[Federal Register Volume 61, Number 13 (Friday, January 19, 1996)]
[Notices]
[Pages 1512-1517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-507]
[[Page 1511]]
_______________________________________________________________________
Part V
Federal Trade Commission
_______________________________________________________________________
Service Corporation International; Proposed Consent Agreement With
Analysis to Aid Public Comment; Notice
Federal Register / Vol. 61, No. 13 / Friday, January 19, 1996 /
Notices
[[Page 1512]]
FEDERAL TRADE COMMISSION
[File No. 951 0108]
Service Corporation International; Proposed Consent Agreement
With Analysis to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
permit Service Corporation International (SCI), the largest owner of
funeral homes in North America, to acquire Gilbraltar Mausoleum
Corporation and would require SCI, among other things, to divest,
within 12 months, a number of properties, including assets in Amarillo,
Texas, and Brevard and Lee Counties, Florida, to restore competition.
In addition, the consent agreement would require SCI, for 10 years, to
notify the Commission before acquiring certain similar assets in any of
these markets.
DATES: Comments must be received on or before March 18, 1996.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.
FOR FURTHER INFORMATION CONTACT:
Harold Kirtz, Federal Trade Commission, Atlanta Regional Office, 1718
Peachtree St., N.W., Room 1000, Atlanta, GA. 30367. (404) 347-4837.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the
Commission's Rules of Practice (16 CFR 2.34), notice is hereby given
that the following 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 sixty (60) days. Public comment is invited. Such comments or
views will be considered by the Commission and will be available for
inspection and copying at its principal office in accordance with
Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR
4.9(b)(6)(ii)).
Agreement Containing Consent Order
The Federal Trade Commission (``Commission''), having initiated an
investigation of the acquisition of the voting securities of Gibraltar
Mausoleum Corporation (``Gibraltar'') by Service Corporation
International and Rocky Acquisition Corp. (collectively, ``SCI''), and
it now appearing that SCI, hereinafter sometimes referred to as
``proposed respondent,'' is willing to enter into an agreement
containing an order to divest certain assets and to cease and desist
from certain acts, and providing for other relief.
It is hereby agreed by and between proposed respondent, by its duly
authorized officers and attorney, and counsel for the Commission that:
1. Proposed respondent Service Corporation International is a
corporation organized, existing and doing business under and by virtue
of the laws of the State of Texas with its office and principal place
of business located at 1929 Allen Parkway, Houston, Texas 77019.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft of complaint.
3. Proposed respondent waives:
a. Any further procedural steps;
b. The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law;
c. All rights to seek judicial review or otherwise to challenge or
contest the validity of the order entered pursuant to this agreement;
and
d. Any claim under the Equal Access to Justice Act.
4. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
agreement is accepted by the Commission, it, together with the draft of
complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance
of this agreement and so notify the proposed respondent, in which event
in will take such action as it may consider appropriate, or issue and
serve its complaint (in such form as the circumstances may require) and
decision, in disposition of the proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondent that the law has been
violated as alleged in the draft of complaint, or that the facts as
alleged in the draft complaint, other than jurisdictional facts, are
true.
6. This agreement contemplates that, if it is accepted by the
Commission, and if such acceptance is not subsequently withdrawn by the
Commission pursuant to the provisions of Sec. 2.34 of the Commission's
Rules, the Commission may, without further notice to the proposed
respondent, (1) issue its complaint corresponding in form and substance
with the draft of complaint and its decision containing the following
order to divest and to cease and desist in disposition of the
proceeding, and (2) make information public with respect thereto. When
so entered, the order to cease and desist shall have the same force and
effect and may be altered, modified or set aside in the same manner and
within the same time provided by statute for other orders. The order
shall become final upon service. Delivery by the United States Postal
Service of the complaint and decision containing the agreed-to order to
proposed respondent's address as stated in this agreement shall
constitute service. Proposed respondent waives and right it may have to
any other manner of service. The complaint may be used in construing
the terms of the order, and no agreement, understanding,
representation, or interpretation not contained in the order or the
agreement may be used to vary or contradict the terms of the order.
