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1
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STATEMENT
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EXTRACTED KEY WORDS
DIVESTITURE RELIEF PHOSPHATE PLANT FMC CORPORATION SOLUTIA RESTORE COMPETITION MARKET NEVERTHELESS REMEDYING CLAYTON VIOLATION COMMISSION USUALLY ORDERS MERGING ASSETS RELEVANT PRODUCT PURE PHOSPHORIC ACID PRAYON PHOSPHATE SALTS PPA PHOSPHORUS PENTASULFIDE MARKET PEAK NOVELTY RESPONDENTS COMPLIANCE OBLIGATIONS ASCERTAIN EFFECTIVELY RESTORES COMPETITION |
Statement of Chairman Robert Pitofsky and
Commissioners Sheila F. Anthony, Mozelle W. Thompson,
Orson Swindle, and Thomas B. Leary
FMC Corporation, Solutia Inc., and Astaris LLC
Docket No. C-3935
We believe that the divestitures and other relief mandated by the
Commission order should restore the competition lost through the joint
venture between FMC Corporation and Solutia Inc. Nevertheless, we
recognize that both divestitures are somewhat out of the ordinary.
When remedying a Clayton Section 7 violation, the Commission usually
orders a complete divestiture of one merging party's assets that
produce the relevant product. In the pure phosphoric acid ("PPA")
market, though, the Commission requires the divestiture to Prayon of a
plant that manufactures phosphate salts but not PPA. And in the
phosphorus pentasulfide market, the Commission orders the divestiture
to Peak of what is essentially a "plant within a plant." Due to the
novelty of the relief, the Commission will monitor closely the
respondents' compliance with their obligations under the order and
will ascertain whether the relief ordered in this case effectively
restores competition in each of the markets.
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2
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ORDER TO MAINTAIN ASSETS
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EXTRACTED KEY WORDS
LAWRENCE P2S5 PLANT ASSETS DIVESTITURE AUGUSTA COMMISSION AGREEMENT INTELLECTUAL PROPERTY PRAYON SALE OFFICERS FMC SOLUTIA BUSINESS JOINT VENTURE ACQUIRER RIGHTS CUSTOMER CONSENT EMPLOYEES REPRESENTATIVES LICENSE SUPPLIERS RELATING PHOSPHATE ASTARIS PURPOSES PERMITS PROVIDER |
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
COMMISSIONERS: Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary
)
In the Matter of ) )
FMC CORPORATION, ) ) Docket No. C-3935
a corporation, )
)
SOLUTIA INC., ) )
a corporation, and ) )
ASTARIS LLC, ) )
a limited liability company. )
____________________________________)
ORDER TO MAINTAIN ASSETS
The Federal Trade Commission ("Commission"), having initiated an investigation of the
proposed joint venture between Respondent FMC Corporation ("FMC") and Respondent Solutia
Inc. ("Solutia") to form Respondent Astaris LLC ("Astaris"), and Respondents having been
furnished thereafter with a copy of a draft of Complaint that the Bureau of Competition presented
to the Commission for its consideration and which, if issued by the Commission, would charge
Respondents with violations of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and
Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45; and
Respondents, their attorneys, and counsel for the Commission having thereafter executed an
Agreement Containing Consent Orders ("Consent Agreement"), containing an admission by
Respondents of all the jurisdictional facts set forth in the aforesaid draft of Complaint, a
that the signing of said Consent Agreement is for settlement purposes only and does not constitute
an admission by Respondents that the law has been violated as alleged in such Complaint, or that
the facts as alleged in such Complaint, other than jurisdictional facts, are true, and waivers and
other provisions as required by the Commission's Rules; and
The Commission having thereafter considered the matter and having determined that it had
reason to believe that Respondents have violated the said Acts, and that a Complaint should issue
stating its charges in that respect, and having determined to accept the executed Agreement
Containing Consent Orders and to place such Consent Agreement on the public record for a period
of thirty (30) days, the Commission hereby issues its Complaint, makes the following jurisdictional
findings and issues this Order to Maintain Assets:
1. FMC 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
200 East Randolph Drive, Chicago, Illinois 60601.
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3
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DECISION & ORDER
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EXTRACTED KEY WORDS
COMMISSION LAWRENCE PLANT TRUSTEE SOLUTIA JOINT VENTURE FMC ACQUIRER DIVESTITURE AGREEMENT TRADE COMMISSION ACT ASSETS FEDERAL TRADE COMMISSION ASTARIS AUGUSTA PLANT UNITED STATES COMPLAINT LAWRENCE PLANT SERVICES INTERIM TRUSTEE LAWRENCE PLANT FACILITIES THEREAFTER ATTORNEYS PARAGRAPH EMPLOYEES INTELLECTUAL PROPERTY EMPLOYMENT LIMITED LIABILITY COMPANY VIOLATION APPROVALS ASTARIS LLC COMPETITION |
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
COMMISSIONERS:
Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary
In the Matter of
FMC CORPORATION, a corporation,
SOLUTIA INC., a corporation, and
ASTARIS LLC, a limited liability company.
