UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
- Robert Pitofsky, Chairman
- Sheila F. Anthony
- Mozelle W. Thompson
- Orson Swindle
- Thomas B. Leary
In the Matter of
WINN-DIXIE STORES, INC., a corporation.
Docket No. C-
DECISION AND ORDER
The Federal Trade Commission ("Commission") having initiated an investigation
of the proposed acquisition by Respondent Winn-Dixie Stores, Inc. ("Winn-Dixie")
of certain assets from Jitney-Jungle Stores of America, Inc. ("Jitney-Jungle"),
an entity controlled by Bruckmann, Rosser, Sherrill & Co., L.P., and Respondent having
been furnished with a copy of a draft Complaint that the Bureau of Competition proposed to
present to the Commission for its consideration, and which, if issued by the Commission,
would charge Respondent with violations of Section 5 of the Federal Trade Commission Act,
as amended, 15 U.S.C. § 45, and Section 7 of the Clayton Act, as amended, 15 U.S.C.
§ 18; and
Respondent, its attorneys, and counsel for the Commission having thereafter executed an
Agreement Containing Consent Order ("Consent Agreement"), an admission by
Respondent of all the jurisdictional facts set forth in the aforesaid draft of Complaint,
containing a statement that the signing of said Consent Agreement is for settlement
purposes only and does not constitute an admission by Respondent that the law has been
violated as alleged in such Complaint, other than jurisdictional facts, are true, and
waivers and other provisions as required by the Commission's Rules; and
The Commission having thereafter considered the matter and having determined that it
had reason to believe that the Respondent has violated the said Acts, 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
thirty (30) days for the receipt and consideration of public comments, now in further
conformity with the procedure prescribed in Section 2.34 of its Rules, the Commission
hereby issues its Complaint, makes the following jurisdictional findings and issues the
following Decision and Order:
- a. Respondent Winn-Dixie is a corporation organized, existing and doing business under
and by virtue of the laws of the State of Florida, with its office and principal place of
business located at 5050 Edgewood Court, Jacksonville, Florida 32254.
- b. The Federal Trade Commission has jurisdiction of the subject matter of this
proceeding and of the Respondent, and the proceeding is in the public interest.
IT IS ORDERED that, as used in this Order, the following definitions
- A. "Winn-Dixie" or "Respondent" means Winn-Dixie Stores, Inc., its
directors, officers, employees, agents, representatives, predecessors, successors, and
assigns; its subsidiaries, divisions, groups, and affiliates controlled by Winn-Dixie, and
the respective directors, officers, employees, agents, representatives, successors, and
assigns of each. Winn-Dixie, after consummation of the Acquisition, includes the assets
that it is acquiring from Jitney-Jungle.
- B. "Jitney-Jungle" means Jitney-Jungle Stores of America, Inc., a corporation
organized, existing and doing business under and by virtue of the laws of the State of
Mississippi, with its office and principal place of business located at 1770 Ellis Avenue,
Suite 200, Jackson, Mississippi 39202, and includes its subsidiaries, divisions, groups,
and affiliates controlled by Jitney-Jungle, including Interstate Jitney Jungle Stores,
Inc., Pump and Save, Inc., P&S Operations, Inc., Supermarket Cigarette Sales, Inc.,
Delchamps, Inc., and Southern Jitney Jungle Company, Inc.
- C. "Acquisition" means the October 29, 2000, "Agreement for Purchase and
Sale of Retail Grocery Stores By and Between Interstate Jitney Jungle Stores, Inc., Pump
and Save, Inc., P&S Operations, Inc., Supermarket Cigarette Sales, Inc., Jitney-Jungle
Stores of America, Inc., Delchamps, Inc., and Southern Jitney Jungle Company, Inc. and
Winn-Dixie Stores, Inc." pursuant to which Winn-Dixie will acquire certain assets
from Jitney-Jungle and will merge them into Winn-Dixie.
- D. "Commission" means the Federal Trade Commission.
- E. "Supermarket" means a full-line retail grocery store that carries a wide
variety of food and grocery items in particular product categories, including bread and
dairy products; refrigerated and frozen food and beverage products; fresh and prepared
meats and poultry; produce, including fresh fruits and vegetables; shelf-stable food and
beverage products, including canned and other types of packaged products; staple
foodstuffs, which may include salt, sugar, flour, sauces, spices, coffee, and tea; and
other grocery products, including nonfood items such as soaps, detergents, paper goods,
other household products, and health and beauty aids.
IT IS FURTHER ORDERED that:
- A. For a period of ten (10) years commencing on the date this Order becomes final,
Respondent shall not, without the prior approval of the Commission, directly or
indirectly, through subsidiaries, partnerships, or otherwise, acquire any stock, share
capital, equity, or other interest in any supermarket or leasehold interest in any
supermarket located at:
- 1. 65 Poinciana Boulevard, Destin, Florida 32541 (Walton County);
- 2. 1104 John Sims Parkway, Niceville, Florida 32578 (Okaloosa County);
3. 334 Gulf Breeze Parkway, Gulf Breeze, Florida 32561 (Santa Rosa County); and
- 4. 171 Porter Avenue, Biloxi, Mississippi 39530 (Harrison County),
- including any facility that has operated as a supermarket at such location within six
(6) months of the date of the proposed acquisition.
