Commission or set aside by a court on review, of untit the order of the Commission made

thercon has become final; and

3... Award such other and farther relief as the Court may determine to be proper

and just, including costs.

Janmary 14, 2002

_ WILLIAM E. KOVACIC °
‘General Counsel

JOSEPH J. SIMONS
Director

” SUSAN -A. CREIGHTON
* Deputy Director —

Bureau of Competition
Federal Trade Commission
Washington, D.C. 20580

RICHARD LIEBESKIND
MURRIS BLOOM
RHETT R, KRULLA
CHUL PAK :

LISA A. ROSENTHAL
ROBERT TOVSKY
WHELIAM DIAZ

APRIL TABOR

BRIAN BURGESS
Attorneys .
Pederal Trade Commission
Washington, D.C. 20580 °

_ RHETT. KRULLA

Attorney for Plaintiff :
Distcict of Cohtmbia Bar No. {2795

” Federal Trade Commission

601 Peansylvania Avenue, NW: _

Washington, D.C. 20580
202) 326-2608


" Labbey, Inc. Page 1 of 2

For Release: December 15, 2X1 Related Documents:

FTC to Chaitenge Libbey's Acquisition of Anchor Eromating Competition,

Hocking . Plain Enaish Golde to
Laws

Fhe Federal Trade Commission has voted to seek a preliminary injunction
ta block Libbey, Inc.'s (Libbey) praposed $332 million acquisition of
Anchor Hocking, (Anchor) a wholly-owned subsidiary of Newell
Rubbermaid, Inc. Lidbey is the targest maker and seller of sodatime
glassware to the U.S. food service industry, with more than half of all food
service glassware sales. Anchor Is the third-largest soller of food service
glassware. According to the FTC, the acquisition, if consummated, would
eliminate the existing substantial competition between Libbey and Anchor,
and would substantially reduce competition In the market for sadatime
glassware sold to the food service industry in the Uniled States. The FTG
anticipates that it will file its motion for a preliminary injunction in U.S.

. District Court in Washington, D.C. no laler than Friday, December 21,
2001.

“The market for food service soda-lime glassware fs highly concentrated

* and would become even more so if this acquisition were to procead,” said
Joseph J. Simans, Director of the FTC’s Bureau of Competition. "The
acquisition would combine the dominant firm in the market with is clasest
competitor.”

Libbey is a Delaware corporation with its principal place of business in
Toledo, Ohio. Newell Rubbermaid, inc., also a Delaware corporation, has
is principal place of business in Freeport, Iilinois. Anchor Hocking is
based in Lancaster, Ohio.

Libbey produces and sells soda-lime glassware, a line of products that
includes many different styles of tumblers and stemware for beverages,
and other products ranging from serving platters to candic holders. Libbey
Produces and sells soda-time glassware, among olher segments, to food —
service customers, including distibutors who reselt soda-lime glassware
(o restaurants, hotels, and other food service establishments, Anchor is
the third-+argest maker and seller of soda-lime glassware to the U.S. food

service industry.

According to ihe FTC, Libbey and Anchor are direct and actual
competitors in the sale of soda-lime glassware to the food service
industry. They compete with cach other on price by, among oler things,
offering discounts and other promotions on the sale of their sodaime
glassware. Anchor prices and discounts its products in response to
Ligbey’s pricing, and in order te take sales from Libbey. Anchor has
succeeded in taking food service glassware sales from Libbey by offering
lower prices to food service customers and distributars.

The FTC's complaint will allege that, if consummated, the acquisition
would combme the largest and third-largest sellers of soda-lime glassware
ta tha fond ecaruice induetry in tha f initad Statec euhetantially ineraaeinn


Section 13(b) of the FTC Act
6. ~ Section 13(b) of the FIC Act, 15 U.S.C. § 53(b), provides in pertinent part:
tb) Whenever the Commission has reason to believe — :

(1) that any-person, partnership or corporation ig violating, or is about to
Violate, any provision of law enforced by the Federal Trade Commission, and

(2) that the enjoining thereof pending the issuance of a complaint by the

Commission ‘and until such ‘complaint is dismissed by the Commission or set aside’by.
the court on review, or until the ondcs of the Commission made thercon hs become

"final, ‘would bé inthe intetest of the public --

- tlie Commission by any of its attomeys designated ‘by: it for such prirpose may bring
Suit in a district court of the United States to enjoim any such act or practice. Upona_
proper showing that, weighing the cquities aid considering the Coimmtission’s: ~

. likelihood of ultimate success, such action would be in the public interest, and after
notice to the defendant, a femporary restcaining order or a preliminary iijunction‘may
be granted without bond... - -

7, Pursuant to a Stock Purchase Agreement dated June 17, 2001, Libbey
proposes to acquire all the assets of Anchor from Newell Rubbermaid (the “acquisition”).
=, & — OnDecember 18, 2001, the Comunission authorized the commencement of ant
action under Section 13(b) of the FTC Act to seck a preliminary injunction Baring Re
avquisition during the pesdency of administrative procéedings.

