The Great Atlantic & Pacific Tea Company, Inc. And Pathmark Stores, Inc.; Analysis of Complaint and Proposed Consent Order to Aid Public Comment, 68164-68166 [E7-23419]
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68164
Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices
involving individual Federal Reserve
System employees.
2. Any items carried forward from a
previously announced meeting.
FOR FURTHER INFORMATION CONTACT:
Michelle Smith, Director, or Dave
Skidmore, Assistant to the Board, Office
of Board Members at 202–452–2955.
SUPPLEMENTARY INFORMATION: You may
call 202–452–3206 beginning at
approximately 5 p.m. two business days
before the meeting for a recorded
announcement of bank and bank
holding company applications
scheduled for the meeting; or you may
contact the Board’s Web site at https://
www.federal reserve.gov for an
electronic announcement that not only
lists applications, but also indicates
procedural and other information about
the meeting.
Board of Governors of the Federal Reserve
System, November 30, 2007.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. 07–5944 Filed 11–30–07; 3:34 pm]
BILLING CODE 6210–01–M
FEDERAL TRADE COMMISSION
[File No. 071 0120]
The Great Atlantic & Pacific Tea
Company, Inc. And Pathmark Stores,
Inc.; Analysis of Complaint and
Proposed Consent Order to Aid Public
Comment
Federal Trade Commission.
Proposed Consent Agreement.
AGENCY:
ACTION:
SUMMARY: The consent agreement in this
matter settles alleged violations of
federal law prohibiting unfair or
deceptive acts or practices or unfair
methods of competition. The attached
Analysis to Aid Public Comment
describes both the allegations in the
draft complaint and the terms of the
consent order—embodied in the consent
agreement—that would settle these
allegations.
Comments must be received on
or before December 27, 2007.
ADDRESSES: Interested parties are
invited to submit written comments.
Comments should refer to ‘‘A&P
Pathmark, File No. 071 0120,’’ to
facilitate the organization of comments.
A comment filed in paper form should
include this reference both in the text
and on the envelope, and should be
mailed or delivered to the following
address: Federal Trade Commission/
Office of the Secretary, Room 135–H,
600 Pennsylvania Avenue, N.W.,
Washington, D.C. 20580. Comments
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DATES:
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containing confidential material must be
filed in paper form, must be clearly
labeled ‘‘Confidential,’’ and must
comply with Commission Rule 4.9(c).
16 CFR 4.9(c) (2005).1 The FTC is
requesting that any comment filed in
paper form be sent by courier or
overnight service, if possible, because
U.S. postal mail in the Washington area
and at the Commission is subject to
delay due to heightened security
precautions. Comments that do not
contain any nonpublic information may
instead be filed in electronic form as
part of or as an attachment to email
messages directed to the following email
box: consentagreement@ftc.gov.
The FTC Act and other laws the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. All timely and responsive
public comments, whether filed in
paper or electronic form, will be
considered by the Commission, and will
be available to the public on the FTC
website, to the extent practicable, at
www.ftc.gov. As a matter of discretion,
the FTC makes every effort to remove
home contact information for
individuals from the public comments it
receives before placing those comments
on the FTC website. More information,
including routine uses permitted by the
Privacy Act, may be found in the FTC’s
privacy policy, at https://www.ftc.gov/
ftc/privacy.htm.
FOR FURTHER INFORMATION CONTACT:
Cathy Moscatelli, FTC Bureau of
Competition, 600 Pennsylvania Avenue,
NW, Washington, D.C. 20580, (202)
326–2749.
SUPPLEMENTARY INFORMATION: Pursuant
to section 6(f) of the Federal Trade
Commission Act, 38 Stat. 721, 15 U.S.C.
