[Federal Register Volume 79, Number 42 (Tuesday, March 4, 2014)]
[Notices]
[Pages 12195-12198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04708]


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FEDERAL TRADE COMMISSION

[File No. 131 0162]


Lone Star Fund V (U.S.), L.P., Bi-Lo Holdings, LLC, 
Etablissements Delhaize Fr[egrave]res et Cie ``Le Lion'' (Group 
Delhaize) SA/NV, and Delhaize America, LLC; 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 methods of competition. 
The attached Analysis of Agreement Containing Consent Orders to Aid 
Public Comment describes both the allegations in the draft complaint 
and the terms of the consent orders--embodied in the consent 
agreement--that would settle these allegations.

DATES: Comments must be received on or before March 27, 2014.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/biloconsent online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Bi-Lo Holdings, LLC--
Consent Agreement; File No. 131-0162'' on your comment and file your 
comment online at https://ftcpublic.commentworks.com/ftc/biloconsent 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: Joshua Smith, Bureau of Competition, 
(202-326-3018), 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 February 25, 2014), 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 March 27, 2014. 
Write ``Bi-Lo Holdings, LLC--Consent Agreement; File No. 131-0162'' 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.
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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/biloconsent 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 ``Bi-Lo Holdings, LLC--
Consent Agreement; File No. 131-0162'' 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 March 27, 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.

[[Page 12196]]

Analysis of Agreement Containing Consent Orders 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 Orders (``Consent Order'') from Lone Star Fund V (U.S.), L.P. 
(``Lone Star''), Bi-Lo Holdings, LLC (``Bi-Lo''), Etablissements 
Delhaize Fr[egrave]res et Cie ``Le Lion'' (Group Delhaize) SA/NV 
(``Delhaize''), and Delhaize America, LLC (``Delhaize America'') 
(collectively ``Respondents''). The purpose of the proposed Consent 
Order is to remedy the anticompetitive effects that otherwise would 
result from Bi-Lo's acquisition of certain supermarkets owned by 
Delhaize America (the ``Acquisition''). Under the terms of the proposed 
Consent Order, Bi-Lo is required to divest its supermarkets and related 
assets in eleven local geographic markets to Commission-approved 
buyers. The divestitures must be completed no later than 10 days 
following the Acquisition.
    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 
comments received, and decide whether it should withdraw the Consent 
Order, modify the Consent Order, or make it final.
    On May 27, 2013, Bi-Lo and Delhaize America executed an agreement 
whereby Bi-Lo agreed to acquire from Delhaize America 73 Sweetbay 
stores (and leases to 10 closed stores), 72 Harveys stores, and 11 
Reid's stores for $265 million. Respondents amended their agreement on 
January 31, 2014 to exclude one Reid's and one Harveys store from the 
original acquisition agreement, and adjusted the purchase price 
accordingly.\2\ The Commission's Complaint alleges that the Acquisition 
as amended, 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 from eleven local geographic markets 
(``relevant geographic markets''): Arcadia, Dunnellon, Lake Placid, 
Madison, and Wauchula, Florida; Bainbridge, Statesboro, Sylvania, 
Vidalia, and Waynesboro, Georgia; and Batesburg, South Carolina. The 
elimination of this competition would result in significant competitive 
harm, specifically higher prices and diminished quality and service 
levels in these markets. The proposed Consent Order would remedy the 
alleged violations by requiring Respondent Bi-Lo to divest the acquired 
Delhaize America supermarkets in the relevant geographic markets. The 
divestitures will establish a new independent competitor to Respondent 
Bi-Lo in the relevant geographic markets, replacing competition that 
otherwise would be eliminated as a result of the Acquisition.
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    \2\ Respondents amended the acquisition agreement to exclude one 
Harveys in Americus, Georgia and one Reid's in Hampton, South 
Carolina, from the Acquisition. Accordingly, the proposed Consent 
Order does not require a divestiture in Americus, Georgia and 
Hampton, South Carolina. By amending the acquisition agreement so 
that Delhaize retains these two stores (which will be operated as 
part of its Food Lion division), the Acquisition does not increase 
market concentration and the competitive status quo is maintained in 
Americus and Hampton. Resolving the Commission's concerns through an 
amendment to the acquisition agreement is suitable under the 
specific circumstances of this case. In particular, the selling 
company is selling only a small fraction of its assets, has 
substantial and similar operations remaining post-transaction that 
will absorb easily and maintain profitably the retained stores, and 
where the Commission has concluded that Delhaize will be an 
effective operator of those stores post-transaction.
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II. The Respondents

