UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
Robert Pitofsky, Chairman
Mary L. Azcuenaga
Janet D. Steiger
Roscoe B. Starek, III
Christine A. Varney
In the Matter of
THE STOP & SHOP COMPANIES, INC.,
a corporation; and
Docket No. C-3649
SSC ASSOCIATES, L.P.,
a limited partnership.
ORDER REOPENING AND MODIFYING ORDER
On January 6, 1997, respondent The Stop & Shop Companies, Inc.
("Stop & Shop")(1) filed a Petition To Reopen and Modify Consent
Order (Purity Supreme) ("Petition"). In its Petition, Stop & Shop
requests that the Commission reopen the order in Docket No. C-3649
("Order") to set aside Paragraphs II.A.3.a.
and II.A.6.a., which require Stop & Shop to divest Purity Supreme Store
number 41 located at 630 American Legion Highway, Roslindale,
Massachusetts ("the Roslindale store") and Purity Supreme store number
20 located at 525 Harvard Street, Brookline, Massachusetts ("the
Brookline store"). The Petition addresses the remaining 2 of 17
supermarket divestitures required by the Order. The Commission
previously approved Stop & Shop's applications for divestiture of the
other 15 supermarkets.
For the reasons discussed below, the Commission has determined that
Stop & Shop has demonstrated that it is in the public interest to reopen
and modify the Order to set aside these divestiture obligations.
THE COMPLAINT AND ORDER
This matter arose out of the 1995 acquisition by Stop & Shop of all of
the supermarkets and related assets owned and operated by Purity
Supreme, Inc. ("Purity"). The complaint in this matter charged that Stop
& Shop's acquisition of Purity violated Section 7 of the Clayton Act, 15
U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, 15
U.S.C. § 45. Specifically, the complaint alleged that the effects of the
acquisition may be substantially to lessen competition "in the retail sale
of food and grocery products in supermarkets, and narrower markets
contained therein"(2) in, among other markets, "Brookline [and] the
Roslindale neighborhood in Boston . . . ."(3) At the time of Stop &
Shop's acquisition of Purity, Stop & Shop and Purity directly competed
in Brookline and Roslindale. The concern thus arose that Stop & Shop
would likely be able unilaterally to raise prices in the Brookline and
The Commission accepted a consent agreement with Stop & Shop on
October 18, 1995, and the resulting consent Order became final on April
8, 1996.(4) Under the terms of the Order, Stop & Shop is required to
divest, among other stores, "absolutely and in good faith," the Roslindale
and Brookline, Massachusetts supermarkets.(5) The purpose of these
divestitures, as of the others, is to ensure the continuation of the
Roslindale and Brookline stores as ongoing, viable enterprises engaged
in the supermarket business and to remedy the lessening of competition
resulting from the acquisition as alleged in the Commission's
In its Petition,(7) Stop & Shop requests that the Commission modify the
Order to eliminate the remaining required divestitures under the Order,
the Roslindale and Brookline stores.(8) Stop & Shop bases its Petition
on changed conditions of fact and public interest considerations.(9)
Stop & Shop claims that there is no serious interest by potential
acquirers in either store to be divested because of the increased
competition surrounding each store and because of the decreased sales
volume of the two stores. Stop & Shop claims that new entry has made it
difficult for the Roslindale and Brookline stores to compete effectively
in their respective markets.(10) The record shows that a new Sav-A-Lot
supermarket was opened immediately adjacent to the Roslindale store on
January 20, 1996. Likewise, a new Star Markets superstore was opened
less than one mile north of the Brookline store approximately 5 months
before the Order was issued by the Commission. In addition, a Trader
Joe's store has opened less than one mile south of the Brookline store.
There has been a significant decline in sales at both stores to be
divested, which is likely to continue.(11)
Stop & Shop asserts that operating the Roslindale and Brookline stores
has caused significant losses to Stop & Shop and that it needs to end the
losses being sustained by the Roslindale and Brookline stores to
maintain Stop & Shop's competitive vigor in the relevant markets.