46(f), and § 2.34 of the Commission
Rules of Practice, 16 CFR 2.34, notice is
hereby given that the above-captioned
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 thirty (30) days. The following
Analysis to Aid Public Comment
describes the terms of the consent
agreement, and the allegations in the
complaint. An electronic copy of the
full text of the consent agreement
package can be obtained from the FTC
1 The comment must be accompanied by an
explicit request for confidential treatment,
including the factual and legal basis for the request,
and must identify the specific portions of the
comment to be withheld from the public record.
The request will be granted or denied by the
Commission’s General Counsel, consistent with
applicable law and the public interest. See
Commission Rule 4.9(c), 16 CFR 4.9(c).
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Home Page (for November 27, 2007), on
the World Wide Web, at https://
www.ftc.gov/os/2007/11/index.htm. A
paper copy can be obtained from the
FTC Public Reference Room, Room 130–
H, 600 Pennsylvania Avenue, NW,
Washington, D.C. 20580, either in
person or by calling (202) 326–2222.
Public comments are invited, and may
be filed with the Commission in either
paper or electronic form. All comments
should be filed as prescribed in the
ADDRESSES section above, and must be
received on or before the date specified
in the DATES section.
Analysis of Agreement Containing
Consent Order to Aid Public Comment
I. Introduction
The Federal Trade Commission
(‘‘Commission’’) has accepted for public
comment, and subject to final approval,
an Agreement Containing Consent
Orders (‘‘Consent Agreement’’) from The
Great Atlantic & Pacific Tea Company,
Inc. (‘‘A&P’’) and Pathmark Stores, Inc.
(‘‘Pathmark’’). The purpose of the
Consent Agreement is to remedy the
anticompetitive effects that likely would
result from A&P’s proposed $1.3 billion
acquisition (a figure that includes the
assumption of debt by A&P) of
Pathmark, as alleged in the Complaint
the Commission has issued.
The Consent Agreement provides for
relief in two markets where the
Commission believes the proposed
acquisition is anticompetitive. Under
the terms of the Consent Agreement,
A&P must divest four Waldbaum’s
supermarkets and one Pathmark
supermarket in Staten Island, New York,
and one Waldbaum’s supermarket in
Shirley, Long Island, New York.
The Commission, A&P, and Pathmark
have also agreed to an Order to Maintain
Assets. This order requires A&P and
Pathmark to maintain the assets
required by the Consent Agreement to
be divested, pending their divestiture.
The investigation and settlement
negotiations were conducted in close
cooperation with the Office of the New
York State Attorney General, which
anticipates entering into an agreement
with the parties that mirrors the
proposed consent order divestitures.
II. The Parties and the Transaction
A&P is a corporation organized,
existing, and doing business under and
by virtue of the laws of the State of
Maryland, with its office and principal
place of business located at 2 Paragon
Drive, Montvale, New Jersey 07645. The
company owns and operates about 316
supermarkets in the States of
Connecticut, Delaware, Maryland, New
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York, New Jersey, and in the District of
Columbia. A&P operates its
supermarkets under the A&P, A&P
Super Foodmart, Food Basics, Food
Emporium, Super Fresh and
Waldbaum’s banners. A&P had revenues
from all operations in 2006 of about $6.9
billion.
Pathmark 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 200 Milik
Street, Carteret, New Jersey 07008. The
company owns and operates about 141
supermarkets in the States of Delaware,
New York, New Jersey, and
Pennsylvania, all operating under the
Pathmark banner. Pathmark had
revenues in 2006 of about $4.1 billion.
Under the terms of their March 4,
2007, agreement, A&P will acquire all of
the voting securities of Pathmark for
approximately $1.3 billion, including
the assumption of debt.
III. The Complaint
According to the Commission’s
Complaint, A&P and Pathmark compete
in the retail sale of grocery products
from supermarkets. Supermarkets are
stores that carry a wide selection and
deep inventory of food and grocery
products in a variety of brands and
sizes, enabling consumers to purchase
substantially all of their food and other
grocery shopping requirements in a
single shopping visit.
The Complaint alleges that the
acquisition by A&P of Pathmark would
be competitively problematic in Staten
Island, New York, and Shirley, Long
Island, New York, both of which are
highly concentrated geographic markets.
