[Federal Register Volume 59, Number 167 (Tuesday, August 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21310]
[[Page Unknown]]
[Federal Register: August 30, 1994]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. California SunCare, Inc.; Proposed Final
Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. Section 16(b) through (h), that a proposed
Final Judgment, Stipulation and Competitive Impact Statement have been
filed with the United States District Court for the Central District of
California in United States of America v. California SunCare, Inc.,
Civil Action No. 94-5522. The Complaint in this case alleged that
California SunCare, Inc. engaged in a combination and conspiracy in
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, to fix the
resale prices of indoor tanning products sold by California SunCare to
dealers throughout the United States. The proposed Final Judgment
enjoins the defendant from entering into or maintaining, any agreement,
understanding, combination or conspiracy with any of its dealers or
potential dealers to fix the resale price of indoor tanning products.
The proposed Final Judgment further enjoins the defendant for a period
of five years from the date of entry of the final judgment from
directly or indirectly announcing to the public or to any present or
potential dealer of its indoor tanning products that defendant has or
is adopting, promulgating, suggesting, announcing or establishing any
resale pricing policy for indoor tanning products that provides that:
(1) defendant will sell only to a dealer that prices at or above
defendant's suggested resale price, and/or (2) defendant will terminate
any dealer for pricing below defendant's suggested resale price.
Finally, the defendant is also enjoined for a period of five years from
the date of entry of the final judgment from (1) threatening any dealer
with termination or terminating any dealer for pricing below the
defendant's suggested resale price, and (2) discussing with any present
or potential dealer any decision regarding termination of any other
dealer for any reason directly or indirectly related to the latter
dealer's pricing below defendant's suggested resale price. The
defendant is also required to establish an antitrust compliance
program.
Public comment is invited within the statutory 60-day comment
period. Such comments, and responses thereto, will be published in the
Federal Register and filed with the Court. Comments should be directed
to Marvin N. Price, Jr., Acting Chief, Midwest Field Office, Antitrust
Division, Department of Justice, 209 South LaSalle Street, Suite 600,
Chicago, Illinois 60604, (telephone: (312) 353-7530).
Constance K. Robinson,
Director of Operations.
Carla M. Stern,
Attorney, Midwest Field Office, United States Department of Justice,
Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle
Street, Chicago, Illinois 60604, Telephone: (312) 353-7530
Nora M. Manella,
United States Attorney,
Roger E. West,
Assistant United States Attorney, Telephone: (213) 894-2461,
Attorneys for Plaintiff
United States Of America, Plaintiff, v. California SunCare, Inc.,
Defendant. Civil Action No. 94-5522 (For Violation of the Sherman
Antitrust Act)
The United States of America, plaintiff, by its attorneys acting
under the direction of the Attorney General of the United States,
brings this civil action against the above-named defendant and
complains and alleges as follows:
I
Jurisdiction And Venue
1. This complaint is filed under Section 4 of the Sherman Act, as
amended (15 U.S.C. Sec. 4), in order to prevent and restrain
violations, as hereinafter alleged, by the defendant of Section 1 of
the Sherman Act (15 U.S.C. Sec. 1).
2. Defendant transacts business and is found in the Central
District of California and maintains its principal office in the
Central District of California.
II
Definitions
3. ``Person'' means any individual, corporation, partnership,
company, sole proprietorship, firm or other legal entity.
4. ``Dealer'' means any person, not wholly owned by California
SunCare, Inc., who purchases or acquires indoor tanning products
manufactured or sold by California SunCare Inc. for resale.
5. ``Indoor tanning products'' means products applied to the skin
in order to enhance, promote, preserve, or accelerate the skin tanning
process or to protect the skin from adverse effects that may result
from the tanning process.
III
Defendant And Co-Conspirators
6. California SunCare, Inc. (``California SunCare'') is made a
defendant herein. California SunCare is a corporation located in the
Central District of California, organized and existing under the laws
of the State of California.
7. Various companies and individuals who are dealers, not made
defendants in this complaint, have been induced to participate by and
have participated with the defendant in the offense charged herein and
performed acts and made statements in furtherance of it.
IV
Trade And Commerce
8. California SunCare is a leading seller of indoor tanning
products in the United States. The indoor tanning products sold by
California SunCare are manufactured by California SunCare in
California.
9. California SunCare sells substantial quantities of indoor
tanning products to dealers throughout the United States. These dealers
resell California SunCare's indoor tanning products throughout the
United States to tanning salons which in turn resell the tanning
products to consumers.
