[Federal Register Volume 61, Number 13 (Friday, January 19, 1996)]
[Notices]
[Pages 1512-1517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-507]




[[Page 1511]]

_______________________________________________________________________

Part V





Federal Trade Commission





_______________________________________________________________________



Service Corporation International; Proposed Consent Agreement With 
Analysis to Aid Public Comment; Notice

  Federal Register / Vol. 61, No. 13 / Friday, January 19, 1996 / 
Notices  

[[Page 1512]]


FEDERAL TRADE COMMISSION

[File No. 951 0108]


Service Corporation International; Proposed Consent Agreement 
With Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

-----------------------------------------------------------------------

SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair acts and practices and unfair methods of competition, this 
consent agreement, accepted subject to final Commission approval, would 
permit Service Corporation International (SCI), the largest owner of 
funeral homes in North America, to acquire Gilbraltar Mausoleum 
Corporation and would require SCI, among other things, to divest, 
within 12 months, a number of properties, including assets in Amarillo, 
Texas, and Brevard and Lee Counties, Florida, to restore competition. 
In addition, the consent agreement would require SCI, for 10 years, to 
notify the Commission before acquiring certain similar assets in any of 
these markets.

DATES: Comments must be received on or before March 18, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
Harold Kirtz, Federal Trade Commission, Atlanta Regional Office, 1718 
Peachtree St., N.W., Room 1000, Atlanta, GA. 30367. (404) 347-4837.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the 
Commission's Rules of Practice (16 CFR 2.34), notice is hereby given 
that the following 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 sixty (60) days. Public comment is invited. Such comments or 
views will be considered by the Commission and will be available for 
inspection and copying at its principal office in accordance with 
Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR 
4.9(b)(6)(ii)).

Agreement Containing Consent Order

    The Federal Trade Commission (``Commission''), having initiated an 
investigation of the acquisition of the voting securities of Gibraltar 
Mausoleum Corporation (``Gibraltar'') by Service Corporation 
International and Rocky Acquisition Corp. (collectively, ``SCI''), and 
it now appearing that SCI, hereinafter sometimes referred to as 
``proposed respondent,'' is willing to enter into an agreement 
containing an order to divest certain assets and to cease and desist 
from certain acts, and providing for other relief.
    It is hereby agreed by and between proposed respondent, by its duly 
authorized officers and attorney, and counsel for the Commission that:
    1. Proposed respondent Service Corporation International is a 
corporation organized, existing and doing business under and by virtue 
of the laws of the State of Texas with its office and principal place 
of business located at 1929 Allen Parkway, Houston, Texas 77019.
    2. Proposed respondent admits all the jurisdictional facts set 
forth in the draft of complaint.
    3. Proposed respondent waives:
    a. Any further procedural steps;
    b. The requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    c. All rights to seek judicial review or otherwise to challenge or 
contest the validity of the order entered pursuant to this agreement; 
and
    d. Any claim under the Equal Access to Justice Act.
    4. This agreement shall not become part of the public record of the 
proceeding unless and until it is accepted by the Commission. If this 
agreement is accepted by the Commission, it, together with the draft of 
complaint contemplated thereby, will be placed on the public record for 
a period of sixty (60) days and information in respect thereto publicly 
released. The Commission thereafter may either withdraw its acceptance 
of this agreement and so notify the proposed respondent, in which event 
in will take such action as it may consider appropriate, or issue and 
serve its complaint (in such form as the circumstances may require) and 
decision, in disposition of the proceeding.
    5. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondent that the law has been 
violated as alleged in the draft of complaint, or that the facts as 
alleged in the draft complaint, other than jurisdictional facts, are 
true.
    6. This agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
Rules, the Commission may, without further notice to the proposed 
respondent, (1) issue its complaint corresponding in form and substance 
with the draft of complaint and its decision containing the following 
order to divest and to cease and desist in disposition of the 
proceeding, and (2) make information public with respect thereto. When 
so entered, the order to cease and desist shall have the same force and 
effect and may be altered, modified or set aside in the same manner and 
within the same time provided by statute for other orders. The order 
shall become final upon service. Delivery by the United States Postal 
Service of the complaint and decision containing the agreed-to order to 
proposed respondent's address as stated in this agreement shall 
constitute service. Proposed respondent waives and right it may have to 
any other manner of service. The complaint may be used in construing 
the terms of the order, and no agreement, understanding, 
representation, or interpretation not contained in the order or the 
agreement may be used to vary or contradict the terms of the order.
    7. Proposed respondent has read the proposed complaint and order 
contemplated hereby. Proposed respondent understands that once the 
order has been issued, it will be required to file one or more 
compliance reports showing that it has fully complied with the order. 
Proposed respondent further understands that it may be liable for civil 
penalties in the amount provided by law for each violation of the order 
after it becomes final.