7. Proposed respondent has read the proposed complaint and order
contemplated hereby. Proposed respondent understands that once the
order has been issued, it will be required to file one or more
compliance reports showing that it has fully complied with the order.
Proposed respondent further understands that it may be liable for civil
penalties in the amount provided by law for each violation of the order
after it becomes final.
Order
I
It is ordered, That, as used in this order, the following
definitions shall apply:
A. ``Respondent'' or ``SCI'' means Service Corporation
International, its predecessors, subsidiaries, divisions, and groups
and affiliates controlled by Service Corporation International, their
successors and assigns, and their directors, officers, employees,
agents and representatives.
B. ``Commission'' means the Federal Trade Commission.
C. ``Funerals'' means a group of services provided at the death of
an individual, the focus of which is some form of commemorative
ceremony concerning the deceased at which ceremony the body is present;
this group of services ordinarily includes, but is not limited to: the
removal of the body from the place of death; its embalming or other
preparation; making available a place for visitation and viewing, for
the conduct of a funeral service, and for the display of caskets
[[Page 1513]]
and outside cases; and the arrangement for and conveyance of the body
to a cemetery of crematory for final disposition.
D. ``Funeral establishment'' means the Assets and Businesses of a
facility that provides funerals.
E. ``Perpetual care cemetery services'' means the provision of
plots of land, mausoleum spaces, and niches for, and the services
associated with, including maintenance and upkeep, the final
disposition of human remains.
F. ``Cemetery'' means the Assets and Businesses of a facility that
provides perpetual care cemetery services.
G. ``Crematory services'' means the incineration of human remains.
H. ``Crematory'' means the Assets and Businesses of a facility that
performs cremations.
I. ``Assets and Businesses'' include all assets, properties,
business and goodwill, tangible and intangible, utilized by a funeral
establishment, cemetery or crematory, including, but not limited to,
the following:
1. All right, title and interest in and to owned or leased real
property, together with appurtenances, licenses and permits;
2. All vendor lists, management information systems and software
used on-site, and all catalogs, sales promotion literature and
advertising materials, except that SCI may delete from such materials
the SCI, Gibraltar or Schooler Gordon names, trademarks or other
identification;
3. All machinery, fixtures, equipment, vehicles, transportation
facilities, furniture, tools and other tangible personal property;
4. All right, title and interest in and to the contracts entered
into in the ordinary course of business with customers (together with
associated bids and performance bonds), suppliers, sales
representatives, distributors, agents, personal property lessors,
personal property lessees, licensors, licensees, consignors and
consignees;
5. All right, title and interest in the trade name of each funeral
establishment, cemetery or crematory, but excluding the trade name
``Schooler Gordon''; and
6. All right, title and interest in the books, records and files
pertinent to any of the Properties to be Divested.
J. ``Properties to be Divested'' means all of the Assets and
Businesses of the following funeral establishments, cemeteries and
crematories:
1. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-
Shaw Funeral Home), 315 East Fifth Street, Amarillo, Texas 79105
2. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-
Shaw Funeral Home), 1505 Martin Street, Amarillo, Texas 79105
3. Memory Gardens of Amarillo & Crematory, I-27 and McCormack Road,
Amarillo, Texas 79114
4. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida
32796
5. Oaklawn Memorial Gardens & Mausoleum, 2116 Garden Street,
Titusville, Florida 32796
6. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904
7. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers,
Florida 33907
II
It is further ordered That:
A. Respondent shall divest, absolutely and in good faith, within
twelve months of the date this order becomes final, the Properties to
be Divested.
B. Respondent shall divest the Properties to be Divested only to an
acquirer or acquirers that receive the prior approval of the Commission
and only in a manner that receives the prior approval of the
Commission. The purpose of the divestiture of the Properties to be
Divested is to ensure that continued use of the Properties to be
Divested in the same business in which the Properties to be Divested
are engaged at the time of the proposed divestiture, and to remedy the
lessening of competition resulting from the proposed acquisition as
alleged in the Commission's complaint.
