[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Notices]
[Pages 825-828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31224]


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FEDERAL TRADE COMMISSION

[File No. 131 0227]


AB Acquisition, LLC; Analysis of Agreement Containing 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 of 
Agreement Containing Consent Order 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 January 22, 2014.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/albertsonsunitedconsent online or on 
paper, by following the instructions in the Request for Comment part of 
the SUPPLEMENTARY INFORMATION section below. Write ``AB Acquisition, 
LLC--Consent Agreement; File No. 131 0227'' on your comment and file 
your comment online at https://ftcpublic.commentworks.com/ftc/albertsonsunitedconsent 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: Jeremy Morrison, Bureau of 
Competition, (202-326-3149), 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 December 23, 2013), 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 January 22, 
2014. Write ``AB Acquisition, LLC--Consent Agreement; File No. 131 
0227'' 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.

[[Page 826]]

    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.
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    \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).
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    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/albertsonsunitedconsent 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 ``AB Acquisition, LLC--
Consent Agreement; File No. 131 0227'' 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 January 22, 2014. You can find more 
information, including routine 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 and Background

    The Federal Trade Commission (``Commission'') has accepted for 
public comment, subject to final approval, an Agreement Containing 
Consent Order (``Consent Order'') from AB Acquisition, LLC 
(``Respondent''). The purpose of the proposed Consent Order is to 
remedy the anticompetitive effects that otherwise would result from the 
merger of Respondent with United Supermarkets, L.L.C. (``United''). 
Under the terms of the proposed Consent Order, Respondent is required 
to divest its supermarkets and related assets in Amarillo and Wichita 
Falls, Texas to a Commission-approved purchaser. The divestitures must 
be completed no later than 10 days following the date of Respondent's 
merger with United.
    The proposed Consent Order 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 again will review the proposed Consent Order and 
any comments received, and decide whether it should withdraw the 
Consent Order, modify the Consent Order, or make it final.
    On September 9, 2013, Respondent and United entered into a merger 
agreement whereby Respondent agreed to purchase 100% of United's 
equity. The Commission's Complaint alleges that the proposed merger, 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, by removing an actual, direct, and substantial 
supermarket competitor in Amarillo and Wichita Falls, Texas. The 
elimination of this competition would result in significant competitive 
harm, specifically higher prices and diminished quality and service 
levels in both markets. The proposed Consent Order would remedy the 
alleged violations by requiring Respondent to divest its supermarkets 
in the two affected markets. The divestitures will establish a new 
independent competitor to Respondent in both relevant areas, replacing 
the competition that otherwise would be lost as a result of the 
proposed merger.

II. The Parties

    Respondent, through its wholly owned indirect subsidiary, 
Albertson's LLC (``Albertson's''), owns and operates 606 supermarkets 
in the western and southern United States under the Albertsons banner. 
In Texas, Albertson's operates 72 supermarkets under the Albertsons 
banner, the majority of which are in the Dallas-Fort Worth Metroplex. 
Albertson's operates 10 Albertsons banner stores in North and West 
Texas.
    United is a privately held regional grocery retailer that owns and 
operates 51 traditional and specialty supermarkets and 7 convenience 
stores across North and West Texas. United operates its supermarkets 
under three different banners: United Supermarkets, Market Street, and 
Amigos. United Supermarkets is a traditional supermarket banner. Market 
Street offers everyday grocery needs, as well as gourmet and specialty 
items, whole health products, and prepared food. Amigos is operated as 
a specialty store with a focus on traditional and authentic items 
targeted to Hispanic shoppers. United also owns three distribution 
centers, an ice manufacturing plant, and a food manufacturing plant.

III. Supermarket Competition in Amarillo and Wichita Falls, Texas

    Respondent's proposed merger with United poses substantial 
antitrust concerns for the retail sale of food and other grocery 
products in supermarkets. Supermarkets are defined as traditional full-
line retail grocery stores that sell, on a large-scale basis, food and 
non-food products that customers regularly consume at home--including, 
but not limited to, fresh meat, dairy products, frozen foods, 
beverages, bakery goods, dry groceries, detergents, and health and 
beauty products. This broad set of products and services provides a 
``one-stop shopping'' experience for consumers by enabling them to shop 
in a single store for all of their food and grocery needs. The ability 
to offer consumers one-stop shopping is a critical differentiating 
factor between supermarkets and other food retailers.
    The relevant product market includes supermarkets within 
``hypermarkets,'' such as Wal-Mart Supercenters.