    Bi-Lo is the parent company of the Bi-Lo and Winn-Dixie grocery 
store chains, which are located in the Southeastern United States. As 
of July 10, 2013, Bi-Lo operated 685 supermarkets throughout Alabama, 
Florida, Georgia, Louisiana, Mississippi, North Carolina, South 
Carolina, and Tennessee under its Winn-Dixie and BI-LO banners. Lone 
Star Funds, a private equity firm specializing in distressed assets, 
through Respondent Lone Star, is the majority owner of Bi-Lo.
    Delhaize America is a wholly owned subsidiary of Delhaize. Delhaize 
owns supermarket chains in North America, Europe, and Indonesia. In the 
Northeast and Southeast of the United States, Delhaize America operates 
six supermarket chains: Sweetbay, Harveys, Reid's, Hannaford, Bottom 
Dollar Food, and Food Lion. Food Lion is Delhaize America's primary 
banner, and it accounts for 73% (1,127 stores) of its total 1,553 U.S. 
stores.

III. Supermarket Competition in the Relevant Areas in Florida, Georgia, 
and South Carolina

    Bi-Lo's proposed acquisition of Delhaize's Sweetbay, Harvey's, and 
Reid's supermarkets poses substantial antitrust concerns in the retail 
sale of food and other grocery products in supermarkets in the relevant 
geographic markets.\3\ 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 non-food grocery needs. The 
ability to offer consumers one-stop shopping is a critical 
differentiating factor between supermarkets and other food retailers.
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    \3\ The Acquisition raises competitive concern in five markets 
in Florida, five markets in Georgia, and one market in South 
Carolina.
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    The relevant product market includes supermarkets within 
``hypermarkets,'' such as Wal-Mart Supercenters. 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 convenience stores, specialty 
food stores, limited assortment stores, hard-discounters, and club 
stores--also sell certain food and non-food grocery items. However, 
these types of retailers do not compete 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 food and other 
grocery retailers as adequate substitutes for supermarkets.\4\ Further, 
although these other types of retailers offer some competition to 
supermarkets, supermarkets do not view them as providing as significant 
or close competition as traditional supermarkets. Thus, consistent with 
prior Commission precedent, these other types of retailers are not 
considered as competitors in the relevant product market.\5\
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    \4\ Shoppers 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).
    \5\ See, e.g., AB Acquisition, LLC, Docket C-4424 (Dec. 23, 
2013); Koninklijke Ahold N.V./Safeway Inc., Docket C-4367 (Aug. 17, 
2012); Shaw's/Star Markets, Docket C-3934 (June 28, 1999); Kroger/
Fred Meyer, Docket C-3917 (Jan. 10, 2000); Albertson's/American 
Stores, Docket C-3986 (June 22, 1999); Ahold/Giant, Docket C-3861 
(Apr. 5, 1999); Albertson's/Buttrey, Docket C-3838 (Dec. 8, 1998); 
Jitney-Jungle Stores of America, Inc., Docket C-3784 (Jan. 30, 
1998). But see Wal-Mart/Supermercados Amigo, Docket C-4066 (Nov. 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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[[Page 12197]]

