Furr's Supermarkets, Inc. has Petitioned the Federal Trade Commission to Reopen and Modify or Clarify a 1988 Consent Order

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Furr's Supermarkets, Inc. has petitioned the Federal Trade Commission to reopen and modify or clarify a 1988 consent order to allow Furr's to acquire supermarkets it currently operates as a lessee in 19 areas in New Mexico and western Texas, without first obtaining FTC approval. Furr's Supermarkets notes that it still would be required to obtain FTC approval before acquiring any competitor's retail grocery store in those areas.

The petition will be subject to public comment for 30 days, until May 15, after which the Commission will make its decision.

Furr's Supermarkets is based in Albuquerque, New Mexico. The FTC entered into the 1988 consent order at issue with Super- market Development Corporation (now known as Rubus Development Corporation) and Furr's, Inc. (now Rubus Realty Company) to settle allegations that their 1987 acquisition of the El Paso Division of Safeway Stores, Inc. would substantially reduce supermarket competition in 12 towns -- Alamogordo, Artesia, Clovis, Espanola, Hobbs, Las Vegas, Lovington, Portales, Roswell, and Silver City, New Mexico; and Fort Stockton and Pecos, Texas. The consent order required Supermarket Development Corporation and Furr's, Inc. to divest a store in each of the 12 markets to an entity that would be a competitor. The consent order also includes the prior approval provision for supermarket acquisi- tions in 19 areas: Albuquerque, Alamogordo, Artesia, Carlsbad, Clovis, Espanola, Hobbs, Las Cruces, Las Vegas, Lovington, Portales, Roswell, Santa Fe and Silver City, New Mexico; and El Paso, Fort Stockton, Midland, Odessa, and Pecos, Texas.

Furr's Supermarkets acquired 69 retail grocery stores from Rubus Development Corporation and Rubus Realty Company in March 1991, and as a successor to them, is bound by the 1988 consent order.

Furr's Supermarkets asserts in its petition that the intent of the consent order was to restrict it from acquiring retail grocery stores operated by third parties without first obtaining FTC approval and not to restrict or prohibit Furr's Supermarkets from acquiring stores it currently is operating in the 19 cities. "Such acquisitions clearly have no meaningful effect, adverse or otherwise, on competition in the cities and towns specified in the Consent order," the petition states, adding that "the Com- mission's approval process preclude[s] FSI from exercising valuable first refusal rights contained in certain leases or from acquiring the fee simple interest in real estate in which it operates a store except in unusual circumstances." The petition goes on to list examples of situations in which Furr's Supermar- kets maintains it has been competitively disadvantaged by the prior approval provision as it applies to stores the company already operates.

Comments on the petition should be addressed to the FTC, Office of the Secretary, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580.

Copies of the petition, the 1988 consent order and other documents associated with this case are available from the FTC's Public Reference Branch, Room 130, at the above address.

(FTC Docket No. C-3224)