TCH Corporation, et al.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 931 0024]

TCH Corporation, et al.; Proposed Consent Agreement With Analysis

To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

require, among other things, two California-based corporations to

divest, within one year, to a Commission-approved buyer, the pharmacy

business in either the Payless or the Thrifty or Bi-Mart stores in five

designated areas, would require the respondents to ensure that the

assets to be divested remain viable and marketable, and for ten years

would require that the respondents obtain Commission approval prior to

acquiring any stock in any entity engaged in the retail pharmacy

business in the areas designated.

DATES: Comments must be received on or before June 3, 1994.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:Laura Wilkinson, FTC/S-2224,

Washington, DC 20580. (202) 326-2830.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and section 2.34 of

the Commission's Rules of Practice (16 CFR 2.34), notice is hereby

given that the following consent agreement containing a consent order

to cease and desist, having been filed with and accepted, subject to

final approval, by the Commission, has been placed on the public record

for a period of sixty (60) days. Public comment is invited. Such

comments or views will be considered by the Commission and will be

available for inspection and copying at its principal office in

accordance with section 4.9(b)(6)(ii) of the Commission's Rules of

Practice (16 CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

In the Matter of: TCH Corporation, a corporation, and Green

Equity Investors, L.P., a limited partnership.

The Federal Trade Commission (``Commission'') having initiated an

investigation of the proposed acquisition of certain stock and assets

of Kmart Corporation by TCH Corporation (``TCH''), a Delaware

corporation, and Green Equity Investors, L.P. (``GEI''), a Delaware

investment limited partnership, hereinafter sometimes referred to,

collectively, as ``Proposed Respondents''; and it now appearing that

TCH and GEI are willing to enter into an Agreement Containing Consent

Order (``Agreement'') to divest certain assets, cease and desist from

certain acts, and to provide for certain other relief.

It is hereby agreed by and between Proposed Respondents, by their

duly authorized officers and attorneys, and counsel for the Commission

that:

1. Proposed Respondent TCH is a Delaware corporation with its

office and principal place of business at 3424 Wilshire Boulevard, Los

Angeles, CA 90010.

2. Proposed Respondent GEI is a Delaware investment limited

partnership with its office and principal place of business at 333

South Grand Avenue, suite 5400, Los Angeles, CA 90071.

3. Proposed Respondents admit all the jurisdictional facts set

forth in the draft of complaint here attached.

4. Proposed Respondents waive:

(a) Any further procedural steps;

(b) The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

(c) All rights to seek judicial review or otherwise to challenge or

contest the validity of the order entered pursuant to this agreement;

and

(d) Any claim under the Equal Access to Justice Act.

5. This agreement shall not become part of the public record of the

proceeding unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission it, together with the draft of

complaint contemplated thereby, will be placed on the public record for

a period of sixty (60) days and information in respect thereto publicly

released. The Commission thereafter may either withdraw its acceptance

of this agreement and so notify the Proposed Respondents, in which

event it will take such action as it may consider appropriate, or issue

and serve its complaint (in such form as the circumstances may require)

and decision, in disposition of the proceeding.

6. This agreement is for settlement purposes only and does not

constitute an admission by the Proposed Respondents that the law has

been violated as alleged in the draft of complaint here attached, or

that the facts as alleged in the draft complaint, other than the

jurisdictional facts, are true.

7. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Section 2.34 of the

Commission's Rules, the Commission may, without further notice to

Proposed Respondents, (1) Issue its complaint corresponding in form and

substance with the draft of complaint here attached and its decision

containing the following Order to divest and to cease and desist, and

for other relief in disposition of the proceeding, and (2) make

information public with respect thereto. When so entered, the Order

shall have the same force and effect and may be altered, modified, or

set aside in the same manner and within the same time provided by

statute for other orders. The Order shall become final upon service.

Delivery by the United States Postal Service of the complaint and

decision containing the agreed-to Order to Proposed Respondents'

addresses as stated in this agreement shall constitute service.

Proposed Respondents waive any right they may have to any other manner

of service. The complaint may be used in construing the terms of the

Order, and no agreement, understanding, representation, or

interpretation not contained in the Order or the agreement may be used

to vary or contradict the terms of the Order.

