32820 Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices

TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 052096 AND 061496—Continued

Name of Acquiring Person, Name of Acquired Person, Name of Acquired Entity PMN No. Date

Terminated

KN Energy, Inc., Amoco Corporation, Amoco Pipeline Company .......................................................................... 96–2004 06/07/96

Cookson Group plc, Camelot Systems, Inc., Camelot Systems, Inc ...................................................................... 96–2006 06/07/96

Sinclair Broadcast Group, Inc., ABRY Communications II, L.P., Cincinnati TV 64 Limited Partnership ................ 96–2014 06/07/96

MedPartners/Mullikin, Inc., James E. George, M.D., Emergency Physician Associates, P.A ................................ 96–2020 06/07/96

Sega Enterprises, Ltd., JT Storage, Inc., JT Storage, Inc ...................................................................................... 96–2024 06/07/96

Atlantic Equity Partners International II, L.P., Atlantic Equity Partners L.P., BPC Holding Corporation ................ 96–2026 06/07/96

First Chicago NBD Corporation, E.I. du Pont de Nemours and Company, E.I. du Pont de Nemours and Company ...................................................................................................................................................................... 96–2028 06/07/96

Martin H. Marcus, Welsh, Carson, Anderson & Stowe VI, L.P., Medifax, Inc ........................................................ 96–2029 06/07/96

PriCellular Corporation, Horizon Cellular Telephone Company, L.P., Horizon Cellular Telephone Company of

Monongalia, L.P .................................................................................................................................................... 96–2034 06/07/96

BISSELL Inc., Ryobi Limited, Ryobi Motor Products Corp ..................................................................................... 96–2036 06/07/96

D. Bryan Jones, Arnold Bay Farms, Inc., Arnold Bay Farms, Inc ........................................................................... 96–2043 06/07/96

Chase Brass Industries, Inc., UNR Asbestors-Disease Claims Trust, Holco Corporation and Leavitt Structural

Tubing Co ............................................................................................................................................................. 96–2044 06/07/96

SPS Technologies, Inc., Coats Viyella, Flexmag Industries, Inc ............................................................................ 96–2049 06/07/96

Cookson Group plc (a British company) Entek/Amtek International LLC (a Delaware company), Entek/Amtek

International LLC (a Delaware company) ............................................................................................................ 96–2051 06/07/96

Tyco International Ltd., Thorn Security Group, Ltd., Thorn Security Group, Ltd .................................................... 96–2052 06/07/96

PECO Energy Company, Allen Salmasi, NextWave Telecom Inc .......................................................................... 96–2053 06/07/96

New Era Enterprises, Inc., I.C.H. Corporation (Debtor-in-Possession), Philadelphia American Life Insurance

Company .............................................................................................................................................................. 96–2031 06/09/96

The Carpenters Pension Trust for Southern California, The Dexter Corporation, The Dexter Corporation ........... 96–1945 06/11/96

Occidental Petroleum, Helmerich & Payne, Inc., Natural Gas Odorizing, Inc ........................................................ 96–2045 06/11/96

Raytheon Company, Chrysler Corporation, Chrysler Technologies Holding, Inc ................................................... 96–1578 06/12/96

Cooper Cameron Corporation, Ingram Industries Inc., Ingram Cactus Company .................................................. 96–1644 06/13/96

Incentive A/S, Thermadyne Holdings Corporation, Clarke Holding Corporation .................................................... 96–1952 06/13/96

Vulcan Materials Company, Mayo Chemical Company, Inc., Mayo Chemical Company, Inc ............................... 96–1960 06/13/96

Warburg, Pincus Investors, L.P., Cablevision Systems Corporation, CSC Acquisition—MA, Inc .......................... 96–2009 06/13/96

Cable Systems Corporation, Warburg, Pincus Investors, L.P., WP Cable Inc., WP Nashoba Cable, Inc. and

Framingham Ho .................................................................................................................................................... 96–2010 06/13/96

HealthPlan Services Corporation, Consolidated Group, Inc., Consolidated Group, Inc ......................................... 96–2041 06/13/96

HIG Investment Group, L.P., John Sheehan (debtor in possession), Johnstown Corporation .............................. 96–1831 06/14/96

