ANALYSIS OF AGREEMENT CONTAINING

CONSENT ORDERS TO AID PUBLIC COMMENT

In the Matter of Arko Holdings Ltd.

File No. 201-0041, Docket No. C-4726

I. Introduction

The Federal Trade Commission (“Commission”) has accepted for public comment, 

subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from 

Arko Holdings Ltd. (“Arko”), GPM Southeast, LLC, and GPM Petroleum, LLC (collectively

with Arko, “GPM”) and Empire Petroleum Partners, LLC (“Empire,” and collectively 

“Respondents”). The Consent Agreement is designed to remedy the anticompetitive effects that 

likely would result from GPM’s proposed acquisition of retail fuel assets from Empire.

Under the terms of the proposed Consent Agreement, Respondents must divest certain 

retail fuel assets in seven local markets in Indiana, Michigan, Maryland, and Texas. 

Respondents must complete the divestiture within 20 days after the closing of the acquisition. 

The Commission and Respondents have agreed to an Order to Maintain Assets that requires 

Respondents to operate and maintain each divestiture outlet in the normal course of business 

through the date the up-front buyers acquire the divested assets.

The Commission has placed the proposed Consent Agreement on the public record for 30 

days to solicit comments from interested persons. Comments received during this period will 

become part of the public record. After 30 days, the Commission will review the proposed 

Consent Agreement and the comments received, and will decide whether it should withdraw 

from the Consent Agreement, modify it, or make it final.

II. The Respondents

Respondent Arko is a publicly traded company headquartered in Tel Aviv, Israel. Arko, 

through its subsidiaries GPM Southeast, LLC, and GPM Petroleum, LLC, supplies wholesale

fuel to or operates approximately 1,400 retail fuel and convenience stores in twenty-two states 

across the South, Mid-Atlantic, and Midwest. In 2019, GPM ranked as the sixth largest operator 

of retail fuel and convenience stores in the United States. 

Respondent Empire is a privately held Delaware limited liability company headquartered 

in Dallas, Texas. Empire also distributes fuel on a wholesale basis and operates retail fuel and 

convenience stores in 30 states and Washington, D.C. With respect to wholesale fuel 

distribution, Empire is a “super jobber,” a company that supplies over one billion gallons of fuel 

each year. Empire has supply relationships with all major oil companies, and distributes both 

branded and unbranded fuel. Empire supplies fuel to 1,555 retail sites, and operates 76 retail fuel 

and convenience stores itself.

III. The Proposed Acquisition

On December 17, 2019, GPM entered into an agreement to acquire certain retail and 

wholesale fuel assets from Empire and related entities (the “Acquisition”). With the Complaint, 
the Commission alleges that the Acquisition, if consummated, would violate Section 7 of the 

Clayton Act, as amended, 15 U.S.C. § 18, and that the Acquisition agreement constitutes a 

violation of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45, by 

substantially lessening competition for the retail sale of gasoline in seven local markets in 

Indiana, Michigan, Maryland, and Texas, and by substantially lessening competition for the retail 

sale of diesel fuel in three local markets in Indiana, Michigan, and Texas.

IV. The Retail Sale of Gasoline and Diesel Fuel

The Commission alleges that the relevant product markets in which to analyze the 

Acquisition are the retail sale of gasoline and the retail sale of diesel fuel. Consumers require 

gasoline for their gasoline-powered vehicles and can purchase gasoline only at retail fuel outlets. 

Likewise, consumers require diesel fuel for their diesel-powered vehicles and can purchase 

diesel fuel only at retail fuel outlets. The retail sale of gasoline and the retail sale of diesel fuel 

constitute separate relevant markets because the two are not interchangeable. Vehicles that run 

on gasoline cannot run on diesel fuel, and vehicles that run on diesel fuel cannot run on gasoline.

The Commission alleges that the relevant geographic markets in which to assess the 

competitive effects of the Acquisition with respect to the retail sale of gasoline are seven local 

markets in and around the following cities: Knox, Indiana; Kokomo, Indiana; South Bend, 

Indiana; Stevensville, Maryland; Edmore, Michigan; Hastings, Michigan; and Arlington, Texas. 