[[Page 827]]

Hypermarkets also sell an array of products that would not be found in 
traditional supermarkets. However, hypermarkets, like conventional 
supermarkets, contain bakeries, delis, dairy, produce, fresh meat, and 
sufficient product offerings to enable customers to purchase all of 
their weekly grocery requirements in a single shopping visit.
    Other types of retailers--such as hard discounters, convenience 
stores, specialty food stores and club stores--also sell food and 
grocery items. However, these types of retailers are not in the 
relevant product market because they do not have a supermarket's full 
complement of products and services. Shoppers typically do not view 
these other food and grocery retailers as adequate substitutes for 
supermarkets. Further, although these other types of retailers offer 
some competition, supermarkets do not view them as providing as close 
competition as traditional supermarkets.\2\ Thus, consistent with prior 
Commission precedent, grocery items sold in stores other than 
supermarkets are excluded from the relevant product market.\3\
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    \2\ Shoppers typically do not view these other food and grocery 
retailers as adequate substitutes for supermarkets and would be 
unlikely to switch to one of these retailers in response to a small 
but significant price increase or ``SSNIP'' by a hypothetical 
supermarket monopolist. See U.S. DOJ and FTC Horizontal Merger 
Guidelines Sec.  4.1.1 (2010).
    \3\ See, e.g., Konkinlijke Ahold N.V./Safeway Inc., Docket C-
4367 (August 17, 2012); Shaw's/Star Markets, Docket C-3934 (June 28, 
1999); Kroger/Fred Meyer, Docket C-3917 (January 10, 2000); 
Albertson's/American Stores, Docket C-3986 (June 22, 1999); Ahold/
Giant, Docket C-3861 (April 5, 1999); Albertson's/Buttrey, Docket C-
3838 (December 8, 1998); Jitney-Jungle Stores of America, Inc., 
Docket C-3784 (January 30, 1998). But see Wal-Mart/Supermercados 
Amigo, Docket C-4066 (November 21, 2002) (the Commission's complaint 
alleged that in Puerto Rico, club stores should be included in a 
product market that included supermarkets because club stores in 
Puerto Rico enabled consumers to purchase substantially all of their 
weekly food and grocery requirements in a single shopping visit).
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    There are two relevant geographic markets in which to analyze the 
merger's effects: (1) the western half of Amarillo, Texas (``West 
Amarillo''), and (2) the southwest area of Wichita Fall, Texas 
(``Southwest Wichita Falls''). Specifically, West Amarillo includes the 
area from the western city limit to the railroad tracks that run 
parallel to, and are located to the east of, the Interstate 40 and U.S. 
Route 87/287 corridor. Southwest Wichita Falls is the area within the 
city limits that runs south of U.S. Route 277 and west of U.S. Route 
281. A hypothetical monopolist of the retail sale of food and other 
grocery products in supermarkets in each relevant area could profitably 
impose a small but significant non-transitory increase in price.
    Interviews with the merging parties' executives and market 
participants, as well as a review of party documents, demonstrate that 
Albertson's and United are close and vigorous competitors in terms of 
format, service, product offerings, promotional activity, and location 
in the West Amarillo and Southwest Wichita Falls markets. For example, 
Albertson's and United are the only supermarkets in Amarillo and 
Wichita Falls that retain a traditional supermarket format, with both 
emphasizing specialty departments like meat and fresh seafood. Both are 
also the only traditional supermarket operators in Amarillo and Wichita 
Falls that carry a broad range of products catering to the entire 
community. Additionally, Albertson's and United's stores have the most 
similar store formats and size among supermarket operators in Amarillo 
and Wichita Falls, including the amount of floor space devoted to food 
and other grocery products. Absent relief, the proposed merger would 
eliminate significant head-to-head competition between Respondent and 
United and would increase Respondent's ability and incentive to raise 
prices unilaterally post-merger. The proposed merger would also 
decrease incentives to compete on non-price factors, such as service 
levels, convenience, and quality.
    The West Amarillo and Southwest Wichita Falls markets already are 
highly concentrated, and would become significantly more so post-
merger. The merger would reduce the number of supermarket competitors 
from three to two; Wal-Mart Supercenter would be the only remaining 
competitor in each of the two relevant areas. In West Amarillo, the 
proposed merger would increase the Herfindahl-Hirschman Index 
(``HHI''), which is the standard measure of market concentration under 
the 2010 Department of Justice and Federal Trade Commission Horizontal 
Merger Guidelines (``HMG''), 503 points, from 4501 to 5004. In 
Southwest Wichita Falls, the proposed merger would increase the HHI 811 
points, from 4193 to 5004. Under the HMG, these concentration levels 
trigger the presumption that the merger likely enhances Respondent's 
market power in West Amarillo and Southwest Wichita Falls.
    New entry or expansion in the relevant markets is unlikely to deter 
or counteract the anticompetitive effects of the proposed merger. 
Moreover, even if a prospective entrant existed, the entrant must 
secure a viable location, obtain the necessary permits and governmental 
approvals, build its retail establishment or renovate an existing 
building, and open to customers before it could begin operating and 
serve as a relevant competitive constraint. It is unlikely that entry 
sufficient to achieve a significant market impact and act as a 
competitive constraint would occur in a timely manner.