C. Pending divestiture of the Properties to be Divested, respondent
shall take such actions as are necessary to maintain the viability and
marketability of the Properties to be Divested and to prevent the
destruction, removal, wasting, deterioration, or impairment of any of
the Properties to be Divested except for ordinary wear and tear.
D. Respondent shall comply with all terms of the Agreement to Hold
Separate, attached to this order and made a part hereof as Appendix I.
The Agreement to Hold Separate shall continue in effect until such time
as respondent has divested all the Properties to be Divested as
required by this order.
III
It is further ordered That:
A. If SCI has not divested, absolutely and in good faith and with
the Commission's prior approval, the Properties to be Divested within
twelve months of the date this order becomes final, the Commission may
appoint a trustee to divest the Properties to be Divested. In the event
that the Commission or the Attorney General brings an action pursuant
to section 5(l) of the Federal Trade Commission Act, 15 U.S.C. 45(l),
or any other statute enforced by the Commission, SCI shall consent to
the appointment of a trustee in such action. Neither the appointment of
a trustee nor a decision not to appoint a trustee under this Paragraph
shall preclude the Commission or the Attorney General from seeking
civil penalties or any other relief available to it, including a court-
appointed trustee, pursuant to section 5(l) of the Federal Trade
Commission Act, or any other statute enforced by the Commission, for
any failure by the respondent to comply with this order.
B. If a trustee is appointed by the Commission or a court pursuant
to Paragraph III A of this order, respondent shall consent to the
following terms and conditions regarding the trustee's powers, duties,
authority, and responsibilities:
1. The Commission shall select the trustee, subject to the consent
of respondent, which consent shall not be unreasonably withheld. The
trustee shall be a person with experience and expertise in acquisitions
and divestitures. If respondent has not opposed, in writing, including
the reasons for opposing, the selection of any proposed trustee within
ten (10) days after notice by the staff of the Commission to respondent
and its counsel of the identity of any proposed trustee, respondent
shall be deemed to have consented to the selection of the proposed
trustee.
2. Subject to the prior approval of the Commission, the trustee
shall have the exclusive power and authority to divest the Properties
to be Divested.
3. Within ten (10) days after appointment of the trustee,
respondent shall execute a trust agreement that, subject to the prior
approval of the Commission and, in the case of a court-appointed
trustee, of the court, transfers to the trustee all rights and powers
necessary to permit the trustee to effect the divestiture required by
this order.
4. The trustee shall have twelve (12) months from the date the
Commission approves the trust agreement described in Paragraph III B.3
to accomplish the divestiture, which shall be subject to the prior
approval of the Commission. If, however, at the end of the twelve-month
period, the trustee has submitted a plan of divestiture or believes
that divestiture can be achieved within a reasonable time, the
divestiture period may be extended by the Commission, or, in the case
of a court-appointed trustee, by the
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court; provided, however, the Commission may extend this period only
two (2) times.
5. The trustee shall have full and complete access to the
personnel, books, records and facilities related to the Properties to
be Divested or to any other relevant information, as the trustee may
request. Respondent shall develop such financial or other information
as such trustee may request and shall cooperate with the trustee.
Respondent shall take no action to interfere with or impede the
trustee's accomplishment of the divestitures. Any delays in divestiture
caused by respondent shall extend the time for divestiture under this
Paragraph in an amount equal to the delay, as determined by the
Commission or, for a court-appointed trustee, by the court.
6. The trustee shall use his or her best efforts to negotiate the
most favorable price and terms available in each contract that is
submitted to the Commission, subject to respondent's absolute and
unconditional obligation to divest at no minimum price. The divestiture
shall be made in the manner and to the acquirer or acquirers as set out
in Paragraph II of this order; provided, however, if the trustee
receives bona fide offers from more than one acquiring entity, and if
the Commission determines to approve more than one such acquiring
entity, the trustee shall divest to the acquiring entity or entities
selected by respondent from among those approved by the Commission.