Removing the divestiture requirement would enable Stop & Shop to
close the stores, halting any further losses.(12)
STANDARD FOR REOPENING AND MODIFYING FINAL
Section 5(b) of the Federal Trade Commission Act, 15 U.S.C. § 45(b),
provides that the Commission shall reopen an order to consider whether
it should be modified if the respondent "makes a satisfactory showing
that changed conditions of law or fact" so require. A satisfactory
showing sufficient to require reopening is made when a request to
reopen identifies significant changes in circumstances and shows that the
changes eliminate the need for the order or make continued application
of it inequitable or harmful to competition. S. Rep. No. 96-500, 96th
Cong., 2d Sess. 9 (1979) (significant changes or changes causing unfair
disadvantage); Louisiana-Pacific Corp., Docket No. C-2956, Letter to
John C. Hart (June 5, 1986), at 4 (unpublished) ("Hart Letter").(13)
Section 5(b) also provides that the Commission may modify an order
when, although changed circumstances would not require reopening, the
Commission determines that the public interest so requires. Respondents
are therefore invited in petitions to reopen to show how the public
interest warrants the requested modification. Hart Letter at 5; 16 C.F.R.
§ 2.51. In such a case, the respondent must demonstrate as a threshold
matter some affirmative need to modify the order. Damon Corp., Docket
No. C-2916, Letter to Joel E. Hoffman, Esq. (March 29, 1983), 1979-83
Transfer Binder, FTC Complaints and Orders (CCH) ¶22,007 at 22,585
("Damon Letter"), at 2. For example, it may be in the public interest to
modify an order "to relieve any impediment to effective competition that
may result from the order." Damon Corp., Docket No. C-2916, 101
F.T.C. 689, 692 (1983). Once such a showing of need is made, the
Commission will balance the reasons favoring the requested
modification against any reasons not to make the modification. Damon
Letter at 2. The Commission also will consider whether the particular
modification sought is appropriate to remedy the identified harm. Damon
Letter at 4.
The language of Section 5(b) plainly anticipates that the burden is on the
petitioner to make a "satisfactory showing" of changed conditions to
obtain reopening of the order. The legislative history also makes clear
that the petitioner has the burden of showing, other than by conclusory
statements, why an order should be modified. The Commission "may
properly decline to reopen an order if a request is merely conclusory or
otherwise fails to set forth specific facts demonstrating in detail the
nature of the changed conditions and the reasons why these changed
conditions require the requested modification of the order." S. Rep. No.
96-500, 96th Cong., 1st Sess. 9-10 (1979); see also Rule 2.51(b)
(requiring affidavits in support of petitions to reopen and modify). If the
Commission determines that the petitioner has made the necessary
showing, the Commission must reopen the order to consider whether
modification is required and, if so, the nature and extent of the
modification. The Commission is not required to reopen the order,
however, if the petitioner fails to meet its burden of making the
satisfactory showing required by the statute. The petitioner's burden is
not a light one in view of the public interest in repose and the finality of
Commission orders. See Federated Department Stores, Inc. v. Moitie,
425 U.S. 394 (1981) (strong public interest considerations support
repose and finality).
REOPENING AND MODIFYING THE ORDER IS IN THE
Based on the record in this matter, Stop & Shop has not demonstrated
changes of fact that justify eliminating the remaining divestiture
requirement. However, public interest considerations warrant ending the
requirement to divest the Roslindale and Brookline supermarkets. Stop
& Shop has demonstrated an affirmative need for the change, and the
reasons to modify the Order outweigh the reasons to retain the
divestiture requirement as written.
A. Stop & Shop Has Not Demonstrated Changes of Fact
Reopening is not required for changes in circumstances that were
reasonably foreseeable at the time the consent order was entered. See
Pay Less Drug Stores Northwest, Inc., Docket No. C-3309, Letter to
H.B. Hummelt (Jan. 22, 1982) (changed conditions must be
unforeseeable, create severe competitive hardship, and eliminate the
dangers that the order sought to remedy). With respect to the Roslindale
market, the record shows that Sav-A-Lot's entry(14) took place shortly
before the Order was issued by the Commission. Consequently,
Sav-A-Lot's entry, as a factual matter, does not constitute the requisite
significant change in circumstances that requires reopening of the Order.
Likewise, with respect to the Brookline market, Star's entry took place
approximately five months before the Order in this matter was issued by
the Commission. Thus, as a factual matter, Star's entry does not constitute
a changed fact that would warrant modification of the Order with respect
to the Brookline store.
Trader Joe's entry in Brookline also does not constitute a changed fact
that eliminates the need for the divestiture of the Brookline store. Trader
Joe's potential entry into the relevant market was not an unforeseen
event; the record indicates that Trader Joe's was actively looking for
sites for stores in the relevant Boston metropolitan area market, which
includes Roslindale and Brookline, considerably before the Order was
issued by the Commission. More important, however, the Commission
does not consider the Trader Joe's store to be a "supermarket" as that
term is defined in the Order and its entry into the Brookline market thus
does not remedy the competitive harm resulting from Stop & Shop's
acquisition of the Purity supermarket in Brookline. See Order ¶ I.E.
