Ae Clevite, Inc

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IN THE MATTER OF AE CLEVITE, INC.

CONSENT ORDER, ETC., INREGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3429. Complaint, June 8, 1993--Decision, June 8, 1993 This consent order prohibits, among other things, a Michigan manufacturer of locomotive engine bearings and its parent company, T&N PLC, from fixing prices or from inviting its competitors to fix or raise prices for locomotive engine bearings in the future. The consent order requires AE Clevite and T&N to provide copies of the FTC complaint and consent order to the directors and officers of the company, subsidiaries, and divisions engaged in the design, manufacture, marketing or sale of locomotive engine bearings in the United States.

Appearances For the Commission: Ronald B. Rowe, Morris A. Bloom and Ernest A. Nagata.

For the respondent: Richard Carlton, Sullivan & Cromwell, New York, N.Y.

COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that the Heavywall Bearing Division ("HBD") of J.P. Industries, Inc. ("JPI"), a corporation, the predecessor in interest of Glacier Clevite Heavywall Bearings ("Glacier Clevite"), a division of AE Clevite, Inc. ("AE Clevite"), a corporation (hereinafter sometimes referred to as respondent"), violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows:

Complaint 116 F.T.C.

PARAGRAPH 1. Respondent AE Clevite is a corporation organized, existing and doing business under and by virtue of the laws of the State of Michigan, with its principal offices located at 325 East Eisenhower Parkway, Ann Arbor, Michigan. PAR. 2. Respondent is an indirect wholly-owned subsidiary of T&N ple ("T&N"), a corporation organized, existing and doing business under and by virtue of the laws of the United Kingdom, with its principal offices at Bowdon House, Ashburton Road West, Trafford Park, Manchester M17 IRA, England. Respondent is now, and for some time it or its predecessors in interest have been, engaged in the design, manufacture and sale of locomotive engine bearings.

PAR. 3. For purposes of this complaint, the following definitions apply:

(A) Engines 1 5 1 1 3 954 1488 191 43 94.595688 bearings means the components of internal combustion engines characterized by interfacing surfaces with relative motion of a sliding nature that provide support to a shaft rotating over a thin film of oil (including half bearings, bushings, and thrust washers); and (B) Locomotive5 1 5 2 1 3 1058 1780 131 42 96.582756 engines 1 5 2 1 4 1217 1779 189 43 88.935898 bearings means engine bearings having a wall thickness of greater than one-quarter of an inch for use within locomotive engines.

PAR. 4. On August 20, 1990, T&N completed its tender offer for the outstanding shares of JPI common stock, and on November 8, 1990, the Federal Trade Commission issued a Decision and Order in Docket No. C-3312 as a result of that acquisition. With the purchase of JPI, T&N acquired the JPI HBD's facility in McConnelsville, Ohio for the design, manufacture and sale of locomotive engine bearings. At that time, another T&N subsidiary, The Glacier Metal Co. Ltd. ("Glacier"), was also engaged, at its facility in IIminster, England, in the design and manufacture of locomotive engine bearings, some of which were sold in the United States.

PAR. 5. The HBD of JPI is the predecessor in interest of Glacier Clevite, a division of respondent AE Clevite. AECLEVITE, INC. 391 389 Complaint PAR. 6. Respondent or its predecessors in interest maintain and have maintained a substantial course of business, including the acts and practices as hereinafter set forth, which are in or affect commerce, as commerce is defined in the Federal Trade Commission Act.

PAR. 7. At all time relevant herein, Glacier, JPI and Miba Gleitlager AG ("Miba"), an Austrian corporation, were competitors in the design, manufacture and sale of locomotive engine bearings. During 1988 and 1989, JPI and Miba together manufactured more than 95 percent of all locomotive engine bearings sold in the United States. JPI held the largest share and perceived Miba as a competitive threat due to Miba’'s efforts to increase its market share by undercutting JPI's prices.