Clear Channel Communications, Inc., General Electric Company, REP New England, G.P., REP Southeast

G.P., REP Ft. Myer .............................................................................................................................................. 96–1913 06/14/96

Mr. Klaus J. Jacobs, ECCO S.A., ECCO S.A ......................................................................................................... 96–1939 06/14/96

Shamrock Holdings, Inc., Alberto-Culver Company, Alberto-Culver Company ...................................................... 96–1940 06/14/96

Boyd Gaming Corporation, Par-A-Dice Gaming Corporation, Par-A-Dice Gaming Corporation ............................ 96–1964 06/14/96

Robert G. Irvin, William F. Brooks, Jr., Forty Acres Ltd .......................................................................................... 96–2008 06/14/96

Security Capital Group Incorporated, Homestead Village Properties Incorporated, Homestead Village Properties Incorporated ................................................................................................................................................ 96–2016 06/14/96

James E. George, M.D., MedPartners/Mullikin, Inc., MedPartners/Mullikin, Inc ..................................................... 96–2019 06/14/96

The Carpenters Pension Trust for Southern California, Kinetic Concepts, Inc., Kinetic Concepts, Inc ................. 96–2025 06/14/96

Komatsu Ltd., Cummins Engine Company, Inc., Cummins Engine Company, Inc ................................................ 96–2035 06/14/96

OrNda HealthCorp, Cypress Fairbanks Medical Center, Inc., Cypress Fairbanks Medical Center, Inc ................ 96–2087 06/14/96

FOR FURTHER INFORMATION CONTACT:

Sandra M. Peay or Renee A. Horton,

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. 96–16115 Filed 6–24–96; 8:45 am]

BILLING CODE 6750–01–M

[File No. 921–0050]

New Balance Athletic Shoe, Inc.;

Proposed Consent Agreement with

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

Boston, Massachusetts-based shoe

manufacturer from fixing, controlling, or

maintaining the resale prices at which

retailers advertise, promote, or offer for

sale any New Balance athletic or casual

footwear. It also prohibits New Balance

from coercing or pressuring any retailer

to maintain or adopt any resale price

and from attempting to secure their

commitment to any resale price. This

consent agreement settles allegations

that New Balance entered into

agreements with some of its retailers to

restrict price competition, thereby

raising prices for consumers.

DATES: Comments must be received on

or before August 26, 1996.

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 Baer, Federal Trade

Commission, H–374, 6th and

Pennsylvania Ave, NW, Washington, DC

20580. (202) 326–2932. Michael Bloom,

Federal Trade Commission, New York

Regional Office, 150 William Street,

Suite 1300, New York, NY 10038. (212)

264–1201.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade
Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices 32821

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 following

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. 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)).

Agreement Containing Consent Order to

Cease and Desist

Commissioners: Robert Pitofsky, Chairman,

Mary L. Azcuenaga, Janet D. Steiger, Roscoe

B. Starek, III, Christine A. Varney.

The Federal Trade Commission

having initiated an investigation of

certain acts and practices of New

Balance Athletic Shoe, Inc, and it now

appearing that New Balance Athletic

Shoe, Inc., hereinafter sometimes

referred to as proposed respondent, is

willing to enter into an agreement

containing an order to cease and desist

from engaging in the acts and practices

being investigated,

It is hereby agreed by and between

New Balance Athletic Shoe, Inc., by its

duly authorized officers, and its

attorneys, and counsel for the Federal

Trade Commission that:

1. Proposed respondent New Balance

Athletic Shoe, Inc. is a corporation

organized, existing and doing business

under and by virtue of the laws of the

State of Massachusetts. The mailing

address and principal place of business

of proposed respondent is: 61 North

Beacon Street, Boston, Massachusetts

02134.

2. Proposed respondent admits all the

jurisdictional facts set forth in the draft

of complaint.

3. The proposed respondent waives:

(a) Any further procedural steps;

(b) The requirement that the

Commission’s decision contain a

statement of findings of fact and

conclusions of law;

(c) All rights to seek judicial review

or otherwise to challenge or contest the

validity of the order entered pursuant to

this agreement; and

(d) Any claim under the Equal Access

to Justice Act.