7. The trustee shall serve, without bond or other security, at the
cost and expense of respondent, on such reasonable and customary terms
and conditions as the Commission or a court may set. The trustee shall
have the authority to employ, at the cost and expense of respondent,
such consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
necessary to carry out the trustee's duties and responsibilities. The
trustee shall account for all monies derived from the divestiture and
all expenses incurred. After approval by the Commission and, in the
case of a court-appointed trustee, by the court, of the account of the
trustee, including fees for his or her services, all remaining monies
shall be paid at the direction of the respondent, and the trustee's
power shall be terminated. The trustee's compensation shall be based at
least in significant part on a commission arrangement contingent on the
trustee's divesting the Properties to be Divested.
8. Respondent shall indemnify the trustee and hold the trustee
harmless against any losses, claims, damages, liabilities, or expenses
arising out of, or in connection with, the performance of the trustee's
duties, including all reasonable fees of counsel and other expenses
incurred in connection with the preparation for, or defense of any
claim, whether or not resulting in any liability, except to the extent
that such liabilities, losses, damages, claims, or expenses result from
misfeasance, gross negligence, willful or wanton acts, or bad faith by
the trustee.
9. If the trustee ceases to act or fails to act diligently, a
substitute trustee shall be appointed in the same manner as provided in
Paragraph III A of this order.
10. The Commission or, in the case of a court-appointed trustee,
the court, may on its own initiative or at the request of the trustee
issue such additional orders or directions as may be necessary or
appropriate to accomplish the divestiture required by this order.
11. The trustee shall have no obligation or authority to operate or
maintain the Properties to be Divested.
12. The trustee shall report in writing to respondent and the
Commission every sixty (60) days concerning the trustee's efforts to
accomplish divestiture.
IV
It is further ordered That, for a period of ten (10) years from the
date this order becomes final, respondent shall not, without providing
advance written notification to the Commission, directly or indirectly,
through subsidiaries, partnerships, or otherwise:
A. Acquire any stock, share capital, equity, or other interest in
any concern, corporate or non-corporate, engaged in at the time of such
acquisition, or within the two years preceding such acquisition, the
sale of funerals, perpetual care cemetery services, or crematory
services within the city limits of, or the area extending ten (10)
miles outward in any direction of the city limits of, Amarillo, Texas;
the sale of funerals or perpetual care cemetery services in Brevard
County, Florida; or the sale of funerals in Lee County, Florida; or
B. Acquire any assets used for or used in the previous two years
for (and still suitable for use for) the sale of funerals, perpetual
care cemetery services or crematory services within the city limits of,
or the area extending ten (10) miles outward in any direction of the
city limits of, Amarillo, Texas; the sale of funerals or perpetual care
cemetery services in Brevard County, Florida; or the sale of funerals
in Lee County, Florida.
Said notification shall be given on the Notification and Report
Form set forth in the Appendix to Part 803 of Title 16 of the Code of
Federal Regulations as amended (hereinafter referred to as ``the
Notification''), and shall be prepared and transmitted in accordance
with the requirements of that part, except that no filing fee will be
required for any such notification, notification shall be filed with
the Secretary of the Commission, notification need not be made to the
United States Department of Justice, and notification is required only
of respondent and not of any other party to the transaction. Respondent
shall provide the Notification to the Commission at least thirty days
prior to acquiring any such interest (hereinafter referred to as the
``first waiting period''). If, within the first waiting period,
representatives of the Commission make a written request for additional
information, respondent shall not consummate the transaction until
twenty days after substantially complying with such request for
additional information. Early termination of the waiting periods in
this paragraph may be requested and, where appropriate, granted by
letter from the Bureau of Competition. Provided, however, that prior
notification shall not be required by this paragraph for a transaction
for which notification is required to be made, and has been made,
pursuant to Section 7A of the Clayton Act, 15 U.S.C. 18a.
This Paragraph IV shall not apply to new facilities constructed or
developed by respondent.
