The Loewen Group, Inc; Loewen Group International, Inc.; Propose Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 931-0084]

The Loewen Group, Inc; Loewen Group International, Inc.; Propose

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 or deceptive acts or practices and unfair methods of

competition, this consent agreement, accepted subjected to final

Commission approval, would require, among other things, the Covington,

Kentucky-based company to divest the Castelwood Funeral Home in

Castelwood, Virginia within nine months of acquiring it. The Consent

Agreement settles allegations that Lowen's proposed acquisition of

Heritage Family Funeral Services, Inc., would substantially reduce

competition in Castlewood, because Loewen and heritage are the only

firms providing funeral services in the Castlewood area.

DATES: Comments must be received on or before July 22, 1996.

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

Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Thomas B. Carter, Dallas Regional Office, Federal Trade Commission, 100

N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5518.

Gary D. Kennedy, Dallas Regional Office, Federal Trade Commission, 100

N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5512.

James R. Golder, Dallas Regional Office, Federal Trade Commission, 100

N. Central Expressway, Suite 500, Dallas, TX 75201. (214) 767-5508.

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)).

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

investigation of the proposed acquisition of the voting securities of

Heritage Family Funeral Services, Inc. by The Loewen Group Inc., a

corporation, and Loewen Group International, Inc., a corporation

(hereinafter collectively referred to as ``Loewen''), and it now

appearing that Loewen is willing to enter into an agreement containing

an order to divest certain assets, and to cease and desist from certain

acts.

It is hereby agreed by and between Loewen, its duly authorized

officers and attorneys, and counsel for the Commission that:

1. Proposed respondent The Loewen Group Inc. is a corporation

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

of the province of British Columbia, Canada, with its office and

principal place of business located at 4126 Norland Avenue, Burnaby,

British Columbia, Canada V5G 3S8.

2. Proposed respondent Loewen Group International, Inc. is a

corporation organized, existing and doing business under and by virtue

of the laws of the State of Delaware, with its office and principal

place of business located at 50 East River Center Boulevard, Covington,

Kentucky 41011. Proposed respondent Loewen Group International, Inc. is

a wholly-owned subsidiary of The Loewen Group Inc.

3. Loewen admits all the jurisdictional facts set forth in the

draft of complaint.

4. Loewen waives:

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 Loewen, in which even it will take such

action as it may consider appropriate, or issue and serve its complaint

(in such form as

[[Page 25673]]

the circumstances require) and decision, in disposition of the

proceeding.

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

constitute an admission by Loewen that the law has been violated as

alleged in the draft of complaint here C13, or that the facts as

alleged in the draft complaint, other than 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 Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to Loewen, (1) issue

its complaint corresponding in form and substance with the draft of

complaint E13 and its decision containing the following order to divest

and to cease and desist in disposition of the proceeding and (2) make

information public in respect thereto. When so entered, the order to

divest and to cease and desist 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 U.S. Postal Service of the

complaint and decision containing the agreed-to order to Loewen's

address as stated in this agreement shall constitute service. Loewen

waives any right it 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. Loewen has read the proposed complaint and order contemplated

hereby. It understands that, once the order has been issued, it will be

required to file one or more compliance reports showing that it has

fully complied with the order. Loewen further understands that it 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. ``Loewen'' means The Loewen Group Inc. and Loewen Group

International, Inc., their directors, officers, employees, agents and

representatives, predecessors, successors and assigns, their

subsidiaries, divisions, groups and affiliates controlled by Loewen,

and the respective directors, officers, employees, agents,

representatives, successors and assigns of each.

B. ``Funeral'' means a group of services provided at the death of

an individual, the focus of which is some form of commemorative

ceremony of the life of the deceased at which ceremony the body is

present; this group of services ordinarily includes, but is not limited

to: the removal of the body from the place of death; its embalming or

other preparation; making available a place for visitation and viewing,

for the conduct of a funeral service, and for the display of caskets

and outside cases; and the arrangement for the conveyance of the body

to a cemetery or crematory for final disposition.

C. ``Funeral establishment'' means any facility that provides

funerals.

D. ``Property to be Divested'' means all of the assets, properties,

business and goodwill, tangible and intangible, utilized by the

Castlewood Funeral Home located on Highway 58 in Castlewood, Virginia,

including, but not limited to:

1. All right, title and interest in and to owned or leased real

property, together with appurtenances, licenses and permits;

2. All machinery, fixtures, equipment, furniture, tools and other

tangible personal property;

3. All right, title and interest in the trade name of any funeral

establishment, provided that the trade name ``Heritage'' need not be

divested;

4. All right, title and interest in the books, records and files

pertinent to the Property to be Divested;

5. Vendor lists, management information systems, software,

catalogs, sales promotion literature, and advertising materials; and

6. All right, title, and interest in and to the contracts entered

into in the ordinary course of business with customers (together with

associated bids and performance bonds), suppliers, sales

representatives, distributors, agents, personal property lessors,

personal property lessees, licensors, licensees, consignors, and

consignees.

