[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Notices]
[Pages 34867-34871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16890]
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DEPARTMENT OF JUSTICE
United States v. AnchorShade, Inc., No. 96-08426, S.D. Fla.,
filed June 20, 1996
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation and Competitive Impact Statement have been filed with the
United States District Court for the Southern District of Florida in
the above-captioned case.
On June 20, 1996, the United States filed a complaint to prevent
and restrain the defendant from violating Section 1 of the Sherman Act.
The complaint alleges that the defendant conspired to fix the price of
outdoor umbrellas sold by the defendant to dealers throughout the
United States by obtaining agreements from dealers to maintain the
minimum resale price as a condition of receiving outdoor umbrellas from
the defendant, and permitting dealers to discount in order to meet
competition, but only if they obtained written approval in advance from
AnchorShade, Inc. As a result of the conspiracy, the resale price of
outdoor umbrellas was fixed and competition among dealers of outdoor
umbrellas was restrained.
The proposed Final Judgment prohibits the defendant from entering
into or maintaining any unlawful agreement with any dealer that fixes
the price at which the dealer may sell the defendant's outdoor
umbrellas to consumers; adopting any resale pricing policy wherein the
defendant (1) Will sell only to a dealer that prices the defendant's
outdoor umbrellas at or above the defendant's suggested resale price,
and/or (2) will terminate any dealer for pricing below such suggested
resale price; and threatening any dealer with termination or
terminating any dealer from pricing below the defendant's suggested
resale price, and discussing with any dealer any decision regarding
termination of any other dealer for any reason related to pricing below
the defendant's suggested resale price.
Public comment is invited within the statutory 60-day period. Such
comments
[[Page 34868]]
will be published in the Federal Register and filed with the Court.
Comments should be addressed to Ralph T. Giordano, Chief, New York
Office, U.S. Department of Justice, Antitrust Division, 26 Federal
Plaza, Room 3630, New York, New York 10278 (telephone: (212) 264-0390).
Rebecca P. Dick,
Deputy Director of Operations.
United States District Court Southern District of Florida
In the matter of; UNITED STATES OF AMERICA, Plaintiff, v.
ANCHORSHADE, INC., Defendant; Civil Action No. 96-08426, Judge
Daniel T. K. Hurley.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The parties to this Stipulation consent that a Final Judgment in
the form attached may be filed and entered by the Court, upon any
party's or the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), without further notice to any party or other proceedings,
provided that plaintiff has not withdrawn its consent, which it may do
at any time before entry of the proposed Final Judgment by serving
notice on the defendant and by filing that notice with the Court.
2. If plaintiff withdraws its consent or the proposed Final
Judgment is not entered pursuant to this Stipulation, this Stipulation
shall be of no effect whatever and its making shall be without
prejudice to any party in this or any other proceeding.
Dated: June 20, 1996.
For the Plaintiff:
Anne K. Bingaman,
Assistant Attorney General.
Joel I. Klein,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Ralph T. Giordano,
Chief, New York Office.
For the Defendant:
Barry L. Haley,
Counsel for AnchorShade, Inc., Malin, Haley, DiMaggio and Crosby, P.A.,
Suite 1609, 1 East Broward Boulevard, Fort Lauderdale, Florida 33301.
Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26
Federal Plaza, Room 3630, New York, New York 10278, (212) 264-0660.
Final Judgment
Plaintiff, United States of America, having filed its complaint
herein on , and plaintiff and defendant, AnchorShade, Inc., having
consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law herein and without this Final
Judgment constituting any evidence against or an admission by any party
with respect to any such issue;
And whereas defendant has agreed to be bound by the provisions of
this Final Judgment pending its approval by the Court;
Now, THEREFORE, before the taking of any testimony and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby ORDERED, ADJUDGED AND
DECREED as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of the party consenting hereto. The complaint states a claim upon
which relief may be granted against defendant under Section 1 of the
Sherman Act (15 U.S.C. 1).
II
Definitions
As used in this Final Judgment:
A. ``Person'' means any individual, corporation, partnership,
company, sole proprietorship, firm or other legal entity.
B. ``Dealer'' means any person, not wholly owned by AnchorShade,
Inc., who purchases or acquires outdoor umbrellas manufactured or sold
by AnchorShade, Inc. for resale.
C. ``Outdoor umbrellas'' means collapsible devices that provide
shade for protection against sun or weather.
D. ``Resale price'' means any price, price floor, price ceiling,
price range, or any mark-up, formula or margin of profit relating to
outdoor umbrellas sold by dealers.