8. Proposed Respondents have read the proposed Complaint and Order

contemplated hereby. Proposed Respondents understand that once the

Order has been issued, they will be required to file one or more

compliance reports showing they have fully complied with the Order.

Proposed Respondents further understand that they may be liable for

civil penalties in the amount provided by law for each violation of the

Order after it becomes final.

Order

I

It is ordered that, as used in this Order, the following

definitions shall apply:

A. ``TCH'' or ``Thrifty'' means TCH Corporation, a corporation

organized, existing, and doing business under and by the virtue of the

laws of Delaware, its subsidiaries, divisions, and groups controlled by

TCH, and their respective directors, officers, agents, representatives,

and their respective successors and assigns.

B. ``GEI'' means Green Equity Investors, L.P., an investment

limited partnership organized, existing, and doing business under and

by the virtue of the laws of Delaware, its general partners,

subsidiaries, divisions, and groups controlled by GEI, and their

respective directors, officers, agents, representatives, and their

respective successors and assigns.

C. ``Respondents'' means TCH and GEI.

D. ``Commission'' means the Federal Trade Commission.

E. ``Acquisition'' means the acquisition of the voting stock of

PayLess Drug Stores Northwest, Inc., a wholly-owned subsidiary of Kmart

Corporation, by Respondents TCH and GEI.

F. ``Acquirer'' means the party or parties to whom Respondents TCH

and GEI divest the assets herein ordered to be divested.

G. ``Prescription drugs'' means ethical drugs available at retail

only by prescription.

H. ``PayLess Pharmacy Business'' means PayLess's business of

selling prescription drugs at retail stores located in any of the

cities or towns listed in Paragraph I.L. of this Order, but does not

include PayLess's business of selling other products in those retail

stores.

I. ``PayLess Pharmacy Assets'' means all assets constituting the

PayLess Pharmacy Business, excluding those assets pertaining to the

PayLess trade name, trade dress, trade marks and service marks, and

including but not limited to:

1. Leases and properties, at the Acquirer's option;

2. Zoning approval and registrations, at the Acquirer's option;

3. Books, records, reports, dockets and lists relating to the

PayLess Pharmacy Business;

4. Lists of stock keeping units (``SKUs''), i.e., all forms,

package sizes and other units in which prescription drugs are sold and

which are used in records of sales and inventories;

5. Lists of all customers, including but not limited to third party

insurers, including all files of names, addresses, and telephone

numbers of the individual customer contacts, and the unit and dollar

amounts of sales, by product, to each customer;

6. All names of prescription drug manufacturers and distributors

under contract with PayLess;

7. All price lists for prescription drugs, operating manuals, and

advertising and promotional materials, at the Acquirer's option, but

only if the divestiture is to an Acquirer that does not already operate

a pharmacy in any location; and

8. Goodwill, tangible and intangible, utilized in the sale of

prescription drugs.

J. ``Thrifty and Bi-Mart Pharmacy Business'' means Thrifty's

business of selling prescription drugs at retail stores located in any

of the cities or towns listed in Paragraph I.L. of this Order, but does

not include Thrifty's business of selling other products in those

retail stores.

K. ``Thrifty and Bi-Mart Pharmacy Assets'' means all assets

constituting the Thrifty and Bi-Mart Pharmacy Business, excluding those

assets pertaining to the Thrifty and Bi-Mart trade names, trade dress,

trade marks and service marks, and including but not limited to:

1. Leases and properties, at the Acquirer's option;

2. Zoning approvals and registrations, at the Acquirer's option;

3. Books, records, manuals, dockets and lists, relating to the

Thrifty and Bi-Mart Pharmacy Business;

4. Lists of SKUs, i.e., all forms, package sizes and other units in

which prescription drugs are sold and which are used in records of

sales and inventories;

5. Lists of all customers, including but not limited to third party

insurers, including all files of names, addresses, and telephone

numbers of the individual customer contacts, and the unit and dollar

amounts of sales, by product, to each customer;

6. All names of prescription drug manufacturers and distributors

under contract with Thrifty;

7. All price lists for prescription drugs, operating manuals, and

advertising and promotional materials, at the Acquirer's option, but

only if the divestiture is to an Acquirer that does not already operate

a pharmacy in any location; and

8. Goodwill, tangible and intangible, utilized in the sale of

prescription drugs.