PAR. 8. Ina conversation that occurred in the spring of 1988 between the general manager of the JPI HBD and the managing director of Miba, the JPI HBD official advised the Miba official that the prices at which Miba sold locomotive engine bearings in the United States aftermarket were lower than those of the JPI HBD, and as5 1 3 3 6 3 764 1685 20 24 96.576050 a5 1 3 3 6 4 799 1674 119 39 96.576050 result,5 1 3 3 6 5 937 1674 82 44 96.709579 they5 1 3 3 6 6 1036 1684 94 23 96.986053 were5 1 3 3 6 7 1147 1673 141 44 96.779922 ruining5 1 3 3 6 8 1305 1673 58 34 96.362267 thes 1 3 3 6 9 1380 1672 269 45 86.272385 marketplace. Following a response from the managing director of Miba that it was not Miba's intention to undercut the JPI HBD's prices in the marketplace, the general manager of the JPI HBD caused comparative price lists for locomotive engine bearings sold in the United States aftermarket to be faxed to Miba.

PAR. 9. The conduct described in paragraph eight constituted an implicit invitation by the JPI HBD for Miba to refrain from competition in the pricing of locomotive engine bearings sold in the United States aftermarket.

PAR. 10. The aforesaid acts and practices constitute unfair methods of competition in or affecting commerce in violation of Section 5 of the Federal Trade Commission Act. The acts and practices herein alleged could recur in the absence of the relief herein requested. .

Commissioner Azcuenaga dissented, and having found evidence sufficient to support a reason to believe determination. Decision and Order 116 F.T.C.

DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the Heavywall Bearing Division of J.P. Industries, Inc., the predecessor in interest of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the Bureau of Competition proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violation of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45; and The respondent and T&N plc ("T&N"), their officer and attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent or by T&N that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the mater and having determined that it had reason to believe that respondent's predecessor in interest had violated the said Act, and that a complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity it the procedure prescribed in Section 2.34 of it's Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order: 1. Respondent AE Clevite, Inc. ("AE Clevite") is a corporation organized, existing and doing business under and by virtue of the laws of the State of Michigan, with its principal offices located at 325 East Eisenhower Parkway, Ann Arbor, Michigan. Respondent is an indirect, wholly-owned subsidiary of T&N plc, a corporation organized, existing and doing business under and by virtue of the AE CLEVITE, INC. , 393 389 Decision and Order laws of the United Kingdom, with its principal offices located at Bowdon House, Ashburton Road West, Trafford Park, Manchester M17 IRA, England.

2. AE Clevite or its predecessors in interest at all times relevant herein have been, and AE Clevite now is, a corporation whose business is in or affects commerce, as commerce is defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. 44. 3. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent and of T&N, and the proceeding is in the public interest.

ORDER I.

For purposes of this order, the following definitions shall apply: A. Respondent means AE Clevite, its predecessors, successors, assigns, subsidiaries and divisions, including Glacier Clevite Heavywall Bearing, and their respective directors, officers, employees, agents and representatives, and their respective successors and assigns;

B. T&N means T&N plc and all direct or indirect majorityowned subsidiaries and divisions of T&N plc that are engaged in the design, manufacturer, marketing, advertising, offering for sale, sale, or distribution of engine bearings;

C. Engines 1 5 3 1 3 945 2130 189 46 91.488930 bearings means the components of internal combustion engines characterized by interfacing surfaces with relative motion of a sliding nature that provide support to a shaft rotating over a thin film of oil (including half bearings, bushings, and thrust washers); and D. Locomotive5 1 5 4 1 3 980 2424 128 43 96.359970 engines 1 5 4 1 4 1122 2423 189 45 92.621925 bearings means engine bearing having a wall thickness of greater than one-quarter of an inch for use within locomotive engines.

Decision and Order 116 F.T.C.

Il.

It is ordered, That respondent and T&N, in connection with the design, manufacturer, marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings in or affecting commerce, as commerce is defined in the Federal Trade Commission Act, forthwith cease and desist from engaging, directly or indirectly, through any corporation, subsidiary, division, or other device (including through T&N or T&N's other subsidiaries, divisions or affiliated companies), in the following acts or practices: A. Requesting, proposing, urging or advocating that any competitor fix, raise, establish, maintain or stabilize prices, price levels or service levels;

B. Entering into, attempting to enter into, adhering to, or maintaining any combination, conspiracy, or agreement with any competitor to fix, raise, establish, maintain, or stabilize prices, price ‘levels, or service levels; or C. Inviting any competitor to raise prices by stating its willingness to follow or match any change in prices, price levels or service levels by any competitor.