As alleged in the Complaint, the
proposed acquisition may increase
opportunities for all firms in these
markets to engage in coordinated
interaction or for A&P to exercise
unilateral market power, leading to
higher prices or decreases in services.
The Complaint further alleges that entry
would not be timely, likely, or sufficient
to prevent anticompetitive effects in the
geographic markets.
The Complaint alleges that the
proposed acquisition, if consummated,
would violate Section 7 of the Clayton
Act, as amended, 15 U.S.C. § 18, and
Section 5 of the Federal Trade
Commission Act, as amended, 15 U.S.C.
§ 45, by lessening competition in
connection with the retail sale of
grocery products from supermarkets.
IV. The Proposed Consent Order
Under the terms of the proposed
Consent Order, Respondent A&P must
sell four Waldbaum’s supermarket
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stores and one Pathmark supermarket
store in Staten Island and a Waldbaum’s
store in Shirley, Long Island, together
with their related assets. The addresses
of the Waldbaum’s stores required to be
divested are as follows:
1. 3251 Richmond Ave. South
Staten Island, NY
2. 778 Manor Road
Staten Island, NY
3. 4343 Amboy Road
Staten Island, NY
4. 1441 Richmond Ave
Staten Island, NY
5. 999 Montauk Hwy.
Shirley, NY
The address of the one Pathmark store
required to be divested is:
1. 2660 Hylan Blvd
Staten Island, NY
The one Pathmark store and four
Waldbaum’s stores in Staten Island are
required to be divested to King Kullen
Grocery Co., Inc., headquartered in
Bethpage, New York, and the
Waldbaum’s store in Shirley is required
to be divested to The Stop & Shop
Supermarket Company LLC (‘‘Stop &
Shop’’). Stop & Shop is a subsidiary of
Koninklijke Ahold NV, a Dutch
corporation. The Commission evaluated
these prospective acquirers and
determined that they are well qualified
to operate the divested supermarkets.
The proposed Consent Order requires
that the divestitures occur no later than
January 10, 2008. If Respondents
consummate the divestitures to the
purchasers during the public comment
period, and if, at the time the
Commission determines whether to
make the proposed Consent Order final,
the Commission notifies Respondents
that the purchasers are not acceptable
acquirers, or that the asset purchase
agreements with those acquirers are not
acceptable manners of divestiture, then
Respondents must immediately rescind
those transactions and divest the five
Waldbaum’s stores and one Pathmark
store (and their related assets) to other
buyers, within three (3) months of the
date the Consent Order becomes final.
Under those circumstances,
Respondents must divest those stores
and related assets only to an acquirer
that receives the prior approval of the
Commission and only in a manner that
receives the prior approval of the
Commission. In the event Respondents
have not divested the supermarkets in a
manner that satisfies the requirements
of the Consent Order, the Commission
may appoint a trustee to divest those
assets.
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68165
The Commission has also issued an
Order to Maintain Assets. Under its
terms, Respondents are required to
maintain the viability of the six
supermarkets and their related assets
pending their divestiture. More
specifically, Respondents must: (1)
maintain the viability, competitiveness,
and marketability of the assets; (2) not
cause the wasting or deterioration of
those assets; (3) not sell, transfer,
encumber, or otherwise impair the
marketability of the assets; (4) maintain
the supermarkets consistent with the
parties’ past practices; (5) use best
efforts to preserve the supermarkets’
existing relationships with suppliers,
customers, and employees; and (6) keep
the supermarkets open for business and
maintain inventories at levels consistent
with past practices.
