[Federal Register Volume 61, Number 100 (Wednesday, May 22, 1996)]
[Notices]
[Pages 25672-25677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12818]
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FEDERAL TRADE COMMISSION
[File No. 931-0084]
The Loewen Group, Inc; Loewen Group International, Inc.; Propose
Consent Agreement With Analysis To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair or deceptive acts or practices and unfair methods of
competition, this consent agreement, accepted subjected to final
Commission approval, would require, among other things, the Covington,
Kentucky-based company to divest the Castelwood Funeral Home in
Castelwood, Virginia within nine months of acquiring it. The Consent
Agreement settles allegations that Lowen's proposed acquisition of
Heritage Family Funeral Services, Inc., would substantially reduce
competition in Castlewood, because Loewen and heritage are the only
firms providing funeral services in the Castlewood area.
DATES: Comments must be received on or before July 22, 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:
Thomas B. Carter, Dallas Regional Office, Federal Trade Commission, 100
N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5518.
Gary D. Kennedy, Dallas Regional Office, Federal Trade Commission, 100
N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5512.
James R. Golder, Dallas Regional Office, Federal Trade Commission, 100
N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5508.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 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 Section 4.9(b)(6)(ii) of the Commission's Rules of
Practice (16 CFR 4.9(b)(6)(ii)).
The Federal Trade Commission (``Commission'') having initiated an
investigation of the proposed acquisition of the voting securities of
Heritage Family Funeral Services, Inc. by The Loewen Group Inc., a
corporation, and Loewen Group International, Inc., a corporation
(hereinafter collectively referred to as ``Loewen''), and it now
appearing that Loewen is willing to enter into an agreement containing
an order to divest certain assets, and to cease and desist from certain
acts.
It is hereby agreed by and between Loewen, its duly authorized
officers and attorneys, and counsel for the Commission that:
1. Proposed respondent The Loewen Group Inc. is a corporation
organized, existing and doing business under and by virtue of the laws
of the province of British Columbia, Canada, with its office and
principal place of business located at 4126 Norland Avenue, Burnaby,
British Columbia, Canada V5G 3S8.
2. Proposed respondent Loewen Group International, Inc. is a
corporation organized, existing and doing business under and by virtue
of the laws of the State of Delaware, with its office and principal
place of business located at 50 East River Center Boulevard, Covington,
Kentucky 41011. Proposed respondent Loewen Group International, Inc. is
a wholly-owned subsidiary of The Loewen Group Inc.
3. Loewen admits all the jurisdictional facts set forth in the
draft of complaint.
4. Loewen 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.
5. 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 Loewen, in which even it will take such
action as it may consider appropriate, or issue and serve its complaint
(in such form as
[[Page 25673]]
the circumstances require) and decision, in disposition of the
proceeding.
6. This agreement is for settlement purposes only and does not
constitute an admission by Loewen that the law has been violated as
alleged in the draft of complaint here C13, or that the facts as
alleged in the draft complaint, other than jurisdictional facts, are
true.
7. 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 Loewen, (1) issue
its complaint corresponding in form and substance with the draft of
complaint E13 and its decision containing the following order to divest
and to cease and desist in disposition of the proceeding and (2) make
information public in respect thereto. When so entered, the order to
divest and 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 U.S. Postal Service of the
complaint and decision containing the agreed-to order to Loewen's
address as stated in this agreement shall constitute service. Loewen
waives any 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.
8. Loewen has read the proposed complaint and order contemplated
hereby. It 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. Loewen 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. ``Loewen'' means The Loewen Group Inc. and Loewen Group
International, Inc., their directors, officers, employees, agents and
representatives, predecessors, successors and assigns, their
subsidiaries, divisions, groups and affiliates controlled by Loewen,
and the respective directors, officers, employees, agents,
representatives, successors and assigns of each.
B. ``Funeral'' means a group of services provided at the death of
an individual, the focus of which is some form of commemorative
ceremony of the life of 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
and outside cases; and the arrangement for the conveyance of the body
to a cemetery or crematory for final disposition.
