[Federal Register Volume 64, Number 168 (Tuesday, August 31, 1999)]
[Notices]
[Pages 47505-47507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22575]


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FEDERAL TRADE COMMISSION

[File No. 991 0041]


The Kroger Co., et al.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before November 1, 1999.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 600 Pennsylvania Ave., NW, Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: William Baer, FTC/H-374, 600 
Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-2932 or Laurel 
Price and Michael Rose, Federal Trade Commission, East Central Regional 
Office, 1111 Superior Ave., Suite 200, Cleveland, OH 44114. (216) 263-
3417.

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 above-captioned 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. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for August 23, 1999), on the World Wide Web, at ``http://www.ftc.gov/
os/actions97.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, 600 Pennsylvania Avenue, NW, Washington, DC 
20580, either in person or by calling (202) 326-3627.
    Public comment is invited. Comments should be directed to: FTC/
Office of the Secretary, Room 159, 600 Pennsylvania Ave., NW, 
Washington, DC 20580. Two paper copies of each comment should be filed, 
and should be accompanied, if possible, by a 3\1/2\ inch diskette 
containing an electronic copy of the comment. 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)).

Analysis To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted for 
public comment from The Kroger Co. (``Kroger'') and The John C. Groub 
Company, Inc. (``Groub'') (collectively ``the Proposed Respondents'') 
an Agreement Containing consent order (``Order''). The Order, requiring 
the divestiture of three supermarkets to Roundy's Inc., is designed to 
remedy likely anticompetitive effects arising from Kroger's acquisition 
of substantially all of the assets of Groub.
    Kroger is an Ohio corporation headquartered in Cincinnati, Ohio. It 
is the largest supermarket firm in the United States, with 1997 fiscal 
year sales in excess of $26 billion. Kroger operates more than 2,200 
supermarkets and convenience stores in 37 states. Kroger operates 89 
supermarkets in Indiana. Two Kroger supermarkets directly compete with 
four Groub stores subject to this transaction.
    Groub, an Indiana corporation headquartered in Seymour, Indiana, 
operates 30 retail supermarkets in southern and central Indiana under 
the names ``Jay C,'' ``Foods Plus,'' and ``Ruler.'' Groub sales for the 
1997 fiscal year were approximately $252,000,000.
    The proposed complaint alleges that the relevant line of commerce 
(i.e., the product market) is the retail sale of food and grocery items 
in supermarkets. Supermarkets provide a distinct set of products and 
services for consumers who desire one-stop shopping for food and 
grocery products. Supermarkets carry a full line and wide selection of 
both food and nonfood products (typically more than 10,000 different 
stock-keeping units (``SKUs'')), as well as a deep inventory of those 
SKUs. In order to accommodate the large number of food and nonfood 
products necessary for one-stop shopping, supermarkets are large stores 
that typically have at least 10,000 square feet of selling space.
    Supermarkets compete primarily with other supermarkets that provide 
one-stop shopping for food and grocery products. Supermarkets primarily 
base their food and grocery prices on the prices of food and grocery 
products sold at other nearby supermarkets. Supermarkets do not 
regularly price-check food and grocery products sold at other types of 
stores, and do not

