Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Notices 13617

TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 030397 AND 031497—Continued

Name of acquiring person, name of acquired person, name of acquired entity PMN No. Date

terminated

Clear Channel Communications, Inc., Hellman and Friedman Capital Partners III, L.P., Eller Media Corporation 97–1445 03/14/97

Trimin Enterprises Inc., CSR Limited (an Australian company), Beadex Holdings, Inc ......................................... 97–1446 03/14/97

Ugly Duckling Corporation, E–Z Plan, Inc., E–Z Plan, Inc ...................................................................................... 97–1455 03/14/97

Russell V. Umphenour, Jr., Triarc Companies, Inc., RTM Operating Company and RTM Development Company ...................................................................................................................................................................... 97–1479 03/14/97

Regal Cinemas, Inc., Magic Cinemas, L.L.C., Magic Cinemas, L.L.C .................................................................... 97–1482 03/14/97

American Home Products Corporation, Biomatrix Inc., Biomatrix Inc ..................................................................... 97–1497 03/14/97

National-Oilwell, Inc., Finmeccanica S.p.A., Ansaldo Ross Hill Inc ........................................................................ 97–1499 03/14/97

FOR FURTHER INFORMATION CONTACT:

Sandra M. Peay or Parcellena P.

Fielding Contact Representatives,

Federal Trade Commission, Premerger

Notification Office, Bureau of

Competition, Room 303, Washington,

D.C. 20580, (202) 326–3100.

By Direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 97–7263 Filed 3–20–97; 8:45 am]

BILLING CODE 6750–01–M

[File No. D–9189]

Detroit Auto Dealers Association, Inc.;

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent agreement, accepted subject to

final Commission approval, would

require, among other things, the eleven

remaining dealerships in the FTC’s case

against the Detroit Automobile Dealers

Association (DADA) to be bound by the

terms and provisions of an existing 1995

Commission order, with certain

modifications. The original complaint

alleged that DADA and a large number

of its member automobile dealers

violated federal antitrust laws when

they illegally conspired to limit

competition in the sale of new cars in

the Detroit area by closing dealerships

on Saturdays and most week nights.

DATES: Comments must be received on

or before May 20, 1997.

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:

William J. Baer, Federal Trade

Commission, H–374, 6th St. and Pa.

Ave., N.W., Washington, D.C. 20580.

(202) 326–2932.

Mark D. Whitener, Federal Trade

Commission, H–374, 6th St. and Pa.

Ave., N.W., Washington, D.C. 20580.

(202) 326–2845.

Ernest A. Nagata, Federal Trade

Commission, H–394, 6th St. and Pa.

Ave., N.W., Washington, D.C. 20580.

(202) 326–2714.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade

Commission Act, 38 Stat. 721, 15 U.S.C.

46, and Section 2.34 of the

Commission’s Rules of Practice (16 CFR

2.34), notice is hereby given that the

above-captioned 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. The following Analysis to Aid

Public Comment describes the terms of

the consent agreement, and the

allegations in the accompanying

complaint. An electronic copy of the

full text of the consent agreement

package can be obtained from the

Commission Actions section of the FTC

Home Page (for March 14, 1997), on the

World Wide Web, at ‘‘http://

www.ftc.gov/os/actions/htm.’’ A paper

copy can be obtained from the FTC

Public Reference Room, Room H–130,

Sixth Street and Pennsylvania Avenue,

N.W., Washington, D.C. 20580, either in

person or by calling (202) 326–3627.

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

Section 4.9(b)(6)(ii) of the Commission’s

Rules of Practice (16 CFR 4.9(b)(6)(ii).

Analysis of Proposed Consent Order To

Aid Public Comment

The Federal Trade Commission

(‘‘Commission’’) has accepted, subject to

final approval, an agreement to a

proposed consent order from eleven

automobile dealerships and nine owners

or managers of dealerships in the

Detroit, Michigan Area. The parties to

the agreement (hereinafter collectively

referred to as ‘‘the dealers’’) are listed at

the end of this document. The proposed

order requires the dealers to cease and

desist from entering into or carrying out

any agreement among themselves or

with other dealers to fix the hours of

operation of automobile dealerships in

the Detroit area.

The proposed consent order will

resolve charges against the final group

of respondents named in an

administrative compliant issued by the

Commission in December, 1984, in

Detroit Auto Dealers Ass’n, Inc., Dkt.

No. 9089. Similar charges against other

respondents were resolved through

consent orders issued in 1994 after a

federal appellate court substantially

affirmed the Commission’s finding that

respondents violated Section 5 of the

Federal Trade Commission Act.