The proposed Consent Order
prohibits Respondents, for a period of
ten years, from acquiring, without
providing the Commission with prior
notice, any ownership or leasehold
interest in any facility that has operated
as a supermarket within six (6) months
prior to the date of such proposed
acquisition, in Staten Island, New York,
and the Shirley, Long Island, New York
area. The proposed Consent Order also
prohibits Respondents, for a period of
ten (10) years, from entering into or
enforcing any agreement that restricts
the ability of any person acquiring any
interest in any location formerly used by
Respondents as a supermarket in Staten
Island or the Shirley area to operate that
location as a supermarket. The proposed
Consent Order does not prohibit
Respondents from building new
supermarkets, or leasing a facility not
operated as a supermarket within the
preceding six (6) months.
Under the terms of the proposed
Consent Order, A&P is also required to
provide the Commission with regular
compliance reports demonstrating how
it is complying with the terms of the
Consent Agreement until it is in full
compliance with that Agreement.
V. Opportunity for Public Comment
The proposed Consent Agreement has
been placed on the public record for
thirty (30) days for the purpose of
soliciting comments from the public. All
comments received during this period
will become part of the public record.
After the thirty (30) day comment
period, the Commission will again
consider the Consent Agreement,
together with all comments received.
After that second review, the
Commission may either withdraw from
the Consent Agreement or make its
Order final.
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Federal Register / Vol. 72, No. 232 / Tuesday, December 4, 2007 / Notices
By accepting the Consent Agreement
subject to final approval, the
Commission anticipates that the
competitive problems alleged in the
Complaint will be resolved. The
purpose of this analysis is to invite
public comment on the Consent Order,
including the proposed divestitures, to
aid the Commission in its determination
whether it should make final the
Consent Agreement. This analysis is not
an official interpretation of the Consent
Agreement nor does it modify any of its
terms.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E7–23419 Filed 12–3–07: 8:45 am]
BILLING CODE 6750–01–S
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
Proposed Information Collection
Activity; Comment Request Proposed
Project
Title: Building Strong Families (BSF)
Demonstration and Evaluation—Impact
Study Second Follow-up.
OMB No.: New Collection.
Description: The Administration for
Children and Families (ACF), U.S.
Department of Health and Human
Services (HHS), is proposing a data
collection activity as part of the
Building Strong Families (BSF)
Demonstration and Evaluation. The
proposed collection will consist of two
elements: (1) A telephone survey to be
administered to both partners in couples
enrolled in the BSF research sample
about 36 months after enrollment, and
(2) observational assessments of BSF
families and their children.
These data collections are part of the
BSF evaluation, which is an important
opportunity to learn if well-designed
interventions can help low-income
couples develop the knowledge and
relationship skills that research has
shown are associated with healthy
marriages. BSF programs provide
instruction and support to improve
marriage and relationship skills and
enhance couples’ understanding of
marriage. In addition, BSF programs
provide links to a variety of other
services that could help couples sustain
a healthy relationship (e.g., employment
assistance). The BSF evaluation uses an
experimental design that randomly
assigns couples who volunteer to
participate in BSF programs to a
program or to a control group.
The 36-month data collection effort
draws heavily from the 15-month survey
conducted in BSF sites. Materials for the
15-month data collection effort were
previously submitted to OMB and were
approved under OMB Control No. 0970–
0304.
Respondents: The respondents for the
telephone questionnaire will be all
couples in the BSF evaluation. The
respondents for the observational
assessments will be a sub-sample of
children of the couples.
ANNUAL BURDEN ESTIMATES
Annual
number of
respondents
Instrument
mstockstill on PROD1PC66 with NOTICES
36-month telephone survey (female partner)
36-month telephone survey (male partner) ....
Child/family observations ................................
Estimated Total Annual Burden
Hours: 4,322.
In compliance with the requirements
of Section 3506(c)(2)(A) of the
Paperwork Reduction Act of 1995, the
Administration for Children and
Families is soliciting public comment
on the specific aspects of the
information collection described above.
Copies of the proposed collection of
information can be obtained and
comments may be forwarded by writing
to the Administration for Children and
Families, Office of Administration,
Office of Information Services, 370
L’Enfant Promenade, SW., Washington,
DC 20447, Attn: ACF Reports Clearance
Officer. E-mail address:
infocollection@acf.hhs.gov. All requests
should be identified by the title of the
information collection.
