81 FR 93928 - CarMax, Inc., Analysis of Proposed Consent Order To Aid Public Comment
FEDERAL TRADE COMMISSION Federal Register Volume 81, Issue 246 (December 22, 2016)
Federal Register Volume 81, Issue 246 (December 22, 2016)
| Page Range | 93928-93931 | |
| FR Document | 2016-30868 |
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)] [Notices] [Pages 93928-93931] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30868] ----------------------------------------------------------------------- FEDERAL TRADE COMMISSION [File No. 142 3202] CarMax, Inc., Analysis of Proposed Consent Order To Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Proposed consent agreement. ----------------------------------------------------------------------- SUMMARY: The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or [[Page 93929]] deceptive acts or practices. 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 January 17, 2017. ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/carmaxconsent online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write ``In the Matter of CarMax, Inc., File No. 142 3202--Consent Agreement'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/carmaxconsent by following the instructions on the web-based form. If you prefer to file your comment on paper, write ``In the Matter of CarMax, Inc., File No. 142 3202--Consent Agreement'' 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. FOR FURTHER INFORMATION CONTACT: Evan Zullow, (202) 326-2914), Attorney, Financial Practices Division, Bureau of Consumer Protection, 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 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 December 16, 2016), on the World Wide Web at: http://www.ftc.gov/os/actions.shtm. You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 17, 2017. Write ``In the Matter of CarMax, Inc., File No. 142 3202--Consent Agreement'' 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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/carmaxconsent 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 ``In the Matter of CarMax, Inc., File No. 142 3202--Consent Agreement'' 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 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 January 17, 2017. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm. Analysis of Proposed Consent Order To Aid Public Comment The Federal Trade Commission (``FTC'' or ``Commission'') has accepted, subject to final approval, an agreement containing a consent order from CarMax, Inc. The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the FTC will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order. The respondent is a car dealership that sells used motor vehicles. According to the FTC complaint, discussed further below, respondent has represented that used motor vehicles it sells have been subject to rigorous inspection, including for safety issues, but has failed to disclose adequately that some of these vehicles are subject to open recalls for safety issues. Federal law currently does not prohibit car dealers from selling used vehicles subject to open safety recalls; Congress and some states are considering [[Page 93930]] legislation that would do so. The Commission, however, can take action under the FTC Act to prohibit companies from making claims that mislead consumers about safety-related and other material issues. Further, the FTC can take such action in addition to (and entirely independent of) any private rights of action consumers themselves can bring under state law. This proposed action thus does not replace or alter any state laws or legislative proposals; rather, it offers additional protections beyond those afforded under other such laws, as they exist now or may be amended. More specifically, the complaint in this matter alleges that the respondent has posted advertisements on its Web site that make the following representations: 125+ Point Inspection Experienced technicians put every vehicle through a rigorous Certified Quality Inspection--over 125 points must check out before it meets our high standards. No Cars With Flood or Frame Damage Not every car that looks good is good. We're confident in the safety and reliability of our vehicles because our technicians are trained to detect those with hidden damage. Every Used Car Is Renewed CarMax cars undergo (on average) 12 hours of renewing-- sandwiched between two meticulous inspections--for a car that doesn't look or feel used. Even though it makes such claims, the respondent has allegedly advertised on its Web site numerous used vehicles that were subject to open recalls for safety issues. In numerous instances, when the respondent allegedly advertised used vehicles that are subject to open recalls for safety issues, it provided no accompanying clear and conspicuous disclosure of this fact. The proposed complaint alleges that this failure to disclose constitutes a deceptive act or practice under Section 5 of the FTC Act. The proposed order is designed to prevent the respondent from engaging in similar deceptive practices in the future. Part I prohibits the respondent from representing that used motor vehicles it offers for sale are safe, have been repaired for