The relevant geographic markets in which to assess the competitive effects of the Acquisition 

with respect to the retail sale of diesel fuel are three local markets in and around the following 

cities: South Bend, Indiana; Edmore, Michigan; and Arlington, Texas.

The geographic markets for retail gasoline and retail diesel fuel are highly localized, 

depending on the unique circumstances of each area. Each relevant market is distinct and factdependent, reflecting many considerations, including commuting patterns, traffic flows, and 

outlet characteristics. Consumers typically choose between nearby retail fuel outlets with similar 

characteristics along their planned routes. The geographic markets for the retail sale of diesel 

fuel are similar to the corresponding geographic markets for retail gasoline, as many diesel fuel 

consumers exhibit preferences and behaviors similar to those of gasoline consumers.

The Acquisition would substantially lessen competition in each of these local markets,

resulting in seven highly concentrated markets for the retail sale of gasoline and three highly 

concentrated markets for the retail sale of diesel fuel. Retail fuel outlets compete on price, store 

format, product offerings, and location, and pay close attention to competitors in close proximity, 

on similar traffic flows, and with similar store characteristics. In each of the local gasoline and 

diesel fuel retail markets, the Acquisition would reduce the number of competitively constraining 

independent market participants to three or fewer. The combined entity would be able to raise 

prices unilaterally in markets where GPM and Empire are close competitors. Absent the 

Acquisition, GPM and Empire would continue to compete head to head in these local markets.

Moreover, the Acquisition would enhance the incentives for interdependent behavior in 

local markets where only two or three competitively constraining independent market 

participants would remain. Two aspects of the retail fuel industry make it vulnerable to such 

coordination. First, retail fuel outlets post their fuel prices on price signs that are visible from the 
street, allowing competitors to observe each other’s fuel prices without difficulty. Second, retail 

fuel outlets regularly track their competitors’ fuel prices and change their own prices in response. 

These repeated interactions give retail fuel outlets familiarity with how their competitors price 

and how changing prices affect fuel sales.

Entry into each relevant market would not be timely, likely, or sufficient to deter or 

counteract the anticompetitive effects arising from the Acquisition. Significant entry barriers 

include the availability of attractive real estate, the time and cost associated with constructing a 

new retail fuel outlet, and the time associated with obtaining necessary permits and approvals.

V. The Proposed Consent Agreement

The proposed Consent Agreement would remedy the Acquisition’s likely anticompetitive 

effects by requiring Respondents to divest certain retail fuel assets to an independent competitor 

in each local market. Each buyer of divestiture assets is an experienced operator or supplier of 

retail fuel sites, and will be a new entrant into the local market.

The proposed Consent Agreement requires that the divestiture be completed no later than 

20 days after Respondents consummate the Acquisition. The proposed Consent Agreement 

further requires Respondents to maintain the economic viability, marketability, and 

competitiveness of each divestiture asset until the divestiture is complete. For up to 15 months 

following the divestiture, Respondents must provide transitional services, as needed, to assist the 

buyers with the divestiture assets. 

In addition to requiring outlet divestitures, the proposed Consent Agreement requires 

Respondents to provide the Commission notice before acquiring retail fuel assets within a fixed 

distance of any GPM outlet in a market involving a divestiture for ten years. The prior notice 

provision is necessary because an acquisition in close proximity to divested assets likely would 

raise the same competitive concerns as the Acquisition, and may fall below the Hart-ScottRodino Act premerger notification thresholds.

The proposed Consent Agreement contains additional provisions designed to ensure the 

effectiveness of the proposed relief. For example, Respondents have agreed to an Order to 

Maintain Assets that will issue at the time the proposed Consent Agreement is accepted for 

public comment. The Order to Maintain Assets requires Respondents to operate and maintain 

each divestiture outlet in the normal course of business, through the date Respondents complete 

the divestiture. The Commission may appoint an independent third party as a Monitor to oversee 

Respondents’ compliance with the requirements of the proposed Consent Agreement.

The purpose of this analysis is to facilitate public comment on the proposed Consent 

agreement, and the Commission does not intend this analysis to constitute an official 

interpretation of the proposed Consent Agreement or to modify its terms in any way.