[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