II.

It is further ordered that:

A. Within nine (9) months after Loewen acquires the Property to be

Divested, Loewen shall divest, absolutely and in good faith, the

Property to be Divested. The Property to be Divested is to be divested

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 required by this order

is to ensure the continued use of the Property to be Divested as an

ongoing viable enterprise providing funerals and to remedy the

lessening of competition alleged in the Commission's complaint.

B. Pending divestiture of the Property to be Divested, Loewen shall

maintain the viability and marketability of the Property to be Divested

and shall not cause or permit the destruction, removal, or impairment

of any assets or business of the Property to be Divested, except in the

ordinary course of business and except for ordinary wear and tear.

C. Loewen shall comply with the Agreement to Hold Separate,

attached hereto and made a part hereof as Appendix I. Said agreement

shall continue in effect until Loewen has divested the Property to be

divested or until such other time as the Agreement to Hold Separate

provides.

III.

It is further ordered that:

A. If Loewen has not divested, absolutely and in good faith and

with the Commission's prior approval, the Property to be Divested as

required by paragraph II of this order within nine (9) months after

Loewen has acquired the Property to be Divested, the Commission may

appoint a trustee to divest the Property to be Divested. In the event

the Commission or the Attorney General brings an action pursuant to

Section 5 (1), or any other statute enforced by the Commission, Loewen

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, including a court-appointed trustee, pursuant to Section 5(1) of

the Federal Trade Commission Act, or any other statute enforced by the

Commission, for any failure by Loewen 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, Loewen shall consent to the

following terms and conditions regarding the trustee's powers,

authorities, duties and responsibilities:

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

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

trustee shall be a person with experience and expertise in acquisitions

and divestitures. If Lowen has not opposed, in writing, the selection

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

of the Commission to

[[Page 25674]]

Loewen of the identity of any proposed trustee, Loewen shall be deemed

to have consented to the selection of the proposed trustee.

2. Subject to the prior approval of the Commission, the trustee

shall have the exclusive power and authority to divest the Property to

be Divested.

3. The trustee shall have the power and authority to abrogate any

contract or agreement between Loewen and any individual which

restricts, limits or otherwise impairs the ability of such individual

to purchase the Property to be Divested or to become a director,

officer, employee, agent or representative of any acquirer of the

Property to be Divested.

4. 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, Loewen shall execute a trust

agreement that transfers to the trustees all rights and powers

necessary to permit the trustee to effect the divestiture required by

this order.

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

Commission approves the trust agreement described in Paragraph III.B.4

to accomplish the divestiture, which shall be subject to the prior

approval of the Commission. 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

divestiture period may be extended by the Commission, or in the case of

a court-appointed trustee, by the court; provided, however, that the

Commission may extend the divestiture period only two (2) times.

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

personnel, books, records and facilities relating to the Property to be

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

request. Loewen shall develop such financial or other information as

such trustee may request and shall cooperate with the trustee. Loewen

shall take no action to interfere with or impede the trustee's

accomplishment of the divestiture. Any delays in divestiture caused by

Loewen shall extend the time for divestiture under this Paragraph in an

amount equal to the delay, as determined by the Commission or for a

court-appointed trustee, the court.

7. 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, subject to Loewen's absolute and

unconditional obligation to divest at no minimum price. The divestiture

shall be made in the manner and to the acquirer or acquirers as set out

in Paragraph II of this order; provided, however, if the trustee

receives bona fide offers from more than one acquiring entity, and if

the Commission determines to approve more than one such acquiring

entity, the trustee shall divest to the acquiring entity or entities

selected by Loewen from among those approved by the Commission.

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

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

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

have authority to employ, at the cost and expense of Loewen, 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 Loewen and the

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

be based at least in a significant part on a commission arrangement

contingent on the trustee's divesting the Property to be Divested.

9. Loewen 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 preparation 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.

10. 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.

11. 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.

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

maintain the Property to be Divested.

13. The trustee shall report in writing to Loewen and to the

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

accomplish divestiture.

IV.

It is further ordered that, for a period of ten (10) years from the

date this order becomes final, Loewen shall not, without providing

advance written notification to the Commission, directly or indirectly,

through subsidiaries, partnerships, or otherwise.