III
Applicability
A. This Final Judgment applies to defendant and to each of its
officers, directors, agents, employees, subsidiaries, successors and
assigns, and to all other persons in active concert or participation
with any of them who shall have received actual notice of this Final
Judgment by personal service or otherwise.
B. Defendant shall require, as a condition of the sale of all or
substantially all of its assets or stock, that the acquiring party
agree to be bound by the provisions of this Final Judgment.
IV
Prohibited Conduct
A. Defendant is hereby enjoined and restrained from directly or
indirectly entering into, adhering to, maintaining, furthering,
enforcing or claiming any right under any contract, agreement,
understanding, plan or program with any dealer to fix, stabilize or
maintain the resale prices at which outdoor umbrellas sold or
distributed by the defendant may be sold or offered for sale in the
United States by any dealer.
B. Defendant is further enjoined and restrained for a period of
five years from the date of entry of this Final Judgment from directly
or indirectly announcing to the public or to any present or potential
dealer of its outdoor umbrellas that defendant has or is adopting,
promulgating, suggesting, announcing or establishing any resale pricing
policy for outdoor umbrellas that provides that: (1) Defendant will
sell only to a dealer that prices at or above defendant's suggested
resale price, and/or (2) defendant will terminate any dealer for
pricing below defendant's suggested resale price.
C. Defendant is further enjoined and restrained for a period of
five years from the date of entry of this Final Judgment from (1)
threatening any dealer with termination or terminating any dealer for
pricing below the defendant's suggested resale price, and (2)
discussing with any present or potential dealer any decision regarding
termination of any other dealer for any reason directly or indirectly
related to the latter dealer's pricing below defendant's suggested
resale price; provided, however, that nothing herein shall prohibit the
defendant during this
[[Page 34869]]
five-year period from terminating a dealer for using any of defendant's
products to promote the sale of products manufactured by other
companies, or any other reasons other than pricing below defendant's
suggested resale price. Furthermore, nothing in this paragraph shall be
deemed to prohibit the defendant from adopting suggested resale prices
and communicating such resale prices to dealers.
V.
Notification Provisions
Defendant is hereby ordered and directed:
A. To send a written notice, and in the form attached as Appendix A
to this Final Judgment, a copy of this Final Judgment, within sixty
days of the entry of this Final Judgment, to each dealer who purchased
outdoor umbrellas from defendant from January 1, 1992 to the date of
entry of this Final Judgment.
B. To send a written notice, in the form attached as Appendix A to
this Final Judgment, and a copy of this Final Judgment, to each dealer
who purchases outdoor umbrellas from defendant within ten years of
entry of this Final Judgment and who was not previously given such
notice. Such notice shall be sent within thirty days after the shipment
of outdoor umbrellas is made to such dealer by defendant.
VI
Compliance Program
Defendant is ordered to establish and maintain an antitrust
compliance program which shall include designating, within thirty days
of entry of this Final Judgment, an Antitrust Compliance Officer with
responsibility for accomplishing the antitrust compliance program and
with the purpose of achieving compliance with this Final Judgment. The
Antitrust Compliance Officer shall, on a continuing basis, supervise
the review of the current and proposed activities of his or her company
to assure that it complies with this Final Judgment. The Antitrust
Compliance Officer shall be responsible for accomplishing the following
activities:
A. Furnishing a copy of this Final Judgment within thirty days of
entry of this Final Judgment to each of AnchorShade, Inc.'s officers
and directors and each of its employees, representatives or agents
whose duties include supervisory or direct responsibility for the sale
or advertising of outdoor umbrellas in the United States, except those
employees whose functions are purely clerical or manual.
B. Distributing in a timely manner a copy of this Final Judgment to
any owner, officer or employee who succeeds to a position described in
Section VI A.
C. Briefing annually those persons designated in Sections VA A and
B on the meaning and requirements of this Final Judgment and the
antitrust laws.
C. Obtaining from each owner, officer or employee designated in
Section VI A and B certification that he or she (1) has read,
understands and agrees to abide by the terms of this Final Judgment;
(2) understands that failure to comply with this Final Judgment may
result in conviction for criminal contempt of court; and (3) is not
aware of any violation of the Final Judgment that has not been reported
to the Antitrust Compliance Officer.
E. Maintaining a record of recipients from whom the certification
in Section VI D has been obtained.
VII
Certification
A. Within seventy-five days of this Final Judgment, defendant shall
certify to plaintiff whether the defendant has designated an Antitrust
Compliance Officer and has distributed the Final Judgment in accordance
with Section VI A above.
