Service Corporation International; Proposed Consent Agreement With Analysis to Aid Public Comment

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

permit Service Corporation International (SCI), the largest owner of

funeral homes in North America, to acquire Gilbraltar Mausoleum

Corporation and would require SCI, among other things, to divest,

within 12 months, a number of properties, including assets in Amarillo,

Texas, and Brevard and Lee Counties, Florida, to restore competition.

In addition, the consent agreement would require SCI, for 10 years, to

notify the Commission before acquiring certain similar assets in any of

these markets.

DATES: Comments must be received on or before March 18, 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:

Harold Kirtz, Federal Trade Commission, Atlanta Regional Office, 1718

Peachtree St., N.W., Room 1000, Atlanta, GA. 30367. (404) 347-4837.

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

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 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

Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR

4.9(b)(6)(ii)).

Agreement Containing Consent Order

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

investigation of the acquisition of the voting securities of Gibraltar

Mausoleum Corporation (``Gibraltar'') by Service Corporation

International and Rocky Acquisition Corp. (collectively, ``SCI''), and

it now appearing that SCI, hereinafter sometimes referred to as

``proposed respondent,'' is willing to enter into an agreement

containing an order to divest certain assets and to cease and desist

from certain acts, and providing for other relief.

It is hereby agreed by and between proposed respondent, by its duly

authorized officers and attorney, and counsel for the Commission that:

1. Proposed respondent Service Corporation International is a

corporation organized, existing and doing business under and by virtue

of the laws of the State of Texas with its office and principal place

of business located at 1929 Allen Parkway, Houston, Texas 77019.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft of complaint.

3. Proposed respondent 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.

4. 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 respondent, in which event

in 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.

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

constitute an admission by proposed respondent that the law has been

violated as alleged in the draft of complaint, or that the facts as

alleged in the draft complaint, other than jurisdictional facts, are

true.

6. 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 the proposed

respondent, (1) issue its complaint corresponding in form and substance

with the draft of complaint and its decision containing the following

order to divest and to cease and desist in disposition of the

proceeding, and (2) make information public with respect thereto. When

so entered, the order 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 United States Postal

Service of the complaint and decision containing the agreed-to order to

proposed respondent's address as stated in this agreement shall

constitute service. Proposed respondent waives and 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.

7. Proposed respondent has read the proposed complaint and order

contemplated hereby. Proposed respondent 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.

Proposed respondent 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. ``Respondent'' or ``SCI'' means Service Corporation

International, its predecessors, subsidiaries, divisions, and groups

and affiliates controlled by Service Corporation International, their

successors and assigns, and their directors, officers, employees,

agents and representatives.

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

C. ``Funerals'' means a group of services provided at the death of

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

ceremony concerning 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

[[Page 1513]]

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

to a cemetery of crematory for final disposition.

D. ``Funeral establishment'' means the Assets and Businesses of a

facility that provides funerals.

E. ``Perpetual care cemetery services'' means the provision of

plots of land, mausoleum spaces, and niches for, and the services

associated with, including maintenance and upkeep, the final

disposition of human remains.

F. ``Cemetery'' means the Assets and Businesses of a facility that

provides perpetual care cemetery services.

G. ``Crematory services'' means the incineration of human remains.

H. ``Crematory'' means the Assets and Businesses of a facility that

performs cremations.

I. ``Assets and Businesses'' include all assets, properties,

business and goodwill, tangible and intangible, utilized by a funeral

establishment, cemetery or crematory, including, but not limited to,

the following:

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

property, together with appurtenances, licenses and permits;

2. All vendor lists, management information systems and software

used on-site, and all catalogs, sales promotion literature and

advertising materials, except that SCI may delete from such materials

the SCI, Gibraltar or Schooler Gordon names, trademarks or other

identification;

3. All machinery, fixtures, equipment, vehicles, transportation

facilities, furniture, tools and other tangible personal property;

4. 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;

5. All right, title and interest in the trade name of each funeral

establishment, cemetery or crematory, but excluding the trade name

``Schooler Gordon''; and

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

pertinent to any of the Properties to be Divested.