IV. The Proposed Consent Order

    The proposed remedy, which requires the divestiture of the 
Albertson's supermarkets in Amarillo and Wichita Falls to a Commission-
approved purchaser, will restore fully the competition that otherwise 
would be eliminated in these markets as a result of the merger. 
Respondent has agreed to divest the Albertson's supermarkets in 
Amarillo and Wichita Falls to MAL Enterprises, Inc., which operates as 
Lawrence Brothers IGA (``Lawrence Brothers''). Lawrence Brothers is a 
family owned and operated supermarket chain based in Sweetwater, Texas, 
with 18 supermarkets located throughout West Texas and two in New 
Mexico, all of which are located outside the two relevant geographic 
markets.\4\ Lawrence Brothers appears to be a highly suitable 
purchaser, and it is well positioned to enter the relevant markets and 
prevent the increase in market concentration and likely competitive 
harm that otherwise would have resulted from the merger.
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    \4\ Lawrence Brothers operates 14 stores under the ``Lawrence 
Brothers'' banner, four stores under the ``Cash Saver'' banner, and 
two stores under the ``Save-A-Lot'' banner. Lawrence Brothers plans 
to convert the two Albertson's stores in Amarillo and Wichita Falls 
to Cash Saver stores. Cash Saver stores are traditional supermarkets 
with specialty departments such as pharmacies, delis, and bakeries. 
Cash Saver prices all grocery products in its stores at 10% above 
cost.
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    The proposed Order requires Respondent to divest Albertson's 
Amarillo and Wichita Falls stores and related assets to Lawrence by the 
later of: (a) January 13, 2014, or (b) 10 days following Albertson's 
merger with United. If Lawrence Brothers is not approved by the 
Commission to purchase the assets, Albertson's must immediately rescind 
the divestiture agreement and divest the Albertson's stores and related 
assets to a buyer that receives the Commission's prior approval. The 
proposed Consent Order contains additional provisions designed to 
ensure the adequacy of the proposed relief. For example, for a period 
of one year, the Consent Order prohibits Albertson's from interfering 
with Lawrence Brothers' hiring or employment of any employees currently 
working at the Albertson's stores in

[[Page 828]]

Amarillo and Wichita Falls. Additionally, for a period of 10 years, 
Respondent is required to give the Commission prior notice of plans to 
acquire any interest in a supermarket, or an interest in a supermarket, 
that has operated or is operating in Amarillo and Wichita Falls.
    The sole purpose of this Analysis is to facilitate public comment 
on the proposed Consent Order. This Analysis does not constitute an 
official interpretation of the proposed Consent Order, nor does it 
modify its terms in any way.

By direction of the Commission.
Janice Podoll Frankle,
Acting Secretary.
[FR Doc. 2013-31224 Filed 1-6-14; 8:45 am]
BILLING CODE 6750-01-P [FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][NOTICES]