The Department specifically requests
comments on (a) whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information shall have
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18:12 Dec 03, 2007
Jkt 214001
Number of
responses per
respondent
2,099
1,978
1,125
1
1
1
Average burden hours per response
Estimated
annual
burden hours
.9166666 (55 minutes) ...................................
.8333333 (50 minutes) ...................................
.6666666 (40 minutes) ...................................
1,924
1,648
750
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information; (c)
the quality, utility, and clarity of the
information to be collected; and (d)
ways to minimize the burden of the
collection of information on
respondents, including through the use
of automated collection techniques or
other forms of information technology.
Consideration will be given to
comments and suggestions submitted
within 60 days of this publication.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Dated: November 26, 2007.
Brendan C. Kelly,
OPRE Reports Clearance Officer.
[FR Doc. 07–5916 Filed 12–03–07; 8:45 am]
SUMMARY: The Food and Drug
Administration (FDA) is announcing
that DSM Nutritional Products, Inc., has
filed a petition proposing that the color
additive regulations be amended to
provide for the safe use of astaxanthin
dimethyldisuccinate as a color additive
in the feed of salmonid fish to enhance
the color of their flesh.
FOR FURTHER INFORMATION CONTACT:
Felicia M. Ellison, Center for Food
Safety and Applied Nutrition (HFS–
265), Food and Drug Administration,
BILLING CODE 4184–01–M
PO 00000
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Food and Drug Administration
[Docket No. 2007N–0453]
DSM Nutritional Products, Inc.; Filing
of Color Additive Petition
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
E:\FR\FM\04DEN1.SGM
Notice.
04DEN1
]]>Agencies
[Federal Register Volume 72, Number 232 (Tuesday, December 4, 2007)]
[Notices]
[Pages 68164-68166]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23419]
=======================================================================
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FEDERAL TRADE COMMISSION
[File No. 071 0120]
The Great Atlantic & Pacific Tea Company, Inc. And Pathmark
Stores, Inc.; Analysis of Complaint and Proposed Consent Order to Aid
Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
-----------------------------------------------------------------------
SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before December 27, 2007.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``A&P Pathmark, File No. 071 0120,'' to
facilitate the organization of comments. A comment filed in paper form
should include this reference both in the text and on the envelope, and
should be mailed or delivered to the following address: Federal Trade
Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania
Avenue, N.W., Washington, D.C. 20580. Comments containing confidential
material must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with Commission Rule 4.9(c). 16 CFR
4.9(c) (2005).\1\ The FTC is requesting that any comment filed in paper
form be sent by courier or overnight service, if possible, because U.S.
postal mail in the Washington area and at the Commission is subject to
delay due to heightened security precautions. Comments that do not
contain any nonpublic information may instead be filed in electronic
form as part of or as an attachment to email messages directed to the
following email box: consentagreement@ftc.gov.
---------------------------------------------------------------------------
\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission Rule 4.9(c),
16 CFR 4.9(c).
---------------------------------------------------------------------------
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments, whether filed
in paper or electronic form, will be considered by the Commission, and
will be available to the public on the FTC website, to the extent
practicable, at www.ftc.gov. As a matter of discretion, the FTC makes
every effort to remove home contact information for individuals from
the public comments it receives before placing those comments on the
FTC website. More information, including routine uses permitted by the
Privacy Act, may be found in the FTC's privacy policy, at https://
www.ftc.gov/ftc/privacy.htm.
FOR FURTHER INFORMATION CONTACT: Cathy Moscatelli, FTC Bureau of
Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202)
326-2749.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 of
the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given
that the above-captioned 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 thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for November 27, 2007), on the World Wide Web, at https://www.ftc.gov/
os/2007/11/index.htm. A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington,
D.C. 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order to Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted for
public comment, and subject to final approval, an Agreement Containing
Consent Orders (``Consent Agreement'') from The Great Atlantic &
Pacific Tea Company, Inc. (``A&P'') and Pathmark Stores, Inc.