The consent order now proposed will

modify a previous order that was

entered against the present dealers in

1989 and subsequently modified in

1995. Upon further review, the

Commission has determined that the

previous order should be further

modified in light of changes in the

market since the entry of the 1994

consent orders. The 1994 orders

required the respondent dealers to

maintain extended operating hours for a

one year period to restore competition

that was lost as a result of the dealers’

agreement to keep their stores closed on

Saturdays and on several week nights.

Recent evidence indicates that the

market has changed in response to the

previous orders, making it unnecessary

to continue the same mandatory hours

requirement in the order against the

present dealers. The proposed consent

order therefore suspends the remainder

of that requirement.

The proposed consent order has been

placed on the public record for 60 days

for reception of comments by interested

parties. Comments received during this

period will become part of the public

record. After 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.
13618 Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Notices

1Count II of the complaint, charging certain

dealers with agreements to restrain advertising, was

settled in 1986.

2See Detroit Automobile Dealers Ass’n Inc.,

Proposed Consent Agreement With Analysis to Aid

Public Comment, 59 Fed. Reg. 6263 (Feb. 10, 1994);

Final Order, 5 Trade Reg. Rep. (CCH) ¶23,532 (Apr.

24, 1994), Proposed Consent Agreement With

Analysis to Aid Public Comment, 59 Fed. Reg.

23861 (May 9, 1994); Final Order, 5 Trade Reg. Rep.

(CCH) ¶23,587 (July 20, 1994).

Background

Count I of the administrative

complaint charged that the respondents

agreed among themselves and with

others to limit competition in the sale of

new motor vehicles in the Detroit,

Michigan area in violation of Section 5

of the Federal Trade Commission Act,

by adopting and adhering to a schedule

limiting hours of operation for the sale

or lease of motor vehicles in the Detroit

area. The alleged agreement limited

weekday evening hours to Mondays and

Thursdays and eliminated Saturday

hours altogether, except for occasional

special sales.1

The dealers defended their agreement

in part on grounds that they had acted

in response to employee demands for

shorter hours and, therefore, that the

agreement was exempt from the

antitrust laws by reason of the

nonstatutory labor exemption. In

February, 1989, the Commission held

that the dealers’ agreement restrained

competition, and that the dealers were

not entitled to the nonstatutory labor

exemption because their uniform hours

restrictions were not the result of any

collective bargaining activity with

employees; on the contrary, the dealers

had agreed among themselves in order

to avoid collective bargaining. Detroit

Auto Dealers Ass’n, Inc. 111 F.T.C. 417

(1989). The Commission’s Final Order,

among other provisions, prohibited the

dealers from conspiring in any way to

fix hours of operation. As a corrective

measure the Final Order also required

the dealers to remain open a minimum

of 64 hours a week for one year. The

Commission found that ‘‘a cease and

desist order alone would be inadequate

to remedy the respondents’ violations of

Section 5.’’ Because of the history of

violent enforcement of the hours

restrictions, the Commission found that

‘‘[d]ealers individually will decide to

remain closed for fear of reprisals if they

try to extend hours. Only if many

dealers are open at the same time,

making enforcement of the restriction

difficult or impossible, will the fear of

being singled out for enforcement be

overcome.’’ Detroit Auto Dealers Ass’n,

Inc., 111 F.T.C. at 506.

The respondents appealed the

Commission’s decision to the United

States Court of Appeals for the Sixth

Circuit. On January 31, 1992, the Court

of Appeals affirmed the Commission’s

decision in substantial part and

remanded the case to the Commission

for the ‘‘limited purpose’’ of

reconsidering certain issue, including

whether certain respondents may be

entitled to the nonstatutory labor

defense. In re: Detroit Auto Dealers

Ass’n Inc., 955 F.2d 457 (6th Cir.), cert.

denied, 113 S. Ct. 461 (1992).

The charges against 148 of the

respondents were resolved in April and

July, 1994, through consent orders

substantially similar to the

Commission’s order of February 22,

1989. Those orders required the dealer

respondents to operate their stores for at

least a minimum number of hours per

week for a one year period.2

Twenty-two other respondents,

including the present dealers,

participated in the remand proceeding.

On June 20, 1995, the Commission

issued a decision finding that the

dealers did not qualify for the

nonstatutory labor exemption. 5 Trade

Reg. Rep (CCH) ¶23,853 (1995). The

Commission’s order of June 20, 1995

modified in limited respects the

Commission’s order of February 22,

1989.

The present dealers again appealed

the Commission’s order to the United

States Court of Appeals for the Sixth

Circuit. Following the denial of the

dealers’ request for a stay of the order

by both the Commission and the court,

the order went into effect pending

appeal. On May 24, 1996, the court once

again remanded the case to the

Commission. In re: Detroit Auto Dealers

Ass’n Inc., 84 F.3d 787 (6th Cir. 1996),

rehearing denied, ll F.3d ll (6th

Cir. Aug. 26, 1996). Without questioning

the Commission’s finding of liability,

the court directed the Commission to

consider whether a modification of the

Commission’s order would be warranted

in light of changed factual conditions in

the Detroit market. Among other things,

the court expressed a belief that most

dealers in the Detroit market were now

open on Saturdays, which would lessen

or eliminate any need to order the

dealers to be open that day.