C. ``Funeral establishment'' means any facility that provides
funerals.
D. ``Property to be Divested'' means all of the assets, properties,
business and goodwill, tangible and intangible, utilized by the
Castlewood Funeral Home located on Highway 58 in Castlewood, Virginia,
including, but not limited to:
1. All right, title and interest in and to owned or leased real
property, together with appurtenances, licenses and permits;
2. All machinery, fixtures, equipment, furniture, tools and other
tangible personal property;
3. All right, title and interest in the trade name of any funeral
establishment, provided that the trade name ``Heritage'' need not be
divested;
4. All right, title and interest in the books, records and files
pertinent to the Property to be Divested;
5. Vendor lists, management information systems, software,
catalogs, sales promotion literature, and advertising materials; and
6. 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.
II.
It is further ordered that:
A. Within nine (9) months after Loewen acquires the Property to be
Divested, Loewen shall divest, absolutely and in good faith, the
Property to be Divested. The Property to be Divested is 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 required by this order
is to ensure the continued use of the Property to be Divested as an
ongoing viable enterprise providing funerals and to remedy the
lessening of competition alleged in the Commission's complaint.
B. Pending divestiture of the Property to be Divested, Loewen shall
maintain the viability and marketability of the Property to be Divested
and shall not cause or permit the destruction, removal, or impairment
of any assets or business of the Property to be Divested, except in the
ordinary course of business and except for ordinary wear and tear.
C. Loewen shall comply with the Agreement to Hold Separate,
attached hereto and made a part hereof as Appendix I. Said agreement
shall continue in effect until Loewen has divested the Property to be
divested or until such other time as the Agreement to Hold Separate
provides.
III.
It is further ordered that:
A. If Loewen has not divested, absolutely and in good faith and
with the Commission's prior approval, the Property to be Divested as
required by paragraph II of this order within nine (9) months after
Loewen has acquired the Property to be Divested, the Commission may
appoint a trustee to divest the Property to be Divested. In the event
the Commission or the Attorney General brings an action pursuant to
Section 5 (1), or any other statute enforced by the Commission, Loewen
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(1) of
the Federal Trade Commission Act, or any other statute enforced by the
Commission, for any failure by Loewen 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, Loewen shall consent to the
following terms and conditions regarding the trustee's powers,
authorities, duties and responsibilities:
1. The Commission shall select the trustee, subject to the consent
of Loewen, which consent shall not be unreasonably withheld. The
trustee shall be a person with experience and expertise in acquisitions
and divestitures. If Lowen has not opposed, in writing, the selection
of any proposed trustee within ten (10) days after notice by the staff
of the Commission to
[[Page 25674]]
Loewen of the identity of any proposed trustee, Loewen 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 Property to
be Divested.
3. The trustee shall have the power and authority to abrogate any
contract or agreement between Loewen and any individual which
restricts, limits or otherwise impairs the ability of such individual
to purchase the Property to be Divested or to become a director,
officer, employee, agent or representative of any acquirer of the
Property to be Divested.
4. Within ten (10) days after appointment of the trustee, and
subject to the prior approval of the Commission and, in the case of a
court-appointed trustee, of the court, Loewen shall execute a trust
agreement that transfers to the trustees all rights and powers
necessary to permit the trustee to effect the divestiture required by
this order.
5. The trustee shall have twelve (12) months from the date the
Commission approves the trust agreement described in Paragraph III.B.4
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 accomplished within a reasonable time, the
divestiture period may be extended by the Commission, or in the case of
a court-appointed trustee, by the court; provided, however, that the
Commission may extend the divestiture period only two (2) times.
6. The trustee shall have full and complete access to the
personnel, books, records and facilities relating to the Property to be
Divested, or any other relevant information, as the trustee may
request. Loewen shall develop such financial or other information as
such trustee may request and shall cooperate with the trustee. Loewen
shall take no action to interfere with or impede the trustee's
accomplishment of the divestiture. Any delays in divestiture caused by
Loewen 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, the court.