B. For ten years after the entry of this Final Judgment, on or
before its anniversary date, the defendant shall file with the
plaintiffs an annual statement as to the fact of its compliance with
the provisions of Sections V and VI.
C. If defendant's Antitrust Compliance Officer learns of any
violations of any of the terms and conditions contained in this Final
Judgment, defendant shall immediately notify the plaintiff and
forthwith take appropriate action to terminate or modify the activity
so as to comply with this Final Judgment.
VIII
Plaintiff Access
A. For the purpose of determining or securing compliance with this
Final Judgment, and for no other purpose, duly authorized
representatives of plaintiff shall, upon written request of the
Attorney General or the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to the defendant, be
permitted, subject to any legally recognized privilege:
1. Access during defendant's office hours to inspect and copy all
records and documents in the possession or under the control of
defendant, which may have counsel present, relating to any matters
contained in this Final Judgment.
2. To interview defendant's officers, employees and agents, who may
have counsel present, regarding any such matters. The interviews shall
be subject to the defendant's reasonable convenience.
B. Upon the written request of the Attorney General or the
Assistant Attorney General in charge of the Antitrust Division made to
defendant at its principal office, defendant shall submit such written
reports, under oath if requested, with respect to any of the matters
contained in this Final Judgment as may be requested, subject to any
legally recognized privilege.
C. No information or documents obtained by the means provided in
this Section VIII shall be divulged by any representative of the
Department of Justice to any person other than a duly authorized
representative of the Executive Branch of the United States, except in
the course of legal proceedings to which the United States is a party
or for the purpose of securing compliance with this Final Judgment, or
as otherwise required by law.
D. If at the time information or documents are furnished by
defendant to plaintiff, defendant represents and identifies in writing
the material in any such information or documents to which a claim of
protection may be asserted under Rule 26(c)(7) of the Federal Rules of
Civil Procedure, and defendant marks each pertinent page of such
materials, ``Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then ten days notice shall be given
by plaintiff to defendant prior to divulging such material in any legal
proceeding (other than a grand jury proceeding), so that defendant
shall have an opportunity to apply to this Court for protection
pursuant to Rule 26(c)(7) of the Federal Rules of Civil Procedure.
E. Within ten days after receiving any request under Sections VIII
A or VII B, defendant may apply to this Court for an order to quash or
limit the scope of the request, and after providing plaintiff with an
opportunity to respond to such application, this Court shall enter such
order or directions as may be necessary or appropriate for carrying out
and ensuring compliance with this Final Judgment.
IX
Duration of Final Judgment
Except as otherwise provided hereinabove, this Final Judgment shall
[[Page 34870]]
remain in effect until ten (10) years from the date of entry.
X
Construction, Enforcement, Modification and Compliance
Jurisdiction is retained by the Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders or directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of its provisions, for its
enforcement or compliance, and for the punishment of any violation of
its provisions.
XI
Public Interest
Entry of this Final Judgment is in the public interest.
Dated:----------------------------------------------------------------
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United States District Court Judge
Appendix A
Dear AnchorShade Dealer. The Antitrust Division of the United
States Department of Justice filed a civil suit alleging that from
at least as early as December 1992 through at least February 1995,
AnchorShade, Inc. (AnchorShade) entered into and maintained
agreements with certain dealers to fix and maintain the resale
prices of AnchorShade products. AnchorShade has agreed, without
admitting any violation of the law and without being subject to any
monetary penalties, to the entry of a civil Consent Order
prohibiting certain pricing practices in the United States,
including for a period of five years prohibiting AnchorShade from
announcing to the public or to any dealer that AnchorShade has a
resale pricing policy that contains any provision that provides that
(a) AnchorShade will sell only to a dealer that prices at or above
AnchorShade's suggested resale price, and/or (b) AnchorShade will
terminate any dealer for pricing below AnchorShade's suggested
resale price. A copy of the Order is enclosed.
Should you have any questions concerning this letter, please
feel free to contact me.
Sincerely,
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Certificate of Service
I, Patricia L. Jannaco, hereby certify that on the 20th day of
June, 1996, I served the foregoing Stipulation and Proposed Final
Judgment by causing copies thereof to be hand-delivered to: Barry L.
Haley, Esq., Malin, Haley, DiMaggio and Crosby, P.A., Suite 1608, 1
East Broward Boulevard, Fort Lauderdale, Florida 33301.
Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26
Federal Plaza, Room 3630, New York, New York, 10278, (212) 264-0660.