On November 22, 1996, following the

court’s denial of the Commission’s

petition for rehearing, the Commission

issued an order remanding the case to

an Administrative Law Judge for further

evidentiary hearings. Shortly thereafter,

the parties entered into the present

settlement agreement.

The Proposed Order

The terms of the proposed consent

order are substantially similar to those

of the Commission’s Order of February

22, 1989, as modified by Commission’s

Order of June 20, 1995. The consent

order makes three modest changes to

those previous orders, which are

incorporated in the consent order by

reference. The principal difference, set

forth in Part I.A of the proposed order,

is that the dealers’ obligations under

Part III of the previous orders, which

required them to maintain a minimum

number of hours of operation for a

period of one year, has been reduced to

the time during which the dealers were

in compliance with that provision prior

to the Sixth Circuit’s issuance of a stay

on March 13, 1996—approximately six

months. While it does not appear to be

the case that ‘‘most’’ dealers in Detroit

are now open on Saturdays as the court

stated in its remand decision, it does

appear that the Commission’s

prosecution of this case, together with

the remedial provisions of the previous

consent orders, has resulted in

significant corrective changes in the

market. A substantial number of Detroit

area dealers are now open on Saturdays.

In recognition of this, the settlement

relieves respondents of any further

affirmative hours obligation.

The two other changes relate to the

effective date of the consent order. The

Commission’s order of June 22, 1995,

went into effect pending appeal, and

respondents have filed compliance

reports certifying that they have been

and remain in compliance as if the order

remained in effect. To give respondents

credit for compliance with the

Commission’s previous order to date,

the effective date of the consent order

will be construed to be the effective date

of the Order of June 22, 1995. However,

the terms and duration of all

compliance obligations, other than the

Part III affirmative hours provision,

remain the same. Part I.B of the consent

order specifies the effective date for

compliance reporting obligations under

Part X of the original order and gives

respondents credit for compliance

reports filed to date. Part I.C of the

consent order sets forth the same

effective date for all other order

provisions.

The relevant order provisions, as

modified, are as follows:

Part I of the Commission’s order of

February 22, 1989, prohibited the

dealers from entering into or continuing

any agreement with any other dealer or

dealer association in the Detroit area to

establish, maintain or adhere to any
Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Notices 13619

hours of operation. This provision is not

changed by the proposed consent order.

Part II.A of the Commission’s order of

February 22, 1989, prohibited the

dealers from exchanging information or

communicating with any other dealer or

association concerning hours of

operation, except to the extent necessary

(i) to comply with any order of the

Commission, and (ii) after two (2) years

from the date the order becomes final,

to incorporate individual dealers’ hours

of operation in lawful joint

advertisements. Part II.A has two

exceptions to the two-year prohibition

against the inclusion of individual

dealers’ hours of operation in joint

advertising. First, the prohibition would

not apply to individual dealers that are

legally operated under common control.

Second, the prohibition would not

apply to joint advertising for special

events such as tent sales, mall sales, or

annual sales when hours of operation

are extended. These provisions are not

changed by the proposed consent order.

Part II.B of the Commission’s order of

February 22, 1989, prohibited the

dealers from requesting, recommending,

coercing, influencing, inducing,

encouraging or persuading any dealer or

dealer association to maintain, adopt or

adhere to any hours of operation. This

provision is not changed by the

proposed consent order.

Part III of the Commission’s order of

February 22, 1989, as modified by the

Commission’s Order of June 20, 1995,

required the dealers to maintain for a

period of one year, a minimum of sixtyfour hours of operation per week for the

sale and lease of motor vehicles, or

alternatively, a minimum of an average

of ten and a half hours during weekdays

plus an additional eight hours on

Saturdays. Under the proposed consent

order, the term of this requirement is

reduced to the period for which the

dealers were in compliance with the

requirement pending appeal of the

Commission’s order of June 20, 1995.

Accordingly, under the proposed

consent order the dealers will have no

further obligations to maintain

minimum hours of operation.

Part IV of the Commission’s order of

February 22, 1989, required the dealers,

beginning thirty days after the order

became final and for a minimum of four

weeks thereafter, to place at least four

weekly advertisements in Detroit

newspapers explaining that the dealers

were required by Commission order to

offer extended shopping hours for one

year. The dealers fulfilled their

obligations under this provision

pending appeal of the Commission’s

June 20, 1995 order. Accordingly, the

proposed consent order imposes no

further obligations under this provision.

