[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Notices]
[Pages 82380-82381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33028]


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FEDERAL TRADE COMMISSION

[File No. 001-0197]


The Valspar Corporation; 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 January 18, 2001.

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

FOR FURTHER INFORMATION CONTACT: Christina R. Perez, FTC/H-374, 600 
Pennsylvania Avenue, NW., Washington, DC 20580. (202) 326-2048.

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 thirty (30) 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 December 19, 2000), on the World Wide Web, at ``http://
www.ftc.gov/os/2000/12/index.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 H-159, 600 Pennsylvania Avenue, 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 of Agreement Containing Consent Order To Aid Public 
Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Order (``Consent 
Agreement'') from Valspar Corporation (``Valspar''), which is designed 
to remedy the anticompetitive effects resulting from Valspar's 
acquisition of Lilly Industries, Inc. (``Lilly''). Under the terms of 
the agreement, within ten days of the date the Consent Agreement is 
placed on the public record, Valspar will be required to divest its 
mirror coatings business, which is comprised of silver, tin and copper 
solutions, mirror backing paint, and any other coating researched, 
developed, manufactured or sold by Valspar that is used in the 
production of a mirror, to Spraylat Corporation. Should Valspar fail to 
do so, the Commission may appoint a trustee to divest the mirror 
coatings business.
    The proposed Consent Agreement has been placed on the public record 
for thirty (30) days for reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
proposed Consent Agreement and the comments received, and will decide 
whether it should withdraw from the proposed Consent Agreement or make 
final the Decision & Order.
    Pursuant to an Asset Purchase Agreement dated June 23, 2000, 
Valspar has agreed to acquire Lilly for approximately $762 million. The 
Commission's Complaint alleges that the acquisition, if consummated, 
would violate 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, in the markets for silver solutions, tin solutions, copper 
solutions and mirror backing paint.
    Valspar and Lilly are the two leading suppliers of silver, tin and 
copper solutions (``mirror solutions'') in the United States and two of 
three suppliers of mirror backing paint in the United States. Five 
basic inputs are needed to make a mirror: glass, a tin solution, a 
silver solution, a copper solution, and mirror backing paint. Most 
mirrors are made by placing clean pieces of glass flat on a conveyor 
belt, which moves the glass through the various stations where the 
solutions and paint are applied to

[[Page 82381]]

the back of each piece of glass. The first layer applied to the glass 
is a tin solution, which is an adhesion promoter so that the silver 
will bond to the glass. After the tin solution, a silver solution is 
applied, which creates a metal film on the glass surface, giving the 
mirror its reflective surface. The third step is to apply a copper 
solution, which helps keep the silver from oxidizing and creates a 
surface to which the mirror backing paint will adhere. Finally, the 
mirror backing paint is applied. This adds a hard coating that protects 
the solutions from becoming scratched or damaged and further protects 
the silver solution from corrosion.
    Both Lilly and Valspar produce all of the components, other than 
glass, necessary to make a mirror. The United States mirror solutions 
and mirror backing paint markets are highly concentrated, and the 
proposed acquisition would produce a firm controlling over 90% of the 
mirror solutions markets and over 60% of the mirror backing paint 
market. Both companies have frequently competed against each other for 
customers. By eliminating competition between the two most significant 
competitors in these highly concentrated markets, the proposed 
acquisition would allow the combined firm to exercise market power 
unilaterally, thereby increasing the likelihood that purchasers of 
mirror solutions as well as mirror backing paint would be forced to pay 
higher prices and that innovation and service levels in these markets 
would decrease.
    Significant impediments to new entry exist in the mirror solutions 
and mirror backing paint markets. A new entrant into any of these 
markets would need to undertake the difficult, expensive and time-
consuming process of developing a competitive product, establishing 
reliable U.S. distribution and technical support, and developing a 
reputation among mirror manufacturers for consistently producing a 
high-quality product. Because of the difficulty of accomplishing these 
tasks, new entry into either the mirror solutions markets or the mirror 
backing paint market could not be accomplished in a timely manner. 
Additionally, new entry into any one of these markets is made more 
unlikely because of the limited sales opportunities available to new 
entrants.
    The Consent Agreement effectively remedies the acquisition's 
anticompetitive effects in the United States mirror solutions and 
mirror backing paint markets by requiring Valspar to divest its mirror 
coatings business. Pursuant to the Consent Agreement, Valspar is 
required to divest its mirror coatings business to Spraylat Corporation 
within ten days of the date the Commission places the Order on the 
public record. Should Valspar fail to do so, the Commission may appoint 
a trustee to divest the business.
    The Commission's goal in evaluating possible purchasers of divested 
assets is to maintain the competitive environment that existed prior to 
the acquisition. A proposed buyer of divested assets must not itself 
present competitive problems. The Commission is satisfied that Spraylat 
is a well-qualified acquirer of the divested assets. Based in Mount 
Vernon, New York, Spraylat is a family owned company that manufactures 
and sells specialty paints and coatings for industrial uses. Spraylat 
possesses the necessary industry expertise to replace the competition 
that existed prior to the proposed acquisition. Furthermore, Spraylat 
poses no separate competitive issues as the acquirer of the divested 
assets.
    The Consent Agreement includes a number of provisions that are 
designed to ensure that the transfer of Valspar's mirror coatings 
business to the acquirer is successful. The Consent Agreement requires 
Valspar to provide incentives to certain key employees to accept 
employment, and remain employed, by the acquirer. Valspar is also 
prohibited from inducing key customers from terminating their contracts 
with the acquirer for a period of one year. Finally, Valspar employees 
involved with its mirror coating business are prohibited from 
disclosing any confidential information to employees involved with the 
Lilly business.
    In order to ensure that the Commission remains informed about the 
status of the Valspar mirror coatings business pending divestiture, and 
about efforts being made to accomplish the divestiture, the Consent 
Agreement requires Valspar to report to the Commission within 30 days, 
and every thirty days thereafter until the divestiture is accomplished. 
In addition, Valspar is required to report to the Commission every 60 
days regarding its obligations to provide transitional services and 
facilities management.
    The purpose of this analysis is to facilitate public comment on the 
Consent Agreement, and it is not intended to constitute an official 
interpretation of the Consent Agreement or to modify in any way its 
terms.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 00-33028 Filed 12-27-00; 8:45 am]
BILLING CODE 6750-01-M