Notice2025-12290
ACT and Giant Eagle; Analysis of Agreement Containing Consent Orders to Aid Public Comment
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2025
Issuing agencies
Federal Trade Commission
Abstract
The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair methods of competition. The attached Analysis of Agreement Containing Consent Orders to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order--embodied in the consent agreement--that would settle these allegations.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Notices]
[Pages 28746-28749]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12290]
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FEDERAL TRADE COMMISSION
[File No. 241 0111]
ACT and Giant Eagle; Analysis of Agreement Containing Consent
Orders to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of Federal law prohibiting unfair methods of competition.
The attached Analysis of Agreement Containing Consent Orders to Aid
Public Comment describes both the allegations in the 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 July 31, 2025.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``ACT and Giant
Eagle; File No. 241 0111'' on your comment and file your comment online
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by following the instructions on the
web-based form. If you prefer to file your comment on paper, please
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144
(Annex F), Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Megan Henry (202-326-3378), Mergers
III Division, Bureau of Competition, Federal Trade Commission, 400 7th
Street SW, Washington, DC 20024.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec. 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 30 days. The following
Analysis of Agreement Containing Consent Orders to Aid Public Comment
describes the terms of the consent agreement and the allegations in the
complaint. An
[[Page 28747]]
electronic copy of the full text of the consent agreement package can
be obtained from the FTC website at this web address: <a href="https://www.ftc.gov/news-events/commission-actions">https://www.ftc.gov/news-events/commission-actions</a>.
The public is invited to submit comments on this document. For the
Commission to consider your comment, we must receive it on or before
July 31, 2025. Write ``ACT and Giant Eagle; File No. 241 0111'' 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
Because of the agency's heightened security screening, postal mail
addressed to the Commission will be delayed. We strongly encourage you
to submit your comments online through the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website. If you prefer to file your comment on paper, write ``ACT and
Giant Eagle; File No. 241 0111'' on your comment and on the envelope,
and mail your comment by overnight service to: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail
Stop H-144 (Annex F), Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, you are solely responsible for
making sure your comment does not include any sensitive or confidential
information. In particular, your comment should not include sensitive
personal information, such as your or anyone else'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 your comment does not include
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule Sec.
4.10(a)(2), 16 CFR 4.10(a)(2)--including competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule Sec. 4.9(c). 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 Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>--as legally
required by FTC Rule Sec. 4.9(b)--we cannot redact or remove your
comment from that website, unless you submit a confidentiality request
that meets the requirements for such treatment under FTC Rule Sec.
4.9(c), and the General Counsel grants that request.
Visit the FTC website at <a href="https://www.ftc.gov">https://www.ftc.gov</a> to read this document
and the news release describing this matter. The FTC Act and other laws
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 it receives on
or before July 31, 2025. For information on the Commission's privacy
policy, including routine uses permitted by the Privacy Act, see
<a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Analysis of Agreement Containing Consent Orders To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted for
public comment, subject to final approval, an Agreement Containing
Consent Orders (``Consent Agreement'') from Alimentation Couche-Tard,
Inc. (``ACT'') and Giant Eagle, Inc. (``Giant Eagle'') (collectively,
the ``Respondents''). The Consent Agreement is designed to remedy the
anticompetitive effects that likely would result from ACT's proposed
acquisition of retail fuel assets from Giant Eagle.
Under the terms of the proposed Decision and Order (``Order'')
contained in the Consent Agreement, Respondent ACT must divest certain
assets as ongoing retail fuel businesses in 35 local markets in
Indiana, Ohio, and Pennsylvania. Respondent ACT must complete the
divestiture to Majors Management (``Majors'') within 20 days after the
closing of the acquisition. The Commission and Respondent ACT have
agreed to an Order to Maintain Assets that requires ACT to operate and
maintain each divestiture outlet in the normal course of business
through the date Majors acquires the divested assets.
The Commission has placed the Consent Agreement on the public
record for 30 days to solicit comments from interested persons.
Comments received during this period will become part of the public
record. After 30 days, the Commission will review the comments received
and decide whether it should withdraw, modify, or make final the
proposed Order.
II. The Respondents
Respondent ACT is a publicly traded company headquartered in Laval,
Quebec, Canada. ACT operates more than 16,800 stores in 31 countries,
and almost 13,100 of these locations sell fuel. In the United States,
ACT operates over 7,100 convenience stores, almost entirely under the
Circle K brand.
Respondent Giant Eagle is a privately-owned grocery store chain
headquartered in Cranberry Township, Pennsylvania. Giant Eagle operates
more than 270 retail fuel outlets in Indiana, Maryland, Ohio,
Pennsylvania, and West Virginia under the brand name GetGo.