Provided, however, that nothing contained herein shall prevent respondent from unilaterally raising, lowering, or otherwise altering its prices, price levels or service levels, publicly announcing any such change, or explaining the reasons for such a change to persons who are not competitors, such as customers, investors, securities analysts, news and financial reporters and the like. I.

It is further ordered, That:

A. Within thirty (30) days of the date on which this order becomes final, respondent and T&N shall provide a copy of the complaint and order to all of their directors and officers, and: AE CLEVITE, INC. 395 389 Decision and Order respondent shall provide a copy of the complaint and order to all of its management employees and all other employees engaged in the marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings to customers in the United States who have authority to affect the prices at which such locomotive engine bearings are sold; .

B. For a period of three (3) years from the date on which this order becomes final, and within ten (10) days after the date on which any person becomes a director or an officer of T&N or a director, officer or management employee of respondent, or other employee of respondent engaged in the marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings to customers in the United States who has authority to affect the prices at which such locomotive engine bearings are sold, respondent or T&N shall provide a copy of the complaint and order to such person; C. For a period of three (3) years from the date on which this order becomes final, and within thirty (30) days after the date on which any entity becomes a T&N majority-owned subsidiary, unincorporated division, or other operating entity engaged in the design, manufacture, marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings to customers in the United States, T&N shall provide a copy of the complaint and order to all directors, officers, management employees, and all other employees of such entity engaged in the marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings to customers in the United States who have authority to affect the prices at which such locomotive engine bearings are sold; and D. Respondent and T&N shall require each person to whom a copy of the complaint and order is furnished pursuant to subparagraphs III.A., B., and C. of this order to sign and submit to respondent within thirty (30) days of the receipt thereof a statement that: (1) acknowledges receipt of the complaint and order; (2) represents that the undersigned has read and understands the order; (3) acknowledges that the undersigned has been advised and understands that non-compliance with the order may subject Decision and Order 116 F.T.C.

respondent and T&N to penalties for violation of the order; and (4) identifies the undersigned by name, address, and telephone number. IV.

It is further ordered, That respondent shall: A. Within sixty (60) days of the date on which this order becomes final, and annually thereafter for three (3) years on the anniversary date of this order, and at such other times as the Commission may by written notice to the respondent require, file with the Commission a verified written report setting forth in detail the manner and form in which respondent and T&N have complied and are complying with this order;