4. This agreement shall not become

part of the public record of the

proceeding unless and until it is

accepted by the Commission. If this

agreement is accepted by the

Commission it, together with the draft of

complaint contemplated thereby, will be

placed on the public record for a period

of sixty (60) days and information in

respect thereto publicly released. The

Commission thereafter may either

withdraw its acceptance of this

agreement and so notify the proposed

respondent, in which event it will take

such action as it may consider

appropriate, or issue and serve its

complaint (in such form as the

circumstances may require) and

decision, in disposition of the

proceeding.

5. This agreement is for settlement

purposes only and does not constitute

an admission by proposed respondent

that the law has been violated as alleged

in the draft of complaint, or that the

facts as alleged in the draft complaint,

other than jurisdictional facts, are true.

6. This agreement contemplates that,

if it is accepted by the Commission, and

if such acceptance is not subsequently

withdrawn by the Commission pursuant

to the provisions of § 2.34 of the

Commission’s Rules, the Commission

may, without further notice to proposed

respondent, (1) issue its complaint

corresponding in form and substance

with the draft of complaint and its

decision containing the following order

to cease and desist in disposition of the

proceeding and (2) make information

public in respect thereto. When so

entered, the order to cease and desist

shall have the same force and effect and

may be altered, modified or set aside in

the same manner and within the same

time provided by statute for other

orders. The order shall become final

upon service. Delivery by the U.S.

Postal Service of the complaint and

decision containing the agreed-to order

to proposed respondent’s addresses as

stated in this agreement shall constitute

service. Proposed respondent waives

any right it may have to any other

manner of service. The complaint may

be used in construing the terms of the

order, and no agreement, understanding,

representation, or interpretation not

contained in the order or the agreement

may be used to vary or contradict the

terms of the order.

7. The proposed respondent has read

the proposed complaint and order

contemplated hereby. It understands

that once the order has been issued, it

will be required to file one or more

compliance reports showing that it has

fully complied with the order. The

proposed respondent further

understands that it may be liable for

civil penalties in the amount provided

by law for each violation of the order

after it becomes final.

Order

I

It is ordered That for the purpose of

this order, the following definitions

shall apply:

(A) The term ‘‘New Balance’’ means

New Balance Athletic Shoe, Inc., its

predecessors, subsidiaries, divisions,

groups, and affiliates controlled by New

Balance Athletic Shoe, Inc., and its

respective directors, officers, employees,

agents, and representatives, and the

respective successors and assign of

each.

(B) The term ‘‘respondent’’ means

New Balance.

(C) The term ‘‘product’’ means any

athletic or casual footwear item which

is manufactured, offered for sale or sold

under the brand name of ‘‘New

Balance’’ to dealers or consumers

located in the United States of America.

(D) The term ‘‘dealer’’ means any

person, corporation or entity not owned

by New Balance, or by any entity owned

or controlled by New Balance, that in

the course of its business sells any

product in or into the United States of

America.

(E) The term ‘‘resale price’’ means any

price, price floor, minimum price,

maximum discount, price range, or any

mark-up formula or margin of profit

used by any dealer for pricing any

product. ‘‘Resale price’’ includes, but is

not limited to, any suggested,

established, or customary resale price.

II

It is further ordered That New

Balance, directly or indirectly, or

through any corporation, subsidiary,

division or other device, in connection

with the manufacturing, offering for

sale, sale or distribution of any product

in or into the United States of America

in or affecting ‘‘commerce,’’ as defined

by the Federal Trade Commission Act,

do forthwith cease and desist from:

(A) Fixing, controlling, or maintaining

the resale price at which any dealer may

advertise, promote, offer for sale or sell

any product.

(B) Requiring, coercing, or otherwise

pressuring any dealer to maintain,

adopt, or adhere to any resale price.

(C) Securing or attempting to secure

any commitment or assurance from any

dealer concerning the resale price at

which the dealer may advertise,

promote, offer for sale or sell any

product.