J. ``Properties to be Divested'' means all of the Assets and

Businesses of the following funeral establishments, cemeteries and

crematories:

1. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-

Shaw Funeral Home), 315 East Fifth Street, Amarillo, Texas 79105

2. Blackburn-Shaw Funeral Home (now known as Schooler-Gordon Blackburn-

Shaw Funeral Home), 1505 Martin Street, Amarillo, Texas 79105

3. Memory Gardens of Amarillo & Crematory, I-27 and McCormack Road,

Amarillo, Texas 79114

4. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida

32796

5. Oaklawn Memorial Gardens & Mausoleum, 2116 Garden Street,

Titusville, Florida 32796

6. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904

7. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers,

Florida 33907

II

It is further ordered That:

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

twelve months of the date this order becomes final, the Properties to

be Divested.

B. Respondent shall divest the Properties 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 of the Properties to be

Divested is to ensure that continued use of the Properties to be

Divested in the same business in which the Properties to be Divested

are engaged at the time of the proposed divestiture, and to remedy the

lessening of competition resulting from the proposed acquisition as

alleged in the Commission's complaint.

C. Pending divestiture of the Properties to be Divested, respondent

shall take such actions as are necessary to maintain the viability and

marketability of the Properties to be Divested and to prevent the

destruction, removal, wasting, deterioration, or impairment of any of

the Properties to be Divested except for ordinary wear and tear.

D. Respondent shall comply with all terms of the Agreement to Hold

Separate, attached to this order and made a part hereof as Appendix I.

The Agreement to Hold Separate shall continue in effect until such time

as respondent has divested all the Properties to be Divested as

required by this order.

III

It is further ordered That:

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

the Commission's prior approval, the Properties to be Divested within

twelve months of the date this order becomes final, the Commission may

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

that the Commission or the Attorney General brings an action pursuant

to section 5(l) of the Federal Trade Commission Act, 15 U.S.C. 45(l),

or any other statute enforced by the Commission, SCI 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(l) of the Federal Trade

Commission Act, or any other statute enforced by the Commission, for

any failure by the respondent 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, respondent shall consent to the

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

authority, and responsibilities:

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

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

trustee shall be a person with experience and expertise in acquisitions

and divestitures. If respondent has not opposed, in writing, including

the reasons for opposing, the selection of any proposed trustee within

ten (10) days after notice by the staff of the Commission to respondent

and its counsel of the identity of any proposed trustee, respondent

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 Properties

to be Divested.

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

respondent shall execute a trust agreement that, subject to the prior

approval of the Commission and, in the case of a court-appointed

trustee, of the court, transfers to the trustee all rights and powers

necessary to permit the trustee to effect the divestiture required by

this order.

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

Commission approves the trust agreement described in Paragraph III B.3

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 achieved within a reasonable time, the

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

of a court-appointed trustee, by the

[[Page 1514]]

court; provided, however, the Commission may extend this period only

two (2) times.

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

personnel, books, records and facilities related to the Properties to

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

request. Respondent shall develop such financial or other information

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

Respondent shall take no action to interfere with or impede the

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

caused by respondent 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, by the court.

6. 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 respondent'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 respondent from among those approved by the Commission.

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

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

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

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

such consultants, accountants, attorneys, investment bankers, business

brokers, appraisers, and other representatives and assistants as are

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 the respondent, and the trustee's

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

least in significant part on a commission arrangement contingent on the

trustee's divesting the Properties to be Divested.

8. Respondent 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.

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 Properties to be Divested.

12. The trustee shall report in writing to respondent and 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, respondent 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 in at the time of such

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

sale of funerals, perpetual care cemetery services, or crematory

services within the city limits of, or the area extending ten (10)

miles outward in any direction of the city limits of, Amarillo, Texas;

the sale of funerals or perpetual care cemetery services in Brevard

County, Florida; or the sale of funerals in Lee County, Florida; or

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

for (and still suitable for use for) the sale of funerals, perpetual

care cemetery services or crematory services within the city limits of,

or the area extending ten (10) miles outward in any direction of the

city limits of, Amarillo, Texas; the sale of funerals or perpetual care

cemetery services in Brevard County, Florida; or the sale of funerals

in Lee County, Florida.

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 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, respondent shall not consummate the transaction until

twenty 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 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.

This Paragraph IV shall not apply to new facilities constructed or

developed by respondent.

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 respondent has fully

complied with the provisions of Paragraphs II and III of this order,

respondent 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. Respondent 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. Respondent shall include in its compliance reports copies of

all written

[[Page 1515]]

communications to and from such parties, all internal memoranda, and

all reports and recommendations concerning divestiture as required by

this order.