Order

I

    It is ordered, That, as used in this order, the following 
definitions shall apply:
    A. ``Respondent'' or ``SCI'' means Service Corporation 
International, its predecessors, subsidiaries, divisions, and groups 
and affiliates controlled by Service Corporation International, their 
successors and assigns, and their directors, officers, employees, 
agents and representatives.
    B. ``Commission'' means the Federal Trade Commission.
    C. ``Funerals'' means a group of services provided at the death of 
an individual, the focus of which is some form of commemorative 
ceremony concerning the deceased at which ceremony the body is present; 
this group of services ordinarily includes, but is not limited to: the 
removal of the body from the place of death; its embalming or other 
preparation; making available a place for visitation and viewing, for 
the conduct of a funeral service, and for the display of caskets 

[[Page 1513]]
and outside cases; and the arrangement for and conveyance of the body 
to a cemetery of crematory for final disposition.
    D. ``Funeral establishment'' means the Assets and Businesses of a 
facility that provides funerals.
    E. ``Perpetual care cemetery services'' means the provision of 
plots of land, mausoleum spaces, and niches for, and the services 
associated with, including maintenance and upkeep, the final 
disposition of human remains.
    F. ``Cemetery'' means the Assets and Businesses of a facility that 
provides perpetual care cemetery services.
    G. ``Crematory services'' means the incineration of human remains.
    H. ``Crematory'' means the Assets and Businesses of a facility that 
performs cremations.
    I. ``Assets and Businesses'' include all assets, properties, 
business and goodwill, tangible and intangible, utilized by a funeral 
establishment, cemetery or crematory, including, but not limited to, 
the following:
    1. All right, title and interest in and to owned or leased real 
property, together with appurtenances, licenses and permits;
    2. All vendor lists, management information systems and software 
used on-site, and all catalogs, sales promotion literature and 
advertising materials, except that SCI may delete from such materials 
the SCI, Gibraltar or Schooler Gordon names, trademarks or other 
identification;
    3. All machinery, fixtures, equipment, vehicles, transportation 
facilities, furniture, tools and other tangible personal property;
    4. All right, title and interest in and to the contracts entered 
into in the ordinary course of business with customers (together with 
associated bids and performance bonds), suppliers, sales 
representatives, distributors, agents, personal property lessors, 
personal property lessees, licensors, licensees, consignors and 
consignees;
    5. All right, title and interest in the trade name of each funeral 
establishment, cemetery or crematory, but excluding the trade name 
``Schooler Gordon''; and
    6. All right, title and interest in the books, records and files 
pertinent to any of the Properties to be Divested.
    J. ``Properties to be Divested'' means all of the Assets and 
Businesses of the following funeral establishments, cemeteries and 
crematories:

1. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-
Shaw Funeral Home), 315 East Fifth Street, Amarillo, Texas 79105
2. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-
Shaw Funeral Home), 1505 Martin Street, Amarillo, Texas 79105
3. Memory Gardens of Amarillo & Crematory, I-27 and McCormack Road, 
Amarillo, Texas 79114
4. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida 
32796
5. Oaklawn Memorial Gardens & Mausoleum, 2116 Garden Street, 
Titusville, Florida 32796
6. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904
7. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers, 
Florida 33907