A. Acquire any stock, share capital, equity, or other interest in

any concern, corporate or non-corporate, engaged at the time of such

acquisition, or within the two years preceding such acquisition, in the

provision of funerals in Russell County, Virginia or within fifteen (15

miles of the Russell County, Virginia line; or

B. Acquire any assets used for or used in the previous two years

for (and still suitable for use for) funeral establishments in Russell

County, Virginia or within fifteen (15) miles of the Russell County,

Virginia line.

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 Office of the Secretary of the Commission, notification need not be

made to the United States Department of Justice, and notification is

required only of Loewen and not of any other party to the transaction.

Loewen shall provide the Notification to the Commission at least thirty

(30) days prior to acquiring any such interest (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, Loewen shall not consumate the acquisition until twenty

(20) days after substantially complying with such request for

additional information. Early termination of the waiting periods in

this paragraph may be requested and, where appropriate, granted by

letter from the Commission's Bureau of Competition.

Provided, however, that prior notification shall not be required by

this Paragraph IV of this Order for:

1. The construction or development by Loewen of a new funeral

establishment; or

2. Any transaction for which notification is required to be made,

and

[[Page 25675]]

has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C.

18a.

V.

It is further ordered that:

A. Within sixty (60) days after the date this order becomes final

and every sixty (60) days thereafter until Loewen has fully complied

with the provisions of Paragraphs II or III of this order, Loewen shall

submit to the Commission a verified written report setting forth in

detail the manner and form in which it intends to comply, is complying,

and has complied with Paragraphs II and III of this order. Loewen shall

include in its compliance reports, among other things that are required

from time to time, a full description of the efforts being made to

comply with Paragraphs 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. Loewen shall include in its

compliance reports copies of all written communications to and from

such parties, all internal memoranda, and all reports and

recommendations concerning divestiture.

B. 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, Loewen

shall file a verified written report with the Commission setting forth

in detail the manner and form in which it has complied and is complying

with Paragraph IV of this order. Such reports shall include, but not be

limited to, a listing by name and location of all acquisitions of

funeral establishments in the United States located within forty (40)

miles of a funeral establishment owned by Loewen at the time of the

acquisition, including but not limited to acquisitions due to default,

foreclosure proceedings or purchases in foreclosure, made by Loewen

during the twelve (12) months preceding the date of the report.

VI.

It is further ordered that, for a period of ten (10) years from the

date this order becomes final, Loewen shall notify the Commission at

least thirty (30) days prior to any proposed change in its

organization, such as dissolution, assignment or sale resulting in the

emergence of a successor, or the creation or dissolution of

subsidiaries, or any other change that may affect compliance

obligations arising out of this order.

VII.

It is further ordered that, for the purpose of determining or

securing compliance with this order, subject to any legally recognized

privilege, upon written request with reasonable notice to Loewen made

to its principal officer, Loewen shall permit any duly authorized

representative or representatives of the Commission:

A. Access, during the office hours of Loewen 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 Loewen relating to any matters

contained in this order; and

B. Upon five (5) days' notice to Loewen and without restraint or

interference therefrom, to interview officers or employees of Loewen,

who may have counsel present, regarding such matters.

Appendix I

In the Matter of The Loewen Group Inc., a corporation, and

Loewen Group International, Inc., a corporation. File No. 931-0084.

Agreement To Hold Separate

This Agreement to Hold Separate (the ``Agreement'') is by and

between The Loewen Group Inc. (``Loewen Group''), a corporation

organized and existing under the laws of the province of British

Columbia, Canada, with its office and principal place of business

located at 4126 Norland Avenue, Burnaby, British Columbia, Canada

V5G 3S8; Loewen Bropu International, Inc. (``Loewen Group

International''), a wholly-owend subsidiary of Loewen Group, which

is a corporation organized and existing under the laws of the State

of Delaware, with its office and principal place of business located

at 50 East River Center Boulevard, Covington, Kentucky 41011; and

the Federal Trade Commission (the ``Commission''), an independent

agency of the United States Government, established under the

Federal Trade Commission Act of 1914, as amended, 15 U.S.C. 41, et

seq. (collectively, the ``Parties'').

