[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Notices]
[Pages 66867-66868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27246]
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FEDERAL TRADE COMMISSION
[File No. 121 0133]
Corning Incorporated; Analysis of Proposed Agreement Containing
Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis To
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before November 30, 2012.
ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/corningconsent online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Corning Becton, File
No. 121 0133'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/corningconsent, by following the
instructions on the web-based form. If you prefer to file your comment
on paper, mail or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Michael Moiseyev (202-326-3106), or
Stephanie C. Bovee (202-326-2083), FTC, Bureau of Competition, 600
Pennsylvania Avenue NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned 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 thirty (30) days. The
following Analysis To Aid Public Comment describes the terms of the
consent agreement, and the allegations in the complaint. An electronic
copy of the full text of the consent agreement package can be obtained
from the FTC Home Page (for October 31, 2012), on the World Wide Web,
at http://www.ftc.gov/os/actions.shtm. A paper copy can be obtained
from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue
NW., Washington, DC 20580, either in person or by calling (202) 326-
2222.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before November 30,
2012. Write ``Corning Becton, File No. 121 0133'' on your comment. Your
comment--including your name and your state--will be placed on the
public record of this proceeding, including, to the extent practicable,
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to
remove individuals' home contact information from comments before
placing them on the Commission Web site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone's Social Security number,
date of birth, driver's license number or other state identification
number or foreign country equivalent, passport number, financial
account number, or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do not
include any ``[t]rade secret or any commercial or financial information
which * * * is privileged or confidential,'' as discussed in Section
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR
4.10(a)(2). In particular, do not include competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept
confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
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\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR 4.9(c).
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Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/corningconsent by following the instructions on the web-based form.
If this Notice appears at http://www.regulations.gov/#!home, you also
may file a comment through that Web site.
If you file your comment on paper, write ``Corning Becton, File No.
121 0133'' on your comment and on the envelope, and mail or deliver it
to the following address: Federal Trade Commission, Office of the
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW.,
Washington, DC 20580. If possible, submit your paper comment to the
Commission by courier or overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before November 30, 2012. You can find more
information, including routine
[[Page 66868]]
uses permitted by the Privacy Act, in the Commission's privacy policy,
at http://www.ftc.gov/ftc/privacy.htm.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted from
Corning Incorporated (``Corning''), subject to final approval, an
Agreement Containing Consent Orders (``Consent Agreement''), which is
designed to remedy the anticompetitive effects of Corning's proposed
acquisition of substantially all of the assets of Becton, Dickinson and
Company's Discovery Labware Division (``BDDL''). Under the terms of the
proposed Consent Agreement, Corning would be required to supply Sigma-
Aldrich Co., LLC (``Sigma Aldrich'') with tissue culture treated
(``TCT'') dishes, multi-well plates, and flasks on an interim basis,
and in the future and at Sigma Aldrich's request, provide Sigma Aldrich
with the assets and assistance necessary to independently manufacture
these products.
The proposed Consent Agreement has been placed on the public record
for thirty days for receipt of comments; any comments received will
also become part of the public record. After thirty days, the
Commission will again review the proposed Consent Agreement and the
comments received, and will decide whether it should withdraw from the
proposed Consent Agreement, modify it, or make it final.
Pursuant to an agreement dated April 12, 2012, Corning proposes to
acquire substantially all of the assets of BDDL. The Commission's
Complaint alleges that the proposed acquisition, if consummated, would
violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 8, and
Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C.
45, by lessening competition in the North American markets for TCT
multi-well plates, dishes, and flasks used in cell culture
applications. The proposed Consent Agreement will remedy the alleged
violations by replacing the competition that would otherwise be
eliminated by the acquisition.
II. The Parties
Headquartered in Corning, New York, Corning is a leading
manufacturer of specialty glass, plastics, and ceramics for a variety
of applications. Corning's Life Sciences division is a leading
manufacturer of consumable plastic labware including TCT cell culture
multi-well plates, dishes, and flasks.