B. One year (1) from that 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 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.

VI

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 in the corporation that may affect

compliance obligations arising out of the order.

VII

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

securing compliance with this order, subject to any legally recognized

privilege, and upon written request with reasonable notice to

respondent made to its principal office, respondent shall permit any

duly authorized representative or representatives of the Commission:

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

contained in this order; and

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

or interference therefrom, to interview officers or employees of

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

Appendix I--Agreement to Hold Separate

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

Service Corporation International (``SCI''), a corporation organized

and existing under the laws of the State of Texas, with its principal

executive office located at 1929 Allen Parkway, Houston, Texas, and the

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

United States Government, established under the Federal Trade

Commission Act of 1914, 15 U.S.C. 41, et seq. (collectively,

``Parties'').

Premises

Whereas, on or about June 7, 1995, SCI entered into an Agreement

and Plan of Merger with Gibraltar Mausoleum Corporation

(``Gibraltar''), in which (1) Gibraltar would be merged into Rocky

Acquisition Corp., a wholly-owned subsidiary of SCI, and (2) Gibraltar

shareholders would receive SCI common stock and other consideration

specified therein (``Acquisition''); and

Whereas, both SCI and Gibraltar own interests in funeral

establishments that provide funerals, cemeteries that provide perpetual

care cemetery services, and crematories that provide cremations 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 (``SCI/Gibraltar Consent Agreement''), the Commission must place

the SCI/Gibraltar Consent Agreement on the public record for public

comment for a period of at least sixty (60) days and may subsequently

withdraw 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 businesses of certain funeral establishments, cemeteries,

and a crematory (``Hold Separate Assets'') listed in Exhibit A attached

hereto and made a part hereof until the divestitures contemplated by

the SCI/Gibraltar Consent Agreement have been made, divestitures

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 are to: (1) Preserve the

Hold Separate Assets as viable independent businesses pending the

divestitures described in the SCI/Gibraltar Consent Agreement; (2)

preserve the Commission's ability to require the divestitures of the

funeral establishments, cemeteries, and a crematory as specified in the

SCI/Gibraltar Consent Agreement; and (3) remedy any anticompetitive

aspects of the Acquisition; and

Whereas, SCI's entering into this Agreement shall in no way be

construed as an admission by SCI that the Acquisition is illegal; and

Whereas, SCI understands 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 understanding that the

Commission has not yet determined whether the Acquisition will be

challenged, and unless the Commission determines to reject the SCI/

Gibraltar Consent Agreement, it will not seek further relief from SCI

with respect to the Acquisition, except that the Commission may

exercise any and all rights to enforce this Agreement, the SCI/

Gibraltar Consent Agreement to which it is annexed and made a part, and

the order, once it becomes final, and in the event that the required

divestitures are not accomplished, to appoint a trustee to seek

divestiture of the Properties to be Divested pursuant to the SCI/

Gibraltar Consent Agreement, as follows:

1. SCI agrees to execute and be bound by the SCI/Gibraltar Consent

Agreement.

2. SCI shall hold and Hold Separate Assets separate and apart from

the date this Agreement is accepted until the first to occur of (a) ten

business days after the Commission withdraws its acceptance of the SCI/

Gibraltar Consent Agreement pursuant to the provisions of Section 2.34

of the Commission's Rules or (b) the date the divestitures required by

the order contained in the SCI/Gibraltar Consent Agreement are

accomplished. SCI's obligation to hold the Hold Separate Assets

separate and apart shall be on the following terms and conditions and

for the periods set forth in Exhibit A:

a. SCI shall hold separate and apart the Hold Separate Assets.

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

compliance with this Agreement and the Consent Order, SCI shall not

exercise direction or control over, or influence directly or

indirectly, the Hold Separate Assets or any of their operations or

businesses.

c. SCI shall cause the Hold Separate Assets to continue using their

present names and trade names, and shall maintain and preserve the

viability and marketability of each 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. During

the term of this Agreement, SCI shall provide the Hold Separate Assets

with the same or better quality of support services, including without

limitation, payroll processing,

[[Page 1516]]

accounting, management information systems, and computer support, as

SCI or Gibraltar provided to the Hold Separate Assets prior to the

acquisition.

d. SCI 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. SCI shall not change the composition of the management of the

Hold Separate Assets, except that SCI may fill vacancies and remove

management for cause.

f. SCI 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 each funeral establishment, cemetery and crematory

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, SCI 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. 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 SCI from sources

other than Gibraltar or itself, 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 separate. If necessary, SCI shall provide any or all of the Hold

Separate Assets with sufficient working capital to operate at their

current levels.

i. SCI 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.