Premises

Whereas, on or about January 26, 1993, Loewen Group through its

wholly-owned subsidiary Loewen Group International entered into an

Agreement with Heritage Family Funeral Services, Inc. (``Heritage'')

in which Loewen Group International agreed to acquire Heritage (the

``Acquisition''); and

Whereas, both Heritage and Loewen Group International own

funeral establishments that provide funerals to consumers; and

Whereas, the Commission is now investigating the Acquisition to

determine if the Acquisition would violate any of the statutes

enforced by the Commission; and

Whereas, if the Commission accepts the Agreement Containing

Consent Order (the ``Loewen/Heritage Consent Agreement''), the

Commission must place the Loewen/Heritage Consent Agreement on the

public record for public comment for a period of at least sixty (60)

days and may subsequently withtdraw such acceptance pursuant to the

provisions of Section 2.34 of the Commission's Rules; and

Whereas, the Commission is concerned that if an understanding is

not reached preserving the status quo ante and holding separate the

assets and business of the Property to be Divested pursuant to

Paragraph II (hereinafter ``Hold Separate Assets'') of the Loewen/

Heritage Consent Agreement and the order, once it is final

(``Consent Order'') until the divestiture contemplated by the

Consent Order has been made, divestiture resulting from any

proceeding challenging the legality of the Acquisition might not be

possible or might be less than an effective remedy; and

Whereas, the purposes of this Agreement, the Loewen/Heritage

Consent Agreement, and the Consent Order are to:

(1) Preserve the Hold Separate Assets as a viable independent

business pending the divestiture described in the Loewen/Heritage

Consent Agreement and Consent Order;

(2) Preserve the Commission's ability to require the divestiture

of the funeral establishment required by the Consent Order; and

(3) Remedy any anticompetitive aspects of the Acquisition; and

Whereas, Loewen Group's and Loewen Group International's

entering into this Agreement shall in no way be construed as an

admission by Loewen Group and Loewen Group International that the

Acquisition is illegal; and

Whereas, Loewen Group and Loewen Group International understand

that no act or transaction contemplated by this Agreement shall be

deemed immune or exempt from the provisions of the antitrust laws or

the Federal Trade Commission Act by reason of anything contained in

this Agreement.

Now, therefore, the Parties agree, upon the understanding that

the Commission has not yet determined whether the Acquisition will

be challenged, and in consideration of the Commission's agreement

that, at the time it accepts the Consent Order for public comment,

it will grant early termination of the Hart-Scott-Rodino waiting

period, as follows:

1. Loewen Group and Loewen Group International agree to execute

and be bound by the attached Loewen/Heritage Consent Agreement.

2. Loewen Group and Loewen Group International shall hold the

Hold Separate Assets separate and apart from the date this Agreement

is accepted until the first to occur of,

a. Three (3) business days after the Commission withdraws its

acceptance of the Loewen/Heritage Consent Agreement pursuant to the

provisions of section 2.34 of the Commission's Rules; or

b. The day after the divestiture required by the Consent Order

is accomplished.

3. Loewen Group's and Loewen Group International's obligation to

hold the Hold Separate Assets separate and apart shall be on the

following terms and conditions:

a. The Hold Separate Assets, as they are presently constituted,

shall be held separate

[[Page 25676]]

and apart and shall be operated independently of Loewen Group and

Loewen Group International except to the extent that Loewen Group

and Loewen Group International must exercise direction and control

over the Hold Separate Assets to assure compliance with this

Agreement, the Loewen/Heritage Consent Agreement, or the Consent

Order.

b. Except as provided herein and as is necessary to assure

compliance with this Agreement, the Loewen/Heritage Consent

Agreement, and the Consent Order, Loewen Group and Loewen Group

International shall not exercise direction or control over, or

influence directly or indirectly, the Hold Separate Assets or any of

their operations or business.

c. Loewen Group and Loewen Group International shall cause the

Hold Separate Assets to continue using their present name and trade

name, and shall maintain and preserve the viability and

marketability of the Hold Separate Assets and shall not sell,

transfer, encumber (other than in the normal course of business), or

otherwise impair their marketability or viability.

d. Loewen Group and Loewen Group International shall refrain

from taking any actions that may cause any material adverse change

in the business or financial conditions of the Hold Separate Assets.

e. Loewen Group and Loewen Group International shall not change

the composition of the management of the Hold Separate Assets,

except that Loewen Group and Loewen Group International shall have

the power to fill vacancies and remove management for cause.

f. Loewen Group and Loewen Group International shall maintain

separate financial and operating records and shall prepare separate

quarterly and annual financial statements for the Hold Separate

Assets and shall provide the Commission with such statements for the

funeral establishment within ten days of their availability.