B. Public Interest Considerations
Stop & Shop has demonstrated an affirmative need to modify the Order.
The record in this case shows that Stop & Shop has made good faith
efforts to locate purchasers for both the Roslindale and Brookline stores,
but has been unable to divest the two stores. Stop & Shop engaged the
services of a well-known investment banking firm to prepare offering
packages to potential acquirers. Subsequently, Stop & Shop contacted
numerous potential buyers regarding these supermarkets including,
among others, parties who ultimately acquired other stores Stop & Shop
was required to divest under the Order. Stop & Shop offered the
Roslindale and Brookline stores as part of larger packages, but the
potential acquirers desired only the other assets. Stop & Shop also
offered to divest the stores' equipment and fixtures for $1 and to
subsidize the rent, but again no acquirers expressed interest. In sum, none
of the parties contacted was interested in acquiring either the Roslindale
or the Brookline store.
When the Order was entered, the Commission believed that the
Roslindale and Brookline stores were divestable, and there is no
indication that Stop & Shop has not properly maintained and operated
these stores since entry of the Order. The declining sales and losses
experienced by the Roslindale and Brookline supermarkets thus do not
appear to be caused by any failure of Stop & Shop to maintain them.
Rather, the declining sales and losses appear to be primarily related to
the recent entry by Star and Sav-A-Lot. Although the entries occurred
prior to the Order becoming final, neither Commission staff nor Stop &
Shop anticipated the extent of competitive impact these two entrants have
had on the Roslindale and the Brookline store, respectively.
The increased competition in Roslindale and Brookline has adversely
affected the Roslindale and Brookline supermarkets' viability and
marketability, and it appears that the two stores will continue to sustain
significant losses. Consequently, continuation of the requirement to
divest and the requirement to maintain the viability and marketability of
the stores, which are steadily losing sales, imposes unanticipated costs
on Stop & Shop that it asserts impede its ability to compete in the
relevant markets. See Promodes, S.A., et al., Order Granting Request to
Reopen and Modify Order Issued May 17, 1990 (January 28, 1994).
This constitutes the affirmative need showing under the public interest
The remedial purpose of the Order was to restore and increase
competition in, among other markets, the Boston metropolitan area
through the sale of a specified number of supermarkets, including the
Roslindale and Brookline stores. Stop & Shop was able to divest all of
the specified stores except the stores located in Roslindale and
Brookline. These two stores could not be divested in more than fifteen
months(15) of serious efforts by Stop & Shop and the investment banker
it retained to assist it in its divestiture efforts. Given Stop & Shop's
efforts to divest, and the limited time remaining on the Brookline store's
lease, it is extremely unlikely that the stores can be divested consistent
with the terms of the Order.
Stop & Shop asserts that it is suffering continuing losses due to the
operation of the Roslindale and Brookline stores, which are
competitively harming Stop & Shop. Because it is extremely unlikely that
the stores can be divested, whether by Stop & Shop or by a trustee
appointed by the Commission, the remedial purpose of the Order will
not be achieved. Accordingly, on balance, the need to achieve the
marginal benefit of divesting two non-competitive supermarkets is
outweighed by the continuing costs that the divestiture obligation is
imposing on Stop & Shop.
Therefore, IT IS ORDERED that this matter be, and it hereby is,
reopened and that the Commission's Order be, and it hereby is, modified
to set aside Paragraph II.A.3.a. and Paragraph II.A.6.a, as of the
effective date of this order.
By the Commission, Commissioner Azcuenaga dissenting, and
Commissioner Starek concurring in the result only.
Donald S. Clark
ISSUED: June 20, 1997
DISSENTING STATEMENT OF COMMISSIONER
MARY L. AZCUENAGA
in The Stop and Shop Companies, Inc., Docket C-3649
The Commission today permits Stop and Shop to avoid its obligation
under the order to divest two stores in the Boston, Massachusetts, area,
because Stop and Shop has failed to divest the stores and the continuing
effort to do so is costly. Although I did not agree that these two stores
should be required to be divested,(1) the respondent's obligation under a
final order of the Commission should not be so readily excused. The
Commission's action opens the door for all respondents to postpone
divestiture, claim that the effort is costly, and avoid the obligation under
The order in this matter provides for the appointment of an independent
trustee to accomplish divestiture if Stop and Shop fails to do so in a
timely manner, but no trustee has been appointed. In Promodes, S.A.,(2)
cited as precedent for modifying this order, the obligation to divest was
set aside only after a trustee had been appointed and had failed to locate
an acquirer for the stores required to be divested. The inability of the
trustee to find an acquirer was cited in Promodes as "evidence that
divestiture of the two stores [was] extremely unlikely." I concurred in
Promodes,(3) on the ground that "[i]f the trustee cannot identify potential
buyers, continued imposition of the divestiture requirement no longer
serves the public interest." Comparable evidence of the public interest is
not available here, because no independent trustee has been appointed.
