[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Notices]
[Pages 62778-62780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28745]


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FEDERAL TRADE COMMISSION

[File No. 091 0050]


Panasonic Corporation and Sanyo Electric Co., Ltd; Analysis of 
Agreement Containing Consent Orders 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 24, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Panasonic 
Sanyo, File No. 091 0050'' to facilitate the organization of comments. 
Please note that your comment -- including your name and your state -- 
will be placed on the public record of this proceeding, including on 
the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential. . . .,'' as provided in 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which 
confidential treatment is requested must be filed in paper form, must 
be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c), 16 CFR 4.9(c).\1\
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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 FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://public.commentworks.com/ftc/0910050) and following the instructions on 
the web-based form. To ensure that the Commission considers an 
electronic comment, you must file it on the web-based form at the 
weblink: (https://public.commentworks.com/ftc/0910050). If this Notice 
appears at (http://www.regulations.gov/search/index.jsp), you may also 
file an electronic comment through that website. The Commission will 
consider all comments that regulations.gov forwards to it. You may also 
visit the FTC website at (http://www.ftc.gov/) to read the Notice and 
the news release describing it.
    A comment filed in paper form should include the ``Panasonic Sanyo, 
File No. 091 0050'' 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 H-135 (Annex D), 600 
Pennsylvania Avenue, NW, Washington, DC 20580. 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.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission 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.shtm).

FOR FURTHER INFORMATION CONTACT: Brendan McNamara (202-326-3703), 
Bureau of Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 
20580.

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 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 24, 2009), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). 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.

[[Page 62779]]

Analysis of Agreement Containing Consent Order to Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted from 
Panasonic Corporation (``Panasonic''), subject to final approval, an 
Agreement Containing Consent Orders (``Consent Agreement''), which is 
designed to remedy the anticompetitive effects resulting from 
Panasonic's proposed acquisition of 100% of the voting securities of 
Sanyo Electric Co., Ltd. (``Sanyo''). Under the terms of the Consent 
Agreement, Sanyo will divest its assets relating to the manufacture and 
sale of portable NiMH batteries to FDK Corporation (``FDK''), a 
subsidiary of Fujitsu, Ltd.
    The proposed Consent Agreement has been placed on the public record 
for 30 days to solicit comments from interested persons. Comments 
received during this period will become part of the public record. 
After 30 days, the Commission will again review the proposed Consent 
Agreement, and will decide whether it should withdraw from the proposed 
Consent Agreement or make final the accompanying Decision and Order 
(``Order'').
    Pursuant to an agreement concluded on December 19, 2008 (the 
``Agreement''), Panasonic announced its intention to commence a cash 
tender offer to acquire 100 percent of the voting securities of Sanyo 
for an aggregate purchase price of approximately $9 billion (the 
``Acquisition''). The Commission's complaint alleges the facts 
described below and 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 the market for portable 
NiMH batteries.

II. The Parties

    Panasonic, headquartered in Osaka, Japan, is a leading manufacturer 
of consumer electronics such as televisions, DVD players, and 
computers. Panasonic's Components and Devices Division produces 
rechargeable batteries, as well as semiconductors and mechanical 
components.
    Headquartered in Osaka, Japan, Sanyo Electric Co., Ltd., is a 
leading producer of electronic devices and components, including 
digital cameras, televisions, car navigation systems, home appliances, 
and consumer electronics. Sanyo's rechargeable battery business is 
operated out of its Components Division, which also manufacturers 
batteries, semiconductors, capacitors, small motors, and optical 
pickups.