g. Except as required by law, and except to the extent that

necessary information is exchanged in the course of evaluating the

Acquisition, defending investigations or litigation, or negotiating

agreements to dispose of assets, Loewen Group and Loewen Group

International shall not receive or have access to, or the use of,

any of the Hold Separate Assets' ``material confidential

information'' not in the public domain, except as such information

would be available to Loewen Group and Loewen Group International in

the normal course of business if the Acquisition had not taken

place. Any such information that is obtained pursuant to this

subparagraph shall only be used for the purpose set out in this

subparagraph. (``Material confidential information,'' as used

herein, means competitively sensitive or proprietary information not

independently known to Loewen Group and Loewen Group International

from sources other than Heritage, and includes but is not limited to

pre-need customer lists, prices quoted by suppliers, or trade

secrets.)

h. All earnings and profits of the Hold Separate Assets shall be

held separately. If necessary, Loewen Group and Loewen Group

International shall provide the Hold Separate Assets with sufficient

working capital to operate at their current rate of operation.

i. Loewen Group and Loewen Group International shall refrain

from, directly or indirectly, encumbering, selling, disposing of, or

causing to be transferred any assets, property, or business of the

Hold Separate Assets, except that the Hold Separate Assets may

advertise, purchase merchandise and sell or otherwise dispose of

merchandise in the ordinary course of business.

4. Should the Federal Trade Commission seek in any proceeding to

compel Loewen Group and Loewen Group International to divest

themselves of the shares of Heritage stock that they may acquire, or

to compel Loewen Group and Loewen Group International to divest any

assets or businesses of Heritage that they may hold, or to seek any

other injunctive or equitable relief, Loewen Group and Loewen Group

International shall not raise any objection based upon the

expiration of the applicable Hart-Scott-Rodino Antitrust

Improvements Act waiting period or the fact that the Commission has

permitted the Acquisition. Loewen Group and Loewen Group

International also waive all rights to contest the validity of this

Agreement.

5. For the purpose of determining or securing compliance with

this Agreement, subject to any legally recognized privilege, and

upon written request with reasonable notice to Loewen Group and

Loewen Group International made to their principal offices, Loewen

Group and Loewen Group International shall make available to any

duly authorized representative or representatives of the Commission:

a. All books, ledgers, accounts, correspondence, memoranda, and

other records and documents in the possession or under the control

of Loewen Group and Loewen Group International, for inspection and

copying during office hours and in the presence of counsel; and

b. Upon five (5) days' notice to Loewen Group and Loewen Group

International and without restraint or interference from Loewen

Group or Loewen Group International, officers or employees of Loewen

Group and Loewen Group International, who may have counsel present,

for interviews regarding any such matters.

6. This agreement shall not be binding until approved by the

Commission.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement, subject to

final approval, to a proposed consent order from The Loewen Group Inc.

and Loewen Group International, Inc. (hereinafter collectively referred

to as ``Loewen'').

The proposed consent order has been placed on the public record for

sixty (60) days for reception of comments from 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 to withdraw

from the agreement or make final the agreement's proposed order.

The Commission's complaint in this matter charges Loewen with

violating Section 5 of the Federal Trade Commission Act, as amended,

and Section 7 of the Clayton Act, as amended, in connection with

Loewen's proposed acquisition of Castlewood Funeral Home, in

Castlewood, Virginia.

The consent order contains provisions designed to remedy the

alleged violations.

Part I of the order contains the definitions of terms that are used

in the order.

Part II of the order requires that within nine (9) months of the

date that Loewen acquires Castlewood Funeral Home, Loewen must divest

Castlewood Funeral Home.

Part III of the order provides for the appointment of a trustee to

accomplish the divestiture required by the order if Loewen fails to

make a timely divestiture.

Part IV of the order requires Loewen, for ten (10) years, to

provide written notification to the Commission prior to acquiring any

interest in a funeral home located in Russell County, Virginia, or

within fifteen (15) miles of the Russell County, Virginia, line.

Part V of the order requires Loewen to provide periodic compliance

reports until the divestiture is completed. Part V also requires

Loewen, for ten (10) years, to provide annual compliance reports

detailing how it is complying with Part IV of the order.

Part VI of the order requires Loewen, for ten (10) years, to notify

the Commission of any changes in corporate structure that might affect

compliance with the order.

Part VII of the order permits Commission representatives, for the

purpose of determining or securing compliance with the order, to have

access to Loewen's offices to inspect and copy documents and, upon five

days' notice, to interview Loewen's officers and employees.

Appendix I to the order is an Agreement to Hold Separate in which

Loewen has agreed to hold separate and preserve the assets of

Castlewood Funeral Home until Loewen divests the home.

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

proposed order. It is not intended to constitute an official

interpretation of

[[Page 25677]]

the agreement and proposed order, or to modify any of their terms.

Donald S. Clark,

Secretary.

[FR Doc. 96-12818 Filed 5-21-96; 8:45 am]

BILLING CODE 6750-01-M