9. The acquiring entity, Libbey, has assured the Coromission that it will not
. consimmte the acquisition wai the Coust has ruled on Plaietiff's raotion foe 2 pretiminary
injunction, except on | BO-dlays prior notice fo the Commission. :

: 10. Tn authorizing the commencement of this action, the Commission determined

that such an injunction is in the public interest and that it has reason to believe that the

ss


¥YL Announced Action for January 14, 2002 Page | of 1

Related Documents

For Your Bafarmatian: Jarisary 14, 2002
FTC v. Libbey, inc. and Newell Rubbermaid, Inc. PFC¥, Libly, fac. and Newest
Rubbermaid, irc. (District
‘Court for District of Columbia)

The Federal Trade Commission today filed its complain for a preliminary
injunction fo block Libbey, Inc.'s (Libbey) praposed $332 million acquisilion — Complaint for Preliminary
of Anchor Hocking {Anchor), a whoky-owned subsidiary of Newell Injunction Pirrsuanlto Section
Rubbermaid, Inc. (Seo FTC riews release dated December 18, 2001; staff Xo) of Ine Federal Trade
contact is Mortis A. Btoom, 202-326-2707.} The complaint was filed in the wmssion Ack 4
U.S. District Court for the District of Columbia, and bas been assigned to

audge Reggie B. Walton.

MEDIA CONTACT:
Howard Shapiro
Office of Public Affairs
202-226-2176

(Civil Action Ne.: 4: 92C 00080)

https Re goviops/2002/01 Ayi0204.him)


Libbey, Inc.

Anne Ue OE thet MATL eT Crees, PLZ MU He RL
concentration In the market for soda-lime glassware for the food service
industry in the U.S. Further, the FTC will allege that the acquisition would
result la a highly concentrated market and wouid eliminate the existing
substantial competition belween Libbey and Anchor. fn addition, the
cornplaint wi alfege that the acquisition would substantially reduce
competition and tend to creato a monopoly in the market for soda-lime
glassware for the food service indusiry mn the United States.

Finally, the complaint wal charge that the reestablishment of Anchor as sn
independent viable compeiitor in the relevant market if the acquisition

were consummated would be difficult, and there is a substantiaf likelihood -

that a would he difficult or impossible {o restore Anchar's business's it
originally existed.

Today's action authorizes Commission staft to seek a federal district court
‘order to prevent the proposed acquisition by Libbey of Anchor. The FTC
has authorized the staff fifing of 2 motion for preliminary injunction on the
grounds that the transaction as structured would violate federal antitrust
Jaws. If the court grants the FTC's motion, the Comreission will have 20
days within which to determine whether to issue an administrative
complaint. The FTC vote authorizing staff to fe ihe su was 5-0.

‘Goples of the complaint will be avaliable upon filing in federal. court from the FTC's Web site at
Jitta:tfwyww fic cov and also from the FTC's Consumer Responge Center, Room 130, 600.
Pennsytvania Avenue, .W., Washington, 0.C, 20560. The FTC's Bureau of Competition seaks to
provont business practiccs that restrain competition. The Bureau caries outils mission ty
Trvestigeting alleged law violations and, when appropriate, recommending that the Commission
take formal enforcement action, To notify the Bureau conceming particular business practices, call
or walle tte Office of Policy and Evaluation, Room 394, Bureau ef Competition, Federal Trade

Commission, 600 Ponneyvania Ave, N.W., Washington, D.C. 20580, Hectronic Maal:
; Telephone (202} 326-3200. For more information on the lew that the Gureau

u
ue the ‘Commission has published “Promoting Competition, Protecting Consumers: A Ptain
Engiish Guide to Andirust Laws.“ which can be accossed at
Rilp:féwen Ite aav/betbompauidevaiex him. ~

MEDIA CONTACT:
Howanl Shapiro
Office of Public Affairs
202-326-2176

STAFF CONTACT:
Richard Liebessind
Bureau of Competition
202-226-2444

(FIC Fle No.: 014 0194)