L. ``Assets To Be Divested'' means either the PayLess Pharmacy

Assets or the Thrifty and Bi-Mart Pharmacy Assets located in the

following cities or towns:

1. Bishop, California;

2. Mt. Shasta, California;

3. Taft, California;

4. Florence, Oregon; and

5. Ellensburg, Washington.

II

It is further ordered that:

A. Respondent shall divest, absolutely and in good faith, within

one (1) year of the date this Order becomes final, the Assets To Be

Divested.

B. Divestiture of the Assets To Be Divested by Respondents shall be

made only to an acquirer or acquirers that receive the prior approval

of the Commission and only in a manner that receives the prior approval

of the Commission. The purpose of the divestiture of the Assets To Be

Divested is to ensure the continuation of the Assets To Be Divested as

ongoing viable pharmacies engaged in the same businesses in which the

Assets To Be Divested are presently employed and to remedy the

lessening of competition resulting from the acquisition as alleged in

the Commission's complaint.

C. Pending final divestiture of the Assets To Be Divested,

Respondents shall take such action as is necessary to maintain the

viability and marketability of the Assets To Be Divested and shall not

cause or permit the destruction, removal, wasting, deterioration, or

impairment of any Assets To Be Divested except in the ordinary course

of business and except for ordinary wear and tear.

D. If a divestiture includes a lease of physical space, and if

pursuant to that lease a Respondent through default of the lease or

otherwise regains possession of the space, Respondents must notify the

Commission of such repossession within thirty (30) days and must

redivest such assets or interest pursuant to Paragraph II of this Order

within six (6) months of such repossession.

III

It is further ordered that:

A. If Respondents have not divested, absolutely and in good faith

and with the Commission's prior approval, the Assets To Be Divested

within one (1) year of the date this Order becomes final, Respondents

shall consent to the appointment by the Commission of a trustee to

divest the Assets To Be Divested. Provided, however, that if the

Commission has not approved or disapproved a proposed divestiture

within 120 days of the date the application for such divestiture has

been put on the public record, the running of the divestiture period

shall be tolled until the Commission approves or disapproves the

divestiture. In the event the Commission or the Attorney General brings

an action pursuant to section 5(l) of the Federal Trade Commission Act,

15 U.S.C. section 45(l), or any other statute enforced by the

Commission, Respondents shall consent to the appointment of a trustee

in such action. Neither the appointment of a trustee nor a decision not

to appoint a trustee under this Paragraph shall preclude the Commission

or the Attorney General from seeking civil penalties or any other

relief available to it for any failure by Respondents to comply with

this Order.

B. If a trustee is appointed by the Commission or a court pursuant

to Paragraph III.A. of this Order, Respondents shall consent to the

following terms and conditions regarding the trustee's powers, duties,

authorities, and responsibilities:

1. The Commission shall select the trustee, subject to the consent

of Respondents, which consent shall not be unreasonably withheld. The

trustee shall be a person with experience and expertise in acquisitions

and divestitures. If Respondents have not opposed, in writing, the

selection of any proposed trustee within ten (10) days after notice by

the staff of the Commission to Respondents of the identity of any

proposed trustee, Respondents shall be deemed to have consented to the

selection of the proposed trustee.

2. The trustee shall, subject to the prior approval of the

Commission, have the exclusive power and authority to divest the Assets

To Be Divested.

3. The trustee shall have twelve (12) months from the date the

Commission approves the trust agreement described in Paragraph III.B.8.

of this Order to accomplish the divestiture. If, however, at the end of

the twelve-month period the trustee has submitted a plan of divestiture

or believes that divestiture can be accomplished within a reasonable

time, the twelve-month divestiture period may be extended by the

Commission, or in the case of a court appointed trustee by the court;

provided, however, the Commission may extend the twelve (12) month

divestiture period only two (2) times.