II

    It is further ordered That:
    A. Respondent shall divest, absolutely and in good faith, within 
twelve months of the date this order becomes final, the Properties to 
be Divested.
    B. Respondent shall divest the Properties to be Divested only to an 
acquirer or acquirers that receive the prior approval of the Commission 
and only in a manner that receives the prior approval of the 
Commission. The purpose of the divestiture of the Properties to be 
Divested is to ensure that continued use of the Properties to be 
Divested in the same business in which the Properties to be Divested 
are engaged at the time of the proposed divestiture, and to remedy the 
lessening of competition resulting from the proposed acquisition as 
alleged in the Commission's complaint.
    C. Pending divestiture of the Properties to be Divested, respondent 
shall take such actions as are necessary to maintain the viability and 
marketability of the Properties to be Divested and to prevent the 
destruction, removal, wasting, deterioration, or impairment of any of 
the Properties to be Divested except for ordinary wear and tear.
    D. Respondent shall comply with all terms of the Agreement to Hold 
Separate, attached to this order and made a part hereof as Appendix I. 
The Agreement to Hold Separate shall continue in effect until such time 
as respondent has divested all the Properties to be Divested as 
required by this order.

III

    It is further ordered That:
    A. If SCI has not divested, absolutely and in good faith and with 
the Commission's prior approval, the Properties to be Divested within 
twelve months of the date this order becomes final, the Commission may 
appoint a trustee to divest the Properties to be Divested. In the event 
that the Commission or the Attorney General brings an action pursuant 
to section 5(l) of the Federal Trade Commission Act, 15 U.S.C. 45(l), 
or any other statute enforced by the Commission, SCI shall consent to 
the appointment of a trustee in such action. Neither the appointment of 
a trustee nor a decision not to appoint a trustee under this Paragraph 
shall preclude the Commission or the Attorney General from seeking 
civil penalties or any other relief available to it, including a court-
appointed trustee, pursuant to section 5(l) of the Federal Trade 
Commission Act, or any other statute enforced by the Commission, for 
any failure by the respondent to comply with this order.
    B. If a trustee is appointed by the Commission or a court pursuant 
to Paragraph III A of this order, respondent shall consent to the 
following terms and conditions regarding the trustee's powers, duties, 
authority, and responsibilities:
    1. The Commission shall select the trustee, subject to the consent 
of respondent, which consent shall not be unreasonably withheld. The 
trustee shall be a person with experience and expertise in acquisitions 
and divestitures. If respondent has not opposed, in writing, including 
the reasons for opposing, the selection of any proposed trustee within 
ten (10) days after notice by the staff of the Commission to respondent 
and its counsel of the identity of any proposed trustee, respondent 
shall be deemed to have consented to the selection of the proposed 
trustee.
    2. Subject to the prior approval of the Commission, the trustee 
shall have the exclusive power and authority to divest the Properties 
to be Divested.
    3. Within ten (10) days after appointment of the trustee, 
respondent shall execute a trust agreement that, subject to the prior 
approval of the Commission and, in the case of a court-appointed 
trustee, of the court, transfers to the trustee all rights and powers 
necessary to permit the trustee to effect the divestiture required by 
this order.
    4. The trustee shall have twelve (12) months from the date the 
Commission approves the trust agreement described in Paragraph III B.3 
to accomplish the divestiture, which shall be subject to the prior 
approval of the Commission. If, however, at the end of the twelve-month 
period, the trustee has submitted a plan of divestiture or believes 
that divestiture can be achieved within a reasonable time, the 
divestiture period may be extended by the Commission, or, in the case 
of a court-appointed trustee, by the 