V
It is further ordered That:
A. Within sixty (60) days after the date this order becomes final
and every sixty (60) days thereafter until respondent has fully
complied with the provisions of Paragraphs II and III of this order,
respondent shall submit to the Commission a verified written report
setting forth in detail the manner and form in which it intends to
comply, is complying, and has complied with Paragraphs II and III of
this order. Respondent shall include in its compliance reports, among
other things that are required from time to time, a full description of
the efforts being made to comply with Paragraphs II and III of the
order, including a description of all substantive contacts or
negotiations for the divestiture and the identity of all parties
contacted. Respondent shall include in its compliance reports copies of
all written
[[Page 1515]]
communications to and from such parties, all internal memoranda, and
all reports and recommendations concerning divestiture as required by
this order.
B. One year (1) from that date this order becomes final, annually
for the next nine (9) years on the anniversary of the date this order
becomes final, and at other times as the Commission may require,
respondent shall file a verified written report with the Commission
setting forth in detail the manner and form in which it has complied
and is complying with Paragraph IV of this order.
VI
It is further ordered That respondent shall notify the Commission
at least thirty (30) days prior to any proposed change in the corporate
respondent such as dissolution, assignment, sale resulting in the
emergence of a successor corporation, or the creation or dissolution of
subsidiaries or any other change in the corporation that may affect
compliance obligations arising out of the order.
VII
It is further ordered That, for the purpose of determining or
securing compliance with this order, subject to any legally recognized
privilege, and upon written request with reasonable notice to
respondent made to its principal office, respondent shall permit any
duly authorized representative or representatives of the Commission:
A. Access, during office hours of respondent and in the presence of
counsel, to inspect and copy all books, ledgers, accounts,
correspondence, memoranda and other records and documents in the
possession or under the control of respondent relating to any matters
contained in this order; and
B. Upon five (5) days' notice to respondent and without restraint
or interference therefrom, to interview officers or employees of
respondent, who may have counsel present, regarding such matters.
Appendix I--Agreement to Hold Separate
This Agreement to Hold Separate (``Agreement'') is by and between
Service Corporation International (``SCI''), a corporation organized
and existing under the laws of the State of Texas, with its principal
executive office located at 1929 Allen Parkway, Houston, Texas, and the
Federal Trade Commission (``Commission''), an independent agency of the
United States Government, established under the Federal Trade
Commission Act of 1914, 15 U.S.C. 41, et seq. (collectively,
``Parties'').
Premises
Whereas, on or about June 7, 1995, SCI entered into an Agreement
and Plan of Merger with Gibraltar Mausoleum Corporation
(``Gibraltar''), in which (1) Gibraltar would be merged into Rocky
Acquisition Corp., a wholly-owned subsidiary of SCI, and (2) Gibraltar
shareholders would receive SCI common stock and other consideration
specified therein (``Acquisition''); and
Whereas, both SCI and Gibraltar own interests in funeral
establishments that provide funerals, cemeteries that provide perpetual
care cemetery services, and crematories that provide cremations to
consumers; and
Whereas, the Commission is now investigating the Acquisition to
determine if the Acquisition would violate any of the statutes enforced
by the Commission; and
Whereas, if the Commission accepts the Agreement Containing Consent
Order (``SCI/Gibraltar Consent Agreement''), the Commission must place
the SCI/Gibraltar Consent Agreement on the public record for public
comment for a period of at least sixty (60) days and may subsequently
withdraw such acceptance pursuant to the provisions of Section 2.34 of
the Commission's Rules; and
Whereas, the Commission is concerned that if an understanding is
not reached preserving the status quo ante and holding separate the
assets and businesses of certain funeral establishments, cemeteries,
and a crematory (``Hold Separate Assets'') listed in Exhibit A attached
hereto and made a part hereof until the divestitures contemplated by
the SCI/Gibraltar Consent Agreement have been made, divestitures
resulting from any proceeding challenging the legality of the
Acquisition might not be possible or might be less than an effective
remedy; and
Whereas, the purposes of this Agreement are to: (1) Preserve the
Hold Separate Assets as viable independent businesses pending the
divestitures described in the SCI/Gibraltar Consent Agreement; (2)
preserve the Commission's ability to require the divestitures of the
funeral establishments, cemeteries, and a crematory as specified in the
SCI/Gibraltar Consent Agreement; and (3) remedy any anticompetitive
aspects of the Acquisition; and
Whereas, SCI's entering into this Agreement shall in no way be
construed as an admission by SCI that the Acquisition is illegal; and
Whereas, SCI understands that no act or transaction contemplated by
this Agreement shall be deemed immune or exempt from the provisions of
the antitrust laws or the Federal Trade Commission Act by reason of
anything contained in this Agreement.