7. 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 Loewen'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 Loewen from among those approved by the Commission.
8. The trustee shall serve, without bond or other security, at the
cost and expense of Loewen, on such reasonable and customary terms and
conditions as the Commission or the court may set. The trustee shall
have authority to employ, at the cost and expense of Loewen, such
consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
reasonably 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 Loewen and the
trustee's power shall be terminated. The trustee's compensation shall
be based at least in a significant part on a commission arrangement
contingent on the trustee's divesting the Property to be Divested.
9. Loewen 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.
10. 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.
11. 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.
12. The trustee shall have no obligation or authority to operate or
maintain the Property to be Divested.
13. The trustee shall report in writing to Loewen and to 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, Loewen 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 at the time of such
acquisition, or within the two years preceding such acquisition, in the
provision of funerals in Russell County, Virginia or within fifteen (15
miles of the Russell County, Virginia line; or
B. Acquire any assets used for or used in the previous two years
for (and still suitable for use for) funeral establishments in Russell
County, Virginia or within fifteen (15) miles of the Russell County,
Virginia line.
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 Office of the Secretary of the Commission, notification need not be
made to the United States Department of Justice, and notification is
required only of Loewen and not of any other party to the transaction.
Loewen shall provide the Notification to the Commission at least thirty
(30) 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, Loewen shall not consumate the acquisition until twenty
(20) 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 Commission's Bureau of Competition.
Provided, however, that prior notification shall not be required by
this Paragraph IV of this Order for:
1. The construction or development by Loewen of a new funeral
establishment; or
2. Any transaction for which notification is required to be made,
and
[[Page 25675]]
has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C.
18a.
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 Loewen has fully complied
with the provisions of Paragraphs II or III of this order, Loewen 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. Loewen 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. Loewen shall include in its
compliance reports copies of all written communications to and from
such parties, all internal memoranda, and all reports and
recommendations concerning divestiture.
B. One (1) year from the 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, Loewen
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. Such reports shall include, but not be
limited to, a listing by name and location of all acquisitions of
funeral establishments in the United States located within forty (40)
miles of a funeral establishment owned by Loewen at the time of the
acquisition, including but not limited to acquisitions due to default,
foreclosure proceedings or purchases in foreclosure, made by Loewen
during the twelve (12) months preceding the date of the report.
VI.
It is further ordered that, for a period of ten (10) years from the
date this order becomes final, Loewen shall notify the Commission at
least thirty (30) days prior to any proposed change in its
organization, such as dissolution, assignment or sale resulting in the
emergence of a successor, or the creation or dissolution of
subsidiaries, or any other change that may affect compliance
obligations arising out of this order.
VII.
It is further ordered that, for the purpose of determining or
securing compliance with this order, subject to any legally recognized
privilege, upon written request with reasonable notice to Loewen made
to its principal officer, Loewen shall permit any duly authorized
representative or representatives of the Commission:
A. Access, during the office hours of Loewen 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 Loewen relating to any matters
contained in this order; and
B. Upon five (5) days' notice to Loewen and without restraint or
interference therefrom, to interview officers or employees of Loewen,
who may have counsel present, regarding such matters.
Appendix I
In the Matter of The Loewen Group Inc., a corporation, and
Loewen Group International, Inc., a corporation. File No. 931-0084.
Agreement To Hold Separate
This Agreement to Hold Separate (the ``Agreement'') is by and
between The Loewen Group Inc. (``Loewen Group''), a corporation
organized and existing under the laws of the province of British
Columbia, Canada, with its office and principal place of business
located at 4126 Norland Avenue, Burnaby, British Columbia, Canada
V5G 3S8; Loewen Bropu International, Inc. (``Loewen Group
International''), a wholly-owend subsidiary of Loewen Group, which
is a corporation organized and existing under the laws of the State
of Delaware, with its office and principal place of business located
at 50 East River Center Boulevard, Covington, Kentucky 41011; and
the Federal Trade Commission (the ``Commission''), an independent
agency of the United States Government, established under the
Federal Trade Commission Act of 1914, as amended, 15 U.S.C. 41, et
seq. (collectively, the ``Parties'').