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court; provided, however, the Commission may extend this period only 
two (2) times.
    5. The trustee shall have full and complete access to the 
personnel, books, records and facilities related to the Properties to 
be Divested or to any other relevant information, as the trustee may 
request. Respondent shall develop such financial or other information 
as such trustee may request and shall cooperate with the trustee. 
Respondent shall take no action to interfere with or impede the 
trustee's accomplishment of the divestitures. Any delays in divestiture 
caused by respondent shall extend the time for divestiture under this 
Paragraph in an amount equal to the delay, as determined by the 
Commission or, for a court-appointed trustee, by the court.
    6. The trustee shall use his or her best efforts to negotiate the 
most favorable price and terms available in each contract that is 
submitted to the Commission, subject to respondent's absolute and 
unconditional obligation to divest at no minimum price. The divestiture 
shall be made in the manner and to the acquirer or acquirers as set out 
in Paragraph II of this order; provided, however, if the trustee 
receives bona fide offers from more than one acquiring entity, and if 
the Commission determines to approve more than one such acquiring 
entity, the trustee shall divest to the acquiring entity or entities 
selected by respondent from among those approved by the Commission.
    7. The trustee shall serve, without bond or other security, at the 
cost and expense of respondent, on such reasonable and customary terms 
and conditions as the Commission or a court may set. The trustee shall 
have the authority to employ, at the cost and expense of respondent, 
such consultants, accountants, attorneys, investment bankers, business 
brokers, appraisers, and other representatives and assistants as are 
necessary to carry out the trustee's duties and responsibilities. The 
trustee shall account for all monies derived from the divestiture and 
all expenses incurred. After approval by the Commission and, in the 
case of a court-appointed trustee, by the court, of the account of the 
trustee, including fees for his or her services, all remaining monies 
shall be paid at the direction of the respondent, and the trustee's 
power shall be terminated. The trustee's compensation shall be based at 
least in significant part on a commission arrangement contingent on the 
trustee's divesting the Properties to be Divested.
    8. Respondent shall indemnify the trustee and hold the trustee 
harmless against any losses, claims, damages, liabilities, or expenses 
arising out of, or in connection with, the performance of the trustee's 
duties, including all reasonable fees of counsel and other expenses 
incurred in connection with the preparation for, or defense of any 
claim, whether or not resulting in any liability, except to the extent 
that such liabilities, losses, damages, claims, or expenses result from 
misfeasance, gross negligence, willful or wanton acts, or bad faith by 
the trustee.
    9. If the trustee ceases to act or fails to act diligently, a 
substitute trustee shall be appointed in the same manner as provided in 
Paragraph III A of this order.
    10. The Commission or, in the case of a court-appointed trustee, 
the court, may on its own initiative or at the request of the trustee 
issue such additional orders or directions as may be necessary or 
appropriate to accomplish the divestiture required by this order.
    11. The trustee shall have no obligation or authority to operate or 
maintain the Properties to be Divested.
    12. The trustee shall report in writing to respondent and the 
Commission every sixty (60) days concerning the trustee's efforts to 
accomplish divestiture.

IV

    It is further ordered That, for a period of ten (10) years from the 
date this order becomes final, respondent shall not, without providing 
advance written notification to the Commission, directly or indirectly, 
through subsidiaries, partnerships, or otherwise:
    A. Acquire any stock, share capital, equity, or other interest in 
any concern, corporate or non-corporate, engaged in at the time of such 
acquisition, or within the two years preceding such acquisition, the 
sale of funerals, perpetual care cemetery services, or crematory 
services within the city limits of, or the area extending ten (10) 
miles outward in any direction of the city limits of, Amarillo, Texas; 
the sale of funerals or perpetual care cemetery services in Brevard 
County, Florida; or the sale of funerals in Lee County, Florida; or
    B. Acquire any assets used for or used in the previous two years 
for (and still suitable for use for) the sale of funerals, perpetual 
care cemetery services or crematory services within the city limits of, 
or the area extending ten (10) miles outward in any direction of the 
city limits of, Amarillo, Texas; the sale of funerals or perpetual care 
cemetery services in Brevard County, Florida; or the sale of funerals 
in Lee County, Florida.
    Said notification shall be given on the Notification and Report 
Form set forth in the Appendix to Part 803 of Title 16 of the Code of 
Federal Regulations as amended (hereinafter referred to as ``the 
Notification''), and shall be prepared and transmitted in accordance 
with the requirements of that part, except that no filing fee will be 
required for any such notification, notification shall be filed with 
the Secretary of the Commission, notification need not be made to the 
United States Department of Justice, and notification is required only 
of respondent and not of any other party to the transaction. Respondent 
shall provide the Notification to the Commission at least thirty days 
prior to acquiring any such interest (hereinafter referred to as the 
``first waiting period''). If, within the first waiting period, 
representatives of the Commission make a written request for additional 
information, respondent shall not consummate the transaction until 
twenty days after substantially complying with such request for 
additional information. Early termination of the waiting periods in 
this paragraph may be requested and, where appropriate, granted by 
letter from the Bureau of Competition. Provided, however, that prior 
notification shall not be required by this paragraph for a transaction 
for which notification is required to be made, and has been made, 
pursuant to Section 7A of the Clayton Act, 15 U.S.C. 18a.
    This Paragraph IV shall not apply to new facilities constructed or 
developed by respondent.

