[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Notices]
[Pages 34867-34871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16890]


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DEPARTMENT OF JUSTICE

United States v. AnchorShade, Inc., No. 96-08426, S.D. Fla., 
filed June 20, 1996

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation and Competitive Impact Statement have been filed with the 
United States District Court for the Southern District of Florida in 
the above-captioned case.
    On June 20, 1996, the United States filed a complaint to prevent 
and restrain the defendant from violating Section 1 of the Sherman Act. 
The complaint alleges that the defendant conspired to fix the price of 
outdoor umbrellas sold by the defendant to dealers throughout the 
United States by obtaining agreements from dealers to maintain the 
minimum resale price as a condition of receiving outdoor umbrellas from 
the defendant, and permitting dealers to discount in order to meet 
competition, but only if they obtained written approval in advance from 
AnchorShade, Inc. As a result of the conspiracy, the resale price of 
outdoor umbrellas was fixed and competition among dealers of outdoor 
umbrellas was restrained.
    The proposed Final Judgment prohibits the defendant from entering 
into or maintaining any unlawful agreement with any dealer that fixes 
the price at which the dealer may sell the defendant's outdoor 
umbrellas to consumers; adopting any resale pricing policy wherein the 
defendant (1) Will sell only to a dealer that prices the defendant's 
outdoor umbrellas at or above the defendant's suggested resale price, 
and/or (2) will terminate any dealer for pricing below such suggested 
resale price; and threatening any dealer with termination or 
terminating any dealer from pricing below the defendant's suggested 
resale price, and discussing with any dealer any decision regarding 
termination of any other dealer for any reason related to pricing below 
the defendant's suggested resale price.
    Public comment is invited within the statutory 60-day period. Such 
comments

[[Page 34868]]

will be published in the Federal Register and filed with the Court. 
Comments should be addressed to Ralph T. Giordano, Chief, New York 
Office, U.S. Department of Justice, Antitrust Division, 26 Federal 
Plaza, Room 3630, New York, New York 10278 (telephone: (212) 264-0390).
Rebecca P. Dick,
Deputy Director of Operations.

United States District Court Southern District of Florida

    In the matter of; UNITED STATES OF AMERICA, Plaintiff, v. 
ANCHORSHADE, INC., Defendant; Civil Action No. 96-08426, Judge 
Daniel T. K. Hurley.

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. 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 proceeding.

    Dated: June 20, 1996.

    For the Plaintiff:
Anne K. Bingaman,
Assistant Attorney General.
Joel I. Klein,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Ralph T. Giordano,
Chief, New York Office.

    For the Defendant:
Barry L. Haley,
Counsel for AnchorShade, Inc., Malin, Haley, DiMaggio and Crosby, P.A., 
Suite 1609, 1 East Broward Boulevard, Fort Lauderdale, Florida 33301.
Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26 
Federal Plaza, Room 3630, New York, New York 10278, (212) 264-0660.

Final Judgment

    Plaintiff, United States of America, having filed its complaint 
herein on     , and plaintiff and defendant, AnchorShade, 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. 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 AnchorShade, 
Inc., who purchases or acquires outdoor umbrellas manufactured or sold 
by AnchorShade, Inc. for resale.
    C. ``Outdoor umbrellas'' means collapsible devices that provide 
shade for protection against sun or weather.
    D. ``Resale price'' means any price, price floor, price ceiling, 
price range, or any mark-up, formula or margin of profit relating to 
outdoor umbrellas 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 outdoor umbrellas sold or 
distributed by the 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 this Final Judgment from directly 
or indirectly announcing to the public or to any present or potential 
dealer of its outdoor umbrellas that defendant has or is adopting, 
promulgating, suggesting, announcing or establishing any resale pricing 
policy for outdoor umbrellas 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 this 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

[[Page 34869]]

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 hereby ordered and directed:
    A. To send a written notice, and in the form attached as Appendix A 
to this Final Judgment, a copy of this Final Judgment, within sixty 
days of the entry of this Final Judgment, to each dealer who purchased 
outdoor umbrellas from defendant from January 1, 1992 to the date of 
entry of this Final Judgment.
    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 outdoor umbrellas from defendant within ten years of 
entry of this Final Judgment and who was not previously given such 
notice. Such notice shall be sent within thirty days after the shipment 
of outdoor umbrellas is made to such dealer by defendant.

VI

Compliance Program

    Defendant is ordered to establish and maintain an antitrust 
compliance program which shall include designating, within thirty 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 assure 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 days of 
entry of this Final Judgment to each of AnchorShade, Inc.'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 outdoor umbrellas in the United States, except those 
employees whose functions are purely clerical or manual.
    B. Distributing in a timely manner a copy 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 VA A and 
B on the meaning and requirements of this Final Judgment and the 
antitrust laws.
    C. 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 seventy-five days 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 
plaintiffs 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 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 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 
materials, ``Subject to claim of protection under Rule 26(c)(7) of the 
Federal Rules of Civil Procedure,'' then ten 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 Rules of Civil Procedure.
    E. Within ten days after receiving any request under Sections VIII 
A or VII 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

[[Page 34870]]

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:----------------------------------------------------------------

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United States District Court Judge

Appendix A

    Dear AnchorShade Dealer. The Antitrust Division of the United 
States Department of Justice filed a civil suit alleging that from 
at least as early as December 1992 through at least February 1995, 
AnchorShade, Inc. (AnchorShade) entered into and maintained 
agreements with certain dealers to fix and maintain the resale 
prices of AnchorShade products. AnchorShade 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 AnchorShade from 
announcing to the public or to any dealer that AnchorShade has a 
resale pricing policy that contains any provision that provides that 
(a) AnchorShade will sell only to a dealer that prices at or above 
AnchorShade's suggested resale price, and/or (b) AnchorShade will 
terminate any dealer for pricing below AnchorShade'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,

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Certificate of Service

    I, Patricia L. Jannaco, hereby certify that on the 20th day of 
June, 1996, I served the foregoing Stipulation and Proposed Final 
Judgment by causing copies thereof to be hand-delivered to: Barry L. 
Haley, Esq., Malin, Haley, DiMaggio and Crosby, P.A., Suite 1608, 1 
East Broward Boulevard, Fort Lauderdale, Florida 33301.

Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26 
Federal Plaza, Room 3630, New York, New York, 10278, (212) 264-0660.

United States District Court Southern District of Florida

    In the matter of; United States of America, Plaintiff, v. 
Anchorshade, Inc., Defendant; Civil Action No. 96-08426, Filed: 6/
20/96; 15 U.S.C. 1; 15 U.S.C. 4; Judge Daniel T.K. Hurley.

Competitive Impact Statement

    The United States of America, pursuant to section 2 of the 
Antitrust Procedures and Penalties Act (APPA), 15 U.S.C. 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 June 20, 1996, the United States filed a civil antitrust 
complaint under Section 4 of the Sherman Act, as amended, 15 U.S.C. 4, 
alleging that the defendant AnchorShade, Inc. engaged in a combination 
and conspiracy, in violation of Section 1 of the Sherman Act, 15 U.S.C. 
1, to fix the price of outdoor umbrellas sold by AnchorShade, Inc. to 
dealers throughout the United States. The complaint alleges that, in 
furtherance of this conspiracy, AnchorShade, Inc.:
    (a) obtained agreements from dealers to maintain the minimum resale 
price as a condition of receiving outdoor umbrellas from AnchorShade, 
Inc.;
    (b) permitted dealers to discount in order to meet competition, but 
only if the obtained written approval in advance from AnchorShade, Inc.
    The complaint also alleges that the combination and conspiracy is 
illegal, and seeks to enjoin AnchorShade, Inc. 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 AnchorShade, Inc. 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 
Final Judgment, or to punish violations of any of its provisions.

II

Description of Practices Giving Rise to the Alleged Violation of the 
Antitrust Laws

    AnchorShade, Inc., a Florida corporation, is a seller in the United 
States of outdoor umbrellas that are used on boats to provide shade for 
protection against sun or weather. AnchorShade, Inc. sells outdoor 
umbrellas to dealers, who sell them to consumers. AnchorShade, Inc. 
further stipulated that AnchorShade, Inc. would terminate its 
relationship with any dealer who sold its outdoor umbrellas below the 
stated resale price.
    In December 1992, AnchorShade, Inc. entered into outright, written 
agreements with certain dealers which required them to sell its outdoor 
umbrellas to consumers at a resale price not lower than $169. The 
agreements further required a dealer that wanted to discount, in order 
to meet competition, to obtain advance written permission from 
AnchorShade, Inc. These agreements went well over the line established 
in the case law (see, Business Electronics Corp. v. Sharp Electronics 
Corp., 485 U.S. 717 (1988), Monsanto Co. v. Spray-Rite Service Corp., 
465 U.S.752 (1984), United States v. Colgate & Co., 250 U.S. 300 
(1919)), and served to keep prices artificially high.

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 outdoor umbrellas 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 AnchorShade, Inc.'s 
unlawful practice, but also contains additional provisions that are 
remedial in nature.

[[Page 34871]]

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 outdoor umbrellas that defendant has or is adopting, promulgating, 
suggesting, announcing or establishing any resale pricing policy for 
outdoor umbrellas that provides that: (1) defendant will sell only to a 
dealer that prices its outdoor umbrellas 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 
AnchorShade, Inc.'s dealers are aware of the limitations imposed on it 
by the Final Judgment. Section V requires the defendant to send notice 
and copies of the Final Judgment to each dealer who purchased outdoor 
umbrellas from the defendant from January 1, 1992 to the date of entry 
of the Final Judgment. In addition, the defendant is required to send 
notices and copies of the Final Judgment to every other dealer who 
purchases outdoor umbrellas from AnchorShade, Inc. 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 Final 
Judgment to each of its officers and directors and each of its 
nonclerical employees, representatives or agents with supervisory or 
direct responsibility for the sale or advertising of outdoor umbrellas 
in the United States.
    In addition, the proposed Final Judgment provides a method of 
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 Final 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 Final Judgment effective for ten years from 
the date of its entry.
    Section XI of the proposed Final Judgment states that entry of the 
Final 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 United States 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 the 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, provides that any person who had 
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 sixty 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 
sixty days of the date of publication of this Competitive Impact 
Statement in 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 responses of the United States 
will be filed with the Court and published in the Federal Register.
    Written comments should be submitted to: Ralph T. Giordano, Chief, 
New York Office, Antitrust Division, United States Department of 
Justice, 26 Federal Plaza, Room 3630, New York, New York 10278.
    Under Section X of the proposed Final 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 Final Judgment, or 
for the punishment of any violations of the Final Judgment.

VI

Alternatives to the Proposed Final Judgment

    The only alternative to the proposed Final Judgment considered by 
the United States will a full trial on the merits and on relief. Such 
litigation would involve substantial costs 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 United States has not 
attached any such materials or documents to the proposed Final 
Judgment.

    Dated: June 20, 1996.

    Respectfully submitted,
Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26 
Federal Plaza, Room 3630, New York, New York 10278, (212) 264-0660.
[FR Doc. 96-16890 Filed 7-2-96; 8:45 am]
BILLING CODE 4410-01-M