B. For a period of three (3) years after the date on which this order becomes final, maintain and make available to the staff of the Federal Trade Commission for inspection and copying, upon reasonable notice, all records of communications with competitors of respondent relating to any aspect of pricing or service for locomotive engine bearings to customers in the United States, and records pertaining to any action taken in connection with any activity covered by paragraphs II, II], and IV of this order; and C. Notify the Commission at least thirty (30) days prior to any change in respondent such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries engaged in the design, manufacturer, marketing, advertising, offering for sale, sale, or distribution of locomotive engine bearings, or any other change in respondent that may affect compliance obligations arising out of this order. Commissioner Azcuenaga dissented, not having found evidence sufficient to support a reason to believe determination. AE5 1 1 1 1 2 1177 443 179 33 45.428242 CLEVITE,5 1 1 1 1 3 1367 443 78 29 96.330872 INC.5 1 1 1 1 4 1875 441 70 35 91.647758 3974 1 1 1 2 0 608 538 817 30 -1 5 1 1 1 2 1 608 542 48 24 96.724152 3895 1 1 1 2 2 1135 538 149 30 96.721687 Concurring5 1 1 1 2 3 1295 539 130 23 96.731812 Statement2 1 2 0 0 0 636 624 1264 36 -1 3 1 2 1 0 0 636 624 1264 36 -1 4 1 2 1 1 0 636 624 1264 36 -1 5 1 2 1 1 1 636 630 260 30 96.220154 CONCURRING5 1 2 1 1 2 908 629 234 30 96.615273 STATEMENTS 1 2 1 1 3 1154 629 51 29 96.767311 OF5 1 2 1 1 4 1216 627 303 31 96.339394 COMMISSIONERS 1 2 1 1 5 1531 626 190 29 93.299820 DEBORAH5 1 2 1 1 6 1735 625 34 28 92.508469 K.5 1 2 1 1 7 1782 624 118 29 96.883095 OWEN2 1 3 0 0 0 605 734 1326 1793 -1 3 1 3 1 0 0 607 734 1324 226 -1 4 1 3 1 1 0 682 734 1244 48 -1 5 1 3 1 1 1 682 739 120 35 96.810829 Based5 1 3 1 1 2 820 749 47 24 96.478241 on5 1 3 1 1 3 886 738 58 35 95.644501 thes 1 3 1 1 4 962 737 190 45 96.102394 reasoning5 1 3 1 1 5 1171 736 208 36 96.946297 articulated5 1 3 1 1 6 1397 735 36 35 96.859299 in5 1 3 1 1 7 1452 746 61 34 96.886292 my5 1 3 1 1 8 1531 734 126 35 96.886292 earlier5 1 3 1 1 9 1675 738 187 30 96.375977 statements 1 3 1 1 10 1880 743 46 24 96.813477 on4 1 3 1 2 0 608 790 1323 47 -1 5 1 3 1 2 1 608 797 204 36 96.510048 invitations5 1 3 1 2 2 827 803 36 29 93.146896 to5 1 3 1 2 3 877 790 165 47 68.476669 collude,!5 1 3 1 2 4 1059 796 14 34 96.598701 I5 1 3 1 2 5 1087 797 91 34 96.598701 have5 1 3 1 2 6 1194 795 107 35 96.675819 voted5 1 3 1 2 7 1315 794 36 35 96.053772 in5 1 3 1 2 8 1366 794 102 36 96.053772 favors 1 3 1 2 9 1482 794 42 34 96.998878 of5 1 3 1 2 10 1535 794 57 34 96.205315 thes 1 3 1 2 11 1606 792 88 36 96.464218 final5 1 3 1 2 12 1709 792 165 35 96.464218 issuance5 1 3 1 2 13 1888 790 43 35 96.623795 of4 1 3 1 3 0 607 850 1319 50 -1 5 1 3 1 3 1 607 856 57 35 96.353806 thes 1 3 1 3 2 676 861 148 30 96.792519 consents 1 3 1 3 3 836 860 199 40 96.358780 agreements 1 3 1 3 4 1048 854 34 34 96.820900 in5 1 3 1 3 5 1096 854 67 34 96.589897 this5 1 3 1 3 6 1177 859 133 29 96.585037 matter.5 1 3 1 3 7 1336 851 142 37 96.953590 Several5 1 3 1 3 8 1492 857 137 40 96.865471 aspects5 1 3 1 3 9 1642 850 43 35 96.830299 of5 1 3 1 3 10 1693 850 68 35 96.830299 this5 1 3 1 3 11 1775 860 81 25 96.645622 cases 1 3 1 3 12 1870 860 56 24 96.645622 area 1 3 1 4 0 607 913 495 47 -1 5 1 3 1 4 1 607 915 137 45 96.732529 worthy5 1 3 1 4 2 760 913 42 36 96.732529 of5 1 3 1 4 3 814 919 92 35 96.895203 note,5 1 3 1 4 4 923 913 179 35 96.582825 however.3 1 3 2 0 0 606 