V

    It is further ordered That:
    A. Within sixty (60) days after the date this order becomes final 
and every sixty (60) days thereafter until respondent has fully 
complied with the provisions of Paragraphs II and III of this order, 
respondent shall submit to the Commission a verified written report 
setting forth in detail the manner and form in which it intends to 
comply, is complying, and has complied with Paragraphs II and III of 
this order. Respondent shall include in its compliance reports, among 
other things that are required from time to time, a full description of 
the efforts being made to comply with Paragraphs II and III of the 
order, including a description of all substantive contacts or 
negotiations for the divestiture and the identity of all parties 
contacted. Respondent shall include in its compliance reports copies of 
all written 

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communications to and from such parties, all internal memoranda, and 
all reports and recommendations concerning divestiture as required by 
this order.
    B. One year (1) from that date this order becomes final, annually 
for the next nine (9) years on the anniversary of the date this order 
becomes final, and at other times as the Commission may require, 
respondent shall file a verified written report with the Commission 
setting forth in detail the manner and form in which it has complied 
and is complying with Paragraph IV of this order.

VI

    It is further ordered That respondent shall notify the Commission 
at least thirty (30) days prior to any proposed change in the corporate 
respondent such as dissolution, assignment, sale resulting in the 
emergence of a successor corporation, or the creation or dissolution of 
subsidiaries or any other change in the corporation that may affect 
compliance obligations arising out of the order.

VII

    It is further ordered That, for the purpose of determining or 
securing compliance with this order, subject to any legally recognized 
privilege, and upon written request with reasonable notice to 
respondent made to its principal office, respondent shall permit any 
duly authorized representative or representatives of the Commission:
    A. Access, during office hours of respondent and in the presence of 
counsel, to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda and other records and documents in the 
possession or under the control of respondent relating to any matters 
contained in this order; and
    B. Upon five (5) days' notice to respondent and without restraint 
or interference therefrom, to interview officers or employees of 
respondent, who may have counsel present, regarding such matters.

Appendix I--Agreement to Hold Separate

    This Agreement to Hold Separate (``Agreement'') is by and between 
Service Corporation International (``SCI''), a corporation organized 
and existing under the laws of the State of Texas, with its principal 
executive office located at 1929 Allen Parkway, Houston, Texas, and the 
Federal Trade Commission (``Commission''), an independent agency of the 
United States Government, established under the Federal Trade 
Commission Act of 1914, 15 U.S.C. 41, et seq. (collectively, 
``Parties'').

