[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Notices]
[Pages 66867-66868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27246]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 121 0133]


Corning Incorporated; Analysis of Proposed Agreement Containing 
Consent Order To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

-----------------------------------------------------------------------

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 November 30, 2012.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/corningconsent online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Corning Becton, File 
No. 121 0133'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/corningconsent, by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Michael Moiseyev (202-326-3106), or 
Stephanie C. Bovee (202-326-2083), FTC, Bureau of Competition, 600 
Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 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 October 31, 2012), 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, DC 20580, either in person or by calling (202) 326-
2222.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before November 30, 
2012. Write ``Corning Becton, File No. 121 0133'' on your comment. Your 
comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to 
remove individuals' home contact information from comments before 
placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone'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. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which * * * is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
---------------------------------------------------------------------------

    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/corningconsent by following the instructions on the web-based form. 
If this Notice appears at http://www.regulations.gov/#!home, you also 
may file a comment through that Web site.
    If you file your comment on paper, write ``Corning Becton, File No. 
121 0133'' on your comment and on the envelope, and mail or deliver it 
to the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that 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 on or before November 30, 2012. You can find more 
information, including routine

[[Page 66868]]

uses permitted by the Privacy Act, in the Commission's privacy policy, 
at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Agreement Containing Consent Order To Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted from 
Corning Incorporated (``Corning''), subject to final approval, an 
Agreement Containing Consent Orders (``Consent Agreement''), which is 
designed to remedy the anticompetitive effects of Corning's proposed 
acquisition of substantially all of the assets of Becton, Dickinson and 
Company's Discovery Labware Division (``BDDL''). Under the terms of the 
proposed Consent Agreement, Corning would be required to supply Sigma-
Aldrich Co., LLC (``Sigma Aldrich'') with tissue culture treated 
(``TCT'') dishes, multi-well plates, and flasks on an interim basis, 
and in the future and at Sigma Aldrich's request, provide Sigma Aldrich 
with the assets and assistance necessary to independently manufacture 
these products.
    The proposed Consent Agreement has been placed on the public record 
for thirty days for receipt of comments; any comments received will 
also become part of the public record. After thirty 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, modify it, or make it final.
    Pursuant to an agreement dated April 12, 2012, Corning proposes to 
acquire substantially all of the assets of BDDL. The Commission's 
Complaint alleges that the proposed acquisition, if consummated, would 
violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 8, and 
Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 
45, by lessening competition in the North American markets for TCT 
multi-well plates, dishes, and flasks used in cell culture 
applications. The proposed Consent Agreement will remedy the alleged 
violations by replacing the competition that would otherwise be 
eliminated by the acquisition.

II. The Parties

    Headquartered in Corning, New York, Corning is a leading 
manufacturer of specialty glass, plastics, and ceramics for a variety 
of applications. Corning's Life Sciences division is a leading 
manufacturer of consumable plastic labware including TCT cell culture 
multi-well plates, dishes, and flasks.
    Discovery Labware, Inc., a division of Becton, Dickinson and 
Company, is headquartered in Bedford, Massachusetts. Becton, Dickinson 
and Company is a global medical technology company that supplies 
consumable plastic labware through is Discovery Labware division 
including TCT cell culture multi-well plates, dishes, and flasks.

III. The Products and Structure of the Markets

    TCT cell culture vessels are plastic containers that are 
essentially surfaces upon which researchers cultivate cells. These 
products are purchased primarily by pharmaceutical companies, bio-
technology companies, and academic institutions and used by cell 
culture laboratories. Tissue culture treatment alters the intrinsic 
qualities of the plastic to promote cell adhesion so that cells are 
more likely to grow and spread. Other advanced coatings and treatments 
exist, but these alternatives typically are used only in specialized 
applications, and are not viable substitutes for standard TCT cell 
culture vessels.
    North America is the relevant geographic area in which to analyze 
the effects of the proposed acquisition in the TCT cell culture 
markets.
    Each TCT cell culture market is highly concentrated. Corning and 
BDDL are the leading suppliers in each market. Other suppliers such as 
Thermo Fisher and Greiner Bio-One participate in each market, but no 
other suppliers are the size of Corning or BDDL.

IV. Effects of the Acquisition

    The Proposed Acquisition would eliminate actual, direct, and 
substantial competition between Corning and BDDL in the markets for TCT 
cell culture vessels. By increasing Corning's share in each market, 
while at the same time eliminating its most significant competitor, an 
acquisition of BDDL likely would allow Corning to unilaterally charge 
significantly higher prices for TCT cell culture vessels.

V. Entry

    Entry into the relevant markets would not be timely, likely, or 
sufficient in magnitude, character, and scope to prevent the 
anticompetitive effects of the proposed acquisition. Entry would not 
take place in a timely manner because of the significant time required 
to gain a reputation among research scientists as a supplier of quality 
products. Given the time needed to enter the relevant markets, relative 
to the sizes of those markets, it is unlikely that an entrant could 
obtain sufficient sales to make the investment profitable. As a result, 
new entry or repositioning by other firms sufficient to ameliorate the 
competitive harm from the proposed acquisition is not likely to occur.

VI. The Consent Agreement

    The proposed Consent Agreement remedies the acquisition's likely 
anticompetitive effects in the TCT cell culture markets. The Consent 
Agreement requires Corning to supply Sigma Aldrich, on an interim 
basis, with Corning-manufactured TCT cell culture products until Sigma 
Aldrich has developed independent manufacturing capabilities. This 
supply agreement will enable Sigma Aldrich to immediately sell TCT cell 
culture products under its own brand name. The Consent Agreement also 
requires that Corning provide in the future, at Sigma Aldrich's 
request, technical assistance necessary to begin manufacturing TCT cell 
culture multi-well plates, flasks, and dishes in a manner substantially 
similar to the manner in which Corning manufactures these products 
today.
    Headquartered in St. Louis, Missouri, Sigma Aldrich is a leading 
life sciences company that sells a variety of products used in 
pharmaceutical research. TCT cell culture multi-well plates, flasks, 
and dishes will complement Sigma Aldrich's leading position in adjacent 
markets, including media and regents used in the cell culture process. 
Sigma Aldrich has an existing infrastructure for the marketing and 
sales of its laboratory products, and therefore is well-positioned to 
replace the competition that will be lost as a result of the proposed 
transaction.
    The Commission may appoint an interim monitor to oversee the supply 
of products and the future transfer of assets at any time after the 
Consent Agreement has been signed. In order to ensure that the 
Commission remains informed about the status of the proposed remedy, 
the proposed Consent Agreement requires the parties to file periodic 
reports with the Commission until the Decision and Order terminates.
    The purpose of this analysis is to facilitate public comment on the 
proposed Consent Agreement, and it is not intended to constitute an 
official interpretation of the proposed Consent Agreement or to modify 
its terms in any way.

    By direction of the Commission
Donald S. Clark,
Secretary.
[FR Doc. 2012-27246 Filed 11-6-12; 8:45 am]
BILLING CODE 6750-01-P