Part V of the Commission’s order of

February 22, 1989, required the dealers,

while Part III of the order was in effect,

to disclose their hours of operation in

all advertising, with limited exceptions.

Since the proposed consent order limits

the dealers’ obligations under Part III to

their compliance to date, the dealers

will have no further obligations under

Part V.

Parts VI, VII and VIII of the

Commission’s order of February 22,

1989, applied only to the association

respondents. Accordingly, the dealers

will have no obligations under these

provisions.

Part IX of the Commission’s order of

February 22, 1989, required the dealers

to give a copy of the order to each

employee and, for a period of five years,

to give a copy to each new employee

involved in motor vehicle sales or

leasing. This provision is not changed

by the proposed consent order.

Part X of the Commission’s order of

February 22, 1989, required the dealers

to file annual compliance reports for a

period of five years. The proposed

consent order would give the dealers

credit for compliance reports filed since

the effective date of the Commission’s

order of June 20, 1995.

Part XI of the Commission’s order of

February 22, 1989, required the dealers,

for a period of five years, to inform the

Commission of any change in corporate

status that may affect compliance

obligations under the order, or, with

respect to individual respondents, of

any change in employment. This

provision is not changed by the

proposed consent order.

The purpose of this analysis is to

facilitate public comment on the

proposed order, and it is not intended

to constitute an official interpretation of

the agreement and the proposed order or

to modify in any way their terms.

Parties to the Consent Agreement

Dealer Respondents

Crestwood Dodge, Inc., 32850 Ford

Road, Garder City, MI 48135

Bob Borst Lincoln-Mercury, Inc., a/k/a

Bob Borst Lincoln-Mercury Sales Inc.,

1950 W. Maple Road, Troy, MI 48084

Bob Dusseau, Inc., a/k/a Bob Dusseau

Lincoln-Mercury, 31625 Grant River

Avenue, Farmington, MI 48024

Bob Maxey Lincoln-Mercury Sales, Inc.,

16901 Mack Avenue, Detroit, MI

48224

Crest Lincoln-Mercury Sales, Inc., 36200

Van Dyke Avenue, Sterling Heights,

MI 48077

Stewart Chevrolet, Inc., 23755 Allen

Road, Woodhaven, MI 48183

Woody Pontiac Sales, Inc., 12140 Joseph

Campau, Hamtramck, MI 48212

Jack Demmer Ford, Inc., a/k/a/ Jack

Demmer Ford, 37300 Michigan

Avenue, Wayne, MI 48184

Al Long Ford, Inc., 13711 E. Eight Mile

Road, Warren, MI 48089

Ed Schmid Ford, Inc., 21600 Woodward

Avenue, Ferndale, MI 48220

Ray Whitfield Ford, a/k/a/ Ray

Whitfield Ford, Inc., 10725 S.

Telegraph Road, Taylor, MI 48180

Individual Respondents

Robert C. Borst, c/o Bob Borst LincolnMercury, Inc., 1950 W. Maple Road,

Troy, MI 48084

Robert Dusseau, a/k/a/ Robert F.

Dusseau, c/o Bob Dusseau LincolnMercury, 31625 Grant River Avenue,

Farmington, MI 48024

Robert Maxey, c/o Bob Maxey LincolnMercury Sales Inc., 16901 Mack

Avenue, Detroit, MI 48224

William Ritchie, a/k/a/ William R.

Ritchie, c/o Crest Lincoln-Mercury

Sales, Inc., 36200 Van Dyke Avenue,

Sterling Heights, MI 48077

Gordon L. Stewart, a/k/a/ Gordon

Stewart, c/o Steward Chevrolet, Inc.,

23755 Allen Road, Woodhaven, MI

48183

Woodrow W. Woody, c/o Woody

Pontiac Sales, Inc., 12140 Joseph

Campau, Hamtramck, MI 48212

John E. Demmer, a/k/a/ Jack E. Demmer,

c/o Jack Demmer Ford, Inc., 37300

Michigan Avenue, Wayne, MI 48184

Edward F. Schmid, a/k/a/ Edward

Schmid, c/o Ed Schmid Ford, Inc.,

21600 Woodward Avenue, Ferndale,

MI 48220

Raymond J. Whitfield, a/k/a/ Raymond

Whitfield, c/o Ray Whitfield Ford,

10725 S. Telegraph Road, Taylor, MI

48180

Donald S. Clark,

Secretary.

[FR Doc. 97–7261 Filed 3–20–97; 8:45 am]

BILLING CODE 6750–01–M

[File No. 962–3175]

Gerber Products Company; Analysis

To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent agreement, accepted subject to

final Commission approval, would

prohibit, among other things, the baby

food company from representing the

extent to which doctors or other health