Honickman, Harold a

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

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

SET ASIDE ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND SEe. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9233. Consent Order, July 1991--Set Aside Order, March, 1998 This orderreopens and sets aside a 199 I consent order (modified in July 1992 and March 1993) with Harold A. Honickman, (J 15 FTC 623), thus removing the Commssion s prior approval requirement for acquiring the assets of or the rights related to any bottling operation in the New York metropolitan area. ORDER SETTING ASIDE ORDER On November 5 , 1997, Harold A. Honickman ("Honickman filed a Petition To Modify Consent Order ("Petition ) in Docket No. 9233 ("order ) pursuant to Section 5(b) of the Federal Trade Commission Act, 15 U.S. c. 45(b), and Section 2. 51 of the Coinission s Rules of Practice and Procedure, 16 CFR 2. , and consistent with the Statement of Federal Trade Commission Policy Concerning Prior Approval and Prior Notice Provisions ("Prior l TheApproval Policy Statement" Petition requests that the Commission reopen and modify the order to tenninate the prior approval provision set forth in paragraph II ofthe order. The Petition was placed on the public record for thirt days and no comments were received. The Commission has detennined to tenninate the prior approval provision of the order by setting aside the order. The Commission, in its Prior Approval Policy Statement concluded that a general policy of requiring prior approval is no longer needed " citing the availability of the premerger notification and waiting period requirements of Section 7 A of the Clayton Act commonly referred to as the Hart-Scott-Rodino ("HSR") Act, 15 C. 18a, to protect the public interest in effective merger law enforcement.' The Commission announced that it will "henceforth rely on the HSR process as its principal means of learing about and reviewing mergers by companies as to which the Commission had previously found a reason to believe that the companies had engaged or attempted to engage in an illegal merger." As a general matter 60 Fed. Reg. 39 745-47 (Aug. 3 , 1995); 41trade Reg. Rep. (CCH) -; 13,241 Prior Approval Policy Statement at 2 , Set Aside Order 125 FTC. Commission orders in such cases win not include prior approval or prior notification requirements. ,,3 The Commission stated that it win continue to fashion remedies as needed in the public interest, including ordering narrow prior approval or prior notification requirements in certain limited circumstances. The Commission said in its Prior Approval Policy Statement that "a narow prior approval provision may be used where there is a credible risk that a company that engaged or attempted to engage in an anti competitive merger would, but for the provision attempt the same or approximately the same merger. " The Commission also said that "a narrow prior notification provision may be used where there is a credible risk that a company that engaged or attempted to engage in an anti competitive merger would, but for an order, engage in an otherwise uneportable anti competitive merger. ,,4 As explained in the Prior Approval Policy Statement, the need for a prior notification requirement win depend on circumstances such as the structural characteristics of the relevant markets, the size and other characteristics of the market participants, and other relevant factors.

The Commission also announced, in its Prior Approval Policy Statement, its intention "to initiate a process for reviewing the retention or modification of these existing requirements" and invited respondents subject to such requirements "to submit a request to The Commission detennined thatreopen the order."s when a petition is filed to reopen and modify an order pursuant to . . . (the Prior Approval Policy Statements, the Commission will apply a rebuttable presumption that the public interest requires reopening of the order and modification of the prior approval requirement consistent with the policy announced" in the Statement. There is no evidence in the record that suggests that this matter presents any of the circumstances identified by the Prior Approval Policy Statement as appropriate for retaining a narow prior approval provision, nor is there any indication of the circumstances that would warant the substitution of a prior notice provision for the prior approval provision. There is nothing to suggest that I-onickman would attempt the same or essentially the same acquisition that gave !d.

Id. at 3.

5 !d.

at 4.

6 Jd.

HAROLD A. HONICKMAN, ET AL. 495 493 Set Aside Order rise to the original complaint. In addition, it appears likely that future acquisitions that may have adverse competitive consequences within the relevant market would be HSR reportable. Nothing to overcome the presumption having been presented, the Commission has detennined to reopen the proceeding and set aside the order because deleting the prior approval requirement, in effect, would eliminate all ofHonickman s future obligations under the order. Accordingly, It is ordered That this matter be, and it hereby is reopened, and that the order be, and it hereby is, set aside as of the effective date of this order.

Commissioner Azcuenaga recused.

See, e. c. Johnson & Son, Inc. , Docket No. 3418 Order Settmg ASlde Order (January 1996).

Complaint 125 FTC.