10. During the period covered by this complaint, there has been a
continuous and uninterrupted flow in interstate commerce of indoor
tanning products from California SunCare's facilities in California to
dealers throughout the United States. The activities of the defendant
and its co-conspirators, as hereinafter described, have been within the
flow of, and have substantially affected, interstate commerce.
V
Violation Alleged
11. Beginning at least as early as November 1992, and continuing at
least through April 1994, the exact dates being unknown to the United
States, the defendant and its co-conspirators engaged in a combination
and conspiracy in unreasonable restraint of interstate trade and
commerce in violation of Section 1 of the Sherman act, as amended (15
U.S.C. Sec. 1). This unlawful combination and conspiracy will continue
or may be renewed unless the relief prayed for herein is granted.
12. The combination and conspiracy consisted of a continuing
agreement, understanding, and concert of action among the defendant and
its co-conspirators to fix and maintain the resale price of indoor
tanning products at the amount set by the defendant, California
SunCare.
13. In furtherance of this combination and conspiracy, the
defendant did those things which, as hereinabove alleged, it combined
and conspired to do, including:
(a) establishing and communicating to dealers a minimum resale
price for indoor tanning products purchased from California SunCare;
and
(b) obtaining agreements from dealers to maintain the minimum
resale price as a condition of receiving and continuing to receive
indoor tanning products from California SunCare.
VI
Effects
14. The aforesaid combination and conspiracy has had the following
effects, among others:
(a) resale prices of indoor tanning products have been fixed and
maintained; and
(b) competition in the sale of indoor tanning products by dealers
has been restrained, suppressed, and eliminated.
VII
Prayer For Relief
Wherefore, plaintiff prays:
1. That the Court adjudge and decree that the defendant has
combined and conspired to restrain interstate trade and commerce of
indoor tanning products in violation of Section 1 of the Sherman Act.
2. That the defendant, its officers, directors, agents, employees
and successors and all other persons acting or claiming to act on their
behalf be enjoined and restrained from, in any manner, directly or
indirectly, continuing, maintaining, or renewing the combination and
conspiracy hereinbefore alleged, or from engaging in any other
combination, conspiracy, contract, agreement, understanding or concert
of action having a similar purpose or effect, and from adopting or
following any practice, plan, program, or device having a similar
purpose or effect.
3. That plaintiff have such other relief as the Court may deem just
and proper.
4. That plaintiff recover the costs of this action.
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Mark Schechter,
Marvin N. Price, Jr.,
Carla M. Stern,
Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,
209 S. LaSalle Street, Chicago, Illinois 60604, (312) 353-7530.
Carla M. Stern,
Attorney, Midwest Field Office, United States Department of Justice,
Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle
Street, Chicago, Illinois 60604, Telephone: (312) 353-7530.
Attorney for Plaintiff
United States of America, Plaintiff, v. California Suncare, Inc.,
Defendant. Civil Action No. 94-5522 ABC; Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The parties to this Stipulation consent that a Final Judgment in
the form attached may be filed and entered by the Court, upon any
party's or the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. Sec. 16), without further notice to any party or other
proceedings, provided that plaintiff has not withdrawn its consent,
which it may do at any time before entry of the proposed Final Judgment
by serving notice on the defendant and by filing that notice with the
Court.
2. If plaintiff withdraws its consent or the proposed Final
Judgment is not entered pursuant to this Stipulation, this Stipulation
shall be of no effect whatever and its making shall be without
prejudice to any party in this or any other proceedings.
Dated:
For the Plaintiff:
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Mark Schechter,
Marvin N. Price, Jr.
For the Defendant:
Richard C. Spencer,
Counsel for California Suncare, Inc.
Carla M. Stern,
Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,
209 S. LaSalle Street, Chicago, Illinois 60604 (312) 353-7530.
Carla M. Stern,
Attorney, Midwest Field Office, United States Department of Justice,
Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle
Street, Chicago, Illinois 60604, Telephone: (312) 353-7530.
Attorney for Plaintiff.
United States of America, Plaintiff, v. California SunCare, Inc.,
Defendant. Civil Action No. 94-5522; Final Judgment.
Plaintiff, United States of America, having filed its complaint
herein on August 12, 1994, and plaintiff and defendant, California
SunCare, Inc., having consented to the entry of this Final Judgment
without trial or adjudication of any issue of fact or law herein and
without this Final Judgment constituting any evidence against or an
admission by any party with respect to any such issue;
And whereas defendant has agreed to be bound by the provisions of
this Final Judgment pending its approval by the Court;
Now, Therefore, before the taking of any testimony and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby Ordered, Adjudged and
Decreed as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of the party consenting hereto. The complaint states a claim upon
which relief may be granted against defendant under Section 1 of the
Sherman Act (15 U.S.C. Sec. 1).