4. The trustee shall have full and complete access to the

personnel, books, records, and facilities related to the Assets To Be

Divested, or to any other relevant information, as the trustee may

reasonably request. Respondents shall develop such financial or other

information as such trustee may reasonably request and shall cooperate

with the trustee. Respondents shall take no action to interfere with or

impede the trustee's accomplishment of the divestiture. Any delays in

divestiture caused by Respondents shall extend the time for divestiture

under Paragraph III.B.3. in an amount equal to the delay, as determined

by the Commission or for a court-appointed trustee, by the court.

5. Subject to Respondents' absolute and unconditional obligation to

divest at no minimum price and the purpose of the divestiture as stated

in Paragraph II.B., the trustee shall use his or her best efforts to

negotiate the most favorable price and terms available in each contract

that is submitted to the Commission. The divestiture shall be made in

the manner set out in Paragraph II of this Order. Provided, however, if

the trustee receives bona fide offers from more than one acquirer, and

if the Commission determines to approve more than one such acquirer,

the trustee shall divest to the acquirer selected by Respondents from

among those approved by the Commission.

6. The trustee shall serve, without bond or other security, at the

cost and expense of Respondents, on such reasonable and customary terms

and conditions as the Commission or a court may set. The trustee shall

have authority to employ, at the cost and expense of Respondents, such

consultants, accountants, attorneys, investment bankers, business

brokers, appraisers, and other representatives and assistants as are

reasonably necessary to carry out the trustee's duties and

responsibilities. The trustee shall account for all monies derived from

the divestiture and all expenses incurred. After approval by the

Commission and, in the case of a court-appointed trustee, by the court,

of the account of the trustee, including fees for his or her services,

all remaining monies shall be paid at the direction of Respondents and

the trustee's power shall be terminated. The trustee's compensation

shall be based at least in significant part on a commission

arrrangement contingent on the trustee's divesting the Assets To Be

Divested.

7. Respondents shall indemnify the trustee and hold the trustee

harmless against any losses, claims, damages, liabilities, or expenses

arising out of, or in connection with, the performance of the trustee's

duties including all reasonable fees of counsel and other expenses

incurred in connection with the preparations for, or defense of any

claim whether or not resulting in any liability, except to the extent

that such liabilities, losses, damages, claims, or expenses result from

misfeasance, gross negligence, willful or wanton acts, or bad faith by

the trustee.

8. Within ten (10) days after appointment of the trustee, and

subject to the prior approval of the Commission and, in the case of a

court-appointed trustee, of the court, Respondents shall execute a

trust agreement that transfers to the trustee all rights and powers

necessary to permit the trustee to effect the divestiture required by

this Order.

9. If the trustee ceases to act or fails to act diligently, a

substitute trustee shall be appointed in the same manner as provided in

Paragraph III.A. of this Order.

10. The Commission or, in the case of a court-appointed trustee,

the court, may on its own initiative or at the request of the trustee

issue such additional orders or directions as may be necessary or

appropriate to accomplish the divestiture required by this Order.

11. The trustee shall have no obligation or authority to operate or

maintain the Assets To Be Divested.

12. The trustee shall report in writing to Respondents and to the

Commission every sixty (60) days concerning the trustee's efforts to

accomplish divestiture.

IV

It is further ordered that, within sixty (60) days after the date

this Order becomes final and every sixty (60) days thereafter until

Respondents have fully complied with the provisions of Paragraphs II.

and III. of this Order, Respondents shall submit to the Commission a

verified written report setting forth in detail the manner and form in

which they intend to comply, are complying, and have complied with

those provisions. Respondents shall include in their compliance

reports, among other things that are required from time to time, a full

description of the efforts being made to comply with Paragraph II and

III of the Order, including a description of all substantive contacts

or negotiations for the divestiture and the identity of all parties

contacted. Respondents also shall include in their compliance reports

copies of all written communications to and from such parties, all

internal memoranda, and all reports and recommendations concerning

divestiture.

