IN THE UNITED STATES DISTRICT COURT
FEDERAL TRADE COMMISSION,
RITE AID CORPORATION,
Civil Action No.
MOTION FOR ENTRY OF JUDGMENT
Plaintiff, the Federal Trade Commission, having filed its Complaint in the above-captioned case, and having filed this date a Stipulation and proposed Final Judgment, hereby moves this Court for entry of the Final Judgment. By agreement of the parties, the Final Judgment against Rite Aid Corporation, authorized by Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), provides for the payment of nine hundred thousand dollars ($900,000). The parties have agreed that the Final Judgment may be entered on the motion of either party.
STATEMENT OF POINTS AND AUTHORITIES
The Complaint in this action alleges that defendant Rite Aid Corporation violated the order entered by the Federal Trade Commission in FTC Docket No. C-3546. Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), authorizes the imposition of civil penalties of not more than $11,000 per violation, and appropriate equitable relief, for violations of Federal Trade Commission orders.(1) In the case of a continuing violation, each day is considered a separate violation. Accordingly, the Complaint seeks "an appropriate civil penalty." As the Stipulation and proposed Final Judgment indicate, defendant has agreed to pay a civil penalty of nine hundred thousand United States dollars ($900,000), payable within thirty (30) days after entry of the Final Judgment.
The Commission submits that the proposed settlement in this action is in the public interest in that it is fair, adequate and reasonable based on consideration of the factors discussed below.(2) These factors include, among others: the need to deter similar conduct by this defendant and others; the need to remedy the harm to the public; and the need to vindicate the authority of the Commission and the rule of law.(3)
Here, payment to the United States Treasury by the defendant of the $900,000 civil penalty set by the Final Judgment is in the public interest because it likely will have the desired deterrent effect, by signaling to the defendant, other industry participants and other respondents subject to Commission orders, that Commission orders cannot be violated without significant consequences. The requirement that respondent divest the assets required to be divested by a certain deadline, the provision of the Commissions order that defendant violated, is a standard requirement in the Commissions divestiture orders and is central to the Commissions ability to remedy unlawful mergers. Finally, the settlement will also demonstrate the Commissions commitment to assuring the compliance by respondents with the terms of the Commissions orders and will vindicate the authority of the Commission and the rule of law. By achieving these purposes of this enforcement action, the Final Judgment is in the public interest. For the above reasons, the Federal Trade Commission moves the Court to enter the Final Judgment in this case.
Anne R. Schenof
Dated: , 1998
(1)The penalty amount was increased to a maximum civil penalty of $11,000 per violation for violations occurring on or after November 20, 1996, pursuant to the Debt Collection Act of 1996, Pub.L. 104-134 § 31001(s)(amending the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461), and FTC Rule 1.98, 16 C.F.R. § 1.98, 61 Fed. Reg. 54549 (Oct. 21, 1996). Although defendant Rite Aids failure to divest as complained of in the Complaint began prior to the date the penalty amount was increased, it continued beyond that date.
(2)See Securities And Exchange Commission v. James H. Randolph, Jr., et al., 736 F.2d 525, 529 (9th Cir. 1984) ("[u]nless a consent decree is unfair, inadequate, or unreasonable, it ought to be approved.").
(3)See United States v. Papercraft Corp., 540 F.2d 131,141 (3rd Cir. 1976); United States v. J.B. Williams Co., 498 F.2d 414 (2nd Cir. 1975); United States v. Louisiana-Pacific Corp., 1990-2 Trade Cas. (CCH) ¶ 69,166 at 64,393 (D.Or. 1990), affd 967 F.2d 1372 (9th Cir. 1992).