(D) For a period of ten (10) years from

the date on which this order becomes

final, adopting, maintaining, enforcing

or threatening to enforce any policy,

practice or plan pursuant to which

respondent notifies a dealer in a
32822 Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices

advance that: (1) The dealer is subject to

warning or partial or temporary

suspension or termination if its sells,

offers for sale, promotes or advertises

any product below any resale price

designated by respondents, and (2) the

dealer will be subject to a greater

sanction if it continues or renews

selling, offering for sale, promoting or

advertising any product below any such

designated resale price. As used herein,

the phrase ‘‘partial or temporary

suspension or termination’’ includes but

is not limited to any disruption,

limitation, or restriction of supply: (1) of

some, but not all, products, or (2) to

some, but not all, dealer locations or

businesses, or (3) for any delimited

duration. As used herein, the phrase

‘‘greater sanction’’ includes but is not

limited to a partial or temporary

suspension or termination of greater

scope or duration than the one

previously implemented by respondent,

or complete suspension or termination.

Provided that nothing in this Order

shall prohibit New Balance from

establishing and maintaining

cooperative advertising programs that

include conditions as to the prices at

which dealers offer products, so long as

such advertising programs are not a part

of a resale price maintenance scheme

and do not otherwise violate this order.

III

It is further ordered That, for a period

of five (5) years from the date on which

this order becomes final, New Balance

shall clearly and conspicuously state the

following on any list, advertising, book,

catalogue, or promotional material

where it has suggested any resale price

for any product to any dealer: Although

New Balance may suggest resale prices

for products, retailers are free to

determine on their own the prices at

which they will advertise and sell New

Balance products.

IV

It is further ordered That, within (30)

days after the date on which this order

becomes final, New Balance shall mail

by first class mail the letter attached as

Exhibit A, together with a copy of this

order, to all of its directors and officers,

and to dealers, distributors, agents, or

sales representatives engaged in the sale

of any product in or into the United

States of America.

V

It is further ordered That, for a period

of two (2) years after the date on which

this order becomes final, New Balance

shall mail by first class mail the letter

attached as Exhibit A, together with a

copy of this order, to each new director,

officer, dealer, distributor, agent, and

sales representative engaged in the sale

of any product in or into the United

States of America, within ninety (90)

days of the commencement of such

person’s employment or affiliation with

New Balance.

VI

It is further ordered That New Balance

shall notify the Commission at least

thirty (30) days prior to any proposed

changes in New Balance such as

dissolution, assignment or sale resulting

in the emergence of a successor

corporation, the creation or dissolution

of subsidiaries, or any other change in

the corporations which may affect

compliance obligations arising out of

the order.

VII

It is further ordered That, within sixty

(60) days after the date this order

becomes final, and at such other times

as the Commission or its staff shall

request, New Balance shall file with the

Commission a verified written report

setting forth in detail the manner and

form in which New Balance has

complied and is complying with this

order.

VIII

It is further ordered That this order

shall terminate on July 15, 1996.

Exhibit A [New Balance Letterhead]

Dear Retailer: The Federal Trade

Commission has conducted an investigation

into New Balance’s sales policies, and in

particular New Balance’s ‘‘Statement of

Policy,’’ which was announced in July 1991

and, with modifications, has remained in

effect since then. To expeditiously resolve

the investigation and to avoid disruption to

the conduct of its business, New Balance has

agreed, without admitting any violation of

the law, to the entry of a Consent Order by

the Federal Trade Commission prohibiting

certain practices relating to resale prices. A

copy of the Order is enclosed. This letter and

the accompanying Order are being sent to all

of our dealers, sales personnel and

representatives.

The Order spells out our obligations in

grater detail, but we want you to know and

understand that you can sell and advertise

our products at any price you choose. While

we may send materials to you which contain

suggested retail prices, you remain free to sell

and advertise those products at any price you

choose.

We look forward to continuing to do

business with you in the future.

Sincerely yours,

llll

President, New Balance Athletic Shoe, Inc.

Analysis of Proposed Consent Order To

Aid Public Comment

The Federal Trade Commission has

accepted an agreement to a proposed

consent order from New Balance

Athletic Shoe, Inc. (‘‘New Balance’’).

The proposed consent order has been

placed on the public record for sixty

(60) days for reception of comments by

interested persons. Comments received

during this period will become part of

the public record. After sixty (60) days,

the Commission will again review the

agreement and the comments received

and will decide whether is should

withdraw from the agreement or make

final the agreement’s proposed order.