V

It is further ordered that, for a ten (10) year period commencing

on the date this Order becomes final, Respondents shall not, without

the prior approval of the Commission, directly or indirectly, through

subsidiaries, partnerships, or otherwise:

(A) Acquire any stock, share capital, equity, leasehold or other

interest in any concern, corporate or non-corporate, engaged in the

business of selling prescription drugs at retail stores located in any

of the cities or towns listed in Paragraph I.L. of this Order or

previously engaged in the business of selling prescription drugs at

retail stores located in any of the cities or towns listed in Paragraph

I.L. of this Order within the six-month period prior to such

acquisition; or

(B) Acquire any assets used for, or previously used for (and still

suitable for use for), the business of selling prescription drugs at

retail stores located in any of the cities or towns listed in Paragraph

I.L. of this Order. Provided, however, that these prohibitions shall

not relate to the construction of new facilities or the acquisition or

lease of facilities that have not operated as pharmacies within six

months of the date of the offer to acquire or lease. Provided further,

that the requirement of prior Commission approval set out in this

Paragraph shall not apply to a Respondent contemplating an acquisition

otherwise subject to prior Commission approval if, at the time of such

acquisition, that Respondent does not own, directly or indirectly, any

interest in the whole or any part of the stock or share capital of, any

company that is engaged in the business of selling prescription drugs

at retail stores located in any of the cities or towns listed in

Paragraph I.L. of this Order or any asset used or previously used

within the previous six-months in (and still suitable for use in) the

business of selling prescription drugs at retail stores located in any

of the cities or towns listed in Paragraph I.L. of this Order.

Provided, however, that for any such acquisition exempted from the

requirements of this Paragraph, each acquiring Respondent shall provide

written notice to the Commission of such acquisition at least ten (10)

days prior to such acquisition. Notwithstanding the foregoing,

Respondent GEI may acquire, for investment purposes only, an interest

of not more than five (5) percent of the stock or share capital of any

concern. One year from the date this Order becomes final, annually

thereafter for the next nine (9) years on the anniversary of the date

this Order became final, and at such other times as the Commission may

require, Respondents shall file with the Commission a verified written

report setting forth in detail the manner and form in which they have

complied and are complying with Paragraph V. of this Order.

VI

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 and on reasonable notice to

Respondents, Respondents shall permit any duly authorized

representatives of the Commission:

A. Access, during office hours and in the presence of counsel, to

inspect and copy all books, ledgers, accounts, correspondence,

memoranda and other records and documents in the possession or under

the control of Respondents relating to any matters contained in this

consent order; and

B. Upon five (5) days notice to Respondents, and without restraint

or interference from Respondents, to interview officers or employees of

Respondents, who may have counsel present, regarding such matters.

VII

It is further ordered that either Respondent shall notify the

Commission at least thirty (30) days prior to any change in the

structure of Respondent TCH such as dissolution, assignment or sale

resulting in the emergence of a successor, the creation or dissolution

of subsidiaries or any other change that may affect compliance

obligations arising out of the Order.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission (``Commission'') has accepted

provisionally an agreement containing a proposed Consent Order from TCH

Corporation (``TCH'' or ``Thrifty'') and Green Equity Investors, L.P.

(``GEI''), under which TCH and GEI would divest pharmacy assets in five

(5) geographic locations where they face limited competition. TCH

operates the Thrifty Drug Store Chain and the BiMart chain of discount

stores.

The proposed Consent Order has been placed on the public record for

sixty (60) days for reception of comments by interested persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and the comments received and will decide whether it should

withdraw from the agreement or make final the agreement's proposed

Order.

On December 1, 1993, TCH and Kmart Corporation (``Kmart'') entered

into an agreement whereby GEI, through TCH, would acquire all the stock

of PayLess Drug Stores Northwest, Inc. (``PayLess''), a wholly owned

subsidiary of Kmart. The proposed complaint alleges that the proposed

acquisition, if consummated, would constitute a violation of section 7

of the Clayton Act, as amended, 15 U.S.C. 18, and section 5 of the FTC

Act, as amended, 15 U.S.C. 45, in the market for the sale of

prescription drugs in retail stores in the following towns: Bishop,

California; Mt. Shasta, California; Taft, California; Florence, Oregon;

and Ellensburg, Washington (hereinafter ``relevant geographic areas'').

The proposed Consent Order would remedy the alleged violation by

maintaining the current number of competitors in the relevant

geographic areas where Thrifty and PayLess are direct competitors and

where they face limited competition.

