Casey's General Stores, Inc.; Analysis of Agreement Containing Consent Orders To Aid Public Comment

Topics:  Casey's General Stores

April J. Tabor
Federal Trade Commission
4 May 2021

[Federal Register Volume 86, Number 84 (Tuesday, May 4, 2021)]
[Notices]
[Pages 23724-23726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09329]


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FEDERAL TRADE COMMISSION

[File No. 211 0028]


Casey's General Stores, Inc.; 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 Proposed Consent Orders to Aid Public Comment 
describes both the allegations in the complaint and the terms of the 
consent orders--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before June 3, 2021.

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: ``Casey's 
General Stores, Inc.; File No. 211 0028'' on your comment, and file 
your comment online at www.regulations.gov 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, 
Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment 
to the following address: Federal Trade Commission, Office of the 
Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 
5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Ashley Masters (202-326-2291), Bureau 
of Competition, Federal Trade Commission, 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 of Agreement Containing Consent Orders 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 website at 
this web address: https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before June 3, 2021. 
Write ``Casey's General Stores, Inc.; File No. 211 0028'' 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 www.regulations.gov website.
    Due to protective actions in response to the COVID-19 pandemic and 
the agency's heightened security screening, postal mail addressed to 
the Commission will be subject to delay. We strongly encourage you to 
submit your comments online through the www.regulations.gov website.
    If you prefer to file your comment on paper, write ``Casey's 
General Stores, Inc.; File No. 211 0028'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by overnight service.
    Because your comment will be placed on the publicly accessible 
website at www.regulations.gov, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
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 any 
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 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular 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 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 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

[[Page 23725]]

www.regulations.gov--as legally required by FTC Rule 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 4.9(c), and the General Counsel grants that request.
    Visit the FTC website at http://www.ftc.gov to read this Notice and 
the news release describing this matter. 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 June 3, 2021. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

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 Casey's General Stores, 
Inc. (``Casey's'') and Buck's Intermediate Holdings, LLC and Steven 
Buchanan (``Bucky's,'' and collectively, the ``Respondents''). The 
Consent Agreement is designed to remedy the anticompetitive effects 
that likely would result from Casey's proposed acquisition of retail 
fuel assets from Bucky's.
    Under the terms of the proposed Decision and Order (``Order'') 
contained in the Consent Agreement, Respondents must divest certain 
retail fuel assets in seven local markets in Nebraska and Iowa. 
Respondents must complete the divestiture within 10 days after the 
closing of the acquisition. The Commission and Respondents have agreed 
to an Order to Maintain Assets that requires Respondents to operate and 
maintain each divestiture outlet in the normal course of business 
through the date the upfront buyers acquire 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 Casey's, a publicly traded company headquartered in 
Ankeny, Iowa, owns and operates roughly 2,200 retail fuel outlets and 
convenience stores in 16 Midwestern states, primarily Iowa, Missouri 
and Illinois. Casey's convenience stores operate under the Casey's 
name, and its retail fuel outlets sell under unbranded fuel banners.
    Respondent Bucky's is a family-owned chain of retail fuel outlets 
and convenience stores headquartered in Omaha, Nebraska. It has 
approximately 170 stores in its network, including 94 company-operated 
sites, and currently operates the largest chain of convenience stores 
in the Omaha metro area, under the Bucky's name, with additional stores 
in Chicago, Illinois. Bucky's retail fuel outlets sell under a variety 
of third-party branded and unbranded fuel banners.

III. The Proposed Acquisition

    On November 8, 2020, Casey's entered into an agreement to acquire 
certain retail and wholesale fuel assets from Bucky's and related 
entities (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 seven local markets in Nebraska and 
Iowa, and by substantially lessening competition for the retail sale of 
diesel fuel in four local markets in Nebraska.

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 gasoline for their gasoline-
powered vehicles and can purchase gasoline only at retail fuel outlets. 
Likewise, consumers require diesel fuel for their diesel-powered 
vehicles and can purchase diesel fuel only 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 Acquisition with respect to the 
retail sale of gasoline are seven local markets in and around the 
following cities: Omaha, Nebraska; Papillion, Nebraska; and Council 
Bluffs, Iowa. The relevant geographic markets in which to assess the 
competitive effects of the Acquisition with respect to the retail sale 
of diesel fuel are four local markets in and around Omaha, Nebraska and 
Papillion, Nebraska.
    The geographic markets for retail gasoline and retail diesel fuel 
are highly localized, depending on the unique circumstances of each 
area. Each relevant market is distinct and fact-dependent, reflecting 
many considerations, including commuting patterns, traffic flows, 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 seven highly concentrated markets for 
the retail sale of gasoline and three 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 flows, 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 three or 
fewer. The combined entity would be able to raise prices unilaterally 
in markets where Casey's and Bucky's are close competitors. Absent the 
Acquisition, Casey's and Bucky's 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 only two or three 
competitively constraining independent market participants would 
remain. Two aspects of the retail fuel industry make it vulnerable to 
such coordination. First, retail fuel outlets post their fuel prices on 
price signs visible from the street, allowing competitors easily to 
observe each other's fuel prices. Second, retail fuel outlets regularly 
track their competitors' fuel prices and change their own prices in 
response. These repeated interactions give retail fuel

[[Page 23726]]

outlets familiarity with how their competitors price and how changing 
prices affect fuel sales.
    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 Casey's to divest certain Casey's 
and Bucky's retail fuel assets to Western Oil II, LLC and Danco II, LLC 
(collectively ``Western Oil'') in each local market. Western Oil is an 
experienced operator or supplier of retail fuel sites and will be a new 
entrant into the local markets.
    The proposed Order requires the divestiture be completed no later 
than ten days after Casey's consummates the Acquisition. The proposed 
Order further requires Casey's and Bucky's to maintain the economic 
viability, marketability, and competitiveness of each divestiture asset 
until the divestiture to Western Oil is complete.
    In addition to requiring outlet divestitures, the proposed Order 
requires Respondents to provide the Commission notice before acquiring 
retail fuel assets within a fixed distance of any Casey's outlet in a 
market involving a divestiture for ten years. The prior notice 
provision is necessary because an acquisition in close proximity to 
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 Respondents to operate and maintain each 
divestiture outlet in the normal course of business, through the date 
the Respondents complete the divestiture. 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.
April J. Tabor,
Secretary.
[FR Doc. 2021-09329 Filed 5-3-21; 8:45 am]
BILLING CODE 6750-01-P