Now, therefore, the Parties agree, upon understanding that the
Commission has not yet determined whether the Acquisition will be
challenged, and unless the Commission determines to reject the SCI/
Gibraltar Consent Agreement, it will not seek further relief from SCI
with respect to the Acquisition, except that the Commission may
exercise any and all rights to enforce this Agreement, the SCI/
Gibraltar Consent Agreement to which it is annexed and made a part, and
the order, once it becomes final, and in the event that the required
divestitures are not accomplished, to appoint a trustee to seek
divestiture of the Properties to be Divested pursuant to the SCI/
Gibraltar Consent Agreement, as follows:
1. SCI agrees to execute and be bound by the SCI/Gibraltar Consent
Agreement.
2. SCI shall hold and Hold Separate Assets separate and apart from
the date this Agreement is accepted until the first to occur of (a) ten
business days after the Commission withdraws its acceptance of the SCI/
Gibraltar Consent Agreement pursuant to the provisions of Section 2.34
of the Commission's Rules or (b) the date the divestitures required by
the order contained in the SCI/Gibraltar Consent Agreement are
accomplished. SCI's obligation to hold the Hold Separate Assets
separate and apart shall be on the following terms and conditions and
for the periods set forth in Exhibit A:
a. SCI shall hold separate and apart the Hold Separate Assets.
b. Except as provided herein and as is necessary to assure
compliance with this Agreement and the Consent Order, SCI shall not
exercise direction or control over, or influence directly or
indirectly, the Hold Separate Assets or any of their operations or
businesses.
c. SCI shall cause the Hold Separate Assets to continue using their
present names and trade names, and shall maintain and preserve the
viability and marketability of each of the Hold Separate Assets and
shall not sell, transfer, encumber (other than in the normal course of
business), or otherwise impair their marketability or viability. During
the term of this Agreement, SCI shall provide the Hold Separate Assets
with the same or better quality of support services, including without
limitation, payroll processing,
[[Page 1516]]
accounting, management information systems, and computer support, as
SCI or Gibraltar provided to the Hold Separate Assets prior to the
acquisition.
d. SCI shall refrain from taking any actions that may cause any
material adverse change in the business or financial conditions of the
Hold Separate Assets.
e. SCI shall not change the composition of the management of the
Hold Separate Assets, except that SCI may fill vacancies and remove
management for cause.
f. SCI shall maintain separate financial and operating records and
shall prepare separate quarterly and annual financial statements for
the Hold Separate Assets and shall provide the Commission with such
statements for each funeral establishment, cemetery and crematory
within ten days of their availability.
g. Except as required by law, and except to the extent that
necessary information is exchanged in the course of evaluating the
Acquisition, defending investigations or litigation, or negotiating
agreements to dispose of assets, SCI shall not receive or have access
to, or the use of, any of the Hold Separate Assets' material
confidential information not in the public domain. Any such information
that is obtained pursuant to this subparagraph shall only be used for
the purpose set out in this subparagraph. (``Material confidential
information,'' as used herein, means competitively sensitive or
proprietary information not independently known to SCI from sources
other than Gibraltar or itself, and includes but is not limited to pre-
need customer lists, prices quoted by suppliers, or trade secrets.)
h. All earnings and profits of the Hold Separate Assets shall be
held separate. If necessary, SCI shall provide any or all of the Hold
Separate Assets with sufficient working capital to operate at their
current levels.
i. SCI shall refrain from, directly or indirectly, encumbering,
selling, disposing of, or causing to be transferred any assets,
property, or business of the Hold Separate Assets, except that the Hold
Separate Assets may advertise, purchase merchandise and sell or
otherwise dispose of merchandise in the ordinary course of business.