II
Definitions
As used in this Final Judgment:
A. ``Person'' means any individual, corporation, partnership,
company, sole proprietorship, firm or other legal entity.
B. ``Dealer'' means any person, not wholly owned by California
SunCare, Inc. (``California SunCare''), who purchases or acquires
indoor tanning
products manufactured or sold by California SunCare for resale.
C. ``Indoor tanning product'' means products applied to the skin in
order to enhance, promote, preserve, or accelerate the skin tanning
process or to protect the skin from adverse effects that may result
from the tanning process.
D. ``Resale price'' means any price, price floor, price ceiling,
price range, or any mark-up, formula or margin of profit relating to
indoor tanning products sold by dealers.
III
Applicability
A. This Final Judgment applies to defendant and to each of its
officers, directors, agents, employees, subsidiaries, successors, and
assigns, and to all other persons in active concert or participation
with any of them who shall have received actual notice of this Final
Judgment by personal service or otherwise.
B. Defendant shall require, as a condition of the sale of all or
substantially all of its assets or stock, that the acquiring party
agree to be bound by the provisions of this Final Judgment.
IV
Prohibited Conduct
A. Defendant is hereby enjoined and restrained from directly or
indirectly entering into, adhering to, maintaining, furthering,
enforcing or claiming any right under any contract, agreement,
understanding, plan or program with any dealer to fix, stabilize, or
maintain the resale prices at which indoor tanning products sold or
distributed by defendant may be sold or offered for sale in the United
States by any dealer.
B. Defendant is further enjoined and restrained for a period of
five years from the date of entry of the final judgment from directly
or indirectly announcing to the public or to any present or potential
dealer of its indoor tanning products that defendant has or is
adopting, promulgating, suggesting, announcing or establishing any
resale pricing policy for indoor tanning products that provides that:
(1) defendant will sell only to a dealer that prices at or above
defendant's suggested resale price, and/or (2) defendant will terminate
any dealer for pricing below defendant's suggested resale price.
C. Defendant is further enjoined and restrained for a period of
five years from the date of entry of the final judgment from (1)
threatening any dealer with termination or terminating any dealer for
pricing below the defendant's suggested resale price, and (2)
discussing with any present or potential dealer any decision regarding
termination of any other dealer for any reason directly or indirectly
related to the latter dealer's pricing below defendant's suggested
resale price; provided, however, that nothing herein shall prohibit the
defendant during this five-year period from terminating a dealer for
using any of defendant's products to promote the sale of products
manufactured by other companies, or any other reasons other than
pricing below defendant's suggested resale price. Furthermore, nothing
in this paragraph shall be deemed to prohibit the defendant from
adopting suggested resale prices and communicating such resale prices
to dealers.
V
Notification Provisions
Defendant is ordered and directed:
A. To send a written notice, in the form attached as Appendix A to
this Final Judgment, and a copy of this Final Judgment, within sixty
(60) days of the entry of this Final Judgment, to each dealer who
purchased indoor tanning products from defendant in 1992, 1993 or 1994.
B. To send a written notice, in the form attached as Appendix A to
this Final Judgment, and a copy of this Final Judgment, to each dealer
who purchases indoor tanning products from defendant within ten (10)
years of entry of this Final Judgment and who was not previously given
such notice. Such notice shall be sent within thirty (30) days after
the shipment of indoor tanning products is made to such dealer by the
defendant.
VI
Compliance Program
Defendant is order to establish and maintain an antitrust
compliance program which shall include designating, within 30 days of
entry of this Final Judgment, an Antitrust Compliance Officer with
responsibility for accomplishing the antitrust compliance program and
with the purpose of achieving compliance with this Final Judgment.
The Antitrust Compliance Officer shall, on a continuing basis,
supervise the review of the current and proposed activities of his or
her company to ensure that it complies with this Final Judgment. The
Antitrust Compliance Officer shall be responsible for accomplishing the
following activities.
A. Furnishing a copy of this Final Judgment within thirty (30) days
of entry of the Final Judgment to each of California SunCare's officers
and directors and each of its employees, representatives, or agents
whose duties include supervisory or direct responsibility for the sale
or advertising of indoor tanning products in the United States, except
those employees whose functions are purely clerical or manual.