safety issues, or have been subject to a rigorous inspection unless the used motor vehicles are not subject to any open recalls for safety issues or the respondent discloses, clearly and conspicuously, in close proximity to such representation, any material qualifying information related to open recalls for safety issues. Part II is a provision that orders the respondent to notify consumers who purchased a used motor vehicle from a CarMax dealership between July 1, 2013 and November 20, 2014 that some of the used vehicles it sold during this time had been recalled for safety issues which weren't repaired as of the date they were sold. The notice also must specify how consumers can check whether the vehicle is subject to an unrepaired recall at the National Highway Traffic Safety Administration's Web site, https://vinrcl.safercar.gov/vin/ vin/. This Web site also provides information on how to get a vehicle fixed if it is subject to an open recall. Parts III through VII of the proposed order are reporting and compliance provisions. Part III requires the respondent to maintain for five years, and produce to the Commission upon demand, any relevant ads and associated documentary material. Part IV is an order distribution provision. Part V requires the respondent to notify the Commission of corporate changes that may affect compliance obligations. Part VI requires the respondent to submit a compliance report to the Commission 60 days after entry of the order, and also additional compliance reports within 10 business days of a written request by the Commission. Part VII ``sunsets'' the order after twenty years, with certain exceptions. The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify in any way the proposed order's terms. Statement of the Federal Trade Commission Concerning Auto Recall Advertising Cases \1\ --------------------------------------------------------------------------- \1\ In the Matters of General Motors Company, File No. 1523101; Jim Koons Management Company, File No. 1523104; Lithia Motors, Inc., File No. 1523102; CarMax, Inc., File No. 1423202; West-Herr Automotive Group, Inc., File No. 1523105; and Asbury Automotive Group, Inc., File No 1523103. --------------------------------------------------------------------------- December 15, 2016 Unrepaired auto recalls pose a serious threat to public safety. Car manufacturers and the National Highway Traffic Safety Administration have recalled tens of millions of vehicles in each of the last several years for defects that pose significant safety risks to consumers. In 2015, for example, recalls affected 51 million vehicles nationwide.\2\ And defects that have been the subject of recalls have led to severe injuries and even death for many consumers. Federal law requires that all new cars sold in the United States be free from recalls, but it does not prohibit auto dealers from selling used cars with open recalls. As a result, absent a change in law, neither NHTSA nor any other federal agency has the authority to ban the sale of used cars that have open recalls across the industry. --------------------------------------------------------------------------- \2\ Gordon Trowbridge, National Highway Traffic Safety Administration, U.S. Department of Transportation launches new public awareness campaign, Jan. 21, 2016, https://www.nhtsa.gov/About-NHTSA/Press-Releases/nhtsa_launches_safe_cars_save_lives_campaign_01212015. --------------------------------------------------------------------------- Section 5 of the Federal Trade Commission Act, however, enables the Commission to stop car sellers from engaging in false or misleading advertising practices that mask the existence of open recalls, and we are committed to doing just that. As part of this effort, the Commission is issuing final orders against General Motors Company, Jim Koons Management Company, and Lithia Motors, Inc. and announcing proposed orders against CarMax, Inc., West-Herr Automotive Group, Inc., and Asbury Automotive Group, Inc. In these enforcement actions, the Commission is challenging what we allege are deceptive advertising claims by these companies that highlight the rigorous inspections they perform on their used cars, but fail to clearly disclose the existence of unrepaired safety recalls. More specifically, we allege that the companies named in these actions touted the rigorousness of their car inspections by claiming, for example, to engage in a ``172-point inspection and reconditioning,'' an ``exhaustive 160-checkpoint Quality Assurance Inspection,'' or a ``rigorous and extensive inspection.'' Some of these inspected cars were subject to open recalls. We charge that the companies' representations about their inspections, absent clear and conspicuous information about open recalls, were likely to mislead reasonable consumers into believing that the inspections included repairing open recalls. Therefore, the companies' failure to disclose this information was deceptive.