United States District Court Southern District of Florida
In the matter of; United States of America, Plaintiff, v.
Anchorshade, Inc., Defendant; Civil Action No. 96-08426, Filed: 6/
20/96; 15 U.S.C. 1; 15 U.S.C. 4; Judge Daniel T.K. Hurley.
Competitive Impact Statement
The United States of America, pursuant to section 2 of the
Antitrust Procedures and Penalties Act (APPA), 15 U.S.C. 16(b), submits
this Competitive Impact Statement in connection with the proposed Final
Judgment submitted for entry in this civil antitrust proceeding.
I
Nature and Purpose of the Proceeding
On June 20, 1996, the United States filed a civil antitrust
complaint under Section 4 of the Sherman Act, as amended, 15 U.S.C. 4,
alleging that the defendant AnchorShade, Inc. engaged in a combination
and conspiracy, in violation of Section 1 of the Sherman Act, 15 U.S.C.
1, to fix the price of outdoor umbrellas sold by AnchorShade, Inc. to
dealers throughout the United States. The complaint alleges that, in
furtherance of this conspiracy, AnchorShade, Inc.:
(a) obtained agreements from dealers to maintain the minimum resale
price as a condition of receiving outdoor umbrellas from AnchorShade,
Inc.;
(b) permitted dealers to discount in order to meet competition, but
only if the obtained written approval in advance from AnchorShade, Inc.
The complaint also alleges that the combination and conspiracy is
illegal, and seeks to enjoin AnchorShade, Inc. from continuing or
renewing the alleged combination or conspiracy and from engaging in any
combination or conspiracy or adopting any practice or plan having a
similar purpose or effect.
The United States and AnchorShade, Inc. have stipulated that the
proposed Final Judgment may be entered after compliance with the APPA,
unless the United States withdraws its consent.
The Court's entry of the proposed Final Judgment will terminate the
action, except that the Court will retain jurisdiction over the matter
for possible further proceedings to construe, modify or enforce the
Final Judgment, or to punish violations of any of its provisions.
II
Description of Practices Giving Rise to the Alleged Violation of the
Antitrust Laws
AnchorShade, Inc., a Florida corporation, is a seller in the United
States of outdoor umbrellas that are used on boats to provide shade for
protection against sun or weather. AnchorShade, Inc. sells outdoor
umbrellas to dealers, who sell them to consumers. AnchorShade, Inc.
further stipulated that AnchorShade, Inc. would terminate its
relationship with any dealer who sold its outdoor umbrellas below the
stated resale price.
In December 1992, AnchorShade, Inc. entered into outright, written
agreements with certain dealers which required them to sell its outdoor
umbrellas to consumers at a resale price not lower than $169. The
agreements further required a dealer that wanted to discount, in order
to meet competition, to obtain advance written permission from
AnchorShade, Inc. These agreements went well over the line established
in the case law (see, Business Electronics Corp. v. Sharp Electronics
Corp., 485 U.S. 717 (1988), Monsanto Co. v. Spray-Rite Service Corp.,
465 U.S.752 (1984), United States v. Colgate & Co., 250 U.S. 300
(1919)), and served to keep prices artificially high.
III
Explanation of the Proposed Final Judgment
The parties have stipulated that the proposed Final Judgment may be
entered by the Court at any time after compliance with the APPA. The
proposed Final Judgment states that it shall not constitute an
admission by either party with respect to any issue of fact or law.
The proposed Final Judgment enjoins any direct or indirect
continuation or renewal of the type of conspiracy alleged in the
complaint. Specifically, Section IV enjoins and restrains the defendant
from entering into, adhering to, maintaining, furthering, enforcing or
claiming any right under any contract, agreement, understanding, plan
or program with any dealer to fix, stabilize, or maintain the resale
prices at which outdoor umbrellas sold or distributed by the defendant
may be sold or offered for sale in the United States by any dealer.
The proposed Final Judgment not only bars AnchorShade, Inc.'s
unlawful practice, but also contains additional provisions that are
remedial in nature.
[[Page 34871]]
Section IV provides that the defendant is prohibited for five years
from announcing to the public or to any present or potential dealer of
its outdoor umbrellas that defendant has or is adopting, promulgating,
suggesting, announcing or establishing any resale pricing policy for
outdoor umbrellas that provides that: (1) defendant will sell only to a
dealer that prices its outdoor umbrellas at or above defendant's
suggested resale price, and/or (2) defendant will terminate any dealer
for pricing below defendant's suggested resale price.