Discovery Labware, Inc., a division of Becton, Dickinson and
Company, is headquartered in Bedford, Massachusetts. Becton, Dickinson
and Company is a global medical technology company that supplies
consumable plastic labware through is Discovery Labware division
including TCT cell culture multi-well plates, dishes, and flasks.
III. The Products and Structure of the Markets
TCT cell culture vessels are plastic containers that are
essentially surfaces upon which researchers cultivate cells. These
products are purchased primarily by pharmaceutical companies, bio-
technology companies, and academic institutions and used by cell
culture laboratories. Tissue culture treatment alters the intrinsic
qualities of the plastic to promote cell adhesion so that cells are
more likely to grow and spread. Other advanced coatings and treatments
exist, but these alternatives typically are used only in specialized
applications, and are not viable substitutes for standard TCT cell
culture vessels.
North America is the relevant geographic area in which to analyze
the effects of the proposed acquisition in the TCT cell culture
markets.
Each TCT cell culture market is highly concentrated. Corning and
BDDL are the leading suppliers in each market. Other suppliers such as
Thermo Fisher and Greiner Bio-One participate in each market, but no
other suppliers are the size of Corning or BDDL.
IV. Effects of the Acquisition
The Proposed Acquisition would eliminate actual, direct, and
substantial competition between Corning and BDDL in the markets for TCT
cell culture vessels. By increasing Corning's share in each market,
while at the same time eliminating its most significant competitor, an
acquisition of BDDL likely would allow Corning to unilaterally charge
significantly higher prices for TCT cell culture vessels.
V. Entry
Entry into the relevant markets would not be timely, likely, or
sufficient in magnitude, character, and scope to prevent the
anticompetitive effects of the proposed acquisition. Entry would not
take place in a timely manner because of the significant time required
to gain a reputation among research scientists as a supplier of quality
products. Given the time needed to enter the relevant markets, relative
to the sizes of those markets, it is unlikely that an entrant could
obtain sufficient sales to make the investment profitable. As a result,
new entry or repositioning by other firms sufficient to ameliorate the
competitive harm from the proposed acquisition is not likely to occur.
VI. The Consent Agreement
The proposed Consent Agreement remedies the acquisition's likely
anticompetitive effects in the TCT cell culture markets. The Consent
Agreement requires Corning to supply Sigma Aldrich, on an interim
basis, with Corning-manufactured TCT cell culture products until Sigma
Aldrich has developed independent manufacturing capabilities. This
supply agreement will enable Sigma Aldrich to immediately sell TCT cell
culture products under its own brand name. The Consent Agreement also
requires that Corning provide in the future, at Sigma Aldrich's
request, technical assistance necessary to begin manufacturing TCT cell
culture multi-well plates, flasks, and dishes in a manner substantially
similar to the manner in which Corning manufactures these products
today.
Headquartered in St. Louis, Missouri, Sigma Aldrich is a leading
life sciences company that sells a variety of products used in
pharmaceutical research. TCT cell culture multi-well plates, flasks,
and dishes will complement Sigma Aldrich's leading position in adjacent
markets, including media and regents used in the cell culture process.
Sigma Aldrich has an existing infrastructure for the marketing and
sales of its laboratory products, and therefore is well-positioned to
replace the competition that will be lost as a result of the proposed
transaction.
The Commission may appoint an interim monitor to oversee the supply
of products and the future transfer of assets at any time after the
Consent Agreement has been signed. In order to ensure that the
Commission remains informed about the status of the proposed remedy,
the proposed Consent Agreement requires the parties to file periodic
reports with the Commission until the Decision and Order terminates.
The purpose of this analysis is to facilitate public comment on the
proposed Consent Agreement, and it is not intended to constitute an
official interpretation of the proposed Consent Agreement or to modify
its terms in any way.
By direction of the Commission
Donald S. Clark,
Secretary.
[FR Doc. 2012-27246 Filed 11-6-12; 8:45 am]
BILLING CODE 6750-01-P