Docket No. C-3935
DECISION AND ORDER
The Federal Trade Commission ("Commission"), having initiated an
investigation of the proposed joint venture between Respondent FMC
Corporation ("FMC") and Respondent Solutia Inc. ("Solutia") to form
Respondent Astaris LLC ("Astaris"), and Respondents having been
furnished thereafter with a copy of a draft of Complaint that the
Bureau of Competition presented to the Commission for its
consideration and which, if issued by the Commission, would charge
Respondents with violations of Section 7 of the Clayton Act, as
amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission
Act, as amended, 15 U.S.C. § 45; and
Respondents, their attorneys, and counsel for the Commission having
thereafter executed an Agreement Containing Consent Orders ("Consent
Agreement"), containing an admission by Respondents of all the
jurisdictional facts set forth in the aforesaid draft of Complaint, a
statement that the signing of said Consent Agreement is for settlement
purposes only and does not constitute an admission by Respondents that
the law has been violated as alleged in such Complaint, or that the
facts as alleged in such Complaint, other than jurisdictional facts,
are true, and waivers and other provisions as required by the
Commission's Rules; and
The Commission having thereafter considered the matter and having
determined that it had reason to believe that Respondents have
violated the said Acts, and that a Complaint should issue stating its
charges in that respect, and having thereupon issued its Complaint and
an Order to Maintain Assets, and having accepted the executed Consent
Agreement and placed such Consent Agreement on the public record for a
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4
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COMPLAINT
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EXTRACTED KEY WORDS
PRODUCERS PURE PHOSPHORIC ACID SALES UNITED STATES SOLUTIA MARKET FMC JOINT VENTURE PHOSPHORUS PENTASULFIDE PHOSPHATE SALTS ENTRY PLANT PRICE FEDERAL TRADE COMMISSION ACT PROPOSED JOINT VENTURE OVERSEAS PRODUCERS COMPETITION AGREEMENT RESPONDENTS BUSINESS REASONS COMMERCE SODIUM COSTS VIOLATION APPLICATIONS PURCHASERS INVESTMENT |
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
)
In the Matter of ))
FMC CORPORATION, )) Docket No. C-3935
a corporation, ) COMPLAINT
)
SOLUTIA INC., ))
a corporation, and ))
ASTARIS LLC, ))
a limited liability company. )
____________________________________)
The Federal Trade Commission ("Commission"), having reason to believe that FMC
Corporation ("FMC") and Solutia Inc. ("Solutia") have entered into an agreement to form Astaris
LLC ("Astaris"), a phosphates joint venture limited liability company, and that the joint venture,
consummated, would result in a violation of 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, and it appearing to the Commission
that a proceeding in respect thereof would be in the public interest, hereby issues its complaint,
stating its charges as follows:
A. THE RESPONDENTS
1. Respondent FMC is a corporation organized, existing, and doing business under
and by virtue of the laws of the State of Delaware, with its principal place of business located at
200 East Randolph Drive, Chicago, Illinois 60601. FMC, among other things, engages in the
development, manufacture and sale of elemental phosphorus, pure phosphoric acid, phosphate salts
and phosphorus derivatives, primarily in North America and Europe.
2. Respondent Solutia is a corporation organized, existing and doing business under
and by virtue of the laws of the State of Delaware, with its principal place of business located at
575 Maryville Centre Drive, St. Louis, Missouri 63141. Solutia, among other things, engages in
the development, manufacture and sale of elemental phosphorus, pure phosphoric acid, phosphate
salts and phosphorus derivatives, primarily in North America.
3. Respondent Astaris is a corporation organized and existing under and by virtue of
the laws of the State of Delaware, with its principal place of business located at 575 Maryville
Centre Drive, St. Louis, Missouri 63141.
4. At all times relevant herein, Respondents FMC and Solutia have been and are now
engaged in commerce, as "commerce" is defined in Section 1 of the Clayton Act, 15 U.S.C. § 12,
and are corporations whose business is in or affecting commerce as "commerce" is defined in
Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44.
