in the complaint and order, The Life Fitness Companies, L.P., has agreed to be bound by the order as if it were a named respondent. It is fundamental that complaints are the predicate on which Commission orders must be based. See 15 U.S.C. § 45(b). Either Life Fitness Companies, L.P., as a party responsible in whole or in part for the unlawful conduct alleged, should be included in both the complaint and the order, or the company should be removed from the order.
Only those persons named in Commission complaints as alleged wrongdoers, their successors or assigns, or those who are employed by or otherwise are subject to the direction and control of such parties, should be included in Commission orders. The Life Fitness Companies, L.P., owns 99% of the named respondent and thereby controls, or is capable of controlling, its subsidiary's actions rather than the reverse. Indeed, it may have participated in some way in the actions challenged in the complaint, but I see no basis under Section 5 of the FTC Act for imposing an order to cease and desist on a nonparty.