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

compel SCI to divest itself of the shares of Gibraltar stock that SCI

may acquire, or to compel SCI to divest any assets or businesses of

Gibraltar that it may hold, or seek any other injunctive or equitable

relief, SCI shall not raise any objection based upon the fact that the

Commission has permitted the Acquisition. SCI also waives all rights to

contest the validity of this Agreement.

4. 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 SCI made to its principal

office, respondent shall permit any duly authorized representative or

representatives of the Commission:

a. Access during office hours of SCI, 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 SCI relating to any matters

contained in this Agreement; and

b. Upon five (5) days' notice to SCI and without restraint or

interference therefrom, to interview officers or employees of SCI, who

may have counsel present, regarding such matters.

This Agreement shall not be binding until approved by the

Commission.

Exhibit A

Hold Separate Assets

A. The following funeral establishment, cemetery, and crematory

shall be held separate until the divestitures of the two Blackburn-Shaw

Funeral Homes (now known as Schooler-Gordon Blackburn-Shaw Funeral

Homes) and Memory Gardens of Amarillo & Crematory pursuant to the order

as is set forth in the SCI/Gibraltar Consent Agreement:

1. Memorial Park Funeral Home, 6969 I-40 East, Amarillo, Texas

79120

2. Memorial Park Cemetery & Crematory, 6969 I-40 East, Amarillo, Texas

B. The following cemetery and funeral establishment shall be held

separate until their divestiture pursuant to the order as is set forth

in the SCI/Gibraltar Consent Agreement:

1. Oaklawn Memorial Gardens and Mausoleum, 2116 Garden Street,

Titusville, Florida 32796

2. North Brevard Funeral Home, 1450 Norwood Avenue, Titusville, Florida

32796

3. Metz Funeral Home, 1306 Lafayette Street, Cape Coral, Florida 33904

4. Harvey-Englehardt Funeral Home, 1600 Colonial Boulevard, Ft. Myers,

Florida 33907

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement to a

proposed consent order from respondent Service Corporation

International (``SCI'').

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.

The complaint alleges that SCI's acquisition of Gibraltar Mausoleum

Corporation will violate Section 5 of the Federal Trade Commission Act,

15 U.S.C. 45, and Section 7 of the Clayton Act, 15 U.S.C. 18, in three

relevant geographic markets. In Lee County, Florida, both SCI and

Gibraltar own funeral establishments and are actual competitors in the

provision of funerals. SCI is the largest seller of funeral services in

Lee County and Gibraltar is the third largest. In Brevard County,

Florida, both SCI and Gibraltar own funeral establishments and

cemeteries and are actual competitors in the provision of funerals and

perpetual care cemetery services. Gibraltar is the largest firm selling

funerals and perpetual care cemetery services in Brevard County and SCI

is the second largest. Finally, in Amarillo, Texas and its immediate

environs, both SCI and Gibraltar own funeral establishments, cemeteries

and crematories, and are actual competitors in the provision of

funerals, perpetual care cemetery services and cremation services. SCI

and Gibraltar are the first and second largest sellers of funerals,

respectively. They own two of three perpetual care cemeteries in the

area and they own the only two crematories.

The complaint alleges that the acquisition may substantially lessen

competition in the following ways, among others: (1) By eliminating

actual competition between SCI and Gibraltar in the relevant markets;

and (2) by significantly enhancing the possibility of collusion or

interdependent coordination among the remaining firms in the relevant

markets or by tending to create a dominant firm in the relevant

markets. These effects increase the likelihood that firms would

increase prices, decrease quality and restrict output in the relevant

markets if the acquisition were consummated.

The proposed order requires SCI to divest two funeral

establishments in Lee County, Florida; one funeral establishment and

one cemetery in Brevard County; and two funeral establishments, a

cemetery and a crematory in Amarillo, Texas.

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

[[Page 1517]]

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.

[FR Doc. 96-507 Filed 1-18-96; 8:45 am]

BILLING CODE 6750-01-M