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5
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AGREEMENT CONTAINING CONSENT
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EXTRACTED KEY WORDS
ASSETS CONSENT AGREEMENT COMMISSION COMPLAINT LAWS ACCEPTANCE FACTS DRAFT COMPLAINT PROCEEDING CONTEMPLATES FMC CORPORATION ASTARIS LLC DIVEST RELIEF COUNSEL VIRTUE DELAWARE PURSUANT REPORT COMMISSION RULE MANNER COMPLIANCE PUBLIC RECORD MARYVILLE LOUIS MISSOURI JURISDICTIONAL FACTS ACT ACCOMPANYING |
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
)
In the Matter of ))
FMC CORPORATION, )) File No. 991-0218
a corporation, ) )
SOLUTIA INC., ))
a corporation, and ))
ASTARIS LLC, ))
a limited liability company. )
____________________________________)
AGREEMENT CONTAINING CONSENT ORDERS
The Federal Trade Commission ("Commission"), having initiated an investigation of the
proposed joint venture between FMC Corporation ("FMC") and Solutia Inc. ("Solutia") to form
Astaris LLC ("Astaris"), and it now appearing that FMC, Solutia and Astaris, hereinafter
sometimes referred to as "Proposed Respondents," are willing to enter into this Agreement
Containing Consent Orders ("Consent Agreement") to divest certain assets and providing for other
relief:
IT IS HEREBY AGREED by and between Proposed Respondents, by their duly
authorized officers and attorney, and counsel for the Commission that:
1. Proposed Respondent FMC 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
business located at 200 East Randolph Drive, Chicago, Illinois 60601.
2. Proposed Respondent Solutia 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
business located at 575 Maryville Centre Drive, St. Louis, Missouri 63141.
3. Proposed Respondent Astaris is a limited liability company organized and existing under
and by virtue of the laws of the State of Delaware, with its office and principal place
business located at 575 Maryville Centre Drive, St. Louis, Missouri 63141.
4. Proposed Respondents admit all the jurisdictional facts set forth in the draft of Complaint
here attached.
5. Proposed Respondents waive:
a. any further procedural steps;
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6
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ANALYSIS
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EXTRACTED KEY WORDS
DIVEST PURE PHOSPHORIC ACID AGREEMENT RESPONDENTS PLANT COMPLAINT JOINT VENTURE AUGUSTA PHOSPHORUS PENTASULFIDE ASSETS COMPETITION UNITED STATES COMMISSION CONSENT AGREEMENT SOLUTIA PRAYON PEAK MARKET PRODUCERS EMAPHOS FMC LAWRENCE BUSINESS ACCORDING REQUIRING SALE END-CUSTOMERS PROVISIONS FACILITIES |
Analysis to Aid Public Comment
The Federal Trade Commission ("Commission") has accepted, subject to
final approval, an Agreement Containing Consent Orders ("Consent
Agreement") from FMC Corp. ("FMC"), Solutia Inc. ("Solutia"), and
Astaris LLC ("Astaris). The Consent Agreement is intended to resolve
anticompetitive effects stemming from the proposed joint venture
between FMC and Solutia to combine their respective phosphates and
phosphorus derivatives businesses. The Consent Agreement includes a
proposed Decision and Order (the "Order"), which would require FMC and
Solutia to divest to Societe Chimique Prayon-Rupel ("Prayon") the
portion of Solutia's phosphates business based in Augusta, Georgia,
and to divest to Peak Investments, L.L.C. ("Peak") FMC's phosphorus
pentasulfide business based in Lawrence, Kansas. The Consent Agreement
also includes an Order to Maintain Assets which requires respondents
to preserve the assets they are required to divest as viable,
competitive, and ongoing operations until the divestitures are
achieved.
The Order, if issued by the Commission, would settle charges that the
proposed joint venture between FMC and Solutia may have substantially
lessened competition in the United States markets for pure phosphoric
acid and phosphorus pentasulfide. The Commission has reason to believe
that the proposed joint venture would have violated Section 7 of the
Clayton Act and Section 5 of the Federal Trade Commission Act. The
Commission's complaint, described below, relates the basis for this
belief.
The proposed Order has been placed on the public record for thirty
(30) days for reception of comments by interested persons. Comments
received during this period will become part of the public record.
After thirty (30) days, the Commission will review the agreement and
comments received and decide whether to withdraw its acceptance of the
agreement or make the Order final .
According to the Commission's complaint, one relevant line of commerce
in which to analyze the effects of the proposed joint venture between
FMC and Solutia is pure phosphoric acid, and the relevant geographic
market for this product is the United States. Pure phosphoric acid is
used as an input into a wide variety of consumer and industrial
products, ranging from cola beverages to cleaning compounds and metal
treatments. The complaint describes FMC's and Solutia's production and
sale of pure phosphoric acid, and further describes how each of the
companies sells pure phosphoric acid directly to end-customers and
uses it internally in the manufacture of different types of phosphate
salts. According to the Commission's complaint, FMC and Solutia
compete with each other in the manufacture and sale of pure phosphoric
acid directly to end-customers, and in the manufacture and sale of
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