    The relevant geographic markets in which to analyze the 
Acquisition's effects are the areas within an approximate three- to 
ten-mile radius of the parties' supermarkets in each of the following 
eleven localized areas: Arcadia, Dunnellon, Lake Placid, Madison, and 
Wauchula, Florida; Bainbridge, Statesboro, Sylvania, Vidalia, and 
Waynesboro, Georgia; and Batesburg, South Carolina. Where the 
Respondents' supermarkets are located in rural, isolated areas, the 
relevant geographic areas are larger than areas where the Respondents' 
supermarkets are located in more densely populated suburban areas. A 
hypothetical monopolist of the retail sale of food and non-food grocery 
products in supermarkets in each relevant geographic market could 
profitably impose a small but significant non-transitory increase in 
price.
    The evidence gathered during the course of staff's investigation 
demonstrates that Respondents are close and vigorous competitors in 
terms of format, service, product offerings, promotional activity, and 
location in the relevant geographic markets. Bi-Lo and Delhaize America 
have the only supermarkets in Madison, Florida and Sylvania, Georgia. 
Additionally, Bi-Lo and Delhaize America have the only traditional 
supermarkets in eight of the relevant geographic markets; the remaining 
competitor in each of these eight markets is a hypermarket, Wal-Mart 
Supercenter. Moreover, the Bi-Lo and Delhaize stores are located near 
each other--less than 1 mile apart in three markets, 1 to 2 miles apart 
in six markets, and 2 to 3 miles apart in two markets. Competition in 
food retailing is primarily a function of similarity of format and 
proximity between competing stores. Stores with similar formats located 
nearby each other provide a greater competitive constraint on each 
other's pricing than do stores of different formats or stores located 
farther apart from each other. Absent the relief, the Acquisition would 
eliminate significant head-to-head competition between Respondents and 
would increase Respondent Bi-Lo's ability and incentive to raise prices 
unilaterally post-Acquisition. The Acquisition also would decrease 
incentives to compete on non-price factors, such as service levels, 
convenience, and quality. Finally, absent the relief, the Acquisition 
may also facilitate coordination in markets where only the parties' 
stores and one other traditional supermarket competitor remains post-
Acquisition. Given the transparency of pricing and promotional 
practices between supermarkets and the fact that supermarkets ``price 
check'' competitors in the ordinary course of business, reducing the 
number of nearby competitors from three to two may facilitate collusion 
between the remaining supermarket competitors by making coordination 
easier to establish and monitor.
    The relevant geographic markets are highly concentrated already, 
and would become significantly more so post-Acquisition. The 
Acquisition would result in an effective merger-to-monopoly in two 
relevant areas, Madison, Florida and Sylvania, Georgia, and an 
effective merger-to-duopoly in nine relevant areas.\6\ The Acquisition 
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''), in the relevant geographic markets by a range of 540 to 
4,978 points, with post-Acquisition HHI total levels ranging from 5,005 
to 10,000 points. These concentration levels far exceed the levels 
required to trigger the presumption that the Acquisition likely 
enhances Respondent Bi-Lo's market power in each of the relevant 
geographic markets.
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    \6\ See Appendix A.
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    New entry or expansion in the relevant geographic markets is 
unlikely to deter or counteract the anticompetitive effects of the 
Acquisition. 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 divestiture of the Delhaize 
America stores in the relevant geographic markets to a Commission-
approved purchaser, will restore the competition that otherwise would 
be eliminated in these markets as a result of the Acquisition.
    Respondents Lone Star and Bi-Lo have agreed to divest the Delhaize 
America stores to four separate buyers. These purchasers are well 
suited and well positioned to enter the relevant geographic markets and 
prevent the increase in market concentration and likely competitive 
harm that otherwise would result from the Acquisition. The supermarkets 
currently owned by the purchasers are all located outside the relevant 
geographic markets.
    Respondents have agreed to divest the Sweetbays located in Arcadia 
(1883), Dunnellon (1795), Lake Placid 
(1879), and Wauchula (1791), Florida to Rowe's IGA 
Supermarkets (``Rowe's''). Rowe's currently operates five supermarkets 
in the greater Jacksonville, Florida area under the ``Rowe's IGA'' 
banner.
    Respondents have agreed to divest Harveys 2336 in Vidalia, 
Georgia, and Harveys 2374 and 2375 in Statesboro, 
Georgia, to HAC Inc. (``HAC''). HAC is an employee-owned supermarket 
company based in Oklahoma City, Oklahoma. HAC operates approximately 80 
stores consisting of Homeland and United Supermarkets in Oklahoma, 
Country Mart Stores in Lawton, Kansas, Super Save Stores in North 
Central Texas, and Piggly Wiggly and Food World stores in Georgia. HAC 
will operate the stores in Statesboro under the Food World banner and 
the store in Vidalia under the Piggly Wiggly banner.
    Respondents have agreed to divest Reid's 442 in Batesburg, 
South Carolina, Harveys 2349 in Waynesboro, Georgia, and 
Harveys 2370 in Sylvania, Georgia, to W. Lee Flowers & Co., 
Inc. (``Flowers''). Currently, Flowers operates 35 supermarkets under 
its Floco Foods subsidiary in South Carolina and Georgia. Flowers is 
also a wholesale grocery distributer, and the company supplies many IGA 
supermarkets in South Carolina.
    Finally, Respondents have agreed to divest Harveys 2379 in 
Madison, Florida, and Harveys 2378 in Bainbridge, Georgia, to 
Food Giant. Food Giant operates 108 stores under several different 
banner names, including Food Giant and Piggly Wiggly, throughout eight 
states, including Tennessee, Kentucky, Arkansas, Mississippi, Alabama, 
and Missouri. Food Giant will re-banner both stores to the Food Giant 
name. Food Giant already operates four stores in Florida and two in 
Georgia.
    The proposed Order requires Respondents Lone Star and Bi-Lo to 
divest the Delhaize America supermarkets and related assets in the