- B. The purpose of this prohibition is to ensure the
continuation of these assets as ongoing viable enterprises engaged in the Supermarket
business and to remedy the lessening of competition resulting from the Acquisition alleged
in the Commission's Complaint.
IT IS FURTHER ORDERED that, for a period of ten (10) years from the
date this Order becomes final, Respondent shall not, directly or indirectly, through
subsidiaries, partnerships, or otherwise, without providing advance written notification
to the Commission:
- A. Acquire any ownership or leasehold interest in any facility that has operated as a
Supermarket within six (6) months prior to the date of such proposed acquisition in
Okaloosa, Santa Rosa or Walton counties in Florida; Hancock, Harrison, Jackson or
Lauderdale counties in Mississippi; St. Tammany Parish, Louisiana; or Mobile County,
- B. Acquire any stock, share capital, equity, or other interest in any entity that owns
any interest in or operates any Supermarket or owned any interest in or operated any
Supermarket within six (6) months prior to such proposed acquisition in Okaloosa, Santa
Rosa or Walton counties in Florida; Hancock, Harrison, Jackson or Lauderdale counties in
Mississippi; St. Tammany Parish, Louisiana; or Mobile County, Alabama.
Provided, however, that advance written notification shall not apply to the
construction of new facilities by Respondent or the acquisition of or leasing of a
facility that has not operated as a Supermarket within six (6) months prior to
Respondent's offer to purchase or lease.
Said notification shall be given on the Notification and Report Form set forth in the
Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended
(hereinafter referred to as "the Notification"), and shall be prepared and
transmitted in accordance with the requirements of that part, except that no filing fee
will be required for any such notification, notification shall be filed with the Secretary
of the Commission, notification need not be made to the United States Department of
Justice, and notification is required only of Respondent and not of any other party to the
transaction. Respondent shall provide the Notification to the Commission at least thirty
(30) days prior to consummating any such transaction (hereinafter referred to as the
"first waiting period"). If, within the first waiting period, representatives of
the Commission make a written request for additional information or documentary material
(within the meaning of 16 C.F.R. § 803.20), Respondent shall not consummate the
transaction until twenty (20) days after substantially complying with such request. Early
termination of the waiting periods in this Paragraph may be requested and, where
appropriate, granted by letter from the Bureau of Competition. Provided, however, that
prior notification shall not be required by this Paragraph for a transaction for which
notification is required to be made, and has been made, pursuant to Section 7A of the
Clayton Act, 15 U.S.C. § 18a.
IT IS FURTHER ORDERED that, for a period of ten (10) years commencing
on the date this Order becomes final:
- A. Respondent shall neither enter into nor enforce any agreement that restricts the
ability of any person (as defined in Section 1(a) of the Clayton Act, 15 U.S.C.
§ 12(a)) that acquires any Supermarket, any leasehold interest in any Supermarket,
or any interest in any retail location used as a Supermarket on or after January 1, 2000,
in Okaloosa, Santa Rosa or Walton counties in Florida; Hancock, Harrison, Jackson or
Lauderdale counties in Mississippi; St. Tammany Parish, Louisiana; or Mobile County,
Alabama to operate a Supermarket at that site if such Supermarket was formerly owned or
operated by Respondent.
- B. Respondent shall not remove any fixtures or equipment from a property owned or leased
by Respondent in Okaloosa, Santa Rosa or Walton counties in Florida; Hancock, Harrison,
Jackson or Lauderdale counties in Mississippi; St. Tammany Parish, Louisiana; or Mobile
County, Alabama, that is no longer in operation as a Supermarket, except (1) prior to and
as part of a sale, sublease, assignment, or change in occupancy of such Supermarket; (2)
to relocate such fixtures or equipment in the ordinary course of business to any other
Supermarket owned or operated by Respondent; or (3) otherwise with the prior approval of
IT IS FURTHER ORDERED that, one (1) year from the date this Order
becomes final, annually for the next nine (9) years on the anniversary of the date this
Order becomes final, and at other times as the Commission may require, Respondent shall
file verified written reports with the Commission setting forth in detail the manner and
form in which it has complied and is complying with this Order.
IT IS FURTHER ORDERED that Respondent shall notify the Commission at
least thirty (30) days prior to any proposed change in the corporate Respondent, such as
dissolution, assignment, sale resulting in the emergence of a successor corporation, or
the creation or dissolution of subsidiaries or any other change the corporation that may
affect compliance obligations arising out of the Order.
IT IS FURTHER ORDERED that, for the purpose of determining or securing
compliance with this Order, and subject to any legally recognized privilege, upon written
request with reasonable notice to Respondent, Respondent shall permit any duly authorized
representative of the Commission:
- A. Access, during office hours and in the presence of counsel, to all facilities and
access to inspect and copy all non-privileged books, ledgers, accounts, correspondence,
memoranda and other records and documents in the possession or under the control of
Respondent relating to any matters contained in this Order; and
- B. Without restraint or interference from Respondent, to interview officers, directors,
or employees of Respondent, who may have counsel present, regarding any such matters.
IT IS FURTHER ORDERED that this Order shall terminate ten (10) years
from the date this Order becomes final.
By the Commission.
Donald S. Clark