3. Should the Federal Trade Commission seek in any proceeding to
compel SCI to divest itself of the shares of Gibraltar stock that SCI
may acquire, or to compel SCI to divest any assets or businesses of
Gibraltar that it may hold, or seek any other injunctive or equitable
relief, SCI shall not raise any objection based upon the fact that the
Commission has permitted the Acquisition. SCI also waives all rights to
contest the validity of this Agreement.
4. For the purpose of determining or securing compliance with this
Agreement, subject to any legally recognized privilege, and upon
written request with reasonable notice to SCI made to its principal
office, respondent shall permit any duly authorized representative or
representatives of the Commission:
a. Access during office hours of SCI, and in the presence of
counsel, to inspect and copy all books, ledgers, accounts,
correspondence, memoranda and other records and documents in the
possession or under the control of SCI relating to any matters
contained in this Agreement; and
b. Upon five (5) days' notice to SCI and without restraint or
interference therefrom, to interview officers or employees of SCI, who
may have counsel present, regarding such matters.
This Agreement shall not be binding until approved by the
Commission.
Exhibit A
Hold Separate Assets
A. The following funeral establishment, cemetery, and crematory
shall be held separate until the divestitures of the two Blackburn-Shaw
Funeral Homes (now known as Schooler-Gordon Blackburn-Shaw Funeral
Homes) and Memory Gardens of Amarillo & Crematory pursuant to the order
as is set forth in the SCI/Gibraltar Consent Agreement:
1. Memorial Park Funeral Home, 6969 I-40 East, Amarillo, Texas
79120
2. Memorial Park Cemetery & Crematory, 6969 I-40 East, Amarillo, Texas
B. The following cemetery and funeral establishment shall be held
separate until their divestiture pursuant to the order as is set forth
in the SCI/Gibraltar Consent Agreement:
1. Oaklawn Memorial Gardens and Mausoleum, 2116 Garden Street,
Titusville, Florida 32796
2. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida
32796
3. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904
4. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers,
Florida 33907
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed consent order from respondent Service Corporation
International (``SCI'').
The proposed consent order has been placed on the public record for
sixty (60) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After sixty (60) days, the Commission will again review the
agreement and the comments received and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
The complaint alleges that SCI's acquisition of Gibraltar Mausoleum
Corporation will violate Section 5 of the Federal Trade Commission Act,
15 U.S.C. 45, and Section 7 of the Clayton Act, 15 U.S.C. 18, in three
relevant geographic markets. In Lee County, Florida, both SCI and
Gibraltar own funeral establishments and are actual competitors in the
provision of funerals. SCI is the largest seller of funeral services in
Lee County and Gibraltar is the third largest. In Brevard County,
Florida, both SCI and Gibraltar own funeral establishments and
cemeteries and are actual competitors in the provision of funerals and
perpetual care cemetery services. Gibraltar is the largest firm selling
funerals and perpetual care cemetery services in Brevard County and SCI
is the second largest. Finally, in Amarillo, Texas and its immediate
environs, both SCI and Gibraltar own funeral establishments, cemeteries
and crematories, and are actual competitors in the provision of
funerals, perpetual care cemetery services and cremation services. SCI
and Gibraltar are the first and second largest sellers of funerals,
respectively. They own two of three perpetual care cemeteries in the
area and they own the only two crematories.
The complaint alleges that the acquisition may substantially lessen
competition in the following ways, among others: (1) By eliminating
actual competition between SCI and Gibraltar in the relevant markets;
and (2) by significantly enhancing the possibility of collusion or
interdependent coordination among the remaining firms in the relevant
markets or by tending to create a dominant firm in the relevant
markets. These effects increase the likelihood that firms would
increase prices, decrease quality and restrict output in the relevant
markets if the acquisition were consummated.
The proposed order requires SCI to divest two funeral
establishments in Lee County, Florida; one funeral establishment and
one cemetery in Brevard County; and two funeral establishments, a
cemetery and a crematory in Amarillo, Texas.
The purpose of this analysis is to facilitate public comment on the
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proposed order, and it is not intended to constitute an official
interpretation of the agreement and proposed order or to modify in any
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-507 Filed 1-18-96; 8:45 am]
BILLING CODE 6750-01-M