[[Page 12198]]

eleven relevant geographic markets to the four buyers no later than 10 
days following the respective closing date under the Respondents' 
agreement. Pursuant to the Respondents' acquisition agreement, the 
Acquisition will be effectuated through eight separate closings over a 
period of approximately 10 weeks. This staged closing will allow both 
Bi-Lo and the buyers of the divested stores to re-banner the acquired 
stores in a timely and orderly manner. The divestitures will take place 
no later than 10 days after the closing involving the relevant 
divestiture store. If any of the buyers are not approved by the 
Commission to purchase the assets, Lone Star and Bi-Lo must immediately 
rescind the divestiture agreement and divest the Delhaize America store 
and related assets to a buyer that receives the Commission's prior 
approval. Further, for a period of one year, the Order prohibits 
Respondents from interfering with the hiring of or employment of any 
employees currently working at the Delhaize America stores in the 
divestiture markets. Additionally, for a period of 10 years, Lone Star 
and Bi-Lo are required to provide the Commission with prior notice of 
plans to acquire a supermarket, or an interest in a supermarket, that 
has operated or is operating in the counties that include the relevant 
geographic markets.
    * * *
    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.

                                                    Exhibit A
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            City               State     Merger  result        HHI  (pre)        HHI  (post)          Delta
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Arcadia.....................  FL      3 to 2..............              4645              5331               686
Bainbridge..................  GA      3 to 2..............              5016              5556               540
Batesburg...................  SC      3 to 2..............              4074              5062               988
Dunnellon...................  FL      3 to 2..............              4294              5081               787
Lake Placid.................  FL      3 to 2..............              3881              5005              1124
Madison.....................  FL      2 to 1..............              5556             10000              4444
Statesboro..................  GA      3 to 2..............              4798              5423               625
Sylvania....................  GA      2 to 1..............              5022             10000              4978
Vidalia.....................  GA      3 to 2..............              5002              5556               554
Wauchula....................  FL      3 to 2..............              4215              5115               900
Waynesboro..................  GA      3 to 2..............              4316              5149               833
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    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-04708 Filed 3-3-14; 8:45 am]
BILLING CODE 6750-01-P