FTC Approves Tops Markets’ Application to Divest Three Former Penn Traffic Supermarkets in New York and Pennsylvania, Finalizes Modified Settlement Order

Following a public comment period, the Federal Trade Commission has approved an application by Tops Markets LLC to sell three supermarkets to Hometown Markets, LLC. Tops is required to divest a total of seven supermarkets in five geographic markets – Bath, Cortland, Ithaca, and Lockport, New York; and Sayre, Pennsylvania – under a proposed FTC order settling charges that Tops’s January 2010 acquisition of the bankrupt Penn Traffic Company supermarket chain was anticompetitive.

In its application, Tops requested FTC approval to sell three supermarkets formerly owned by Penn Traffic located in Ithaca, New York (at 315 Pine Tree Road), Cortland, New York (at 160 Clinton Ave.) and Sayre, Pennsylvania (at 1730 Elmira Street) to Hometown Markets. By a vote of 5-0, the Commission has approved the divestiture of the three supermarkets.

In addition, following a separate public comment period, the FTC has approved a modified final order settling its August 2010 complaint against Tops. In the time since the public comment period closed in September 2010, Tops has been able to sell only three of the seven stores it is required to divest under the FTC order.

Tops has agreed to a modified final order under which the responsibility for marketing and selling the remaining four supermarkets will immediately be placed with an independent divestiture trustee, who will have 90 days to determine whether there are acceptable buyers for the unsold stores. All sales of the stores by the trustee are supposed to be for their continued operation as supermarkets and are subject to the prior approval of the Commission. The FTC has appointed The Food Partners LLC as the divestiture trustee. If Food Partners is able to locate acceptable buyers, the FTC may extend the time for the stores to be sold by another 90 days. After that time any unsold supermarkets will automatically revert back to Tops. The modified final order also requires Tops to maintain the viability and competitiveness of the stores until all divestitures are completed.

The Commission vote approving the modified final order and letters to the public commenters was 5-0. Copies of the comments received during the public comment period can be found here. (FTC File No. 101-0074, Docket No. C-4295; the staff contact is Elizabeth A. Piotrowski, Bureau of Competition, 202-326-2623; see press release dated August 4, 2010.)

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust{at}ftc{dot}gov, or write to the Office of Policy and Coordination, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave, N.W., Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook and follow us on Twitter.

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