Additionally, the defendant is prohibited for a period of five
years from the date of entry of the Final Judgment from (1) threatening
any dealer with termination or terminating any dealer for pricing below
the defendant's suggested resale price, and (2) discussing with any
present or potential dealer any decision regarding termination of any
other dealer for any reason directly or indirectly related to the
latter dealer's pricing below defendant's suggested resale price.
Section V of the proposed Final Judgment is designed to ensure that
AnchorShade, Inc.'s dealers are aware of the limitations imposed on it
by the Final Judgment. Section V requires the defendant to send notice
and copies of the Final Judgment to each dealer who purchased outdoor
umbrellas from the defendant from January 1, 1992 to the date of entry
of the Final Judgment. In addition, the defendant is required to send
notices and copies of the Final Judgment to every other dealer who
purchases outdoor umbrellas from AnchorShade, Inc. within ten years of
the date of entry of the proposed Final Judgment.
Section VI requires the defendant to set up an antitrust compliance
program. The defendant is also required to furnish a copy of the Final
Judgment to each of its officers and directors and each of its
nonclerical employees, representatives or agents with supervisory or
direct responsibility for the sale or advertising of outdoor umbrellas
in the United States.
In addition, the proposed Final Judgment provides a method of
determining and securing the defendant's compliance with its terms.
Section VIII provides that, upon request of the Department of Justice,
the defendant shall submit written reports, under oath, with respect to
any of the matters contained in the Final Judgment. Additionally, the
Department of Justice is permitted to inspect and copy all books and
records, and to interview officers, directors, employees and agents of
the defendant.
Section IX makes the Final Judgment effective for ten years from
the date of its entry.
Section XI of the proposed Final Judgment states that entry of the
Final Judgment is in the public interest. Under the provisions of the
APPA, entry of the proposed Final Judgment is conditional upon a
determination by the Court that the proposed Final Judgment is in the
public interest.
The United States believes that the proposed Final Judgment is
fully adequate to prevent the continuation or recurrence of the
violation of section 1 of the Sherman Act alleged in the Complaint, and
that the disposition of this proceeding without further litigation is
appropriate and in the public interest.
IV
Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15, provides that any person who had
been injured as a result of conduct prohibited by the antitrust laws
may bring suit in federal court to recover three times the damages the
person has suffered, as well as costs and reasonable attorney fees.
Entry of the proposed Final Judgment will neither impair nor assist the
bringing of any private antitrust damage action. Under the provisions
of section 5(a) of the Clayton Act, 15 U.S.C. Sec. 16(a), the proposed
Final Judgment has no prima facie effect in any subsequent private
lawsuit that may be brought against the defendant.
V
Procedures Available for Modification of the Proposed Final Judgment
The United States and the defendant have stipulated that the
proposed Final Judgment may be entered by the Court after compliance
with the provisions of the APPA, provided that the United States has
not withdrawn its consent.
The APPA provides a period of at least sixty days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wants to comment should do so within
sixty days of the date of publication of this Competitive Impact
Statement in Federal Register. The United States will evaluate the
comments, determine whether it should withdraw its consent, and respond
to the comments. The comments and the responses of the United States
will be filed with the Court and published in the Federal Register.
Written comments should be submitted to: Ralph T. Giordano, Chief,
New York Office, Antitrust Division, United States Department of
Justice, 26 Federal Plaza, Room 3630, New York, New York 10278.
Under Section X of the proposed Final Judgment, the Court will
retain jurisdiction over this matter for the purpose of enabling any of
the parties to apply to the Court for such further orders or directions
as may be necessary or appropriate for the construction,
implementation, modification or enforcement of the Final Judgment, or
for the punishment of any violations of the Final Judgment.
VI
Alternatives to the Proposed Final Judgment
The only alternative to the proposed Final Judgment considered by
the United States will a full trial on the merits and on relief. Such
litigation would involve substantial costs to the United States and is
not warranted because the proposed Final Judgment provides appropriate
relief against the violations alleged in the Complaint.
VII
Determinative Materials and Documents
No materials or documents were determinative in formulating the
proposed Final Judgment. Consequently, the United States has not
attached any such materials or documents to the proposed Final
Judgment.
Dated: June 20, 1996.
Respectfully submitted,
Patricia L. Jannaco,
Attorney, Antitrust Division, United States Department of Justice, 26
Federal Plaza, Room 3630, New York, New York 10278, (212) 264-0660.
[FR Doc. 96-16890 Filed 7-2-96; 8:45 am]
BILLING CODE 4410-01-M