I. The Proposed Complaint

The Commission has issued a

proposed complaint against New

Balance that alleges that New Balance

has entered into combinations,

agreements and understandings with

certain of its dealers to fix the resale

prices at which dealers sell its athletic

footwear. The complaint further alleges

that this conduct violates Section 5 of

the Federal Trade Commission Act.

To assist the public in understanding

the circumstances under which the

Commission may find a price agreement

between a manufacturer and a retailer,

the Commission’s proposed complaint

alleges price agreements in more detail

than was contained in prior

Commission resale price maintenance

complaints. Specifically, the complaint

alleges that New Balance engaged in

various actions with the intent and

effect of inducing certain of its dealers

to enter into agreements with New

Balance, pursuant to which the dealers

agreed to raise retail prices on New

Balance products, to maintain prices or

price levels set by New Balance, or to

refrain from discounting New Balance

products. According to the complaint,

these actions of New Balance included,

among other things:

(a) Threatening to suspend or

terminate shipments to discounting

retailers and engaging in other coercive

acts, such as surveillance of dealers’

prices and demanding that discounting

dealers raise their prices;

(b) Informing dealers that New

Balance would act to secure similar

price agreements with other dealers; and

(c) Securing price agreements from

discounting dealers after warning them

that continued or subsequent selling of

New Balance products at prices below

those set by New Balance would result

in discontinuation of sales to the dealer

pursuant to New Balance’s written
Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices 32823

policy stating that it will give a ‘‘onetime warning’’ to a dealer who sells its

products below designated prices, and

that in the event of continued or

subsequent violation of its policy New

Balance will discontinue selling to that

dealer.

The complaint alleges that the

purpose, tendency, or effect of the

described New Balance actions is and

has been to restrain trade unreasonably

and to hinder competition in the sale of

athletic footwear in the United States,

depriving consumers of the benefits of

price competition among retail dealers

with respect to the sale of New Balance

products and increasing prices to

consumers of those products. The

complaint concludes that the described

acts and practices constitute unfair

methods of competition and are illegal.

II. Description of Practices Giving Rise

to the Alleged Violations of the Federal

Trade Commission Act

New Balance, a Massachusetts

corporation, is a prominent seller of

athletic footwear. New Balance athletic

shoes are available in a wider range of

widths than many other athletic shoes,

as a result of which New Balance has a

loyal following among customers who

wear non-standard widths.

In 1991, New Balance adopted a

policy (hereinafter referred to as New

Balance’s ‘‘one-time warning’’ policy)

under which retailers would first be

warned, then terminated if they sold

certain New Balance products at more

than 20% below New Balance’s

suggested resale prices. Other versions

of the one-time warning policy with

minor changes came into effect at the

start of 1993 and 1994.

Instead of enforcing this one-time

warning policy through termination of

non-complying retailers, New Balance

on occasion used the policy as a means

to enter into agreements with

discounting retailers with respect to

resale prices. For example, New Balance

urged retailers to comply, sought

expressions of consent, and negotiated

the terms on which certain retailers

would comply. As a result of these

actions by New Balance some retailers

have raised their retail prices.

As alleged in the complaint, New

Balance induced retailers to enter into

these agreements through coercive acts,

including surveillance of retailer prices,

threatening to suspend or terminate

shipments to discounting retailers, and

demanding that discounting retailers

raise their prices. In addition, New

Balance assured retailers that New

Balance would secure similar price

agreements from other, competing

retailers or otherwise prevent

unapproved discounting of New

Balance athletic shoes.

New Balance, by using the means

described, was successful in inducing

recalcitrant retailers to agree to charge

prices preferred by New Balance,

irrespective of the pricing preferences of

each retailer. The result of New

Balance’s actions was to restrict price

competition among retailers of New

Balance athletic shoes, increasing New

Balance athletic shoe prices to

consumers. Entry into such price

agreements constitute per se violations

of the antitrust law prohibition of

agreements in restraint of trade and

violate Section 5 of the Federal Trade

Commission Act.

III. Explanation of the Proposed

Consent Order

New Balance has signed an agreement

containing an order to cease and desist

from engaging in the acts and prices

under investigation. The agreement

provides that it is for settlement

purposes only and does not constitute

an admission by New Balance that the

law has been violated or that the facts

alleged in the complaint (other than

jurisdictional facts) are true. The

proposed order requires New Balance to

cease and desist from continuing or

renewing the acts and practices alleged

in the complaint, which affected both

advertised and in-store prices.