III. The Proposed Acquisition
On August 16, 2024, ACT entered into an agreement to acquire
certain retail and wholesale fuel assets from Giant Eagle (the
``Acquisition''). The Commission's Complaint alleges that the
Acquisition, if consummated, would violate section 7 of the Clayton
Act, as amended, 15 U.S.C. 18, and that the Acquisition agreement
constitutes a violation of section 5 of the Federal Trade Commission
Act, as amended, 15 U.S.C. 45, by substantially lessening competition
for the retail sale of gasoline in 35 local markets in Indiana, Ohio,
and Pennsylvania, and by substantially lessening competition for the
retail sale of diesel fuel in 19 local markets in Indiana, Ohio, and
Pennsylvania.
IV. The Retail Sale of Gasoline and Diesel Fuel
The Commission alleges the relevant product markets in which to
analyze the Acquisition are the retail sale of gasoline and the retail
sale of diesel fuel. Consumers require either gasoline or diesel fuel
for their vehicles and can only purchase gasoline or diesel at retail
fuel outlets. The retail sale of gasoline and the retail sale of diesel
fuel constitute separate relevant markets because the two are not
interchangeable. Vehicles that run on gasoline cannot run on diesel
fuel, and vehicles that run on diesel fuel cannot run on gasoline.
The Commission alleges the relevant geographic markets in which to
assess the competitive effects of the
[[Page 28748]]
Acquisition with respect to the retail sale of gasoline are 35 local
markets in Indiana, Ohio, and Pennsylvania. The relevant geographic
markets in which to assess the competitive effects of the Acquisition
with respect to the retail sale of diesel fuel are 19 local markets in
Indiana, Ohio, and Pennsylvania.
The geographic markets for retail gasoline and retail diesel fuel
are highly localized, based on the unique circumstances of each area.
Each relevant market is distinct and fact-dependent, reflecting many
considerations, including commuting patterns, traffic flows, driving
distance, and outlet characteristics. Consumers typically choose
between nearby retail fuel outlets with similar characteristics along
their planned routes. The geographic markets for the retail sale of
diesel fuel are similar to the corresponding geographic markets for
retail gasoline, as many diesel fuel consumers exhibit preferences and
behaviors similar to those of gasoline consumers.
The Acquisition would substantially lessen competition in each of
these local markets, resulting in 35 highly concentrated markets for
the retail sale of gasoline and 19 highly concentrated markets for the
retail sale of diesel fuel. Retail fuel outlets compete on price, store
format, product offerings, and location, and pay close attention to
competitors in close proximity, on similar traffic routes, and with
similar store characteristics. In each of the local gasoline and diesel
fuel retail markets, the Acquisition would reduce the number of
competitively constraining independent market participants to five or
fewer. The combined entity would be able to raise prices unilaterally
in markets where ACT and Giant Eagle are close competitors today.
Absent the Acquisition, ACT and Giant Eagle would continue to compete
head-to-head in these local markets.
Moreover, the Acquisition would enhance the incentives for
interdependent behavior in local markets where five or fewer
constraining independent market participants would remain. Two key
aspects of the retail fuel industry make it vulnerable to such
coordination. First, retail fuel prices are transparent and easily
monitored from street signs, the internet, or smartphone applications.
Second, retail fuel outlets track their competitors' fuel prices on a
daily basis and change their own prices in response. These repeated
interactions give retail fuel outlets considerable familiarity with the
pricing strategies of their competitors price and may encourage
coordination in concentrated local markets.
Entry into each relevant market would not be timely, likely, or
sufficient to deter or counteract the anticompetitive effects arising
from the Acquisition. Significant entry barriers include the
availability of attractive real estate, the time and cost associated
with constructing a new retail fuel outlet, and the time associated
with obtaining necessary permits and approvals.
V. The Consent Agreement
The proposed Order would remedy the Acquisition's likely
anticompetitive effects by requiring ACT to divest certain retail fuel
assets to Majors in each local market. Majors is an experienced
operator of retail fuel sites and will be a new entrant into the local
markets. The proposed Order requires that the divestiture be completed
no later than 20 days after ACT and Giant Eagle consummate the
Acquisition. The proposed Order further requires ACT to maintain the
economic viability, marketability, and competitiveness of each
divestiture asset until the divestiture to Majors is complete.
In addition to requiring outlet divestitures, the proposed Order
prohibits Respondent ACT from re-acquiring the divested assets for a
period of ten years. The proposed Order also requires Respondent ACT to
notify the Commission before acquiring any stations designated by the
Commission as competitively significant in the local markets of the
divested assets for ten years. The prior notice provision is necessary
because an acquisition in close proximity to the divested assets likely
would raise the same competitive concerns as the Acquisition and may
fall below the Hart-Scott-Rodino Act premerger notification thresholds.