{fhiip:tieveee fic, gowiops/2001/12/Rbibey-ham)

Page 2of2 °



_ acquisition of the soda-lime glassware businesses of Anchor and Newell Rubbermaid, that will
be commenced by the Commission pursuant to Section 5 of the FIC Act, 15 U.S.C. $45, and
Sections 7 and {T of the Clayton Act, 15 U.S.C. §6 18 and 21; and alleges:

J risdiction and Venue ,
Jk “Iutisdiction i is based on Section 136) of the FTC Act, 15 U.S.C: § 530), and
28 U.S.C. §§ 1337.and 1345," ‘Veane is proper under Section 130) of the FIC Act;
“28 U.S.C. § 13910) and (¢); and Section 12 of the Clayton Act, 15 U.S.C. § 22:

2. The Commission is an administrative agency of the United States Government
fstablished, organized, and existing pursuant to the Federal Trade-Commission Act, 15::S. c.
§ 41, a seq., with its principal offices at 600-Pennsylvania Avenue, N.W., Washington, D.C.
20586. The Commission is is vested with authority and responsibility. for enforcing, inter alia,
Section 7 of the Clayton Act and Section 5 of the BTC. Act.

3. ‘ Defendant Libbey, Tuc. is & conporation organized and existing under the laws,
of the State of Delaware, wit j its priacipal phce of business at 300 Madison Avent, 1 Toledo,
Ohio 43699-0060.

4.” Defendant Newell Rubbermaid, Fic, is a corporation organized ad exiting
under the tas ofthe State of Delaware, svt its principal place of bsioess at 29 East

‘Stephenson Street, Freeport, Hlinois 61032. Anchor i is an indirect, holy-oed subsdiry

,

of Newel Rubbermaid
5. Defendants are each engaged in commerce, as “commerce” is defined in Section

4.of the FIC Act, 15 U.S.C. § 44, and Section 1 of the Clayton Act, 15 U.S.C. § 12:

2


UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

Office of the Secretary

January 15, 2002

Bruce J. Prager, Esq.

E. Marcellus Williamson, Esq.
Latham & Watkins

555 Eleventh Street, N.W., Suite 1000
Washington, D.C. 20004-1304
Counsel for Libbey, Inc.

Re: FIC y. Libbey, inc., and Newell Rubbermaid, inc.
Case No. 1:02CV60060
United States District Court for the District of Columbia

Dear Mr. Prager and Mr. Wiltiamson:

On December 18, 2001, the Federal Trade Commission determined to file a federal
disirict court complaint for preliminary injunction, pursuant to Section 13(b) of the Federal Trade
Commission Act, against Libbey, Inc. and Newell Rubbermaid, Inc. [have enclosed copics of
the Commission news releases describing that action, and of the Commission complaint, which
was filed on January 14, 2902.

The Commission has also designated this matier as appropriate for the fast track schedule,
pursuant to and as set forth in Rule 3.11A of the Commission Rules of Practice, 16 C.F.R.
§3.11A (2001). ifcither of the conditions specified by Rule 3.1 1A(b){1) is satisfied, each
Tespondent in an administrative case covered by Rule 3.11 A(a) wilt have the option to clect the
Rule 3.11 A fast track procedures.’ A respondent that determines to elect Rule 3.11A fast track
procedures shall file a notice of such clcction by the iatest of:

(1) three days after entry of a preliminary injunction as described in Rule
3. LIA};

(2) __ three days after the respondent is served with notice of the Commission's
determination under Rule 3.1] A¢b)(1)(ii); or

* 16C.ER. §3.11A(b}(1). In an administrative proceeding involving multiple respondents,
the fast track procedures will not apply unless the procedures are elected by all respondents. id.
§ 3.11 A(b)(2).


14. - Libbey and Anchor are direct and actual competitois in the manufacture and
sale of food service glassware. Théy compete with each other on price by, among other
things, offering-discounts and other promotions on the sale of their food service glassware.
Anchor prices and discounts its food service plaseware in response to Libbey’s pricing, and :
in order ttake sales ftom Libbey. Anchor bas swocesded. in taking food service glassware

. sales from Libby by offering lower prices to food service customers and distributors.
15: The acquisition would combine the largest and third largest manufacturers and
sellers of food service glassware in the U.S., substantially increasing concentration in the
food service glassware market, would result in a highly concentrated market, would eliminate
the existirig substantial comipetition botwecn Libbey and Anchor, and would substantially
_ reduce competition and tend to create'a monopoly in the market for fooil service glassware in

the U.S.