(``Pathmark''). The purpose of the Consent Agreement is to remedy the
anticompetitive effects that likely would result from A&P's proposed
$1.3 billion acquisition (a figure that includes the assumption of debt
by A&P) of Pathmark, as alleged in the Complaint the Commission has
issued.
The Consent Agreement provides for relief in two markets where the
Commission believes the proposed acquisition is anticompetitive. Under
the terms of the Consent Agreement, A&P must divest four Waldbaum's
supermarkets and one Pathmark supermarket in Staten Island, New York,
and one Waldbaum's supermarket in Shirley, Long Island, New York.
The Commission, A&P, and Pathmark have also agreed to an Order to
Maintain Assets. This order requires A&P and Pathmark to maintain the
assets required by the Consent Agreement to be divested, pending their
divestiture.
The investigation and settlement negotiations were conducted in
close cooperation with the Office of the New York State Attorney
General, which anticipates entering into an agreement with the parties
that mirrors the proposed consent order divestitures.
II. The Parties and the Transaction
A&P is a corporation organized, existing, and doing business under
and by virtue of the laws of the State of Maryland, with its office and
principal place of business located at 2 Paragon Drive, Montvale, New
Jersey 07645. The company owns and operates about 316 supermarkets in
the States of Connecticut, Delaware, Maryland, New
[[Page 68165]]
York, New Jersey, and in the District of Columbia. A&P operates its
supermarkets under the A&P, A&P Super Foodmart, Food Basics, Food
Emporium, Super Fresh and Waldbaum's banners. A&P had revenues from all
operations in 2006 of about $6.9 billion.
Pathmark 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 200 Milik Street,
Carteret, New Jersey 07008. The company owns and operates about 141
supermarkets in the States of Delaware, New York, New Jersey, and
Pennsylvania, all operating under the Pathmark banner. Pathmark had
revenues in 2006 of about $4.1 billion.
Under the terms of their March 4, 2007, agreement, A&P will acquire
all of the voting securities of Pathmark for approximately $1.3
billion, including the assumption of debt.
III. The Complaint
According to the Commission's Complaint, A&P and Pathmark compete
in the retail sale of grocery products from supermarkets. Supermarkets
are stores that carry a wide selection and deep inventory of food and
grocery products in a variety of brands and sizes, enabling consumers
to purchase substantially all of their food and other grocery shopping
requirements in a single shopping visit.
The Complaint alleges that the acquisition by A&P of Pathmark would
be competitively problematic in Staten Island, New York, and Shirley,
Long Island, New York, both of which are highly concentrated geographic
markets. As alleged in the Complaint, the proposed acquisition may
increase opportunities for all firms in these markets to engage in
coordinated interaction or for A&P to exercise unilateral market power,
leading to higher prices or decreases in services. The Complaint
further alleges that entry would not be timely, likely, or sufficient
to prevent anticompetitive effects in the geographic markets.
The Complaint alleges that the proposed acquisition, if
consummated, would violate Section 7 of the Clayton Act, as amended, 15
U.S.C. Sec. 18, and Section 5 of the Federal Trade Commission Act, as
amended, 15 U.S.C. Sec. 45, by lessening competition in connection
with the retail sale of grocery products from supermarkets.
IV. The Proposed Consent Order
Under the terms of the proposed Consent Order, Respondent A&P must
sell four Waldbaum's supermarket stores and one Pathmark supermarket
store in Staten Island and a Waldbaum's store in Shirley, Long Island,
together with their related assets. The addresses of the Waldbaum's
stores required to be divested are as follows:
1. 3251 Richmond Ave. South
Staten Island, NY
2. 778 Manor Road
Staten Island, NY
3. 4343 Amboy Road
Staten Island, NY
4. 1441 Richmond Ave
Staten Island, NY
5. 999 Montauk Hwy.