The proposed Consent Order provides that within one (1) year of the

Order becoming final, TCH and GEI shall divest all assets related to

the retail sale of prescription drugs in PayLess or Thrifty retail

stores in the relevant geographic areas. The divestiture of the PayLess

or Thrifty pharmacy business in the relevant geographic areas shall be

made only to an acquirer or acquirers that receive prior approval of

the Commission and only in a manner that receives the prior approval of

the Commission. The assets shall be divested to an eligible acquirer or

acquirers that will operate a pharmacy business in the relevant

geographic areas. Eligible acquirers in each relevant geographic area

include, but are not limited to: Owners of retail stores that currently

do not operate a pharmacy in that relevant geographic area; persons

previously employed by Thrifty or PayLess; persons who will operate a

pharmacy within an existing Thrifty or PayLess retail store; or persons

who will open a new retail store. In the event that TCH and GEI have

not divested the Thrifty or PayLess pharmacy assets in the relevant

areas in one (1) year, the proposed Consent Order provides that TCH and

GEI shall consent to the appointment by the Commission of a trustee to

divest the pharmacy assets.

Under the provisions of the Consent Order, TCH and GEI are also

required to provide to the Commission a report of their compliance with

the divestiture provisions of the Order within sixty (60) days

following the date this Order becomes final, and every sixty (60) days

thereafter until TCH and GEI have completely divested their interest in

assets related to the retail sale of prescription drugs in the relevant

geographic areas. The proposed Order will also prohibit TCH and GEI,

for a period of ten (10) years, from acquiring, without Federal Trade

Commission approval, any stock in any concern engaged in the business

of selling prescription drugs at retail in the relevant geographic

areas. However, if GEI sells Thrifty/PayLess and no longer owns any

pharmacy businesses, it will not need to seek the Commission's prior

approval of the acquisition of any businesses that have pharmacies in

the relevant geographic areas. In addition, GEI may, without prior

Commission approval, acquire up to five (5) percent of any companies'

stock for investment purposes even if such a company may own pharmacies

in the relevant geographic areas.

One year from the date the Order becomes final and annually

thereafter for nine (9) years, TCH and GEI will be required to provide

to the Commission a report of their compliance with the Consent Order.

The Consent Order also requires TCH or GEI to notify the Commission at

least thirty (30) days prior to any change in the structure of TCH

resulting in the emergence of a successor.

The purpose of this analysis is to facilitate public comment on the

proposed Order, and it is not intended to constitute an official

interpretation of the agreement and proposed Order or to modify in any

way their terms.

Donald S. Clark,

Secretary.

Statement of Commissioner Deborah K. Owen in the Matter of TCH

Corporation

I find reason to believe that the proposed acquisition of certain

assets of Kmart Corporation by TCH Corporation and Green Equity

Investors may violate section 5 of the FTC Act by substantially

lessening competition with respect to acute care prescription drugs

sold to cash customers in the Bishop and Mt. Shasta, California

markets.\1\ In the absence of further investigation, I cannot find

reason to believe that the Act has been violated with respect to the

remaining allegations in the Commission's complaint.\2\ I therefore

dissent with respect to those allegations, and with respect to any

provisions in the order that are unnecessary to remedy the alleged

anticompetitive effects in the product and geographic markets that I

have supported.

\1\I define acute care prescription drugs as those which are

prescribed to fill an immediate need and are rarely refilled, such

as antibiotics. Maintenance drugs, by contract, are those prescribed

on an on-going basis and are regularly refilled, such as blood

pressure medicine. The latter are more susceptible to competition

from mail-order firms. I define cash customers to mean persons whose

prescription purchases are not covered by managed care or other

third-party payors. Such customers are less able to resist a price

increase.

\2\The rationale underlying my unwillingness to find reason to

believe that the law has been violated where there has been

insufficient investigation is detailed in my dissenting statement in

the matter of QVC Network, Inc./Paramount Communications, Inc. (File

No. 941-0008).

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[FR Doc. 94-7975 Filed 4-1-94; 8:45 am]

BILLING CODE 6750-01-M