Premises

    Whereas, on or about June 7, 1995, SCI entered into an Agreement 
and Plan of Merger with Gibraltar Mausoleum Corporation 
(``Gibraltar''), in which (1) Gibraltar would be merged into Rocky 
Acquisition Corp., a wholly-owned subsidiary of SCI, and (2) Gibraltar 
shareholders would receive SCI common stock and other consideration 
specified therein (``Acquisition''); and
    Whereas, both SCI and Gibraltar own interests in funeral 
establishments that provide funerals, cemeteries that provide perpetual 
care cemetery services, and crematories that provide cremations to 
consumers; and
    Whereas, the Commission is now investigating the Acquisition to 
determine if the Acquisition would violate any of the statutes enforced 
by the Commission; and
    Whereas, if the Commission accepts the Agreement Containing Consent 
Order (``SCI/Gibraltar Consent Agreement''), the Commission must place 
the SCI/Gibraltar Consent Agreement on the public record for public 
comment for a period of at least sixty (60) days and may subsequently 
withdraw such acceptance pursuant to the provisions of Section 2.34 of 
the Commission's Rules; and
    Whereas, the Commission is concerned that if an understanding is 
not reached preserving the status quo ante and holding separate the 
assets and businesses of certain funeral establishments, cemeteries, 
and a crematory (``Hold Separate Assets'') listed in Exhibit A attached 
hereto and made a part hereof until the divestitures contemplated by 
the SCI/Gibraltar Consent Agreement have been made, divestitures 
resulting from any proceeding challenging the legality of the 
Acquisition might not be possible or might be less than an effective 
remedy; and
    Whereas, the purposes of this Agreement are to: (1) Preserve the 
Hold Separate Assets as viable independent businesses pending the 
divestitures described in the SCI/Gibraltar Consent Agreement; (2) 
preserve the Commission's ability to require the divestitures of the 
funeral establishments, cemeteries, and a crematory as specified in the 
SCI/Gibraltar Consent Agreement; and (3) remedy any anticompetitive 
aspects of the Acquisition; and
    Whereas, SCI's entering into this Agreement shall in no way be 
construed as an admission by SCI that the Acquisition is illegal; and
    Whereas, SCI understands that no act or transaction contemplated by 
this Agreement shall be deemed immune or exempt from the provisions of 
the antitrust laws or the Federal Trade Commission Act by reason of 
anything contained in this Agreement.
    Now, therefore, the Parties agree, upon understanding that the 
Commission has not yet determined whether the Acquisition will be 
challenged, and unless the Commission determines to reject the SCI/
Gibraltar Consent Agreement, it will not seek further relief from SCI 
with respect to the Acquisition, except that the Commission may 
exercise any and all rights to enforce this Agreement, the SCI/
Gibraltar Consent Agreement to which it is annexed and made a part, and 
the order, once it becomes final, and in the event that the required 
divestitures are not accomplished, to appoint a trustee to seek 
divestiture of the Properties to be Divested pursuant to the SCI/
Gibraltar Consent Agreement, as follows:
    1. SCI agrees to execute and be bound by the SCI/Gibraltar Consent 
Agreement.
    2. SCI shall hold and Hold Separate Assets separate and apart from 
the date this Agreement is accepted until the first to occur of (a) ten 
business days after the Commission withdraws its acceptance of the SCI/
Gibraltar Consent Agreement pursuant to the provisions of Section 2.34 
of the Commission's Rules or (b) the date the divestitures required by 
the order contained in the SCI/Gibraltar Consent Agreement are 
accomplished. SCI's obligation to hold the Hold Separate Assets 
separate and apart shall be on the following terms and conditions and 
for the periods set forth in Exhibit A:
    a. SCI shall hold separate and apart the Hold Separate Assets.
    b. Except as provided herein and as is necessary to assure 
compliance with this Agreement and the Consent Order, SCI shall not 
exercise direction or control over, or influence directly or 
indirectly, the Hold Separate Assets or any of their operations or 
businesses.
    c. SCI shall cause the Hold Separate Assets to continue using their 
present names and trade names, and shall maintain and preserve the 
viability and marketability of each of the Hold Separate Assets and 
shall not sell, transfer, encumber (other than in the normal course of 
business), or otherwise impair their marketability or viability. During 
the term of this Agreement, SCI shall provide the Hold Separate Assets 
with the same or better quality of support services, including without 
limitation, payroll processing, 

[[Page 1516]]
accounting, management information systems, and computer support, as 
SCI or Gibraltar provided to the Hold Separate Assets prior to the 
acquisition.
    d. SCI shall refrain from taking any actions that may cause any 
material adverse change in the business or financial conditions of the 
Hold Separate Assets.
    e. SCI shall not change the composition of the management of the 
Hold Separate Assets, except that SCI may fill vacancies and remove 
management for cause.
    f. SCI shall maintain separate financial and operating records and 
shall prepare separate quarterly and annual financial statements for 
the Hold Separate Assets and shall provide the Commission with such 
statements for each funeral establishment, cemetery and crematory 
within ten days of their availability.
    g. Except as required by law, and except to the extent that 
necessary information is exchanged in the course of evaluating the 
Acquisition, defending investigations or litigation, or negotiating 
agreements to dispose of assets, SCI shall not receive or have access 
to, or the use of, any of the Hold Separate Assets' material 
confidential information not in the public domain. Any such information 
that is obtained pursuant to this subparagraph shall only be used for 
the purpose set out in this subparagraph. (``Material confidential 
information,'' as used herein, means competitively sensitive or 
proprietary information not independently known to SCI from sources 
other than Gibraltar or itself, and includes but is not limited to pre-
need customer lists, prices quoted by suppliers, or trade secrets.)
    h. All earnings and profits of the Hold Separate Assets shall be 
held separate. If necessary, SCI shall provide any or all of the Hold 
Separate Assets with sufficient working capital to operate at their 
current levels.
    i. SCI shall refrain from, directly or indirectly, encumbering, 
selling, disposing of, or causing to be transferred any assets, 
property, or business of the Hold Separate Assets, except that the Hold 
Separate Assets may advertise, purchase merchandise and sell or 
otherwise dispose of merchandise in the ordinary course of business.
    3. Should the Federal Trade Commission seek in any proceeding to 
compel SCI to divest itself of the shares of Gibraltar stock that SCI 
may acquire, or to compel SCI to divest any assets or businesses of 
Gibraltar that it may hold, or seek any other injunctive or equitable 
relief, SCI shall not raise any objection based upon the fact that the 
Commission has permitted the Acquisition. SCI also waives all rights to 
contest the validity of this Agreement.
    4. For the purpose of determining or securing compliance with this 
Agreement, subject to any legally recognized privilege, and upon 
written request with reasonable notice to SCI made to its principal 
office, respondent shall permit any duly authorized representative or 
representatives of the Commission:
    a. Access during office hours of SCI, and in the presence of 
counsel, to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda and other records and documents in the 
possession or under the control of SCI relating to any matters 
contained in this Agreement; and
    b. Upon five (5) days' notice to SCI and without restraint or 
interference therefrom, to interview officers or employees of SCI, who 
may have counsel present, regarding such matters.
    This Agreement shall not be binding until approved by the 
Commission.