964 1324 693 -1 4 1 3 2 1 0 681 964 1249 53 -1 5 1 3 2 1 1 681 973 51 35 96.533691 As5 1 3 2 1 2 757 971 207 46 96.664330 previously5 1 3 2 1 3 988 970 191 41 96.257568 indicated,5 1 3 2 1 4 1204 970 13 35 96.373016 I5 1 3 2 1 5 1240 969 142 36 96.473038 believes 1 3 2 1 6 1405 968 73 35 96.473038 that5 1 3 2 1 7 1501 968 35 35 96.858200 in5 1 3 2 1 8 1561 967 68 35 96.893616 this5 1 3 2 1 9 1653 966 107 36 96.997780 novel5 1 3 2 1 10 1785 976 80 25 96.628593 areas 1 3 2 1 11 1888 964 42 36 96.417145 of4 1 3 2 2 0 607 1024 1319 45 -1 5 1 3 2 2 1 607 1030 248 37 96.516228 Commissions 1 3 2 2 2 874 1029 255 40 96.615356 enforcement,5 1 3 2 2 3 1150 1028 58 35 96.723923 thes 1 3 2 2 4 1228 1026 247 37 95.403625 Commissions 1 3 2 2 5 1495 1025 130 36 95.986641 should5 1 3 2 2 6 1643 1025 45 35 95.986641 be5 1 3 2 2 7 1708 1024 162 35 96.177940 cautious5 1 3 2 2 8 1891 1029 35 29 97.006241 to4 1 3 2 3 0 607 1085 1318 48 -1 5 1 3 2 3 1 607 1100 126 25 96.670883 ensures 1 3 2 3 2 750 1089 72 35 96.927994 that5 1 3 2 3 3 838 1088 58 35 96.996407 thes 1 3 2 3 4 911 1087 146 46 96.669533 activity5 1 3 2 3 5 1072 1086 214 46 96.505554 challenged5 1 3 2 3 6 1303 1086 41 41 96.914139 is,5 1 3 2 3 7 1362 1085 35 36 96.588997 in5 1 3 2 3 8 1413 1085 83 41 96.588997 fact,5 1 3 2 3 9 1513 1096 44 24 96.996849 an5 1 3 2 3 10 1574 1090 147 40 96.715012 attempts 1 3 2 3 11 1736 1091 36 28 96.712860 to5 1 3 2 3 12 1787 1093 138 35 96.185661 engage4 1 3 2 4 0 607 1141 1320 47 -1 5 1 3 2 4 1 607 1148 35 35 96.202698 in5 1 3 2 4 2 659 1158 20 25 96.202698 a5 1 3 2 4 3 696 1147 116 35 96.039597 naked5 1 3 2 4 4 828 1146 161 36 96.538483 restraints 1 3 2 4 5 1004 1145 42 35 96.971436 of5 1 3 2 4 6 1059 1145 109 41 96.942474 trade,5 1 3 2 4 7 1185 1145 115 35 96.746742 rather5 1 3 2 4 8 1315 1145 83 34 97.009598 than5 1 3 2 4 9 1415 1143 35 36 96.690277 in5 1 3 2 4 10 1468 1154 19 25 95.441544 a5 1 3 2 4 11 1498 1142 94 46 95.441544 joints 1 3 2 4 12 1608 1148 148 29 96.487686 ventures 1 3 2 4 13 1771 1152 40 24 97.001823 or5 1 3 2 4 14 1826 1141 101 35 96.376808 other4 1 3 2 5 0 607 1199 1318 54 -1 5 1 3 2 5 1 607 1205 206 48 95.292938 potentially5 1 3 2 5 2 827 1205 161 36 96.731873 efficient5 1 3 2 5 3 1001 1210 212 40 96.314529 agreement.5 1 3 2 5 4 1238 1204 75 40 96.867996 See,5 1 3 2 5 5 1331 1202 144 46 96.928764 Quality5 1 3 2 5 6 1487 1201 135 36 96.665977 Trailers 1 3 2 5 7 1634 1201 195 36 96.890503 Statements 1 3 2 5 8 1841 1205 33 30 93.305099 at5 1 3 2 5 9 1888 1199 37 35 93.139252 6-4 1 3 2 6 0 607 1258 1319 49 -1 5 1 3 2 6 1 607 1265 32 35 96.303459 7.5 1 3 2 6 2 667 1265 103 39 96.303459 Here,5 1 3 2 6 3 787 1264 57 35 96.986443 thes 1 3 2 6 4 858 1263 153 35 96.709206 conducts 1 3 2 6 5 1024 1262 140 45 96.478523 alleged5 1 3 2 6 6 1179 1262 35 34 96.967125 in5 1 3 2 6 7 1230 1262 57 34 96.751961 thes 1 3 2 6 8 1301 1259 273 37 39.738537 Commission's5 1 3 2 6 9 1588 1259 196 45 96.135155 complaints 1 3 2 6 10 1798 1264 35 29 96.871666 to5 1 3 2 6 11 1848 1258 43 35 94.732071 be5 1 3 2 6 12 1906 1268 20 24 94.732071 a4 1 3 2 7 0 606 1315 1319 42 -1 5 1 3 2 7 1 606 1322 175 35 96.674088 violations 1 3 2 7 2 804 1320 43 36 96.824821 of5 1 3 2 7 3 867 1320 145 36 96.463219 Sections 1 3 2 7 4 1036 1320 19 35 96.692909 55 1 3 2 7 5 1080 1319 43 36 96.692909 of5 1 3 2 7 6 1143 1320 59 34 96.644783 thes 1 3 2 7 7 1224 1319 146 35 96.923264 Federal5 1 3 2 7 8 1393 1319 115 34 96.586342 Trades 1 3 2 7 9 1531 1316 248 37 96.509056 Commissions 1 3 2 7 10 1803 1317 69 33 95.451035 Acts 1 3 2 7 11 1895 1315 30 