The Consent Agreement contains additional provisions designed to
ensure the effectiveness of the relief. For example, Respondents have
agreed to an Order to Maintain Assets that will issue at the time the
proposed Consent Agreement is accepted for public comment. The Order to
Maintain Assets requires Respondent ACT to operate and maintain each
divestiture outlet in the normal course of business, through the date
the divestiture is complete. The proposed Order also includes a
provision that allows the Commission to appoint an independent third
party as a Monitor to oversee the Respondents' compliance with the
requirements of the Order.
The purpose of this analysis is to facilitate public comment on the
Consent Agreement, and the Commission does not intend this analysis to
constitute an official interpretation of the proposed Order or to
modify its terms in any way.
By direction of the Commission.
Joel Christie,
Acting Secretary.
Statement of Commissioner Mark R. Meador
An effective divestiture package is one that restores competition--
full stop. It is my belief that the proposed consent order meets this
standard. I would like to thank FTC staff for their thorough review of
the proposed acquisition and exemplary work in negotiating the proposed
divestiture package.
As alleged in the complaint, Canada-based Alimentation Couche-Tard,
Inc's (``ACT'') proposed acquisition of retail gas stations from Giant
Eagle, Inc. would have eliminated head-to-head competition between the
parties in 35 local markets in the heart of America in Indiana, Ohio,
and Pennsylvania. The proposed consent order requires ACT to divest 35
retail gas stations to Majors Management, LLC (``Majors''), a U.S.-
based company and established leader in operating, developing,
servicing, and supporting well over a thousand retail convenience
centers and gas stations. Majors is well-positioned to compete
effectively and ensure that competition is fully maintained in the
markets that would otherwise be impacted by ACT's proposed acquisition.
I want to also expand upon my views on the principles I consider
when determining whether a settlement proposal constitutes an effective
divestiture remedy package. The FTC should, in all but extremely rare
cases, insist on clean divestitures of standalone business lines when
negotiating merger remedy packages. Remedy proposals should fully and
durably resolve competitive concerns. Structural remedies must be self-
sustaining.
Moreover, when parties negotiate with the FTC on merger remedies--
particularly transactions involving complex divestiture packages across
multiple locations--it is essential that they approach Commission staff
early, candidly, and in good faith. It improves review efficiency,
including staff's ability to quickly home in on other relevant
competitive concerns, and streamlines remedy negotiations when merging
parties are upfront about potential overlaps, the potential divestiture
buyer, and any impediments to a complete separation of assets and
business from the seller.
The larger and more intricate a proposed divestiture package
becomes,
[[Page 28749]]
the greater the need for scrutiny. Divestitures that involve larger
numbers of outlets also raise concerns about potential for operational
gaps, concerns about asset values, and questions about potential legal
entanglements that could frustrate the viability of a proposed
divestiture package. For this reason, parties should strive to propose
straightforward, autonomous, and viable divestitures that do not
require material post-divestiture Commission day-to-day oversight or
intervention.
The capability and credibility of the proposed divestiture buyer
are also central considerations. A divestiture buyer must demonstrate
that it has the resources, industry expertise, and operational
readiness necessary to maintain or restore competition in the relevant
market. This process entails scrutinizing the proposed buyer's business
plans, financial condition, market experience, and ability to acquire
and operate the to-be divested assets without having to rely on the
seller or merged entity post transaction. Staff will evaluate these
factors closely, and the burden remains on the transacting parties to
put forward an appropriate divestiture buyer. The Commission is
prepared to reject proffered divestiture buyers who cannot substantiate
their financial capability to compete in the relevant markets with the
divestiture assets.
Remedies must also include binding commitments to divest as a
condition of closing. Where the proposed remedy involves partial asset
combinations or atypical carve-outs, the Commission should not hesitate
to reject a proposed remedy package outright. And to the extent the FTC
pursues litigation, the burden lies squarely on the merging parties to
prove that any proposed remedy package restores competition.
As I have previously stated, the FTC should be willing to consider
remedy packages that fully and completely resolve competitive concerns.
Negotiating remedies is an integral part of the Commission's merger
review toolkit. But when parties pursue transactions that raise serious
competitive concerns, they must come prepared with a credible, fully
vetted, and enforceable solution. In designing remedies for such
transactions, the Commission should resolve uncertainty in the manner
most favorable to consumers; the risks inherent in a forward-looking
remedy must be borne by the parties, who seek to benefit from the
merger.
Effective merger remedies begin with early engagement, credible
proposals, and full accounting of competitive risk. When parties take
that responsibility seriously and engage transparently with staff, the
remedy negotiation process works--and the Commission serves its mission
of protecting American consumers.
[FR Doc. 2025-12290 Filed 6-30-25; 8:45 am]
BILLING CODE 6750-01-P
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</html>Indexed from Federal Register on July 1, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.