Premises
Whereas, on or about January 26, 1993, Loewen Group through its
wholly-owned subsidiary Loewen Group International entered into an
Agreement with Heritage Family Funeral Services, Inc. (``Heritage'')
in which Loewen Group International agreed to acquire Heritage (the
``Acquisition''); and
Whereas, both Heritage and Loewen Group International own
funeral establishments that provide funerals 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 (the ``Loewen/Heritage Consent Agreement''), the
Commission must place the Loewen/Heritage Consent Agreement on the
public record for public comment for a period of at least sixty (60)
days and may subsequently withtdraw 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 business of the Property to be Divested pursuant to
Paragraph II (hereinafter ``Hold Separate Assets'') of the Loewen/
Heritage Consent Agreement and the order, once it is final
(``Consent Order'') until the divestiture contemplated by the
Consent Order has been made, divestiture 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, the Loewen/Heritage
Consent Agreement, and the Consent Order are to:
(1) Preserve the Hold Separate Assets as a viable independent
business pending the divestiture described in the Loewen/Heritage
Consent Agreement and Consent Order;
(2) Preserve the Commission's ability to require the divestiture
of the funeral establishment required by the Consent Order; and
(3) Remedy any anticompetitive aspects of the Acquisition; and
Whereas, Loewen Group's and Loewen Group International's
entering into this Agreement shall in no way be construed as an
admission by Loewen Group and Loewen Group International that the
Acquisition is illegal; and
Whereas, Loewen Group and Loewen Group International understand
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 the understanding that
the Commission has not yet determined whether the Acquisition will
be challenged, and in consideration of the Commission's agreement
that, at the time it accepts the Consent Order for public comment,
it will grant early termination of the Hart-Scott-Rodino waiting
period, as follows:
1. Loewen Group and Loewen Group International agree to execute
and be bound by the attached Loewen/Heritage Consent Agreement.
2. Loewen Group and Loewen Group International shall hold the
Hold Separate Assets separate and apart from the date this Agreement
is accepted until the first to occur of,
a. Three (3) business days after the Commission withdraws its
acceptance of the Loewen/Heritage Consent Agreement pursuant to the
provisions of section 2.34 of the Commission's Rules; or
b. The day after the divestiture required by the Consent Order
is accomplished.
3. Loewen Group's and Loewen Group International's obligation to
hold the Hold Separate Assets separate and apart shall be on the
following terms and conditions:
a. The Hold Separate Assets, as they are presently constituted,
shall be held separate
[[Page 25676]]
and apart and shall be operated independently of Loewen Group and
Loewen Group International except to the extent that Loewen Group
and Loewen Group International must exercise direction and control
over the Hold Separate Assets to assure compliance with this
Agreement, the Loewen/Heritage Consent Agreement, or the Consent
Order.
b. Except as provided herein and as is necessary to assure
compliance with this Agreement, the Loewen/Heritage Consent
Agreement, and the Consent Order, Loewen Group and Loewen Group
International shall not exercise direction or control over, or
influence directly or indirectly, the Hold Separate Assets or any of
their operations or business.
c. Loewen Group and Loewen Group International shall cause the
Hold Separate Assets to continue using their present name and trade
name, and shall maintain and preserve the viability and
marketability 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.
d. Loewen Group and Loewen Group International 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. Loewen Group and Loewen Group International shall not change
the composition of the management of the Hold Separate Assets,
except that Loewen Group and Loewen Group International shall have
the power to fill vacancies and remove management for cause.
f. Loewen Group and Loewen Group International 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 the
funeral establishment 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, Loewen Group and Loewen Group
International 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, except as such information
would be available to Loewen Group and Loewen Group International in
the normal course of business if the Acquisition had not taken
place. 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 Loewen Group and Loewen Group International
from sources other than Heritage, 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 separately. If necessary, Loewen Group and Loewen Group
International shall provide the Hold Separate Assets with sufficient
working capital to operate at their current rate of operation.
i. Loewen Group and Loewen Group International 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.
