Honickman, Harold a

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF HAROLD A. HONICKMAN, ET AL.

AMENDING ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9233, Consent Order, July 25, 1991--Amending Order, July 20, 1992 This order reopens the proceeding and amends the Commission's consent order issued on July 25, 1991, (114 FTC 427) by deleting the ninety-day reporting requirement in the first clause of paragraph V(A), and by correcting the syntax of paragraph III(A)(2).

ORDER AMENDING CONSENT ORDER ISSUED ON JULY 25, 1991 On July 25, 1991, the Commission issued its consent order in Docket No. 9233. The order became final on August 5, 1991. 16 CFR 2.41 (c) (1992).

Paragraph II of the order sets forth a ten-year prior approval requirement for certain proposed acquisitions of bottling operations by respondents.’ Paragraph V(A) of the order now requires, among other things, that respondents file reports of compliance every ninety days until they comply with the provisions of paragraph II. However, in addition, paragraph V(B) of the order, consistent with the Commission's general practice respecting prior approval provisions in Commission orders, requires that respondents file annual reports concerning their compliance with paragraph II. The Commission believes that its interests in monitoring the respondents’ compliance with paragraph II of the order are adequately protected by the annual report requirement in paragraph V(B) of the order, and that it is Respondents may make a bottling operation acquisition under certain circumstances without invoking the paragraph II prior approval requirement if they satisfy the conditions of paragraph III of the order. That paragraph requires the respondents to notify the Commission at least thirty days prior to the acquisition and then to divest any existing Honickman bottling operation in a specific geographic area.

Amending Order 115 F.T.C.

unnecessary to require that respondents file compliance reports every ninety days. The Commission therefore believes that it would be in the public interest to delete the ninety-day reporting requirement in paragraph V(A).

In addition, the first sentence of paragraph III(A)(2) of the order uses a singular pronoun and verb to refer to the plural respondents, stating that respondents shall [d]divests 1 3 2 3 6 1413 1007 29 6 76.767296 ...5 1 3 2 3 7 1468 977 45 43 97.006241 its5 1 3 2 3 8 1526 978 161 36 96.946442 business5 1 3 2 3 9 1702 978 43 36 96.864716 of5 1 3 2 3 10 1753 979 218 47 46.732384 bottling...4 1 3 2 4 0 638 1034 1335 50 -1 5 1 3 2 4 1 638 1034 74 36 96.993851 that5 1 3 2 4 2 729 1034 29 43 96.917435 it5 1 3 2 4 3 775 1035 85 35 96.672226 then5 1 3 2 4 4 877 1034 174 36 91.227089 conducts5 1 3 2 4 5 1073 1064 6 6 61.009975 .5 1 3 2 4 6 1102 1064 6 6 61.009975 .5 1 3 2 4 7 1131 1035 26 36 86.165802 . (emphasis added). Although paragraph III(A) thus clearly requires the respondents to divest their business of bottling, distributing and selling CSDs and non-carbonated drinks, except for carbonated and non-carbonated waters, that they then conduct, the Commission has determined to correct the syntax of paragraph III(A)(2).

By letter dated November 1, 1991, the respondents consented to the changes contemplated by this order. Accordingly, It is ordered, That the proceeding be, and it hereby is, reopened; and It is further ordered, That the consent order in Docket No. 9233 be, and it hereby is, amended by (1) Deleting the first clause of paragraph V(A) mandating ninetyday reports for the paragraph II prior approval requirement and beginning paragraph V(A) with the word If; and (2) Changing the first sentence of paragraph III(A)(2) to state as follows:

Divest, absolutely and in good faith within six (6) months after the date of any such acquisition, their business of bottling, distributing and selling CSDs and non-carbonated drinks, except for carbonated and non-carbonated waters, that they then conduct through any Existing Honickman Bottling Operation in those counties in the New York Metropolitan Area in which such newly-acquired Bottling Operation also operates (such Existing Honickman Bottling Operation is hereinafter referred to as Paragraphs 1 6 1 8 8 1500 2607 46 34 93.294067 III5 1 6 1 8 9 1562 2607 255 45 56.130867 Operation.). Commissioner Azcuenaga and Commissioner Starek recused. SANDOZ PHARMACEUTICALS CORPORATION 625 625 Complaint