B. Distributing in a timely manner a coy of this Final Judgment to
any owner, officer or employee who succeeds to a position described in
Section VI A.
C. Briefing annually those persons designated in Sections VI A and
B on the meaning and requirements of this Final Judgment and the
antitrust laws.
D. Obtaining from each owner, officer or employee designated in
Section VI A and B certification that he or she (1) has read,
understands, and agrees to abide by the terms of this Final Judgment;
(2) understands that failure to comply with this Final Judgment may
result in conviction for criminal contempt of court; and (3) is not
aware of any violation of the Final Judgment that has not been reported
to the Antitrust Compliance Officer.
E. Maintaining a record of recipients from whom the certification
in Section VI D has been obtained.
VII
Certification
A. Within 75 days of the entry of this Final Judgment, defendant
shall certify to plaintiff whether the defendant has designated an
Antitrust Compliance Officer and has distributed the Final Judgment in
accordance with Section VI A above.
B. For ten years after the entry of this Final Judgment, on or
before its anniversary date, the defendant shall file with the
plaintiff an annual statement as to the fact of its compliance with the
provisions of Sections V and VI.
C. If defendant's Antitrust Compliance Officer learns of any
violations of any of the terms and conditions contained in this Final
Judgment, defendant shall immediately notify the plaintiff and
forthwith take appropriate action to terminate or modify the activity
so as to comply with this Final Judgment.
VIII
Plaintiff Access
A. For the purpose of determining or securing compliance with this
Final Judgment, and for no other purpose, duly authorized
representatives of plaintiff shall, upon written request of the
Attorney General or the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to the defendant, be
permitted, subject to any legally recognized privilege:
1. Access during the defendant's office hours to inspect and copy
all records and documents in the possession or under the control of
defendant, which may have counsel present, relating to any matters
contained in this Final Judgment.
2. To interview the defendant's officers, employees and agents, who
may have counsel present, regarding any such matters. The interviews
shall be subject to the defendant's reasonable convenience.
B. Upon the written request of the Attorney General or the
Assistant Attorney General in charge of the Antitrust Division made to
defendant at its principal office, defendant shall submit such written
reports, under oath if requested, with respect to any of the matters
contained in this Final Judgment as may be requested, subject to any
legally recognized privilege.
C. No information or documents obtained by the means provided in
this Section VIII shall be divulged by any representative of the
Department of Justice to any person other than a duly authorized
representative of the Executive Branch of the United States, except in
the course of legal proceedings to which the United States is a party,
or for the purpose of securing compliance with this Final Judgment, or
as otherwise required by law.
D. If at the time information or documents are furnished by
defendant to plaintiff, defendant represents and identifies in writing
the material in any such information or documents to which a claim of
protection may be asserted under rule 26(c)(7) of the Federal Rules of
Civil Procedure, and defendant marks each pertinent page of such
material, ``Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then ten (10) days notice shall be
given by plaintiff to defendant prior to divulging such material in any
legal proceeding (other than a grand jury proceeding), so that
defendant shall have an opportunity to apply to this Court for
protection pursuant to Rule 26(c)(7) of the Federal Rule of Civil
Procedure.
E. Within ten (10) days after receiving any request under Sections
VIII A or VIII B, defendant may apply to this Court for an order to
quash or limit the scope of the request, and after providing plaintiff
with an opportunity to respond to such application, this Court shall
enter such order or directions as may be necessary or appropriate for
carrying out and ensuring compliance with this Final Judgment.
IX
Duration of Final Judgment
Except as otherwise provided hereinabove, this Final Judgment shall
remain in effect until ten (10) years from the date of entry.
X
Construction, Enforcement, Modification and Compliance
Jurisdiction is retained by the Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders or directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of its provisions, for its
enforcement or compliance, and for the punishment of any violation of
its provisions.
XI
Public Interest
Entry of this Final Judgment is in the public interest.
Dated: __________
----------------------------------------------------------------------
United States District Court Judge
Appendix A
Dear California SunCare Dealer:
The Antitrust Division of the United States Department of Justice
filed a civil suit alleging that from November 1992, through April
1994, California SunCare, Inc. (``California SunCare'') entered into
agreements with certain dealers to fix and maintain the resale prices
of California SunCare products. California SunCare has agreed, without
admitting any violation of the law and without being subject to any
monetary penalties, to the entry of a civil Consent Order prohibiting
certain pricing practices in the United States, including for a period
of five years prohibiting California SunCare from announcing to the
public or to any dealer that California SunCare has a resale pricing
policy that contains any provision that provides that: (a) California
SunCare will sell only to a dealer that prices at or above California
SunCare's suggested resale price, and/or (2) California SunCare will
terminate any dealer for pricing below California SunCare's suggested
resale price. A copy of the Order is enclosed.