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significantly change their food and grocery prices in response to 
prices at other types of stores. Most consumers shopping for food and 
grocery products at supermarkets are not likely to shop elsewhere in 
response to a small price increase by supermarkets.
    Retail stores other than supermarkets that sell food and grocery 
products, such as neighborhood ``mom & pop'' grocery stores, 
convenience stores, specialty food stores (e.g., seafood markets, 
bakeries, etc.), club stores, military commissaries, and mass 
merchants, do not effectively constrain prices at supermarkets. These 
other stores operate significantly different retail formats. None of 
these stores offers a supermarket's distinct set of products and 
services that enable consumers to one-stop shop for food and grocery 
products.
    Kroger and Groub are direct competitors in the retail sale of food 
and grocery items in supermarkets in Columbus and Madison, Indiana. 
Columbus has a population of approximately 34,000 people; Madison's 
population is around 40,000. According to the proposed complaint, the 
Columbus and Madison relevant markets are highly concentrated, whether 
measured by the Herfindahl-Hirschman Index (commonly referred to as 
``HHI'') or by two-firm and four-firm concentration ratios.\1\ The 
acquisition would substantially increase concentration in each market. 
Kroger and Groub would have a combined market share in the geographic 
markets of Columbus and Madison of near or greater than 66% and 54%, 
respectively. The post-acquisition HHIs would be 5,254 in Columbus and 
4,262 in Madison. According to the proposed complaint, entry is 
difficult and would not be timely, likely, or sufficient to prevent 
anticompetitive effects in the relevant geographic markets.
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    \1\ The HHI is a measurement of market concentration calculated 
by summing the squares of the individual market shares of all the 
participants.
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    According to the proposed complaint, Kroger's acquisition of Groub 
may substantially lessen competition in the relevant markets in 
violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, 
and Section 5 of the Federal Trade Commission Act, as amended, 15 
U.S.C. 45, by eliminating direct competition between supermarkets owned 
or controlled by Kroger and supermarkets owned or controlled by Groub; 
by increasing the likelihood that Kroger will unilaterally exercise 
market power; and by increasing the likelihood of, or facilitating, 
collusion or coordinated interaction among the remaining supermarket 
firms. Each of these effects increases the likelihood that the prices 
of food, groceries or services will increase, and the quality and 
selection of food, groceries or services will decrease, in the relevant 
sections of the country.
    To remedy the antitrust concerns in these markets, under the terms 
of the Order, the Proposed Respondents must divest three supermarkets 
in the relevant markets. The Proposed Respondents must divest: (1) one 
Groub ``Jay C'' and one Groub ``Foods Plus'' in Columbus, Indiana, and 
(2) one ``Kroger'' in Madison, Indiana, to Roundy's, Inc. 
(``Roundy's''). Roundy's is one of the largest food wholesalers in the 
United States and an operator of company-owned supermarkets.
    These divestitures include every Kroger supermarket or every Groub 
supermarket in each relevant market. Roundy's owns no supermarkets in 
the same market where it is acquiring one or more divested supermarkets 
from the Proposed Respondents. The specific supermarkets that the 
Proposed Respondents must divest to Roundy's are:
    1. Groub store no. 92 operating under the ``Foods Plus'' trade 
name, which is located at 1343 North National Road, Columbus, Indiana 
47201 (Bartholomew County)
    2. Groub store no. 89 operating under the ``Jay C'' trade name, 
which is located at 2540 Eastbrook Plaza, Columbus, Indiana 47201 
(Bartholomew County); and
    3. Kroger store no. 304 operating under the ``Kroger'' trade name, 
which is located at 748 Jefferson Court, Madison, Indiana 47250 
(Jefferson County).
    From the time Kroger acquires substantially all of the assets of 
Groub until the divestitures have been completed, the Proposed 
Respondents are required to maintain the viability, competitiveness, 
and marketability of the assets to be divested, must not cause their 
wasting or deterioration, and cannot sell, transfer, or otherwise 
impair their marketability or viability
    The Order, which was executed on July 13, 1999, specifically 
requires that the divestitures occur no later than 20 days after Kroger 
acquires substantially all of the assets of Groub or four months after 
the proposed Respondents signed the Order, whichever is earlier. The 
Order also requires Kroger and Groub to include rescission provisions 
in their up-front buyer agreements that allow them to rescind the 
transaction(s) if the Commission, after the comment period, decides to 
reject any up-front buyer(s). If Kroger divests the supermarkets to be 
divested prior to the date the Order becomes final, and if, at the time 
the Commission decides to make the Order final, the Commission notifies 
Kroger or Groub that the up-front buyer is not an acceptable acquirer 
or that any of the up-front buyer agreements is not an acceptable 
manner of divestiture, then Kroger or Groub must immediately rescind 
the transaction in question and divest those assets within three months 
after the Order becomes final. At that time, Kroger or Groub must 
divest those assets only to an acquirer that receives the prior 
approval of the Commission and only in a manner that receives the prior 
approval of the Commission.
    The Commission's goal in evaluating possible purchasers of divested 
assets is to maintain the competitive environment that existed prior to 
the acquisition. When divestiture is an appropriate remedy for a 
supermarket acquisition, the Commission requires the parties to find a 
buyer for the divested stores. A proposed buyer must not itself present 
competitive problems. For example, the Commission is less likely to 
approve a buyer that already has a large retail presence in the 
relevant geographic area than a buyer without such a presence. The 
Commission is satisfied that the purchaser presented by the parties is 
well qualified to run the divested stores and that divestiture to that 
purchaser poses no separate competitive issues.
    For a period of 10 years from the date the Order becomes final, 
Kroger is required to provide notice to the Commission prior to 
acquiring supermarket assets located in, or any interest (such as 
stock) in any entity that owns or operates a supermarket located in, 
Bartholomew or Jefferson counties, Indiana. Kroger may not complete 
such an acquisition until it has provided information requested by the 
Commission. This provision does not restrict Kroger from constructing 
new supermarket facilities on its own; nor does it restrict Kroger from 
leasing facilities not operated as supermarkets within the previous six 
months.
    For a period of 10 years, the Order also prohibits Kroger from 
entering into or enforcing any agreement that restricts the ability of 
any person that acquires any supermarket, any leasehold interest in any 
supermarket, or any interest in any retail location used as a 
supermarket on or after July 13, 1999, to operate a supermarket at that 
site if such a supermarket was formerly owned or operated by the Kroger 
in Batholomew or Jefferson counties, Indiana. In addition, Kroger may 
not remove fixtures or equipment from a store or property owned or 
leased in

[[Page 47507]]

Bartholomew or Jefferson counties, Indiana, that is no longer in 
operation as a supermarket, except (1) prior to sale, sublease, 
assignment, or change in occupancy or (2) to relocate such fixtures or 
equipment in the ordinary course of business to any other supermarket 
owned or operated by Kroger.
    The Proposed Respondents are required to provide to the Commission 
a report of compliance with the Order within 30 days following the date 
on which they signed the consent agreement and every 30 days thereafter 
until the diversitures are completed: and Kroger must report annually 
for a period of 10 years from the date the proposed order becomes 
final. The obligations of Group under the Order will terminate upon the 
date it becomes final.
    The Order has been placed on the public record for 60 days for 
receipt of comments by interested persons. Comments received during 
this period will become part of the public record. After 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 
the Order final.
    By accepting the Order subject to final approval, the Commission 
anticipates that the competitive problems alleged in the compliant will 
be resolved. The purpose of this analysis is to invite public comment 
on the Order, including the proposed sale of supermarkets to Roundy's, 
in order to aid the Commission in its determination of whether to make 
the Order final. This analysis is not intended to constitute an 
official interpretation of the Order nor is it intended to modify the 
terms of the Order in any way.

    By direction of the Commission.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 99-22575 Filed 8-30-99; 8:45 am]
BILLING CODE 6750-01-M