Public

NY2 - 329274.03

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

Commissioners:

Timothy J. Muris, Chairman 

Sheila F. Anthony 

Mozelle W. Thompson 

Orson Swindle 

Thomas B. Leary 

In the Matter of

LIBBEY INC., a corporation,

and

NEWELL RUBBERMAID, INC., a corporation.

Docket No. 9301

ANSWER AND DEFENSES OF RESPONDENT NEWELL RUBBERMAID INC.

Respondent Newell Rubbermaid Inc. (“Newell Rubbermaid”), by its attorneys, 

Chadbourne & Parke LLP, answers the allegations of the Complaint as follows:

1. On information and belief, admits the allegations of paragraph 1 of the 

Complaint.

2. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations of paragraph 2 of the Complaint.

3. Admits the allegations of paragraph 3 of the Complaint.
2

NY2 - 329274.03

4. Admits that Anchor Hocking produces and sells glassware to, among other 

customers, food service customers. Denies that “food service glassware” is a distinct 

product line as a matter of fact or law. Except as stated above, denies knowledge or 

information sufficient to form a belief as to the truth of the allegations of paragraph 4 of 

the Complaint.

5. On information and belief, admits the allegations of paragraph 5 of the 

Complaint.

6. Admits the allegations of paragraph 6 of the Complaint.

7. Denies each and every allegation of paragraph 7 of the Complaint, and 

avers that Libbey proposes to acquire the stock of Anchor Hocking from Newell 

Rubbermaid pursuant to an Amended and Restated Stock Purchase Agreement, dated 

January 21, 2002 ("the Amended Agreement"), which supersedes the Stock Purchase 

Agreement dated June 17, 2001 (the "Original Agreement"), and avers that it is retaining 

the Anchor Hocking business of selling tabletop glassware to food service customers. 

8. On information and belief, admits that the Federal Trade Commission 

("Commission" or "FTC") authorized the FTC staff, pursuant to Section 13(b) of the FTC 

Act, to seek a preliminary injunction against the Original Agreement, and avers that the 

Original Agreement has been superseded by the Amended Agreement. Admits that on 

January 14, 2002, the FTC commenced an action in the United States District Court for 

the District of Columbia, and admits that on April 22, 2002, the district court granted the 
3

NY2 - 329274.03

FTC's motion for a preliminary injunction pending the completion of administrative 

adjudication. 

9. Admits that Libbey and Newell Rubbermaid entered into the Amended 

Agreement, which supersedes the Original Agreement, after the preliminary injunction 

action was commenced. Admits that Newell Rubbermaid and Libbey entered into the 

Amended Agreement to alleviate the FTC's concerns. Admits that the Amended 

Agreement reduced the purchase price by approximately $32.5 million. Admits that 

pursuant to the Amended Agreement, Libbey will acquire two manufacturing plants and 

certain other assets. Except as stated above, denies each and every allegation of 

paragraph 9 of the Complaint.

10. Admits that under the Amended Agreement, Newell Rubbermaid will 

retain molds, customer relationships and certain other assets used in Anchor Hocking's 

food service glassware business. Admits that pursuant to such agreement, Libbey will 

acquire two manufacturing plants and certain other assets. Except as stated above, denies 

each and every allegation of paragraph 10 of the Complaint. 

11. Admits the allegations of paragraph 11 of the Complaint. 

12. Denies each and every allegation of paragraph 12 of the Complaint. Avers 

that pursuant to the Original Agreement, Libbey proposed to acquire Anchor Hocking, 

including its food service, retail and specialty/industrial glassware businesses. Further 

avers that pursuant to the Amended Agreement, which supersedes the Original 

Agreement, Libbey proposes to acquire only Anchor Hocking's retail and 
4

NY2 - 329274.03

specialty/industrial glassware businesses. Newell Rubbermaid will retain its food service 

glassware business. 

13. Denies that “food service glassware” is a distinct product line as a matter 

of fact or law. Further avers that the Original Agreement has been superseded by the 

Amended Agreement and that there is therefore no reason to assess the effects of the 

Original Agreement. 

14. Admits that the relevant geographic area in which to assess the effects of 

the Amended Agreement is the United States. Avers that this geographic market includes 

all domestic and foreign companies that have the ability to sell glass tableware in the 

United States. Further avers that the Original Agreement has been superseded by the 

Amended Agreement and that there is therefore no reason to assess the effects of the 

Original Agreement in any geographic market. Except as stated above, denies each and 

every allegation of Paragraph 14 of the Complaint. 

15. Denies each and every allegation of paragraph 15 of the Complaint. 

Specifically denies that "food service glassware" is a distinct product line as a matter of 

fact or law. 

16. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations of paragraph 16 of the Complaint.

17. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations of paragraph 17 of the Complaint.
5

NY2 - 329274.03

18. Admits that Anchor competes with Libbey (and many other entities) in the 

sale of glassware and that such competition is based, among other factors, on price. 

Denies that “food service glassware” is a distinct product line as a matter of fact or law. 

Except as stated above, denies each and every allegation of paragraph 18 of the 

Complaint.

19. Denies each and every allegation of paragraph 19 of the Complaint. Avers 

that the Original Agreement has been superseded by the Amended Agreement and that 

there is therefore no reason to assess the effects of the Original Agreement. 

20. Denies each and every allegation of paragraph 20 of the Complaint. 

Specifically denies that “food service glassware” is a distinct product line as a matter of 

fact or law. 

21. Denies each and every allegation of paragraph 21 of the Complaint.

22. Denies each and every allegation of paragraph 22 of the Complaint. Avers 

that the Original Agreement has been superseded by the Amended Agreement and that 

there is therefore no reason to assess the effects of the Original Agreement.

23. Repeats and realleges each and every statement, admission and denial 

made in response to the paragraphs of the Complaint referred to in paragraph 23 thereof 

with the same force and effect as if set forth herein at length.

24. Denies each and every allegation of paragraph 24 of the Complaint. Avers 

that the Original Agreement has been superseded by the Amended Agreement and that 

there is therefore no reason to assess the effects of the Original Agreement.
6

NY2 - 329274.03

25. Repeats and realleges each and every statement, admission and denial 

made in response to the paragraphs of the Complaint referred to in paragraph 25 thereof 

with the same force and effect as if set forth herein at length.

26. Denies each and every allegation of paragraph 26 of the Complaint. Avers 

that the Original Agreement has been superseded by the Amended Agreement and that 

there is therefore no reason to assess the effects of the Original Agreement.

27. Repeats and realleges each and every statement, admission and denial 

made in response to the paragraphs of the Complaint referred to in paragraph 27 thereof 

with the same force and effect as if set forth herein at length.

28. Denies each and every allegation of paragraph 28 of the Complaint.

29. Repeats and realleges each and every statement, admission and denial 

made in response to the paragraphs of the Complaint referred to in paragraph 29 thereof 

with the same force and effect as if set forth herein at length.

30. Denies each and every allegation of paragraph 30 of the Complaint.
NY2 - 329274.03

DEFENSES AND AFFIRMATIVE DEFENSES

Without assuming any burden that it would not otherwise bear, Newell 

Rubbermaid asserts the following defenses and affirmative defenses:

FIRST AFFIRMATIVE DEFENSE

The Commission's Complaint, in whole or in part, fails to state a claim upon 

which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

Because the Original Agreement has been abandoned and superseded by the 

Amended Agreement, there presently exists no actual or potential violation of Section 7 

of the Clayton Act, 15 U.S.C. § 18, or Section 5 of the FTC Act, 15 U.S.C. § 45, as a 

result of the Original Agreement. Therefore, to the extent that it is directed solely to the 

Original Agreement, the Commission's Complaint is moot. 

THIRD AFFIRMATIVE DEFENSE

Newell Rubbermaid has not knowingly or intentionally waived any applicable 

affirmative defenses. Newell Rubbermaid presently lacks sufficient knowledge or 

information on which to form a belief as to whether it may have available additional 

defenses or affirmative defenses, and reserves the right to assert such additional defenses.
NY2 - 329274.03

WHEREFORE, respondent, Newell Rubbermaid Inc., prays for judgment as 

follows: 

That the Complaint be dismissed with prejudice;

That judgment be entered in favor of Newell Rubbermaid and against the 

Commission on each and every claim set forth in the Complaint; 

For such other and further relief as the Commission may deem just and proper.

Dated: May 29, 2002

CHADBOURNE & PARKE LLP

William S. D'Amico

Marvin Lange

Marta Pulaski-Kelly

By /S/ William S. D'Amico 

William S. D’Amico 

A Member of the Firm

Attorneys for Defendant 

Newell Rubbermaid Inc.

1200 New Hampshire Avenue, N.W.

Washington, DC 20036

(202) 974-5600

To:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, N.W. Room 104

Washington, DC 20580

Richard Liebeskind, Assistant Director

Mergers II Division, Bureau of Competition

Federal Trade Commission

601 Pennsylvania Ave., N.W.

Suite 3102

Washington, DC 20580
9

NY2 - 329274.03

Steven H. Schulman

Counsel for Respondent Libbey Inc.

Latham & Watkins 

555 11th St., NW

Suite 1000

Washington, DC 20004