Shirley, NY
The address of the one Pathmark store required to be divested is:
1. 2660 Hylan Blvd
Staten Island, NY
The one Pathmark store and four Waldbaum's stores in Staten Island
are required to be divested to King Kullen Grocery Co., Inc.,
headquartered in Bethpage, New York, and the Waldbaum's store in
Shirley is required to be divested to The Stop & Shop Supermarket
Company LLC (``Stop & Shop''). Stop & Shop is a subsidiary of
Koninklijke Ahold NV, a Dutch corporation. The Commission evaluated
these prospective acquirers and determined that they are well qualified
to operate the divested supermarkets.
The proposed Consent Order requires that the divestitures occur no
later than January 10, 2008. If Respondents consummate the divestitures
to the purchasers during the public comment period, and if, at the time
the Commission determines whether to make the proposed Consent Order
final, the Commission notifies Respondents that the purchasers are not
acceptable acquirers, or that the asset purchase agreements with those
acquirers are not acceptable manners of divestiture, then Respondents
must immediately rescind those transactions and divest the five
Waldbaum's stores and one Pathmark store (and their related assets) to
other buyers, within three (3) months of the date the Consent Order
becomes final. Under those circumstances, Respondents must divest those
stores and related assets only to an acquirer that receives the prior
approval of the Commission and only in a manner that receives the prior
approval of the Commission. In the event Respondents have not divested
the supermarkets in a manner that satisfies the requirements of the
Consent Order, the Commission may appoint a trustee to divest those
assets.
The Commission has also issued an Order to Maintain Assets. Under
its terms, Respondents are required to maintain the viability of the
six supermarkets and their related assets pending their divestiture.
More specifically, Respondents must: (1) maintain the viability,
competitiveness, and marketability of the assets; (2) not cause the
wasting or deterioration of those assets; (3) not sell, transfer,
encumber, or otherwise impair the marketability of the assets; (4)
maintain the supermarkets consistent with the parties' past practices;
(5) use best efforts to preserve the supermarkets' existing
relationships with suppliers, customers, and employees; and (6) keep
the supermarkets open for business and maintain inventories at levels
consistent with past practices.
The proposed Consent Order prohibits Respondents, for a period of
ten years, from acquiring, without providing the Commission with prior
notice, any ownership or leasehold interest in any facility that has
operated as a supermarket within six (6) months prior to the date of
such proposed acquisition, in Staten Island, New York, and the Shirley,
Long Island, New York area. The proposed Consent Order also prohibits
Respondents, for a period of ten (10) years, from entering into or
enforcing any agreement that restricts the ability of any person
acquiring any interest in any location formerly used by Respondents as
a supermarket in Staten Island or the Shirley area to operate that
location as a supermarket. The proposed Consent Order does not prohibit
Respondents from building new supermarkets, or leasing a facility not
operated as a supermarket within the preceding six (6) months.
Under the terms of the proposed Consent Order, A&P is also required
to provide the Commission with regular compliance reports demonstrating
how it is complying with the terms of the Consent Agreement until it is
in full compliance with that Agreement.
V. Opportunity for Public Comment
The proposed Consent Agreement has been placed on the public record
for thirty (30) days for the purpose of soliciting comments from the
public. All comments received during this period will become part of
the public record. After the thirty (30) day comment period, the
Commission will again consider the Consent Agreement, together with all
comments received. After that second review, the Commission may either
withdraw from the Consent Agreement or make its Order final.
[[Page 68166]]
By accepting the Consent Agreement subject to final approval, the
Commission anticipates that the competitive problems alleged in the
Complaint will be resolved. The purpose of this analysis is to invite
public comment on the Consent Order, including the proposed
divestitures, to aid the Commission in its determination whether it
should make final the Consent Agreement. This analysis is not an
official interpretation of the Consent Agreement nor does it modify any
of its terms.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E7-23419 Filed 12-3-07: 8:45 am]
BILLING CODE 6750-01-S