\3\ --------------------------------------------------------------------------- \3\ Under Section 5 of the FTC Act, ``it can be deceptive to tell only half the truth, and to omit the rest. This may occur where a seller fails to disclose qualifying information necessary to prevent one of his affirmative statements from creating a misleading impression.'' See In re International Harvester Co., 104 F.T.C. 949, 1057 (1984). --------------------------------------------------------------------------- Our orders stop this deceptive conduct and provide important additional protections for consumers. First, the orders prohibit each company from making any safety-related claim about its vehicles unless (1) the vehicles are recall-free, or, alternatively, the company discloses clearly and conspicuously and in close proximity to the representation both that the vehicles may be subject to open recalls and how [[Page 93931]] consumers can determine the recall status of a particular car, and (2) the claims are not otherwise misleading.\4\ --------------------------------------------------------------------------- \4\ For instance, a claim could still be misleading, even with the required disclosure, if a dealer represents that it inspected specific cars when it failed to do so, makes false oral statements to consumers that specific cars are free of recalls, or states a car may be subject to a recall (or otherwise implies it does not know the recall status) but in fact knows the car is actually subject to an open recall. --------------------------------------------------------------------------- This means that, if any car on the companies' lots is subject to an open recall, every time the companies make these types of inspection claims, they must prominently disclose that their cars may be subject to open recalls and tell consumers how to determine the recall status of specific cars. And they must provide this information wherever the inspection claims are made--in the showroom, on the lot, and in any TV, radio, or Web site ad that consumers may view before they even visit a car dealer. Further, the orders require each company to warn consumers who recently purchased one of its used cars that the vehicle may have an open recall. The Commission can seek civil penalties for violations of these orders, and we will not hesitate to do so if we discover a violation.\5\ --------------------------------------------------------------------------- \5\ See U.S. v. New World Auto, No. 16-cv-2401 (N.D. Tex. Aug. 22, 2016) (requiring auto dealers to pay civil penalties for violations of FTC order). --------------------------------------------------------------------------- These enforcement actions will help empower consumers to make more informed and safer purchasing decisions in a market that, absent a change in federal law, continues to include cars subject to open recalls. Dealers that repair all of their cars can continue to make truthful claims that they are recall-free, and can benefit from the competitive advantages of doing so. Dealers that cannot, or do not, repair all of their cars must instead prominently disclose that the cars may have open recalls when they make certain safety-related claims, such as claims about comprehensive inspections. Dealers are therefore incentivized to repair open recalls in the cars they advertise. At the same time, dealers can continue conducting their inspection programs and truthfully advertising them, provided they prominently disclose that cars may be subject to open recalls and do not misrepresent the recall status or safety of their cars.\6\ --------------------------------------------------------------------------- \6\ Dealer inspection programs often involve checking that vital components of a car, like the brakes and drivetrain, are working properly and thus can provide important consumer benefits. --------------------------------------------------------------------------- Finally, we note that other laws, including state product safety, tort, and other consumer protection laws, provide important safeguards to consumers affected by defective cars. Of course, the Commission's orders do not affect the protections afforded by those laws. Rather, the Commission's orders provide independent protection for consumers, requiring that they be given information about open recalls before they purchase a used car. Congress has been considering legislative proposals that would prohibit the sale of used cars with unrepaired recalls altogether, and we support efforts seeking to address this serious public safety issue. Although the Commission's enforcement actions against individual companies cannot substitute for legislative solutions, they provide important protections for consumers to help ensure that they can make informed and safer purchasing decisions in the used car marketplace. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 2016-30868 Filed 12-21-16; 8:45 am] BILLING CODE 6750-01-P
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Statement of the Federal Trade inspected cars were subject to open subject to open recalls. Dealers that
Commission Concerning Auto Recall recalls. We charge that the companies’ repair all of their cars can continue to
Advertising Cases 1 representations about their inspections, make truthful claims that they are
December 15, 2016 absent clear and conspicuous recall-free, and can benefit from the
information about open recalls, were competitive advantages of doing so.