Exhibit A

Hold Separate Assets

    A. The following funeral establishment, cemetery, and crematory 
shall be held separate until the divestitures of the two Blackburn-Shaw 
Funeral Homes (now known as Schooler-Gordon Blackburn-Shaw Funeral 
Homes) and Memory Gardens of Amarillo & Crematory pursuant to the order 
as is set forth in the SCI/Gibraltar Consent Agreement:

1. Memorial Park Funeral Home,      6969 I-40 East, Amarillo, Texas 
79120
2. Memorial Park Cemetery & Crematory, 6969 I-40 East, Amarillo, Texas

    B. The following cemetery and funeral establishment shall be held 
separate until their divestiture pursuant to the order as is set forth 
in the SCI/Gibraltar Consent Agreement:

1. Oaklawn Memorial Gardens and Mausoleum, 2116 Garden Street, 
Titusville, Florida 32796
2. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida 
32796
3. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904
4. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers, 
Florida 33907

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted an agreement to a 
proposed consent order from respondent Service Corporation 
International (``SCI'').
    The proposed consent order has been placed on the public record for 
sixty (60) days for reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and the comments received and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
order.
    The complaint alleges that SCI's acquisition of Gibraltar Mausoleum 
Corporation will violate Section 5 of the Federal Trade Commission Act, 
15 U.S.C. 45, and Section 7 of the Clayton Act, 15 U.S.C. 18, in three 
relevant geographic markets. In Lee County, Florida, both SCI and 
Gibraltar own funeral establishments and are actual competitors in the 
provision of funerals. SCI is the largest seller of funeral services in 
Lee County and Gibraltar is the third largest. In Brevard County, 
Florida, both SCI and Gibraltar own funeral establishments and 
cemeteries and are actual competitors in the provision of funerals and 
perpetual care cemetery services. Gibraltar is the largest firm selling 
funerals and perpetual care cemetery services in Brevard County and SCI 
is the second largest. Finally, in Amarillo, Texas and its immediate 
environs, both SCI and Gibraltar own funeral establishments, cemeteries 
and crematories, and are actual competitors in the provision of 
funerals, perpetual care cemetery services and cremation services. SCI 
and Gibraltar are the first and second largest sellers of funerals, 
respectively. They own two of three perpetual care cemeteries in the 
area and they own the only two crematories.
    The complaint alleges that the acquisition may substantially lessen 
competition in the following ways, among others: (1) By eliminating 
actual competition between SCI and Gibraltar in the relevant markets; 
and (2) by significantly enhancing the possibility of collusion or 
interdependent coordination among the remaining firms in the relevant 
markets or by tending to create a dominant firm in the relevant 
markets. These effects increase the likelihood that firms would 
increase prices, decrease quality and restrict output in the relevant 
markets if the acquisition were consummated.
    The proposed order requires SCI to divest two funeral 
establishments in Lee County, Florida; one funeral establishment and 
one cemetery in Brevard County; and two funeral establishments, a 
cemetery and a crematory in Amarillo, Texas.
    The purpose of this analysis is to facilitate public comment on the 


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proposed order, and it is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-507 Filed 1-18-96; 8:45 am]
BILLING CODE 6750-01-M