We have instead allegations of burden resulting from costs that surely
were anticipated at the time the order was signed. See Louisiana-Pacific
Corporation, 112 F.T.C. 547 (1989).
CONCURRING STATEMENT OF COMMISSIONER
MARY L. AZCUENAGA
in Promodes, S.A., Docket 9228
I concur in the decision to reopen and modify the order, relieving the
respondents of the obligation to divest certain supermarkets in
Chattanooga, Tennessee. The Commission-appointed trustee, during a
21-month period, has not accomplished the required divestitures. In
classic understatement, the Commission concludes that the trustee's lack
of success is "evidence that divestiture of the two stores is extremely
A Commission-appointed trustee serves as a neutral arbiter to establish
whether the divestiture required by the order can be accomplished
(assuming the trustee's good faith and diligence and the absence of
evidence that the respondent has frustrated the trustee's efforts). If the
trustee cannot identify potential buyers, continued imposition of the
divestiture requirement no longer serves the public interest. In these
circumstances, the requirement imposes costs, and the respondent need
not make a particularized showing of those costs.
The Commission has in the past recognized that an obligation to divest
particular assets may be modified in the public interest when the
respondent "has been unable to find an acquirer [for those assets] at any
price." RSR Corporation, 98 F.T.C. 872 (1981); compare
Louisiana-Pacific Corporation, 112 F.T.C. 547, 561 (1989) (asserted
financial disadvantage distinguished from impossibility). The trustee
having failed to effect divestiture, the requirement now should be lifted.
(1) On July 21, 1996, Koninklijke Ahold N.V., a Netherlands
corporation, acquired substantially all of the outstanding voting shares of
Stop & Shop.
(2) Complaint ¶ 9.
(3) Id. ¶ 12.c.
(4) Stop & Shop also entered into a separate consent agreement with the
Massachusetts Attorney General. Generally, this agreement mirrors the
terms of the Commission's consent agreement. See Commonwealth of
Massachusetts v. SSC Associates, L.P. and Stop & Shop Companies,
Inc., No. 95-12377NG (D. Mass. Oct. 18, 1995) (Consent Decree).
(5) Order ¶ II.A.
(6) Id. ¶ II.B.
(7) In support of its Petition, Stop & Shop provided the affidavits of
Brian Hotarek, Vice President in charge of Real Estate and Development
for the Stop & Shop Companies, Inc. ("Hotarek Affidavit"), and William
C. Hamlin, Vice President, Chief Financial Officer and Secretary of
C&S Wholesale Grocers, Inc. ("Hamlin Affidavit").
(8) Order ¶¶ II.A.3.a. and II.A.6.a.
(9) Stop & Shop does not assert that any change of law requires
reopening the Order.
(10) Petition at 7-10.
(11) Petition at 12-14.
(12) Petition at 17. See also Hotarek Affidavit, ¶¶ 16
(13) See also United States v. Louisiana-Pacific Corp., 967 F.2d 1372,
1376-77 (9th Cir. 1992) ("A decision to reopen does not necessarily
entail a decision to modify the order. Reopening may occur even where
the petition itself does not plead facts requiring modification.").
(14) Although Sav-A-Lot offers many items sold through supermarkets,
Stop & Shop has not demonstrated that the Sav-A-Lot carries all relevant
product categories identified in Paragraph I.E. of the Order. Nor has it
demonstrated that the Sav-A-Lot carries the variety of brands and sizes
within a category that would be found in Stop & Shop's comparable
supermarkets. Nonetheless, it is evident that the Sav-A-Lot is attracting
business away from Stop & Shop's supermarkets.
(15) Stop & Shop began its divestiture efforts immediately after signing
the consent agreement in October 1995.
(1) See Separate Statement of Commissioner Mary L. Azcuenaga,
Concurring in Part and Dissenting in Part, in The Stop and Shop
Companies, Inc., Docket C-3649 (April 8, 1996).
(2) Promodes, S.A., Order Granting Request To Reopen and Modify
Order Issued May 17, 1990 (Jan. 28, 1994), reprinted in 5 Trade Reg.
Rep. (CCH) ¶ 23,540.
(3) A copy of my concurring statement in Promodes is attached.