Specifically, Section II(A) of the

proposed order requires New Balance to

cease and desist from fixing, controlling,

or maintaining the resale prices at

which any dealer may advertise,

promote, offer for sale or sell any New

Balance product.

The law generally permits a

manufacturer unilaterally to adopt,

announce, and implement a policy of

refusing to deal with resellers who sell

at prices other than those preferred by

the manufacturer. United States v.

Colgate & Co., 250 U.S. 300 (1919). The

manufacturer may not, however, seek

and obtain a reseller’s agreement to

adhere to the manufacturer’s price

preferences. United States v. Parke,

Davis & Co., 362 U.S. 29 (1960). To

prevent New Balance from seeking and

obtaining resellers’ agreements to

adhere to its pricing preferences,

Sections II (B) and (C) of the order

prohibit New Balance from requiring,

coercing, or otherwise pressuring any

dealer to maintain, adopt, or adhere to

any resale price, and from securing or

attempting to secure any commitment or

assurance from any dealer concerning

the resale price at which the dealer may

advertise, promote, offer for sale, or sell

any product.

Section II(D) addresses New Balance’s

improper use of its one-time warning

policy. To prevent New Balance from

using this policy as a means to enter

into price agreements with noncomplying retailers, the proposed order

prohibits New Balance, for a period of

ten years from the date on which the

order becomes final, from adopting,

maintaining, threatening to enforce, or

enforcing any policy, practice, or plan

under which New Balance notifies a

reseller in advance that the reseller is

subject to partial or temporary

suspension or termination if it sells or

advertises any product below a resale

price designated by New Balance, and

that the dealer will be subject to a

greater sanction if it continues or

renews selling or advertising any

product below a designated resale price.

The order does not prohibit New

Balance from announcing suggested

resale prices in advance and unilaterally

refusing to deal with those who fail to

comply.

The proposed order does not prohibit

New Balance from establishing and

maintaining cooperative advertising

programs that include conditions as to

the prices at which dealers offer

products, so long as such advertising

programs are not a part of a resale price

maintenance scheme and do not

otherwise violate this order.

The proposed order also contains

provisions that are intended to restore

competitive conditions in the market(s)

affected by New Balance’s unlawful

actions. Section III of the proposed

order requires New Balance, for a period

of five years from the date on which the

order becomes final, to place on any

material in which it suggests resale

prices a statement that the reseller is

free to determine the prices at which it

will sell New Balance products. Section

IV of the proposed order requires New

Balance, within thirty days after the

date on which the order becomes final,

to mail a letter, together with a copy of

the order, to its directors, officers,

dealers, sales representatives, and

specified others, to inform them that

resellers of New Balance products can

advertise and sell New Balance products

at any price they choose. Section V of

the order, for a period of two years from

the date on which the order becomes

final, imposes a similar requirement

with respect to prospective directors,

officers, dealers, sales representatives.

Section VI of the proposed order

requires New Balance to provide the

Commission with notice of changes in

New Balance, such as the creation or

dissolution of subsidiaries, that may

affect its order compliance obligations.

Section VII requires New Balance to file
32824 Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Notices

1The unnecessary provisions relating to price

advertising appear in Paragraphs II(A), II(B), and III

and in Exhibit A to the proposed order.

2See Paragraph IV(C) of the proposed complaint

and Paragraph II(D) of the proposed order.

3See United States v. Colgate & Co., 250 U.S. 300

(1919).

a detailed report of the manner and form

of its compliance with the order within

sixty days of its becoming final and at

such other times as the Commission

may request.

The proposed order provides that the

order shall terminate 20 years after the

date of its issuance by the Commission.

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 proposed order to

modify in any way their terms.

Donald S. Clark,

Secretary.