Unrepaired auto recalls pose a serious likely to mislead reasonable consumers Dealers that cannot, or do not, repair all
threat to public safety. Car into believing that the inspections of their cars must instead prominently
manufacturers and the National included repairing open recalls. disclose that the cars may have open
Highway Traffic Safety Administration Therefore, the companies’ failure to recalls when they make certain safety-
have recalled tens of millions of disclose this information was related claims, such as claims about
vehicles in each of the last several years deceptive.3 comprehensive inspections. Dealers are
for defects that pose significant safety Our orders stop this deceptive therefore incentivized to repair open
risks to consumers. In 2015, for conduct and provide important recalls in the cars they advertise. At the
example, recalls affected 51 million additional protections for consumers. same time, dealers can continue
vehicles nationwide.2 And defects that First, the orders prohibit each company conducting their inspection programs
have been the subject of recalls have led from making any safety-related claim and truthfully advertising them,
to severe injuries and even death for about its vehicles unless (1) the vehicles provided they prominently disclose that
many consumers. Federal law requires are recall-free, or, alternatively, the cars may be subject to open recalls and
that all new cars sold in the United company discloses clearly and do not misrepresent the recall status or
States be free from recalls, but it does conspicuously and in close proximity to safety of their cars.6
not prohibit auto dealers from selling the representation both that the vehicles Finally, we note that other laws,
used cars with open recalls. As a result, may be subject to open recalls and how including state product safety, tort, and
absent a change in law, neither NHTSA consumers can determine the recall other consumer protection laws, provide
nor any other federal agency has the status of a particular car, and (2) the important safeguards to consumers
authority to ban the sale of used cars claims are not otherwise misleading.4 affected by defective cars. Of course, the
that have open recalls across the This means that, if any car on the Commission’s orders do not affect the
industry. companies’ lots is subject to an open protections afforded by those laws.
Section 5 of the Federal Trade recall, every time the companies make Rather, the Commission’s orders
Commission Act, however, enables the these types of inspection claims, they provide independent protection for
Commission to stop car sellers from must prominently disclose that their consumers, requiring that they be given
engaging in false or misleading cars may be subject to open recalls and information about open recalls before
advertising practices that mask the tell consumers how to determine the they purchase a used car.
existence of open recalls, and we are recall status of specific cars. And they Congress has been considering
committed to doing just that. As part of must provide this information wherever legislative proposals that would prohibit
this effort, the Commission is issuing the inspection claims are made—in the the sale of used cars with unrepaired
final orders against General Motors showroom, on the lot, and in any TV, recalls altogether, and we support
Company, Jim Koons Management radio, or Web site ad that consumers efforts seeking to address this serious
Company, and Lithia Motors, Inc. and may view before they even visit a car public safety issue. Although the
announcing proposed orders against dealer. Commission’s enforcement actions
CarMax, Inc., West-Herr Automotive Further, the orders require each against individual companies cannot
Group, Inc., and Asbury Automotive company to warn consumers who substitute for legislative solutions, they
Group, Inc. In these enforcement recently purchased one of its used cars provide important protections for
actions, the Commission is challenging that the vehicle may have an open consumers to help ensure that they can
what we allege are deceptive advertising recall. The Commission can seek civil make informed and safer purchasing
claims by these companies that penalties for violations of these orders, decisions in the used car marketplace.
highlight the rigorous inspections they and we will not hesitate to do so if we
perform on their used cars, but fail to By direction of the Commission.
discover a violation.5
clearly disclose the existence of Donald S. Clark,
These enforcement actions will help
unrepaired safety recalls. empower consumers to make more Secretary.
More specifically, we allege that the informed and safer purchasing decisions [FR Doc. 2016–30869 Filed 12–21–16; 8:45 am]
companies named in these actions in a market that, absent a change in BILLING CODE 6750–01–P
touted the rigorousness of their car federal law, continues to include cars
inspections by claiming, for example, to
engage in a ‘‘172-point inspection and 3 Under Section 5 of the FTC Act, ‘‘it can be FEDERAL TRADE COMMISSION
reconditioning,’’ an ‘‘exhaustive 160- deceptive to tell only half the truth, and to omit the
[File No. 142 3202]
checkpoint Quality Assurance rest. This may occur where a seller fails to disclose
qualifying information necessary to prevent one of
Inspection,’’ or a ‘‘rigorous and his affirmative statements from creating a CarMax, Inc., Analysis of Proposed
extensive inspection.’’ Some of these misleading impression.’’ See In re International Consent Order To Aid Public Comment
Harvester Co., 104 F.T.C. 949, 1057 (1984).
1 In the Matters of General Motors Company, File 4 For instance, a claim could still be misleading, AGENCY: Federal Trade Commission.
No. 1523101; Jim Koons Management Company, even with the required disclosure, if a dealer ACTION: Proposed consent agreement.
File No. 1523104; Lithia Motors, Inc., File No. represents that it inspected specific cars when it
sradovich on DSK3GMQ082PROD with NOTICES
1523102; CarMax, Inc., File No. 1423202; West-Herr failed to do so, makes false oral statements to SUMMARY: The consent agreement in this
Automotive Group, Inc., File No. 1523105; and consumers that specific cars are free of recalls, or
Asbury Automotive Group, Inc., File No 1523103. states a car may be subject to a recall (or otherwise
matter settles alleged violations of
2 Gordon Trowbridge, National Highway Traffic implies it does not know the recall status) but in federal law prohibiting unfair or
Safety Administration, U.S. Department of fact knows the car is actually subject to an open
Transportation launches new public awareness recall. 6 Dealer inspection programs often involve
campaign, Jan. 21, 2016, https://www.nhtsa.gov/ 5 See U.S. v. New World Auto, No. 16-cv-2401 checking that vital components of a car, like the
About-NHTSA/Press-Releases/nhtsa_launches_ (N.D. Tex. Aug. 22, 2016) (requiring auto dealers to brakes and drivetrain, are working properly and
safe_cars_save_lives_campaign_01212015. pay civil penalties for violations of FTC order). thus can provide important consumer benefits.
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deceptive acts or practices. The attached Matter of CarMax, Inc., File No. 142 www.regulations.gov/#!home, you also
Analysis to Aid Public Comment 3202—Consent Agreement’’ on your may file a comment through that Web
describes both the allegations in the comment. Your comment—including site.
draft complaint and the terms of the your name and your state—will be If you file your comment on paper,
consent order—embodied in the consent placed on the public record of this write ‘‘In the Matter of CarMax, Inc.,
agreement—that would settle these proceeding, including, to the extent File No. 142 3202—Consent Agreement’’
allegations. practicable, on the public Commission on your comment and on the envelope,
DATES: Comments must be received on Web site, at http://www.ftc.gov/os/ and mail your comment to the following
or before January 17, 2017. publiccomments.shtm. As a matter of address: Federal Trade Commission,
discretion, the Commission tries to Office of the Secretary, 600
ADDRESSES: Interested parties may file a
remove individuals’ home contact Pennsylvania Avenue NW., Suite CC–
comment at https://
information from comments before 5610 (Annex D), Washington, DC 20580,
ftcpublic.commentworks.com/ftc/
placing them on the Commission Web or deliver your comment to the
carmaxconsent online or on paper, by
site. following address: Federal Trade
following the instructions in the
Because your comment will be made Commission, Office of the Secretary,
Request for Comment part of the
public, you are solely responsible for Constitution Center, 400 7th Street SW.,
SUPPLEMENTARY INFORMATION section
making sure that your comment does 5th Floor, Suite 5610 (Annex D),
below. Write ‘‘In the Matter of CarMax,
not include any sensitive personal Washington, DC 20024. If possible,
Inc., File No. 142 3202—Consent
information, like anyone’s Social submit your paper comment to the
Agreement’’ on your comment and file
Security number, date of birth, driver’s Commission by courier or overnight
your comment online at https://
license number or other state service.
ftcpublic.commentworks.com/ftc/ Visit the Commission Web site at
identification number or foreign country
carmaxconsent by following the http://www.ftc.gov to read this Notice
equivalent, passport number, financial
instructions on the web-based form. If and the news release describing it. The
account number, or credit or debit card
you prefer to file your comment on FTC Act and other laws that the
number. You are also solely responsible
paper, write ‘‘In the Matter of CarMax, Commission administers permit the
for making sure that your comment does
Inc., File No. 142 3202—Consent collection of public comments to
not include any sensitive health
Agreement’’ on your comment and on consider and use in this proceeding as
information, like medical records or
the envelope, and mail your comment to appropriate. The Commission will
other individually identifiable health
the following address: Federal Trade consider all timely and responsive
information. In addition, do not include
Commission, Office of the Secretary, public comments that it receives on or
any ‘‘[t]rade secret or any commercial or
600 Pennsylvania Avenue NW., Suite before January 17, 2017. You can find
financial information which . . . is
CC–5610 (Annex D), Washington, DC more information, including routine
privileged or confidential,’’ as discussed
20580, or deliver your comment to the uses permitted by the Privacy Act, in
in Section 6(f) of the FTC Act, 15 U.S.C.
following address: Federal Trade the Commission’s privacy policy, at
46(f), and FTC Rule 4.10(a)(2), 16 CFR
Commission, Office of the Secretary, http://www.ftc.gov/ftc/privacy.htm.
4.10(a)(2). In particular, do not include
Constitution Center, 400 7th Street SW.,
competitively sensitive information Analysis of Proposed Consent Order To
5th Floor, Suite 5610 (Annex D),
such as costs, sales statistics, Aid Public Comment
Washington, DC 20024.
inventories, formulas, patterns, devices,
FOR FURTHER INFORMATION CONTACT: manufacturing processes, or customer The Federal Trade Commission
Evan Zullow, (202) 326–2914), names. (‘‘FTC’’ or ‘‘Commission’’) has accepted,
Attorney, Financial Practices Division, If you want the Commission to give subject to final approval, an agreement
Bureau of Consumer Protection, Federal your comment confidential treatment, containing a consent order from
Trade Commission, 600 Pennsylvania you must file it in paper form, with a CarMax, Inc. The proposed consent
Avenue NW., Washington, DC 20580. request for confidential treatment, and order has been placed on the public
SUPPLEMENTARY INFORMATION: Pursuant you have to follow the procedure record for thirty (30) days for receipt of
to Section 6(f) of the Federal Trade explained in FTC Rule 4.9(c), 16 CFR comments by interested persons.
Commission Act, 15 U.S.C. 46(f), and 4.9(c).1 Your comment will be kept Comments received during this period
FTC Rule 2.34, 16 CFR 2.34, notice is confidential only if the FTC General will become part of the public record.
hereby given that the above-captioned Counsel, in his or her sole discretion, After thirty (30) days, the FTC will again
consent agreement containing consent grants your request in accordance with review the agreement and the comments
order to cease and desist, having been the law and the public interest. received, and will decide whether it
filed with and accepted, subject to final Postal mail addressed to the should withdraw from the agreement
approval, by the Commission, has been Commission is subject to delay due to and take appropriate action or make
placed on the public record for a period heightened security screening. As a final the agreement’s proposed order.
of thirty (30) days. The following result, we encourage you to submit your The respondent is a car dealership
Analysis to Aid Public Comment comments online. To make sure that the that sells used motor vehicles.
describes the terms of the consent Commission considers your online According to the FTC complaint,
agreement, and the allegations in the comment, you must file it at https:// discussed further below, respondent has
complaint. An electronic copy of the ftcpublic.commentworks.com/ftc/ represented that used motor vehicles it
full text of the consent agreement carmaxconsent by following the sells have been subject to rigorous
inspection, including for safety issues,
sradovich on DSK3GMQ082PROD with NOTICES
package can be obtained from the FTC instructions on the web-based form. If
Home Page (for December 16, 2016), on this Notice appears at http:// but has failed to disclose adequately
the World Wide Web at: http:// that some of these vehicles are subject
www.ftc.gov/os/actions.shtm. 1 In particular, the written request for confidential to open recalls for safety issues. Federal
You can file a comment online or on treatment that accompanies the comment must law currently does not prohibit car
include the factual and legal basis for the request,
paper. For the Commission to consider and must identify the specific portions of the
dealers from selling used vehicles
your comment, we must receive it on or comment to be withheld from the public record. See subject to open safety recalls; Congress
before January 17, 2017. Write ‘‘In the FTC Rule 4.9(c), 16 CFR 4.9(c). and some states are considering
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consumers can determine the recall Commission’s orders do not affect the your comment to the following address:
status of a particular car, and (2) the protections afforded by those laws. Federal Trade Commission, Office of the
claims are not otherwise misleading.4 Rather, the Commission’s orders Secretary, 600 Pennsylvania Avenue
This means that, if any car on the provide independent protection for NW., Suite CC–5610 (Annex D),
companies’ lots is subject to an open consumers, requiring that they be given Washington, DC 20580, or deliver your
recall, every time the companies make information about open recalls before comment to the following address:
these types of inspection claims, they they purchase a used car. Federal Trade Commission, Office of the
must prominently disclose that their Congress has been considering Secretary, Constitution Center, 400 7th
cars may be subject to open recalls and legislative proposals that would prohibit Street SW., 5th Floor, Suite 5610
tell consumers how to determine the the sale of used cars with unrepaired (Annex D), Washington, DC 20024.
recall status of specific cars. And they recalls altogether, and we support FOR FURTHER INFORMATION CONTACT:
must provide this information wherever efforts seeking to address this serious Evan Zullow, (202) 326–2914, Attorney,
the inspection claims are made—in the public safety issue. Although the Financial Practices Division, Bureau of
showroom, on the lot, and in any TV, Commission’s enforcement actions Consumer Protection, Federal Trade
radio, or Web site ad that consumers against individual companies cannot Commission, 600 Pennsylvania Avenue
may view before they even visit a car substitute for legislative solutions, they NW., Washington, DC 20580.
dealer. provide important protections for
SUPPLEMENTARY INFORMATION: Pursuant
Further, the orders require each consumers to help ensure that they can
company to warn consumers who to Section 6(f) of the Federal Trade
make informed and safer purchasing
recently purchased one of its used cars Commission Act, 15 U.S.C. 46(f), and
decisions in the used car marketplace.
that the vehicle may have an open FTC Rule 2.34, 16 CFR 2.34, notice is
By direction of the Commission. hereby given that the above-captioned
recall. The Commission can seek civil
Donald S. Clark, consent agreement containing consent
penalties for violations of these orders,
and we will not hesitate to do so if we Secretary. order to cease and desist, having been
discover a violation.5 [FR Doc. 2016–30868 Filed 12–21–16; 8:45 am] filed with and accepted, subject to final
These enforcement actions will help BILLING CODE 6750–01–P approval, by the Commission, has been
empower consumers to make more placed on the public record for a period
informed and safer purchasing decisions of thirty (30) days. The following
in a market that, absent a change in FEDERAL TRADE COMMISSION Analysis to Aid Public Comment
federal law, continues to include cars [File No. 152 3103]
describes the terms of the consent
subject to open recalls. Dealers that agreement, and the allegations in the
repair all of their cars can continue to Asbury Automotive Group, Inc., complaint. An electronic copy of the
make truthful claims that they are Analysis of Proposed Consent Order full text of the consent agreement
recall-free, and can benefit from the To Aid Public Comment package can be obtained from the FTC
competitive advantages of doing so. Home Page (for December 16, 2016), on
Dealers that cannot, or do not, repair all AGENCY: Federal Trade Commission. the World Wide Web at: http://
of their cars must instead prominently ACTION: Proposed consent agreement. www.ftc.gov/os/actions.shtm.
