[Federal Register Volume 72, Number 232 (Tuesday, December 4, 2007)]
[Notices]
[Pages 68164-68166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23419]


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FEDERAL TRADE COMMISSION

[File No. 071 0120]


The Great Atlantic & Pacific Tea Company, Inc. And Pathmark 
Stores, Inc.; Analysis of Complaint and Proposed Consent Order 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 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 December 27, 2007.

ADDRESSES: Interested parties are invited to submit written comments. 
Comments should refer to ``A&P Pathmark, File No. 071 0120,'' to 
facilitate the organization of comments. A comment filed in paper form 
should include this reference both in the text and on the envelope, and 
should be mailed or delivered to the following address: Federal Trade 
Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania 
Avenue, N.W., Washington, D.C. 20580. Comments containing confidential 
material must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with Commission Rule 4.9(c). 16 CFR 
4.9(c) (2005).\1\ The FTC is requesting that any comment filed in paper 
form be sent by courier or overnight service, if possible, because U.S. 
postal mail in the Washington area and at the Commission is subject to 
delay due to heightened security precautions. Comments that do not 
contain any nonpublic information may instead be filed in electronic 
form as part of or as an attachment to email messages directed to the 
following email box: [email protected].
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See Commission Rule 4.9(c), 
16 CFR 4.9(c).
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    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC website, to the extent 
practicable, at www.ftc.gov. As a matter of discretion, the FTC makes 
every effort to remove home contact information for individuals from 
the public comments it receives before placing those comments on the 
FTC website. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

FOR FURTHER INFORMATION CONTACT: Cathy Moscatelli, FTC Bureau of 
Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 
326-2749.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 of 
the Commission 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 November 27, 2007), on the World Wide Web, at http://www.ftc.gov/os/2007/11/index.htm. A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, 
D.C. 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted for 
public comment, and subject to final approval, an Agreement Containing 
Consent Orders (``Consent Agreement'') from The Great Atlantic & 
Pacific Tea Company, Inc. (``A&P'') and Pathmark Stores, Inc. 
(``Pathmark''). The purpose of the Consent Agreement is to remedy the 
anticompetitive effects that likely would result from A&P's proposed 
$1.3 billion acquisition (a figure that includes the assumption of debt 
by A&P) of Pathmark, as alleged in the Complaint the Commission has 
issued.
    The Consent Agreement provides for relief in two markets where the 
Commission believes the proposed acquisition is anticompetitive. Under 
the terms of the Consent Agreement, A&P must divest four Waldbaum's 
supermarkets and one Pathmark supermarket in Staten Island, New York, 
and one Waldbaum's supermarket in Shirley, Long Island, New York.
    The Commission, A&P, and Pathmark have also agreed to an Order to 
Maintain Assets. This order requires A&P and Pathmark to maintain the 
assets required by the Consent Agreement to be divested, pending their 
divestiture.
    The investigation and settlement negotiations were conducted in 
close cooperation with the Office of the New York State Attorney 
General, which anticipates entering into an agreement with the parties 
that mirrors the proposed consent order divestitures.

II. The Parties and the Transaction

    A&P is a corporation organized, existing, and doing business under 
and by virtue of the laws of the State of Maryland, with its office and 
principal place of business located at 2 Paragon Drive, Montvale, New 
Jersey 07645. The company owns and operates about 316 supermarkets in 
the States of Connecticut, Delaware, Maryland, New

[[Page 68165]]

York, New Jersey, and in the District of Columbia. A&P operates its 
supermarkets under the A&P, A&P Super Foodmart, Food Basics, Food 
Emporium, Super Fresh and Waldbaum's banners. A&P had revenues from all 
operations in 2006 of about $6.9 billion.
    Pathmark 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 200 Milik Street, 
Carteret, New Jersey 07008. The company owns and operates about 141 
supermarkets in the States of Delaware, New York, New Jersey, and 
Pennsylvania, all operating under the Pathmark banner. Pathmark had 
revenues in 2006 of about $4.1 billion.
    Under the terms of their March 4, 2007, agreement, A&P will acquire 
all of the voting securities of Pathmark for approximately $1.3 
billion, including the assumption of debt.

III. The Complaint

    According to the Commission's Complaint, A&P and Pathmark compete 
in the retail sale of grocery products from supermarkets. Supermarkets 
are stores that carry a wide selection and deep inventory of food and 
grocery products in a variety of brands and sizes, enabling consumers 
to purchase substantially all of their food and other grocery shopping 
requirements in a single shopping visit.
    The Complaint alleges that the acquisition by A&P of Pathmark would 
be competitively problematic in Staten Island, New York, and Shirley, 
Long Island, New York, both of which are highly concentrated geographic 
markets. As alleged in the Complaint, the proposed acquisition may 
increase opportunities for all firms in these markets to engage in 
coordinated interaction or for A&P to exercise unilateral market power, 
leading to higher prices or decreases in services. The Complaint 
further alleges that entry would not be timely, likely, or sufficient 
to prevent anticompetitive effects in the geographic markets.
    The Complaint alleges that the proposed acquisition, if 
consummated, would violate Section 7 of the Clayton Act, as amended, 15 
U.S.C. Sec.  18, and Section 5 of the Federal Trade Commission Act, as 
amended, 15 U.S.C. Sec.  45, by lessening competition in connection 
with the retail sale of grocery products from supermarkets.

IV. The Proposed Consent Order

    Under the terms of the proposed Consent Order, Respondent A&P must 
sell four Waldbaum's supermarket stores and one Pathmark supermarket 
store in Staten Island and a Waldbaum's store in Shirley, Long Island, 
together with their related assets. The addresses of the Waldbaum's 
stores required to be divested are as follows:

    1. 3251 Richmond Ave. South
     Staten Island, NY

    2. 778 Manor Road
     Staten Island, NY

    3. 4343 Amboy Road
     Staten Island, NY

    4. 1441 Richmond Ave
     Staten Island, NY

    5. 999 Montauk Hwy.
     Shirley, NY

    The address of the one Pathmark store required to be divested is:

    1. 2660 Hylan Blvd
     Staten Island, NY

    The one Pathmark store and four Waldbaum's stores in Staten Island 
are required to be divested to King Kullen Grocery Co., Inc., 
headquartered in Bethpage, New York, and the Waldbaum's store in 
Shirley is required to be divested to The Stop & Shop Supermarket 
Company LLC (``Stop & Shop''). Stop & Shop is a subsidiary of 
Koninklijke Ahold NV, a Dutch corporation. The Commission evaluated 
these prospective acquirers and determined that they are well qualified 
to operate the divested supermarkets.
    The proposed Consent Order requires that the divestitures occur no 
later than January 10, 2008. If Respondents consummate the divestitures 
to the purchasers during the public comment period, and if, at the time 
the Commission determines whether to make the proposed Consent Order 
final, the Commission notifies Respondents that the purchasers are not 
acceptable acquirers, or that the asset purchase agreements with those 
acquirers are not acceptable manners of divestiture, then Respondents 
must immediately rescind those transactions and divest the five 
Waldbaum's stores and one Pathmark store (and their related assets) to 
other buyers, within three (3) months of the date the Consent Order 
becomes final. Under those circumstances, Respondents must divest those 
stores and related 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. In the event Respondents have not divested 
the supermarkets in a manner that satisfies the requirements of the 
Consent Order, the Commission may appoint a trustee to divest those 
assets.
    The Commission has also issued an Order to Maintain Assets. Under 
its terms, Respondents are required to maintain the viability of the 
six supermarkets and their related assets pending their divestiture. 
More specifically, Respondents must: (1) maintain the viability, 
competitiveness, and marketability of the assets; (2) not cause the 
wasting or deterioration of those assets; (3) not sell, transfer, 
encumber, or otherwise impair the marketability of the assets; (4) 
maintain the supermarkets consistent with the parties' past practices; 
(5) use best efforts to preserve the supermarkets' existing 
relationships with suppliers, customers, and employees; and (6) keep 
the supermarkets open for business and maintain inventories at levels 
consistent with past practices.
    The proposed Consent Order prohibits Respondents, for a period of 
ten years, from acquiring, without providing the Commission with prior 
notice, any ownership or leasehold interest in any facility that has 
operated as a supermarket within six (6) months prior to the date of 
such proposed acquisition, in Staten Island, New York, and the Shirley, 
Long Island, New York area. The proposed Consent Order also prohibits 
Respondents, for a period of ten (10) years, from entering into or 
enforcing any agreement that restricts the ability of any person 
acquiring any interest in any location formerly used by Respondents as 
a supermarket in Staten Island or the Shirley area to operate that 
location as a supermarket. The proposed Consent Order does not prohibit 
Respondents from building new supermarkets, or leasing a facility not 
operated as a supermarket within the preceding six (6) months.
    Under the terms of the proposed Consent Order, A&P is also required 
to provide the Commission with regular compliance reports demonstrating 
how it is complying with the terms of the Consent Agreement until it is 
in full compliance with that Agreement.

V. Opportunity for Public Comment

    The proposed Consent Agreement has been placed on the public record 
for thirty (30) days for the purpose of soliciting comments from the 
public. All comments received during this period will become part of 
the public record. After the thirty (30) day comment period, the 
Commission will again consider the Consent Agreement, together with all 
comments received. After that second review, the Commission may either 
withdraw from the Consent Agreement or make its Order final.

[[Page 68166]]

    By accepting the Consent Agreement subject to final approval, the 
Commission anticipates that the competitive problems alleged in the 
Complaint will be resolved. The purpose of this analysis is to invite 
public comment on the Consent Order, including the proposed 
divestitures, to aid the Commission in its determination whether it 
should make final the Consent Agreement. This analysis is not an 
official interpretation of the Consent Agreement nor does it modify any 
of its terms.
    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. E7-23419 Filed 12-3-07: 8:45 am]
BILLING CODE 6750-01-S