_ _ Likelihood of Success on the Merits and Need for Relief
16: - ‘The Commission is likely ultimately.to succesd in demonstrating, in.”
administrative proceedings to adjudicate the legality of the acquisition, that the acquisition
would violate Section 7 of the Clayton Act and Section’5 of the FIC Act. in particular, the
Commission is likely ultimately 40 succeed in demonstrating, inter atia, that:
oe ‘The relevant product market in which the competitive effects of the
‘ / proposed ruerger may be assessed is food service glassware.
b, Tle relevant geographic markt within which to assess the competitive

eects of the proposed merger the United Sits. Only those firms that have made


acquisition would violate Sectioa’7 of the Clayton Act and Section 5 of the KTC Act because
the acquisition may substantially essen competition and/or tend to create a monopoly inthe .
-Televant market, 7.¢., soda-lime glassware. sold to the. food service. industry in-the U.S.
a: A juisiti Would Sut ally I Coy yctiti

It. Libbey is the largest maker and seller of food service glassware in the US.

with substantially more than half ofthe sales. Lithey prods and sels food sevice
- elassware, ‘a ine of products, that Saciudes many difeetie styles of tables gl sgizwars for

beverages, and other glassware products rangjog. from serving platters to candle okies.

: . Libbey produces and sels glassware, among, other segments to food service customers,

/ including distributors. who reséll.soda-lime glassware to restaurants, ‘hotels and other, food
_ sex'vice estiblisbinents. ;
~ Libbey has engaged in condaet to excladé competitors who threaten Libbey’s

position as the largest maker and sctler of food service glassware, including Anchor. Libbey
bas threatened to penalize food service distributors with the foss of significant r rebates for
selling glassware produced by tival manufgctirers, including Anchor, that have the same ‘-
appearance as Libbey’s ‘food service glassware. Libbey has also commenced titigation

“against another firm that proihices glassware that appears identical to Libbey’s food service
glassware invan attempt to prevent the competitor from entering the U.S. food service

13. Anchor is the third largest maker and seller of food service glassware in the

US.


UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
' FEDERAL TRADE COMMISSION; )
600 Pennsylvania Averme, N.W. ) CASE NUMBER 1:02CVO0060 -
‘Washington, D.C: 20580, : .
. . } JUDGE: Reggte B. Walton
Piantiff,” —-} peck TYPR: Antitrust
v- a DATE STAMPs 01/14/2002
. . )
LIBBEY, INC., ne ae .
300 Maison Avenue : ). COMPLAINT FOR
Toledo, Ohio 43699-0060 )- + PRELIMINARY INJUNCTION
. ). . PURSUANT TO SECTION 1316)
/ and ) OF THE-FEDERAL TRADE:
Se . ; ) COMMISSION:ACT
. NEWELL RUBBERMAID, INC:, ) :
29 East Stephenson Street )
Freeport, Hiinois 61032 )
: )

Defendants. }

Plaintiff, the Federal Trade Commission (“FIC" or *Commnission”), by its desiguated
atorveys, for its complaint herein, petitions the Court, pursuant to Section 13(b) of the
Fedetal Trade Commission Act (FTC Act”), 15 U.S.C. § 5300), for'a prefiminary injunction
* enjoining defendant Libbey, Inc: (“Libbey”), inclading its domestic. and foreign agents,
divisions, pareats, subsidiaries, affiliates, partnerships, and joint ventures, from acipiring,
through a merger or otherwise, any stock, assets, of other interest, either directly or
indie, of Anchor Hocking Corporation (“Anchor”) from defendant Newell Rubbesraid,
Ine. (“Newell Rubbermaid”), or their domestic sind foreign agents, divisions, parents,
subsidiaries, affiliates, partnerships, or joint ventures; thereby maintaining the status quo

during (be pendency of an administrative proceeding, challenging defendant Libbey’s proposed


William S. D'Amico, Esq. — Page 2

@) three days after the respondent is served with the Commission's administrative
compiaint in the adjudicative proceeding.’

The notice of such an election shall be filed with the Office of the Secretary, al he following
address:

Office of the Secretary

Federal Trade Commission
Room 159-H

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

Any questions regarding this filing procedure should be directed to Mr. Richard C. Donohue,
Attomey, Office of the Secretary, at (202) 326-3112.

eral § Lobe —

Donald 8, Clark
Secrelary

By direction of the Commission.