disclose that the cars may have open You can file a comment online or on
SUMMARY: The consent agreement in this
recalls when they make certain safety- paper. For the Commission to consider
matter settles alleged violations of
related claims, such as claims about your comment, we must receive it on or
federal law prohibiting unfair or
comprehensive inspections. Dealers are before January 17, 2017. Write ‘‘In the
deceptive acts or practices. The attached
therefore incentivized to repair open Matter of Asbury Automotive Group,
Analysis to Aid Public Comment
recalls in the cars they advertise. At the Inc., File No. 152 3103—Consent
describes both the allegations in the
same time, dealers can continue Agreement’’ on your comment. Your
draft complaint and the terms of the
conducting their inspection programs comment—including your name and
consent order—embodied in the consent
and truthfully advertising them, your state—will be placed on the public
agreement—that would settle these
provided they prominently disclose that record of this proceeding, including, to
allegations.
cars may be subject to open recalls and the extent practicable, on the public
do not misrepresent the recall status or DATES: Comments must be received on Commission Web site, at http://
safety of their cars.6 or before January 17, 2017. www.ftc.gov/os/publiccomments.shtm.
Finally, we note that other laws, ADDRESSES: Interested parties may file a As a matter of discretion, the
including state product safety, tort, and comment at https:// Commission tries to remove individuals’
other consumer protection laws, provide ftcpublic.commentworks.com/ftc/ home contact information from
important safeguards to consumers asburyconsent online or on paper, by comments before placing them on the
affected by defective cars. Of course, the following the instructions in the Commission Web site.
Request for Comment part of the Because your comment will be made
4 For instance, a claim could still be misleading,
SUPPLEMENTARY INFORMATION section public, you are solely responsible for
even with the required disclosure, if a dealer below. Write ‘‘In the Matter of Asbury making sure that your comment does
represents that it inspected specific cars when it
failed to do so, makes false oral statements to Automotive Group, Inc., File No. 152 not include any sensitive personal
consumers that specific cars are free of recalls, or 3103—Consent Agreement’’ on your information, like anyone’s Social
states a car may be subject to a recall (or otherwise comment and file your comment online Security number, date of birth, driver’s
implies it does not know the recall status) but in at https://ftcpublic.commentworks.com/ license number or other state
sradovich on DSK3GMQ082PROD with NOTICES
fact knows the car is actually subject to an open
recall. ftc/asburyconsent by following the identification number or foreign country
5 See U.S. v. New World Auto, No. 16–cv–2401 instructions on the web-based form. If equivalent, passport number, financial
(N.D. Tex. Aug. 22, 2016) (requiring auto dealers to you prefer to file your comment on account number, or credit or debit card
pay civil penalties for violations of FTC order). paper, write ‘‘In the Matter of Asbury number. You are also solely responsible
6 Dealer inspection programs often involve
checking that vital components of a car, like the
Automotive Group, Inc., File No. 152 for making sure that your comment does
brakes and drivetrain, are working properly and 3103—Consent Agreement’’ on your not include any sensitive health
thus can provide important consumer benefits. comment and on the envelope, and mail information, like medical records or
VerDate Sep<11>2014 17:40 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\22DEN1.SGM 22DEN1](https://thefederalregister.org/doc/81_FR_94174/page/4.svg)
Document Created: 2016-12-21 23:52:33
Document Modified: 2016-12-21 23:52:33
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Proposed consent agreement. | |
| Dates | Comments must be received on or before January 17, 2017. | |
| Contact | Evan Zullow, (202) 326-2914), Attorney, Financial Practices Division, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580. | |
| FR Citation | 81 FR 93928 |
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