Should you have any questions concerning this letter, please feel
free to contact me.
Sincerely,
----------------------------------------------------------------------
Carla M. Stern,
Attorney, Midwest Field Office, United States Department of Justice,
Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle
Street, Chicago, Illinois 60604, Telephone: (312) 353-7530,
Nora M. Manella,
United States Attorney,
Roger E. West,
Assistant United States Attorney, Telephone: (213) 894-2461.
Attorneys for Plaintiff
United States of America, Plaintiff, v. California Suncare, Inc.,
Defendant. Civil Action No. 94-5522ABC; Competitive Impact Statement.
The United States of America, pursuant to Section 2 of the
Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C.
Sec. 16(b), submits this Competitive Impact Statement in connection
with the proposed Final Judgment submitted for entry in this civil
antitrust proceeding.
I
Nature And Purpose Of The Proceeding
On August 12, 1994, the United States filed a civil antitrust
complaint under Section 4 of the Sherman Act, as amended, 15 U.S.C.
Sec. 4, alleging that the defendant California SunCare, Inc.
(``California SunCare'') engaged in a combination and conspiracy, in
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, to fix the
price of indoor tanning products sold by California SunCare to dealers
throughout the United States. The complaint alleges that, in
furtherance of this conspiracy, California SunCare:
(a) established and communicated to dealers a minimum resale price
for indoor tanning products from California SunCare; and
(b) obtained agreements from dealers to maintain the minimum price
as a condition of receiving and continuing to receive indoor tanning
products from California SunCare.
The complaint also alleges that as a result of the combination and
conspiracy, prices of indoor tanning products have been fixed and
maintained, and competition in sales of indoor tanning products has
been restrained.
The complaint alleges that the combination and conspiracy is
illegal, and seeks to enjoin California SunCare from continuing or
renewing the alleged combination or conspiracy and from engaging in any
combination or conspiracy or adopting any practice or plan having a
similar purpose or effect.
The United States and California SunCare have stipulated that the
proposed Final Judgment may be entered after compliance with the APPA,
unless the United States withdraws its consent.
The Court's entry of the proposed Final Judgment will terminate the
action, except that the Court will retain jurisdiction over the matter
for possible further proceedings to construe, modify or enforce the
Judgment, or to punish violations of any of its provisions.
II
Description Of Practices Giving Rise To The Alleged Violation Of The
Antitrust Laws
California SunCare, a California corporation, is a leading seller
of indoor tanning products in the United States. Indoor tanning
products sold by California SunCare are manufactured in California by
California SunCare. California SunCare sells indoor tanning products to
dealers which sell them to indoor tanning salons, which in turn sell
them to consumers. Each year, California SunCare publishes a resale
price schedule stating the price at which California SunCare believes
its products should be resold by dealers to salons.
During the period from November 1992 through April 1994, California
SunCare confronted several dealers who were selling California SunCare
products at a discount. The discounts included new customer discounts,
discounts for trade association members, and free product after a
certain number of bonus points had been earned on previous purchases.
California SunCare obtained agreements from these dealers to maintain
California SunCare's announced resale prices on indoor tanning
products.
In April, 1994, the Antitrust Division of the Department of Justice
began an investigation into California SunCare's pricing policy.
III
Explanation Of The Proposed Final Judgment
The parties have stipulated that the proposed Final Judgment may be
entered by the Court at any time after compliance with the APPA. The
proposed Final Judgment states that it shall not constitute an
admission by either party with respect to any issue of fact or law.
The proposed Final Judgment enjoins any direct or indirect
continuation or renewal of the type of conspiracy alleged in the
complaint. Specifically, Section IV enjoins and restrains the defendant
from entering into, adhering to, maintaining, furthering, enforcing or
claiming any right under any contract, agreement, understanding, plan
or program with any dealer to fix, stabilize, or maintain the resale
prices at which indoor tanning products sold or distributed by the
defendant may be sold or offered for sale in the United States by any
dealer.