III. Portable NiMH Batteries

    There are three rechargeable battery chemistries: nickel cadmium 
(``NiCd''), nickel metal hydride (``NiMH'') and lithium-ion (``Li-
ion''). While each battery chemistry is used in varying degrees to 
power batteries for portable electronic devices, the evidence shows 
that portable NiMH batteries are a relevant antitrust market. First of 
all, there are a number of products, most notably two-way radios, that 
have a large installed base of customers that cannot switch to another 
type of rechargeable battery because the products were designed 
specifically to accommodate portable NiMH batteries. Second, even for 
customers who use NiMH batteries but are not locked in to purchasing 
them, there is a strong preference for portable NiMH batteries for 
performance and cost reasons. Both sets of customers would not switch 
to a different battery technology in response to a five to ten percent 
increase in the price of portable NiMH batteries.
    The relevant geographic market for portable NiMH batteries is 
worldwide. Manufacturing of portable NiMH batteries is concentrated in 
Asia, and orders are shipped to customers located throughout the world.
    Panasonic and Sanyo produce the highest quality portable NiMH 
batteries, and consequently the two firms are uniquely close 
competitors. The remaining suppliers of portable NiMH batteries produce 
lower quality batteries and are therefore more distant competitors to 
Panasonic and Sanyo. As the only suppliers of high quality portable 
NiMH batteries, Panasonic and Sanyo control the vast majority of the 
market. The lower quality suppliers have fringe positions and do not 
affect competition between Panasonic and Sanyo.
    As each other's most significant competitors for portable NiMH 
batteries, Panasonic and Sanyo respond directly to competition from 
each other with lower prices, better services and improved products, to 
the benefit of consumers. By eliminating this direct and substantial 
competition, the proposed acquisition would allow Panasonic to exercise 
market power unilaterally, thereby increasing the likelihood that 
purchasers of portable NiMH batteries would be forced to pay higher 
prices and restraining the direct competition that promoted innovation 
and high quality service. The proposed acquisition eliminates a 
competitor to which customers otherwise could have diverted their sales 
- in a market where the alternative sources of supply are usually not 
viable options.
    Neither new entry nor repositioning and expansion sufficient to 
deter or counteract the anticompetitive effects of the proposed 
acquisition in the portable NiMH market is likely to occur within two 
years. Existing competitors would have to significantly improve their 
portable NiMH production facilities, improve the quality of their 
portable NiMH batteries, and overcome the resistance of customers to 
switch to a portable NiMH battery supplier that lacks the track record 
of effectively meeting the needs of those customers served by Panasonic 
and Sanyo. Also, because NiMH is an older battery technology, it has a 
relatively small growth potential for the sale of portable NiMH 
batteries, so it is unlikely that a potential competitor would be able 
to justify the investments necessary to enter the market for portable 
NiMH batteries.

IV. The Consent Agreement

    The proposed Order eliminates the competitive concerns raised by 
Panasonic's proposed acquisition of Sanyo by requiring the divestiture 
of Sanyo's assets relating to the manufacture and sale of portable NiMH 
batteries to FDK Corporation (``FDK''), a subsidiary of Fujitsu, Ltd. 
This divestiture must occur with fifteen days after the Acquisition but 
may be extended an additional thirty days, if necessary, to allow 
European Commission approval of the divestiture to FDK.
    FDK has the industry experience, reputation, and resources to 
replace Sanyo as an effective competitor in the portable NiMH battery 
market. Headquartered in Tokyo, Japan, FDK manufactures and sells 
electronic components and batteries worldwide, and is a subsidiary of 
Fujitsu, a multinational computing, telecommunications and electronics 
company. FDK does not currently compete against Panasonic and Sanyo in 
the sale of portable NiMH batteries, but it does manufacture and sell 
alkaline batteries. FDK also sources and resells a broad range of 
batteries, including carbon-zinc, lithium primary, and manganese 
batteries.
    Pursuant to the Order, FDK would receive all the assets necessary 
to operate Sanyo's current portable NiMH battery business, including 
most importantly, the NiMH battery manufacturing facility in Takasaki, 
Japan (``Takasaki plant''). The Takasaki plant is a premier 
manufacturing facility for portable NiMH batteries, producing 
approximately 30 percent of the

[[Page 62780]]

portable NiMH batteries worldwide. The Order also requires Sanyo to 
supply to FDK sizes Sub C/D portable NiMH batteries, which are the only 
sizes of Sanyo's portable NiMH batteries not produced at the Takasaki 
plant and account for a tiny fraction of Sanyo's overall portable NiMH 
sales. In addition to the employees of the Takasaki plant, who would 
automatically transfer to FDK, the Order requires Sanyo to provide FDK 
access to certain other key Sanyo employees needed to successfully 
operate the business. The Order also requires Sanyo to transfer all 
intellectual property necessary to make and sell portable NiMH 
batteries, including Sanyo patents and licenses related to portable 
NiMH batteries. A divestiture of Sanyo's portable NiMH assets will 
ensure that FDK has a full line of high-quality portable NiMH 
batteries, enabling it to compete immediately with the merged entity.
    The Commission has appointed Philip Comerford, Jr., Managing 
Director of ING Capital LLC and Head of the Mergers & Acquisitions 
Group, as the interim monitor to oversee the divestiture of the NiMH 
battery business. In order to ensure that the Commission remains 
informed about the status of the proposed divestitures, the proposed 
Consent Agreement requires the parties to file periodic reports with 
the Commission until the divestiture is accomplished.
    If the Commission determines that FDK is not an acceptable 
purchaser, or the manner of the divestiture is not acceptable, the 
parties must unwind the sale to FDK and divest the portable NiMH 
battery assets within six months of the date the Order becomes final to 
another Commission-approved acquirer. If the parties fail to divest 
within six months, the Commission may appoint a trustee to divest the 
portable NiMH battery assets.
    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 proposed Decision and Order or the Order To 
Maintain Assets, or to modify their terms in any way.
    By direction of the Commission.

Donald S. Clark
Secretary.
[FR Doc. E9-28745 Filed 11-30-09: 8:45 am]
BILLING CODE 6750-01-S