Concurring Statement of Commissioner

Mary L. Azcuenaga in New Balance

Athletic Shoe, Inc., File No. 921–0050

There is some evidence that New

Balance went beyond permissible

communications with its dealers and

entered the realm of unlawful resale

price maintenance. An order is,

therefore, appropriate. I write separately

to make clear my understanding that the

proposed complaint does not challenge

the announcement or implementation

by a supplier of a structured termination

policy. although I view Paragraph 4(c) of

the complaint as ambiguous, the essence

of the charge is that New Balance would

not impose sanctions on them. New

Balance did not implement its

structured termination policy, and the

proposed complaint and order do not

address the lawfulness of that policy.

Dissenting Statement of Commissioner

Roscoe B. Starek, III In the Matter of

New Balance Athletic Shoe, Inc., File

No. 921–0050

As I did in Reebok International, Ltd.,

Docket No. C–3592, I find reasons to

believe that the target of the present

investigation—New Balance Athletic

Shoe, Inc. (‘‘New Balance’’)—has

entered into agreements with retailers to

restrain retail prices and has thereby

violated Section 5 of the Federal Trade

Commission Act, 15 U.S.C. 45.

However, I dissent from the

Commission’s decision to accept the

consent agreement in this matter

because certain provisions of the

proposed Commission order are not

required to prevent unlawful conduct

and may instead unnecessarily restrain

procompetitive conduct by New

Balance.

As in Reebok International, the

fencing-in restrictions in the proposed

order relating to resale price advertising

(specifically, the minimum advertised

price provisions) 1 and to New Balance’s

‘‘structured termination policy.’’ 2 are

unjustifiably broad and likely to deter

efficient conduct. Indeed, the order even

goes beyond the provisions I found over

inclusive, and therefore unacceptable,

in the Reebok order: the current order

omits language that appeared in

Paragraph II of the Reebok order that

expressly recognized the respondent’s

Colgate rights.3

In the interests of fairness and

efficiency, injunctive relief ordered to

address resale price maintenance should

be strictly tailored to the per se

unlawful conduct alleged. Because the

proposed order in this case mandates

excessive restrictions upon the conduct

of New Balance, I respectfully dissent.

[FR Doc. 96–16113 Filed 6–24–96; 8:45 am]

BILLING CODE 6750–01–M

[File No. 951–0124]

Precision Moulding Company, Inc.;

Proposed Consent Agreement With

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

Cottonwood, California-based company

from requesting, suggesting, urging, or

advocating that any competitor raise,

fix, or stabilize price levels. This

consent agreement settles allegations

that Precision, the leading supplier of

wood products used to construct frames

for artists’ canvases, attempted to fix

prices and restrain trade in the market

for these products, known as stretcher

bars.

DATES: Comments must be received on

or before August 26, 1996.

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:

Michael Antalics, Federal Trade

Commission, S–2627, 6th and

Pennsylvania Ave, NW, Washington, DC

20580. (202) 326–2821.

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 following

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. 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)).

Agreement Containing Consent Order

To Cease and Desist

The Federal Trade Commission

(‘‘Commission’’), having initiated an

investigation of certain acts and

practices of Precision Moulding Co.,

Inc., a corporation, hereinafter

sometimes referred to as ‘‘proposed

respondent,’’ and it now appearing that

Precision Moulding Co., Inc. is willing

to enter into an agreement containing an

order to cease and desist from the use

of the acts and practices being

investigated.

It is hereby agreed by and between

Precision Moulding Co. Inc., by its duly

authorized officer, and its attorney, and

counsel for the Commission that:

1. Proposed respondent Precision

Moulding Co., Inc., is a corporation

organized, existing and doing business

under and by virtue of the laws of the

State of California with its principal

place of business located at 3308

Cyclone Court, Cottonwood, California

96022, and its mailing address at P.O.

Box 406, Cottonwood, California 96022.

2. Proposed respondent admits all the

jurisdictional facts set forth in the draft

of complaint.

3. Proposed respondent waives:

(a) Any further procedural steps;

(b) The requirement that the

Commission’s decision contain a

statement of findings of fact and

conclusions of law;

(c) All rights to seek judicial review

or otherwise to challenge or contest the

validity of the order entered pursuant to

this agreement; and

(d) Any claim under the Equal Access

to Justice Act.

4. This agreement shall not become

part of the public record of the

proceeding unless and until it is

accepted by the Commission. If this

agreement is accepted by the

Commission it, together with the draft of

complaint contemplated thereby, will be