The proposed Final Judgment not only bars California SunCare's
Unlawful practices, but also contains additional provisions that are
remedial in nature. Section IV provides that the defendant is
prohibited for five years from announcing to the public or to any
present or potential dealer of its indoor tanning products that
defendant has or is adopting, promulgating, suggesting, announcing or
establishing any resale pricing policy for indoor tanning products that
provides that: (1) defendant will sell only to a dealer that prices at
or above defendant's suggested resale price, and/or (2) defendant will
terminate any dealer for pricing below defendant's suggested resale
price.
Additionally, the defendant is prohibited for a period of five
years from the date of entry of the final judgment from (1) threatening
any dealer with termination or terminating any dealer for pricing below
the defendant's suggested resale price, and (2) discussing with any
present or potential dealer any decision regarding termination of any
other dealer for any reason directly or indirectly related to the
latter dealer's pricing below defendant's suggested resale price.
Section V of the proposed Final Judgment is designed to ensure that
California SunCare's dealers are aware of the limitations imposed on it
by the Final Judgment. Section V requires the defendant to send notices
and copies of the Judgment to each dealer who purchased indoor tanning
products from the defendant in 1992, 1993 or 1994. In addition, the
defendant is required to send notices and copies of the Judgment to
every other dealer who purchases indoor tanning products from
California SunCare within ten years of the date of entry of the
proposed Final Judgment.
Section VI requires the defendant to set up an antitrust compliance
program. The defendant is also required to furnish a copy of the
Judgment to each of its officers and directors and each of its non-
clerical employees, representatives, or agents with supervisory or
direct responsibility for the sale or advertising of indoor tanning
products in the United States.
In addition, the proposed Final Judgment provides methods for
determining and securing the defendant's compliance with its terms.
Section VIII provides that, upon request of the Department of Justice,
the defendant shall submit written reports, under oath, with respect to
any of the matters contained in the Judgment. Additionally, the
Department of Justice is permitted to inspect and copy all books and
records and to interview officers, directors, employees and agents of
the defendant.
Section IX makes the Judgment effective for ten years from the date
of its entry.
Section XI of the proposed Final Judgment states that entry of the
Judgment is in the public interest. Under the provisions of the APPA,
entry of the proposed Final Judgment is conditional upon a
determination by the Court that the proposed Final Judgment is in the
public interest.
The Government believes that the proposed Final Judgment is fully
adequate to prevent the continuation or recurrence of the violation of
Section 1 of the Sherman Act alleged in the Complaint, and that
disposition of this proceeding without further litigation is
appropriate and in the public interest.
IV
Remedies Available To Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. Sec. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorney fees. Entry of the proposed Final Judgment will neither impair
nor assist the bringing of any private antitrust damage action. Under
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
Sec. 16(a), the proposed Final Judgment has no prima facie effect in
any subsequent private lawsuit that may be brought against the
defendant.
V
Procedures Available for Modification of The Proposed Final Judgment
The United States and the defendant have stipulated that the
proposed Final Judgment may be entered by the Court after compliance
with the provisions of the APPA, provided that the United States has
not withdrawn its consent.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wants to comment should do so within 60
days of the date of publication of this Competitive Impact Statement in
the Federal Register. The United States will evaluate the comments,
determine whether it should withdraw its consent, and respond to the
comments. The comments and the response of the United States will be
filed with the Court and published in the Federal Register.
Written comments should be submitted to: Marvin N. Price, Jr.,
Midwest Office, Antitrust Division, United States Department of
Justice, Suite 600, 209 S. LaSalle Street, Chicago, Illinois 60604.
Under Section X of the proposed Judgment, the Court will retain
jurisdiction over this matter for the purpose of enabling any of the
parties to apply to the Court for such further orders or directions as
may be necessary or appropriate for the construction, implementation,
modification, or enforcement of the Judgment, or for the punishment of
any violations of the Judgment.
VI
Alternative To The Proposed Final Judgment
The only alternative to the proposed Final Judgment considered by
the Government was a full trial on the merits and on relief. Such
litigation would involve substantial cost to the United States and is
not warranted because the proposed Final Judgment provides appropriate
relief against the violations alleged in the complaint.
VII
Determinative Materials And Documents
No materials or documents were determinative in formulating the
proposed Final Judgment. Consequently, the Government has not attached
any such materials or documents to the proposed Final Judgment.
Dated:
Respectfully submitted,
Carla M. Stern,
Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,
209 S LaSalle Street, Chicago, Illinois 60604, (312) 353-7530.
[FR Doc. 94-21310 Filed 8-29-94; 8:45 am]
BILLING CODE 4410-01-M