4. Should the Federal Trade Commission seek in any proceeding to
compel Loewen Group and Loewen Group International to divest
themselves of the shares of Heritage stock that they may acquire, or
to compel Loewen Group and Loewen Group International to divest any
assets or businesses of Heritage that they may hold, or to seek any
other injunctive or equitable relief, Loewen Group and Loewen Group
International shall not raise any objection based upon the
expiration of the applicable Hart-Scott-Rodino Antitrust
Improvements Act waiting period or the fact that the Commission has
permitted the Acquisition. Loewen Group and Loewen Group
International also waive all rights to contest the validity of this
Agreement.
5. 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 Loewen Group and
Loewen Group International made to their principal offices, Loewen
Group and Loewen Group International shall make available to any
duly authorized representative or representatives of the Commission:
a. All books, ledgers, accounts, correspondence, memoranda, and
other records and documents in the possession or under the control
of Loewen Group and Loewen Group International, for inspection and
copying during office hours and in the presence of counsel; and
b. Upon five (5) days' notice to Loewen Group and Loewen Group
International and without restraint or interference from Loewen
Group or Loewen Group International, officers or employees of Loewen
Group and Loewen Group International, who may have counsel present,
for interviews regarding any such matters.
6. This agreement shall not be binding until approved by the
Commission.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted an agreement, subject to
final approval, to a proposed consent order from The Loewen Group Inc.
and Loewen Group International, Inc. (hereinafter collectively referred
to as ``Loewen'').
The proposed consent order has been placed on the public record for
sixty (60) days for reception of comments from 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 to withdraw
from the agreement or make final the agreement's proposed order.
The Commission's complaint in this matter charges Loewen with
violating Section 5 of the Federal Trade Commission Act, as amended,
and Section 7 of the Clayton Act, as amended, in connection with
Loewen's proposed acquisition of Castlewood Funeral Home, in
Castlewood, Virginia.
The consent order contains provisions designed to remedy the
alleged violations.
Part I of the order contains the definitions of terms that are used
in the order.
Part II of the order requires that within nine (9) months of the
date that Loewen acquires Castlewood Funeral Home, Loewen must divest
Castlewood Funeral Home.
Part III of the order provides for the appointment of a trustee to
accomplish the divestiture required by the order if Loewen fails to
make a timely divestiture.
Part IV of the order requires Loewen, for ten (10) years, to
provide written notification to the Commission prior to acquiring any
interest in a funeral home located in Russell County, Virginia, or
within fifteen (15) miles of the Russell County, Virginia, line.
Part V of the order requires Loewen to provide periodic compliance
reports until the divestiture is completed. Part V also requires
Loewen, for ten (10) years, to provide annual compliance reports
detailing how it is complying with Part IV of the order.
Part VI of the order requires Loewen, for ten (10) years, to notify
the Commission of any changes in corporate structure that might affect
compliance with the order.
Part VII of the order permits Commission representatives, for the
purpose of determining or securing compliance with the order, to have
access to Loewen's offices to inspect and copy documents and, upon five
days' notice, to interview Loewen's officers and employees.
Appendix I to the order is an Agreement to Hold Separate in which
Loewen has agreed to hold separate and preserve the assets of
Castlewood Funeral Home until Loewen divests the home.
The purpose of this analysis is to facilitate public comment on the
proposed order. It is not intended to constitute an official
interpretation of
[[Page 25677]]
the agreement and proposed order, or to modify any of their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-12818 Filed 5-21-96; 8:45 am]
BILLING CODE 6750-01-M