35 96.794167 is4 1 3 2 8 0 607 1374 1317 50 -1 5 1 3 2 8 1 607 1380 187 35 96.755501 described5 1 3 2 8 2 811 1390 37 24 96.709160 as5 1 3 2 8 3 868 1380 61 33 96.237473 an implicit invitation by [respondent for its competitor] to refrain from competition in the pricing of locomotive engine bearings sold in the United States aftermarket.". Complaint, paragraph 9. At first blush, an implicit invitation might suggest something other than a solicitation to fix prices. Two factors alleviate any such concern here. First, as the Analysis of Proposed Consent Order to Aid Public Comment notes, [t]he5 1 3 3 3 2 733 1785 213 45 96.727661 challenged5 1 3 3 3 3 961 1785 155 34 96.845726 conducts 1 3 3 3 4 1132 1784 60 34 96.780174 did5 1 3 3 3 5 1208 1790 61 28 97.002747 not5 1 3 3 3 6 1284 1783 108 35 96.299889 relates 1 3 3 3 7 1408 1789 36 29 96.299889 to5 1 3 3 3 8 1460 1794 68 33 97.004265 any5 1 3 3 3 9 1545 1782 180 45 96.606659 proposed5 1 3 3 3 10 1740 1781 96 35 96.753174 bona5 1 3 3 3 11 1844 1779 80 45 96.753174 fide4 1 3 3 4 0 607 1838 1318 50 -1 5 1 3 3 4 1 607 1843 212 45 96.480217 integration5 1 3 3 4 2 837 1843 163 35 95.798645 between5 1 3 3 4 3 1018 1842 58 35 95.798645 thes 1 3 3 4 4 1094 1842 162 45 72.517303 parties, Under such circumstances, it is difficult to envision what efficiency-enhancing motive there might have been for complaining to a competitor that its lower prices were ruining5 1 3 3 7 2 784 2018 58 35 96.929909 thes 1 3 3 7 3 859 2017 135 35 96.873840 markets 1 3 3 7 4 1009 2017 133 45 95.218742 place, and subsequently sharing comparative price lists with that competitor. Complaint, paragraph 8. Based on available information, as in Quality Trailer Products, this appears to be attempted price-fixing. Second, the theory of potential harm is strong in this case, in light of the 95 percent combined market share of the two competing parties to the discussion. Complaint, paragraph 7. While, as I have previously indicated, an iron-clad demonstration of potential harm is not an element of this sort of Section 5 offense, Quality Trailer Statement at 6-7, the presence of See Concurring Statement of Commissioner Deborah K. Owen in the Matter of Quality Trailer Products Corporation (File No. 911-0068) ("Quality Trailer Statement"). Concurring Statement 16 F.T.C.

potential injury (and, therefore, motive) makes the inference of an attempted price-fix more credible.

Finally, I would note that the order in this matter, like the order in Quality Trailer Products, could be construed to prohibit, in addition to price-fixing solicitations, an invitation to enter into a procompetitive joint venture that, incidentally, involves setting prices. Again, I interpret these constraints to be fencing-in provisions designed to facilitate enforcement of the order, rather than an intent by the Commission to discourage solicitations to joint venture, or to engage in other legitimate action that may involve price discussions. In another case, the Commission may wish to consider less restrictive relief, depending upon the needs of the company involved and the egregiousness of the offense.’ 2 Here. as in Quality Trailer Products. the order includes a proviso exempting certain conduct from the general proscriptions. The fact that the exempted conduct varies in the two cases (discussing prices with respect to certain sales between competitors vs. unilateral price changes and announcements thereof to non-competitors) illustrates the Commission's ability to fine-tune its mandates. ASFE 399 399 Complaint