Enclosures

ce: The Honorable James P. Timony
Chief Administrative Law Judge

Joseph J. Simons, Director
Bureau of Competition
Federal Trade Commission

William E. Kovacic
General Counsel

Federal Trade Commission

Richard C. Donohue, Attorncy
Office of the Secretary

2 Fd. § 3.11AQ)(2).


UNITRD STATES OF AMBRK:A.

FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

Office of the Secretary

January 15, 2002

Wiiliam S$. D’ Amico

Chadbourne & Parke

1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036

Counsel for Newell Rubbermaid, Inc.

Re: FTC y, Libbey, inc., and Newell Rubbermaid. Inc.
Case No. 1:02CV00060
United States District Court for the District of Columbia

Dear Mr, D’Amico:

On December 18, 2001, the Federal Trade Commission determined to file a federal
districi court complaint for preliminary injunction, pursuant to Section }3(b} of the federai ‘Irade
Commission Act, againsl Libbey, Inc. and Newell Rubbermaid, Inc. I have enclosed copies of
the Commission news rcicascs describing that action, and of the Commission complaint, which

was tiled on January 14, 2002.

The Commission has also designated this.matter as appropriate for the fast track schedule,
pursuant to and as set forth in Rule 3.11A of the Commission Rules of Practice, 16 CLLR.
§ 3.11A (2001). Hfeither of the conditions specified by Rule 3.11 A(b)(1) is satisfied, each
respondent in an administrative case covered by Rule 3.11A(a) will have the option to elect the
Rule 3.11 fast track procedures.' A respondent that determines to elect Rule 3.11A fast track

procedures shall file a nolice of such election by the latest of:

qd) three days after entry of a preliminary injunction as described in Rule
3.1TACHI(I IOs

(2) three days after the respondent is served with notice of the Commission's
determination under Rule 3.11 A(b)(})(ii); or

16 CER. §3.11A(b)(1). In an administrative proceeding involving mulliple respondents,
the fast track procedurcs will not apply unless the procedures arc clected by all respondents. Ja.

§ 3.1 1A(by2).


Bruce J. Prager, Esq. and E. Marcellus Williamson, Esq. -- Page 2

(3) three days after the respondent is served with the Commission's administrative
complaint in the adjudicative proceeding?

The notice of such an election shall be filed with the Office of the Secretary, at the following
address:

Office of the Secretary

Federal Trude Commission
Room 159-H

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

Any questions regarding this tiling procedure should be directed to Mr. Richard C. Donohue,
Attorney, Office of the Secretary, at (202) 326-3112.

By direction of the Commission.
Ans \ Cob

Donald S$. Clark
Secretary

Enclosures

cc: The ITonorable James P. Tumony
Chief Aduiinistrative Law Judge

Joseph J. Simons, Director
Bureau of Competition
Federal Trade Commission

William E. Kovacic
General Counsel

Federal Trade Commission

Richard C. Donohue, Attomey
Office of the Secretary

2 fd. § 3.11 A(b)(2).


the substantial investments:to manufacture and sell food service glassware are current

or likely fotire competitors in the relevant market.

; ere __ ‘The effect of the acquisition, if consummated, may be substantially to

{essen competition and tend to create a monopoly inthe relevant markt by, among -

~-other things, eliminating an effective competitor, anid eliminating or reducing
substantial aétual competition between Libbey. and Anchor, thereby increasiiig the: _
=: fikelihood of anticompetitive activity-in the: relevant Inarket once this acquisition is
47... The: reestablishment of Anchor as an independent viable competitor in the . .
relevant market if the acquisition were consummated would be difficult, and there is a ,
Sabstantial likelihood that it would be. difficult or impossible to restore Anchor's business as
it originally existed. Furthermore, it is likely that substantial interim harm to competition |
would occur even if suitable divestiture remedies could be devised.

18." For the reasons stated above; the granting of the injunctive relief sought isin’

‘WHEREFORE, the Commiissian requests that the Court: ;

L Facicsinaty cojola dcthntent Liltey, ead alls sfltince, from taking any
fasther steps to consummate, Gircetly ‘or indirectly, the Acquisition of.assets of Anchor from
. Aefentant Newel Rubbermaid, or any other eequisition of stock, assets, or other interest,
either directly or indirectly, of Anchor;

2... “Maintain the statns quo pending the issuance of an administrative complaint by

the Commission challenging such acquisition, and until such complaint is dismissed by the

: