[Federal Register Volume 64, Number 249 (Wednesday, December 29, 1999)]
[Notices]
[Pages 73066-73074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33410]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States of America v. Alcoa Inc., ACX Technologies, Inc.,
and Golden Aluminum Company; Proposed Final Judgment and Competitive
Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sections 16(b) through (h), that a Complaint,
Hold Separate Stipulation and Order, and a proposed Final Judgment were
filed with the United States District Court for the District of
Columbia in United States of America v. Alcoa Inc., ACX Technologies,
Inc., and Golden Aluminum Company, Civil No. 99-2943 on November 5,
1999. On December 6, 1999, the United States filed a Competitive Impact
Statement. The Complaint alleged that the proposed acquisition by Alcoa
Inc. (``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in
Golden Aluminum Company (``Golden'') would violate Section 7 of the
Clayton Act, as amended, 15 U.S.C. 18, in the market for aluminum food
and beverage can lid stock (``lid stock''). The proposed Final
Judgment, filed at the same time as the Complaint, requires Alcoa to
sell Golden's Fort Lupton, Colorado aluminum business. The proposed
Final Judgment requires that the purchaser of the divested assets
continue to operate them in the manufacture and sale of lid stock. The
Competitive Impact Statement describes the Complaint, the proposed
Final Judgment, the industry, and the remedies available to private
litigants who may have been injured by the alleged violation. Copies of
the Complaint, Hold Separate Stipulation and Order, proposed Final
Judgment, and Competitive Impact Statement are available for inspection
in Room 215 of the U.S. Department of Justice, Antitrust Division, 325
7th Street, NW., Washington, DC, and at the office of the Clerk of the
United States District Court for the District of Columbia, Washington,
DC. Copies of any of these materials may be obtained upon request and
payment of a copying fee. These materials are also located on the
Antitrust Division's web site (www.usdoj.gov/atr/cases.html).
Public comment is invited within 60 days of the date of this
notice. Such comments, and response thereto, will be published in the
Federal Register and filed with the Court. Comments should be directed
to Roger W. Fones, Chief, Transportation, Energy & Agriculture Section,
Antitrust Division, United States Department of Justice, 325 Seventh
Street, NW., Suite 500, Washington, DC 20530 (telephone: 202-307-6351).
Constance K. Robinson,
Director of Operations and Merger Enforcement.
Stipulation and Order
It is hereby Stipulated by and between the undersigned parties, by
their respective attorneys, as follows:
1. The Court has jurisdiction over the subject matter of this
action and over each of the parties hereto, and venue of this action is
proper in the United States District Court for the District of
Columbia.
2. The parties stipulate that a Final Judgment in the form hereto
attached may be filed and entered by the Court, upon the motion of any
party or upon the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. Sec. 16), and without further notice to any party or other
proceedings, provided that plaintiff has not withdrawn its consent,
which it may do at any time before the entry of the proposed Final
Judgment by serving notice thereof on defendants and by filing that
notice with the Court.
3. Defendants shall abide by and comply with the provisions of the
proposed Final Judgment pending entry of the Final Judgment by the
Court, or until expiration of time for all appeals of any Court ruling
declining entry of the proposed Final Judgment, and shall, from the
date of the signing of this Stipulation by the parties, comply with all
the terms and provisions of the proposed Final Judgment as though they
were in full force and effect as an order of the Court.
4. This Stipulation shall apply with equal force and effect to any
amended proposed Final Judgment agreed upon in writing by the parties
and submitted to the Court.
5. In the event that plaintiff withdraws its consent, as provided
in paragraph 2 above, or in the event that the proposed Final Judgment
is not entered pursuant to this Stipulation, the time has expired for
all appeals of any Court ruling declining entry of the proposed Final
Judgment, and the Court
[[Page 73067]]
has not otherwise ordered continued compliance with the terms and
provisions of the proposed Final Judgment, then the parties are
released from all further obligations under this Stipulation, and the
making of this Stipulation shall be without prejudice to any party in
this or any other proceeding.
6. Defendants represent that the divestiture ordered in the
proposed Final Judgment can and will be made, and that the defendants
will later raise no claims of hardship or difficulty as grounds for
asking the Court to modify any of the divestiture provisions contained
therein..
7. Defendants agree not to consummate their transaction before the
Court has signed this Stipulation and Order.
Dated: November 5, 1999.
Respectfully submitted,
For Plaintiff
United States of America: Nina B. Hale, Washington Bar #18776;
Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of
Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004,
(202) 307-6351.
For Defendant:
Alcoa, Inc., W. Randolph Smith, DC Bar #________, Crowell &
Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2595,
(202) 624-2700.
For Defendants:
ACX Technologies, Inc., and Golden Aluminum Company: W. Todd
Miller, DC Bar #414930, Baker & Miller, 915 15th Street, Suite 1000,
Washington, DC 20005-2302.
Order
It is so ordered, this ____ day of ________, 1999.
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United States District Court Judge
Hold Separate Stipulation and Order
It is hereby Stipulated by and between the undersigned parties,
subject to approval and entry by the Court, that:
I. Definitions
As used in this Hold Separate Stipulation and Order:
A. ``Alcoa'' means defendant Alcoa Inc., a Pennsylvania corporation
with its headquarters in Pittsburgh, Pennsylvania, and its successors,
assigns, subsidiaries, divisions, groups, affiliates, partnerships and
joint ventures, and directors, officers, managers, agents, and
employees.
B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation
with its headquarters in Golden, Colorado, and its successors, assigns,
subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures, and directors, officers, managers, agents, and employees.
C. ``Golden'' means Golden Aluminum Company, a wholly owned
subsidiary of ACX, with two principal aluminum sheet manufacturing
facilities located in Fort Lupton, Colorado, and San Antonio, Texas,
and its successors, assigns, subsidiaries, divisions, groups,
affiliates, partnerships and joint ventures, and directors, officers,
managers, agents, and employees.
D. ``Fort Lupton Assets'' means all assets included within Golden's
Fort Lupton, Colorado operation including:
1. All tangible assets, including the Fort Lupton manufacturing
facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-
0207 (``the Fort Lupton Facility'') and the real property on which the
Fort Lupton Facility is situated; any facilities used for research and
development activities, including Golden Engineering, AG, a Swiss
company, and GAC Technology, a Colorado corporation, both of which
provide engineering support to the Fort Lupton Facility (``the
Engineering Facilities''), and any real property associated with those
facilities, manufacturing assets relating to the Fort Lupton Facility
and to the Engineering Facilities, including capital equipment,
vehicles, supplies, personal property, inventory, office furniture,
fixed assets and fixtures, materials, on-site warehouses or storage
facilities, and other tangible property or improvements; all licenses,
permits and authorizations issued by any governmental organization
relating to the Fort Lupton Facility and to the Engineering Facilities;
all contracts, agreements, leases, commitments and understandings
pertaining to the operations of the Fort Lupton Facility and of the
Engineering Facilities; supply agreements; all customer lists,
accounts, and credit records; and other records maintained by Golden in
connection with the operations of the Fort Lupton Facility and of the
Engineering Facilities;
2. All intangible assets, including but not limited to all patents,
licenses and sublicenses, intellectual property, trademarks, trade
names, service marks, service names, technical information, know-how,
trade secrets, drawings, blueprints, designs, design protocols,
specifications for materials, specifications for parts and devices,
safety procedures for the handling of materials and substances, quality
assurance and control procedures, design tools and simulation
capability, and all manuals and technical information Golden provides
to its employees, customers, suppliers, agents or licensees in
connection with the operations of the Fort Lupton Facility and of the
Engineering Facilities; except that Alcoa may retain a non-exclusive,
non-transferable, royalty-free license to use all patents, licenses,
and sublicenses, intellectual property, technical information, know-
how, trade secrets, specifications for materials, and quality assurance
and control procedures necessary to operate the block caster at
Golden's San Antonio, Texas manufacturing facility (``the San Antonio
block caster''), provided, however, that if Alcoa sells the San Antonio
block caster to ACX Technologies, Inc. or an affiliate of ACX
Technologies, Inc., it may provide ACX Technologies, Inc. or the ACX
Technologies, Inc. affiliate with a non-exclusive, non-transferable,
royalty-free license for use solely in connection with the operation of
the San Antonio block caster; and
3. All research data concerning historic and current research and
development efforts relating to the operation of the Fort Lupton
Facility and of the Engineering Facilities, including designs of
experiments, and the results of unsuccessful designs and experiments.
E. ``Lid stock'' means an aluminum sheet product from which the
ends, tabs and pull-off lids of food and beverage cans are made.
II. Objectives
The Final Judgment filed in this case is meant to ensure Alcoa's
prompt divestiture of the Fort Lupton Assets for the purpose of
maintaining a viable competitor in the manufacture and sale of lid
stock to remedy the effects that the United States alleges would
otherwise result from Alcoa's proposed acquisition of Golden.
This Hold Separate Stipulation and Order ensures, prior to such
divestiture, that the Fort Lupton Assets, which are being divested, be
maintained as an independent, economically viable, ongoing business
concern, and that competition is maintained during the pendency of the
divestiture.
III. Hold Separate Provisions
Until the divestiture required by the Final Judgment has been
accomplished:
A. Alcoa shall preserve, maintain, and operate the Fort Lupton
Assets as an independent competitor with management, research,
development, production, sales and operations held entirely separate,
distinct and apart from those of Alcoa. Alcoa shall not coordinate the
manufacture, marketing or sale of products from the Fort Lupton
[[Page 73068]]
Assets with its existing lid stock business. Within twenty (20)
calendar days of the filing of the Complaint in this matter, Alcoa will
inform plaintiff of the steps taken to comply with this provision.
B. Alcoa shall take all steps necessary to ensure that the Fort
Lupton Assets will be maintained and operated as an independent,
ongoing, economically viable and active competitor in the manufacture
and sale of lid stock; that the management of the Fort Lupton Assets
will not be influenced by Alcoa, and that the books, records,
competitively sensitive sales, marketing and pricing information, and
decision-making associated with the Fort Lupton Assets will be kept
separate and apart from the operations of Alcoa. Alcoa's influence over
the Fort Lupton Assets shall be limited to that necessary to carry out
Alcoa's obligations under this Order and the Final Judgment. Alcoa may
receive historical aggregate financial information (excluding capacity
or pricing information) relating to the Fort Lupton Assets to the
extent necessary to allow Alcoa to prepare financial reports, tax
returns, personnel reports, and other necessary or legally required
reports.
C. Alcoa shall use all reasonable efforts to maintain lid stock
manufacturing and sales levels at the Fort Lupton Facility, and to
maintain research and development activities and engineering support at
the Engineering Facilities. Alcoa shall maintain at current or
previously approved levels, whichever are higher, internal research and
development funding, promotional, advertising, sales, technical
assistance, marketing and merchandising support for the Fort Lupton
Assets.
D. Alcoa shall provide and maintain sufficient working capital to
maintain the Fort Lupton Assets as an economically viable, on going
business.
E. Alcoa shall provide and maintain sufficient lines and sources of
credit to maintain the Fort Lupton Assets as an economically viable,
ongoing business.
F. Alcoa shall take all steps necessary to ensure that the Fort
Lupton Facility is fully maintained in operable condition at no lower
than its current rated capacity, and shall maintain and adhere to
normal repair and maintenance schedules for the Fort Lupton Facility.
G. Alcoa shall not, except as part of a divestiture approved by
plaintiff, remove, sell, lease, assign, transfer, pledge or otherwise
dispose of or pledge as collateral for loans, any of the Fort Lupton
Assets, including the intangible assets that are described in Section
II of the Final Judgment.
H. Alcoa shall maintain, in accordance with sound accounting
principles, separate, true, accurate and complete financial ledgers,
books and records that report, on a periodic basis, such as the last
business day of every month, consistent with part practices, the
assets, liabilities, expenses, revenues, income, profit and loss of the
Fort Lupton Assets.
1. Until such time as the Fort Lupton Assets are divested, except
in the ordinary course of business or as is otherwise consistent with
this Hold Separate Agreement, Alcoa shall not hire, transfer or
terminate, or alter, to the detriment of any employee, any current
employment or salary agreements for any Golden employees who on the
date of the signing of this Agreement work for the Fort Lupton
Facility, or for the Engineering Facilities, unless such individual has
a written offer of employment from a third party for a like position.
J. Alcoa shall take no action that would interfere with the ability
of any trustee appointed pursuant to the Final Judgment to complete the
divestiture pursuant to the Final Judgment to a suitable purchaser.
K. The Hold Separate Stipulation and Order shall remain in effect
until the divestiture required by the Final Judgment is complete, or
until further Order of the Court. Respectfully submitted,
For Plaintiff:
United States of America: Nina B. Hale, Washington Bar #18776,
Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of
Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004,
(202) 307-6351.
Dated this 5th day of November 1999.
For Defendant:
Alcoa, Inc.: W. Randolph Smith, Crowell & Moring, 1001
Pennsylvania Avenue, N.W., Washington DC 20004-2595, (202) 624-2700.
For Defendants:
ACX Technologies, Inc. and Golden Aluminum Company: W. Todd
Miller, Baker & Miller, 915 15th Street, Suite 1000, Washington, DC
20005-2302.
Order
It is so ordered, this __________ day of ____________, 1999.
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United States District Court Judge
Dated: November 5, 1999.
Respectfully submitted,
For Plaintiff United States of America Nina B. Hale Washington
Bar #1877G, Laura M. Scott, Attorneys, Antitrust Division, U.S.
Department of Justice, 325 Seventh St., NW, Suite 500, Washington,
DC 20004, (202) 307-6351.
For Defendant Alcoa, Inc.
W. Randolph Smith DC Bar #356402 Crowell & Moring, 1001 Pennsylvania
Avenue, NW, Washington, DC 20004-2595, (202) 624-2700.
For Defendants ACX Technologies, Inc. and Golden Aluminum
Company
W. Todd Miller DC Bar #________ Baker & Miller, 915 15th Street,
Suite 1000, Washington, DC 20005-2302.
Order
It is so ordered, this ________ day of __________, 1999.
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United States District Court Judge
Final Judgment
Whereas, plaintiff, the United States of America (``United
States''), filed its complaint in this action on November 5, 1999, and
plaintiff and defendants, Alcoa Inc. (``Alcoa''), ACX Technologies,
Inc. (``ACX''), and Golden Aluminum Company (``Golden''), by their
respective attorneys, having consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law
herein, and without this Final Judgment constituting any evidence
against or an admission by any party with respect to any issue of law
or fact herein;
And Whereas, defendants have agreed to be bound by the provisions
of this Final Judgment pending its approval by the Court;
And Whereas, the essence of this Final Judgment is the prompt and
certain divestiture of the Fort Lupton Assets of ACX's subsidiary,
Golden Aluminum Company (``Golden''), to assure that competition is not
substantially lessened;
And Whereas, plaintiff requires defendant Alcoa to divest the Fort
Lupton Assets for the purpose of remedying the loss of competition
alleged in the Complaint;
And Whereas, defendants have represented to plaintiff that the
divestiture ordered herein can and will be made and that defendants
will later raise no claims of hardship or difficulty as grounds for
asking the Court to modify any of the divestiture or contract
provisions contained below;
Now, Therefore, before the taking of any testimony, and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby ordered, adjudged, and
Decreed as follows:
I. Jurisdiction
This Court has jurisdiction over the subject matter of this action
and over each of the parties hereto. The Complaint states a claim upon
which relief may be granted against the defendants, as hereinafter
defined, under Section 7 of the Clayton Act, as amended (15 U.S.C.
Sec. 18).
[[Page 73069]]
II. Definitions
As used in this Final Judgment:
A. ``Alcoa'' means defendant Alcoa, Inc., a Pennsylvania
corporation with its headquarters in Pittsburgh, Pennsylvania, and its
successors, assigns, subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and directors, officers, managers,
agents, and employees.
B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation
with its headquarters in Golden, Colorado, and its successors, assigns,
subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures, and directors, officers, managers, agents, and employees.
C. ``Golden'' means Golden Aluminum Company, a wholly owned
subsidiary of ACX, with two principal aluminum sheet manufacturing
facilities located in Fort Lupton, Colorado, and San Antonio, Texas,
and its successors, assigns, subsidiaries, divisions, groups,
affiliates, partnerships and joint ventures, and directors, officers,
managers, agents, and employees.
D. ``Fort Lupton Assets'' means all assets included within Golden's
Fort Lupton, Colorado operation including:
1. All tangible assets, including the Fort Lupton manufacturing
facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-
0207 (``the Fort Lupton Facility'') and the real property on which the
Fort Lupton Facility is situated; any facilities used for research and
development activities, including Golden Engineering, AG, a Swiss
company, and GAC Technology, a Colorado corporation, both of which
provide engineering support to the Fort Lupton Facility (``the
Engineering Facilities''), and any real property associated with those
facilities; manufacturing assets relating to the Fort Lupton Facility
and to the Engineering Facilities, including capital equipment,
vehicles, supplies, personal property, inventory, office furniture,
fixed assets and fixtures, materials, on-site warehouses or storage
facilities, and other tangible property or improvements; all licenses,
permits and authorization issued by any governmental organization
relating to the Fort Lupton Facility and to the Engineering Facilities;
all contracts, agreements, leases, commitments and understandings
pertaining to the operations of the Fort Lupton Facility and of the
Engineering Facilities; supply agreements; all customers lists,
accounts, and credit records; and other records maintained by Golden in
connection with the operations of the Fort Lupton Facility and of the
Engineering Facilities;
2. All intangible assets, including but not limited to all parents,
licenses and sublicenses, intellectual property, trademarks, trade
names, service marks, service names, technical information, know-how,
trade secrets, drawings, blueprints, designs, design protocols,
specifications for materials, specifications for parts and devices,
safety procedures for the handling of materials and substances, quality
assurance and control procedures, design tools and simulation
capability, and all manuals and technical information Golden provides
to its employees, customers, suppliers, agents or licensees in
connection with the operations of the Fort Lupton Facility and of the
Engineering Facilities, except that Alcoa may retain a non-exclusive,
non-transferable, royalty-free license to use all patents, licenses,
and sublicenses, intellectual property, technical information, know-
how, trade secrets, specifications for materials, and quality assurance
and control procedures necessary to operate the block caster at
Golden's San Antonio, Texas manufacturing facility (``the San Antonio
block caster''), provided, however, that if Alcoa sells the San Antonio
block caster to ACX Technologies, Inc. or an affiliate of ACX
Technologies, Inc., it may provide ACX Technologies, Inc., or the ACX
Technologies, Inc. affiliate with a non-exclusive, non-transferable,
royalty-free license for use solely in connection with the operation of
the San Antonio block caster; and
3. All research data concerning historic and current research and
development efforts relating to the operations of the Fort Lupton
Facility and of the Engineering Facilities, including designs of
experiments, and the results of unsuccessful designs and experiments.
E. ``Lid stock'' means an aluminum sheet product from which the
ends, tabs and pull-off lids of food and beverage cans are made.
III. Applicability
A. The provisions of this Final Judgment apply to Alcoa and ACX, as
defined above, and all other persons in active concert or participation
with any of them who shall have received actual notice of this Final
Judgment by personal service or otherwise.
B. Alcoa shall require, as a condition of the sale or other
disposition of all or substantially all of the Fort Lupton Assets, that
the acquiring party or parties agree to be bound by the provisions of
this Final Judgment.
IV. Divestiture of Assets
A. Alcoa is hereby ordered and directed in accordance with the
terms of this Final Judgment, within sixty (60) calendar days after the
filing of the Complaint in this matter, or five (5) days after notice
of entry of this Final Judgment by the Court, whichever is later, to
divest the Fort Lupton Assets as an ongong business to a purchaser
acceptable to the United States in its sole discretion.
B. Alcoa shall use its best efforts to accomplish the divestiture
as expeditiously and timely as possible. The United States, in its sole
discretion, may extend the time period for any divestiture by an
additional period of time not to exceed thirty (30) calendar days.
C. In accomplishing the divestiture ordered by this Final Judgment,
Alcoa promptly shall make known, by usual and customary means, the
availability of the Fort Lupton Assets described in this Final
Judgment. Alcoa shall inform any person making an inquiry regarding a
possible purchase that the sale is being made pursuant to this Final
Judgment and provide such person with a copy of this Final Judgment.
Alcoa shall also offer to furnish to all prospective purchasers,
subject to customary confidentiality assurances, all information
regarding the Fort Lupton Assets customarily provided in a due
diligence process except such information subject to attorney-client
privilege or attorney work-product privilege. Alcoa shall make
available such information to the plaintiff at the same time that such
information is made available to any other person.
D. Alcoa shall provide to any purchaser of the Fort Lupton Assets
information relating to the personnel involved in the manufacture and
sale of lid stock in connection with the Fort Lupton Assets to enable
the purchaser to make offers of employment. Alcoa shall not interfere
with any negotiations by any purchaser to employ any Golden employee
who works for the Fort Lupton Facility or for the Engineering
Facilities, or whose principal responsibility involves the manufacture
and sale of lid stock associated with the Fort Lupton Assets.
E. Alcoa shall permit prospective purchasers of the Fort Lupton
Assets to have reasonable access to personnel and to make inspection of
the Fort Lupton Assets; access to any and all environmental, zoning,
and other permit documents and information customarily provided as part
of a due diligence process.
[[Page 73070]]
F. Alcoa shall warrant to the purchaser of the Fort Lupton Assets
that all necessary environmental, zoning and other permits relating to
the Fort Lupton assets are in order in all material respects. Alcoa
will not undertake, directly or indirectly, following the divestiture
of the Fort Lupton Assets, any challenges to the environmental, zoning,
or other permits pertaining to the operation of the Fort Lupton Assets.
G. Alcoa shall warrant to the purchaser of the Fort Lupton Assets
that the Fort Lupton Assets will be operational on the date of the
sale.
H. Alcoa shall not take any action, direct or indirect, that will
impede in any way the operation of the Fort Lupton Assets.
1. Unless the United States otherwise consents in writing, the
divestiture pursuant to Section IV, or by trustee appointed pursuant to
Section V of this final Judgment, shall include all of the Fort Lupton
Assets, operated pursuant to the Hold Separate Stipulation and Order,
and be accomplished by selling or otherwise conveying the Fort Lupton
Assets to a purchaser in such a way as to satisfy the United States, in
its sole discretion, that the Fort Lupton Assets can and will be used
by the purchaser as part of a viable, ongoing business or businesses
engaged in the manufacture and sale of lid stock. The divestiture,
whether pursuant to Section IV or Section V of this Final Judgment,
shall be made to a purchaser with respect to whom it is demonstrated to
the United States' sole satisfaction that: (1) The purchaser has the
capability and intent of competing effectively in the manufacture and
sale of lid stock; (2) The purchaser has the managerial, operational,
and financial capability to compete effectively in the manufacture and
sale of lid stock; (3) None of the terms of any agreement between the
purchaser and Alcoa gives Alcoa the ability unreasonably to raise the
purchaser's costs, to lower the purchaser's efficiency, or otherwise to
interfere in the ability of the purchaser to compete effectively; and
(4) The divestiture will remedy the competitive harm alleged in the
Complaint.
V. Appointment of Trustee
A. In the event that Alcoa has not divested the Fort Lupton Assets
within the time specified in Section IV of this Final Judgment, the
Court shall appoint, on application of the United States, a trustee
selected by the United States to effect the divestiture of the Fort
Lupton Assets.
B. After the appointment of a trustee becomes effective, only the
trustee shall have the right to sell the Fort Lupton Assets. The
trustee shall have the power and authority to accomplish the
divestiture at the best price then obtainable upon a reasonable effort
by the trustee, subject to the provisions of Sections IV, V, and VI of
this Final Judgment, and shall have such other powers as the Court
shall deem appropriate. Subject to Section V(C) of this Final Judgment,
the trustee shall have the power and authority to hire at the cost and
expense of Alcoa any investment bankers, attorneys, or other agents
reasonably necessary in the judgment of the trustee to assist in the
divestiture, and such professionals and agents shall be accountable
solely to the trustee. The trustee shall have the power and authority
to accomplish the divestiture at the earliest possible time to a
purchaser acceptable to the United States in its sole discretion. Alcoa
shall not object to a sale by the trustee on any grounds other than the
trustee's malfeasance. Any such objections by Alcoa must be conveyed in
writing to plaintiff and the trustee within ten (10) days after the
trustee has provided the notice required under Section VI of this Final
Judgment.
C. The trustee shall serve at the cost and expense of Alcoa, on
such terms and conditions as the Court may prescribe, and shall account
for all monies derived from the sale of the assets sold by the trustee
and all costs and expenses so incurred. After approval by the Court of
the trustee's accounting, including fees for its services and those of
any professionals and agents retained by the trustee, all remaining
money shall be paid to Alcoa and the trust shall then be terminated.
The compensation of such trustee and of professionals and agents
retained by the trustee shall be reasonable in light of the value of
the divested business and based on a fee arrangement providing the
trustee with an incentive based on the price and terms of the
divestiture and the speed with which it is accomplished.
D. Alcoa shall use its best efforts to assist the trustee in
accomplishing the required divestiture, including its best efforts to
effect all necessary regulatory approvals. The trustee and any
consultants, accountants, attorneys, and other persons retained by the
trustee shall have full and complete access to the personnel, books,
records, and facilities of the business to be divested, and Alcoa shall
develop financial or other information relevant to the business to be
divested customarily provided in a due diligence process as the trustee
may reasonably request, subject to customary confidentiality
assurances. Alcoa shall permit bona fide prospective acquirers of the
Fort Lupton Assets to have reasonable access to personnel and to make
such inspection of physical facilities and any and all financial,
operational or other documents and other information as may be relevant
to the divestiture required by this Final Judgment. Alcoa shall take no
action to interfere with or to impede the trustee's accomplishment of
the divestiture.
E. After its appointment, the trustee shall file monthly reports
with the parties and the Court setting forth the trustee's efforts to
accomplish the divestiture ordered under this Final Judgment; provided
however, that to the extent such reports contain information that the
trustee deems confidential, such reports shall not be filed in the
public docket of the Court. Such reports shall include the name,
address and telephone number of each person who, during the preceding
month, made an offer to acquire, expressed an interest in acquiring,
entered into negotiations to acquire, or was contacted or made an
inquiry about acquiring, any interest in the business to be divested,
and shall describe in detail each contact with any such person during
that period. The trustee shall maintain full records of all efforts
made to divest the business to be divested.
F. If the trustee has not accomplished such divestiture within six
(6) months after its appointment, the trustee thereupon shall file
promptly with the Court a report setting forth: (1) The trustee's
efforts to accomplish the required divestiture; (2) the reasons, in the
trustee's judgment, why the required divestiture has not been
accomplished; and (3) the trustee's recommendations; provided, however,
that to the extent such report contains information that the trustee
deems confidential, such report shall not be filed in the public docket
of the Court. The trustee shall at the same time furnish such report to
the plaintiff and to defendant Alcoa, who shall each have the right to
be heard and to make additional recommendations consistent with the
purpose of the trust. The Court shall enter thereafter such orders as
it shall deem appropriate in order to carry out the purpose of the
Final Judgment, which may, if necessary, include extending the trust
and the term of the trustee's appointment by a period requested by the
United States.
VI. Notification
Within two (2) business days following execution of a definitive
agreement, contingent upon compliance with the terms of this Final
Judgment, to effect, in whole or in part, any
[[Page 73071]]
proposed divestiture pursuant to Sections IV and V of this Final
Judgment, Alcoa or the trustee, whichever is then responsible for
effecting the divestiture, shall notify plaintiff or the proposed
divestiture. If the trustee is responsible, it shall similarly notify
Alcoa. The notice shall set forth the details of the proposed
transaction and list the name, address, and telephone number of each
person not previously identified who offered to, or expressed an
interest in or a desire to, acquire any ownership interest in the
business to be divested that is the subject of the binding contract,
together with full details of same. Within fifteen (15) calendar days
of receipt by plaintiff of such notice, the United States, in its sole
discretion, may request from Alcoa, the trustee, the proposed
purchaser, or any other third party additional information concerning
the proposed divestiture, the proposed purchaser, and any other
potential purchaser. Alcoa and the trustee shall furnish any additional
information requested from them within fifteen (15) calendar days of
the receipt of the request, unless the parties shall otherwise agree.
Within thirty (30) calendar days after receipt of the notice or within
twenty (20) calendar days after the plaintiff has been provided the
additional information requested from Alcoa, the trustee, the proposed
purchaser, or any third party, whichever is later, the United States
shall provide written notice to Alcoa and the trustee, if there is one,
stating whether or not it objects to the proposed divestiture. If the
United States provides written notice to Alcoa and the trustee that it
does not object, then the divestiture may be consummated, subject only
to Alcoa's limited right to object to the sale under Section V(B) of
this Final Judgment. Absent written notice that the United States does
not object to the proposed purchaser or upon objection by the United
States, a divestiture proposed under Section IV or Section V shall not
be consummated. Upon objection by Alcoa under the provision in Section
(V)(B), a divestiture proposed under Section V shall not be consummated
unless approved by the Court.
VII. Affidavits
A. Within twenty (20) calendar days of the filing of the Complaint
in this matter and every thirty (30) calendar days thereafter until the
divestiture has been completed whether pursuant to Section IV or
Section V of this Final Judgment, Alcoa shall deliver to plaintiff an
affidavit as to the fact and manner of compliance with Section IV or
Section V of this Final Judgment. Each such affidavit shall include,
inter alia, the name, address, and telephone number of each person who,
at any time after the period covered by the last such report, made an
offer to acquire, expressed an interest in acquiring, entered into
negotiations to acquire, or was contacted or made an inquiry about
acquiring, any interest in the business to be divested, and shall
describe in detail each contact with any such person during that
period. Each such affidavit shall also include a description of the
efforts that Alcoa has taken to solicit a buyer for the Fort Lupton
Assets and to provide required information to prospective purchasers.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, Alcoa shall deliver to plaintiff an affidavit which
describes in detail all actions Alcoa has taken and all steps Alcoa has
implemented on an on-going basis to preserve the Fort Lupton Assets
pursuant to Section VIII of this Final Judgment and the Hold Separate
Stipulation and Order entered by the Court. The affidavit also shall
describe, but not be limited to, Alcoa's efforts to maintain and
operate the Fort Lupton Assets as an active competitor, maintain the
management, staffing, research and development activities, sales,
marketing, and pricing of the Fort Lupton Assets, and maintain the Fort
Lupton Assets in operable condition at current capacity configurations.
Alcoa shall deliver to plaintiff an affidavit describing any changes to
the efforts and actions outlined in Alcoa's earlier affidavit(s) filed
pursuant to Section VII(B) within fifteen (15) calendar days after the
change is implemented.
C. Until one year after such divestiture has been completed, Alcoa
shall preserve all records of all efforts made to preserve the business
to be divested and effect the divestiture.
VIII. Hold Separate Order
Until the divestitures required by the Final Judgment have been
accomplished, Alcoa shall take all steps necessary to comply with the
Hold Separate Stipulation and Order entered by this Court and to
preserve the Fort Lupton Assets. Defendants shall take no action that
would jeopardize the divestiture of the Fort Lupton Assets.
IX. Financing
Alcoa is ordered and directed not to finance all or any part of any
purchase by an acquirer made pursuant to Section IV or V of this Final
Judgment.
X. Compliance Inspection
For the purposes of determining or securing compliance with this
Final Judgment, or of determining whether the Final Judgment should be
modified or vacated, and subject to any legally recognized privilege,
from time to time:
A. Duly authorized representatives of the United States Department
of Justice, upon written request of the Attorney General or the
Assistant Attorney General in charge of the Antitrust Division, and on
reasonable notice to defendants made to their principal offices, shall
be permitted:
1. Access during office hours of defendants to inspect and copy all
books, ledgers, accounts, correspondence, memoranda, and other records
and documents in the possession or under the control of defendants, who
may have counsel present, relating to any matters contained in this
Final Judgment and the hold Separate Stipulation and Order; and
2. Subject to the reasonable convenience of defendants and without
restraint or interference from them, to interview, either informally or
on the record, their officers, employees, and agents, who may have
counsel present, regarding any such matters.
B. Upon the written request of the Attorney General or of the
Assistant Attorney General in charge of the Antitrust Division, made to
defendants at their principal offices, defendants shall submit such
written reports, under oath if requested, with respect to any of the
matters contained in this Final Judgment and the Hold Separate
Stipulation and Order.
C. No information nor any documents obtained by the means provided
in Sections VII or X of this Final Judgment shall be divulged by a
representative of the United States to any person other than a duly
authorized representative of the Executive Branch of the United States,
except in the course of legal proceedings to which the United States is
a party (including grand jury proceedings), or for the purpose of
securing compliance with this Final Judgment, or as otherwise required
by law.
D. If at the time information or documents are furnished by
defendants to plaintiff, defendants represent and identify in writing
the material in any such information or documents for which a claim of
protection may be asserted under Rule 26(c)(7) of the Federal Rules of
Civil Procedure, and defendants mark each pertinent page of such
material, ``Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then plaintiff shall give ten (10)
days notice to defendants prior to divulging such material in any legal
proceeding (other
[[Page 73072]]
than a grand jury proceeding) to which defendants are not a party.
XI. Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders and directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of the provisions hereof, for the
enforcement of compliance herewith, and for the punishment of any
violations hereof.
XII. Termination
Unless this Court grants an extension, this Final Judgment will
expire on the tenth anniversary of the date of its entry.
XIII. Public Interest
Entry of this Final Judgment is in the public interest.
Dated:-----------------------------------------------------------------
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
----------------------------------------------------------------------
United States District Judge
Competitive Impact Statement
The United States, pursuant to Section 2(b) of the Antitrust
Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files
this Competitive Impact Statement relating to the proposed Final
Judgment submitted for entry in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On November 5, 1999 the United States filed a civil antitrust
Complaint alleging that the proposed acquisition by Alcoa Inc.
(``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in Golden
Aluminum Company (``Golden'') would violate Section 7 of the Clayton
Act, 15 U.S.C. Sec. 18. The Complaint alleges that the transaction
would result in Alcoa increasing its already dominant share of the
aluminum food and beverage can lid stock (``lid stock'') production
business in North America. Alcoa is the largest producer of lid stock
in North America. Golden is a small, but low cost producer of lid
stock. They compete to produce and sell the best quality lid stock at
the lowest prices, and to provide the best technological, marketing,
and customer support services. Alcoa and ACX have proposed a
transaction that would eliminate this competition, further increase
concentration in the already highly concentrated lid stock business,
and further increase the market power of the dominant firm--Alcoa. The
proposed transaction would make it more likely that the few remaining
lid stock producers will engage in anticompetitive coordination to
increase prices, reduce quality, and decrease production of lid stock.
The prayer for relief in the Complaint seeks: (1) A judgment that
the proposed acquisition would violate Section 7 of the Clayton Act;
and (2) A permanent injunction preventing Alcoa from acquiring Golden
from ACX.
When the Complaint was filed, the United States also filed a
proposed settlement that would permit Alcoa to complete its acquisition
of Golden, but requires a divestiture that will preserve competition in
the relevant market. This settlement consists of a Stipulation and
Order, Hold Separate Stipulation and Order, and a proposed Final
Judgment.
The proposed Final Judgment orders Alcoa to divest, within sixty
(60) calendar days after the filing of the Complaint in this matter, or
five (5) days after notice of entry of this Final Judgment by the
Court, whichever is later, Golden's Fort Lupton Assets (as defined in
the Final Judgment) as an ongoing business to an acquirer acceptable to
the Antitrust Division of the Department of Justice (``DOJ''). ``Fort
Lupton Assets'' means all assets included within Golden's Fort Lupton,
Colorado aluminum operation including all tangible and intangible
assets, and all facilities which provide engineering support to the
Fort Lupton, Colorado facility.
Until such divestiture is completed, the terms of the Hold Separate
Stipulation and Order entered into by the parties apply to ensure that
the Fort Lupton Assets shall be maintained as an independent competitor
from Alcoa.
The plaintiff and defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment would terminate the action, except that the
Court would retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof.
II. Description of the Events Giving Rise to the Alleged Violation
A. The Defendants and the Proposed Transaction
Alcoa is a Pennsylvania corporation, with its principal offices
located in Pittsburgh, Pennsylvania. Alcoa is the world's largest
integrated aluminum company, engaging in all phases of the aluminum
business--from the mining and processing of bauxite to the production
of primary aluminum and fabrication of products. In 1998, Alcoa had
revenues of over $15 billion. Alcoa produces lid stock at its rolling
mill located in Warrick, Indiana. Alcoa's 1998 sales of lid stock in
North America were approximately $700 million.
ACX is a Colorado corporation, headquartered in Golden, Colorado.
ACX owns 100% of the stock of Golden, whose primary assets are two
continuous cast facilities. At its facility located in Fort Lupton,
Colorado, Golden produces lid stock. Golden produces a variety of
aluminum sheet products (but not lid stock) at its facility located in
San Antonio, Texas. In 1998, ACX reported total sales of about $988.4
million.
On August 17, 1999, Alcoa and ACX entered into an agreement under
which Alcoa would acquire all of ACX's interest in Golden. This
transaction, which would increase concentration in the already highly
concentrated lid stock market, precipitated the government's suit.
B. Lid Stock Market
Lid stock is a flat rolled aluminum product that is typically
manufactured in a rolling mill. A typical rolling mill contains a hot
mill, which performs the initial reduction of the thickness of the
ingot, one or more cold mills, which finish the metal to the desired
thickness and width, and a variety of ancillary equipment. Lid stock
can also be produced in a continuous cast facility. In a continuous
cast facility, a thin sheet of molten metal is poured onto a base and
pressed between two blocks or belts to achieve the desired thickness
and width.
Lid stock differs from other aluminum sheet products. Lid stock is
made from a harder alloy than other aluminum sheet products, such as
the sheet product from which the bodies of beverage cans are made
(``can body stock''). Consequently, lid stock requires more powerful
mills and more mill time to produce than can body stock and other sheet
products. Lid stock is therefore more expensive to produce per pound
than many other sheet products.
Lid stock is sold to can makers in large coils that are fed into
lid making machines, which stamp out rings and scored circles to form
the ends, tabs, and pull-off lids of food and beverage cans. Because of
the metallurgical characteristics of lid stock, can makers cannot use
their equipment to produce lids from can body stock or other materials,
such as steel.
Can makers sell lids to food and beverage companies which used them
to seal their beer, soft drink, and food cans.
[[Page 73073]]
The food and beverage companies cannot use other types of lids to seal
their cans.
As a result, a small but significant increase in lid stock prices
would not cause a significant number of customers to substitute other
products for lid stock.
C. Harm to Competition as a Consequence of the Acquisition
The proposed acquisition would likely lessen competition in the
manufacture and sale of lid stock. Alcoa controls over 50 percent of
the aluminum can lid stock market in North America. Golden is one of
only five other companies that manufactures lid stock in North America.
The proposed transaction will make it more likely that the few
remaining lid stock producers will engage in anticompetitive
coordination to increase prices, reduce quality, and decrease
production of lid stock.
The Complaint alleges that the transaction would likely have the
following effects, among others: actual and potential competition
between Alcoa and Golden in the lid stock market would be eliminated;
competition generally in the sale and manufacture of lid stock would be
lessened substantially; prices for lid stock would increase; and the
quality and amount of lid stock produced would decrease.
III. Explanation of the Proposed Final Judgment
The provisions of the proposed Final Judgment are designed to
eliminate the anticompetitive effects of the acquisition of Golden by
Alcoa.
The proposed Final Judgment provides that Alcoa must divest, within
sixty (60) calendar days after the filing of the Complaint in this
matter, or five (5) days after notice of entry of this Final Judgment
by the Court, whichever is later, Golden's Fort Lupton Assets as an
ongoing business to an acquirer acceptable to DOJ. If defendants fail
to divest the Fort Lupton Assets, a trustee (selected by DOJ) will be
appointed.
The Final Judgment provides that Alcoa will pay all costs and
expenses of the trustee. After his or her other appointment becomes
effective, the trustee will file monthly reports with the parties and
the Court, setting forth the trustee's efforts to accomplish
divestiture. At the end of six (6) months, if the divestiture has not
been accomplished, the trustee and the parties will have the
opportunity to make recommendations to the Court, which shall enter
such orders as appropriate in order to carry out the purpose of the
Final Judgment, including extending the trust or the term of the
trustee's appointment.
Divestiture of the Fort Lupton Assets preserves competition because
it will restore the lid stock market to a structure that existed prior
to the acquisition and will preserve the existence of an independent
competitor. Thus, the divestiture will preserve and encourage ongoing
competition in the production and sale of lid stock.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of section 5(a) of the Clayton Act, 15 U.S.C.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against defendants.
V. Procedures Available for Modification of the Proposed Final
Judgment
The United States and defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least sixty days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within
sixty days of the date of publication of this Competitive Impact
Statement in the Federal Register. The United States will evaluate and
respond to the comments. All comments will be given due consideration
by the Department of Justice, which remains free to withdraw its
consent to the proposed Judgment at any time prior to entry. The
comments and the response of the United States will be filed with the
Court and published in the Federal Register. Written comments should be
submitted to: Roger W. Fones, Chief, Transportation, Energy &
Agriculture Section, Antitrust Division, United States Department of
Justice, 325 Seventh Street, NW., Suite 500, Washington, DC. 20004.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against defendants Alcoa,
ACX and Golden.
The United States is satisfied that the divestiture of the
described assets specified in the proposed Final Judgment will
encourage viable competition in the production and sale of lid stock.
The United States is satisfied that the proposed relief will prevent
the acquisition from having anticompetitive effects in the market, The
divestiture of the Fort Lupton Assets will restore the lid stock market
to a structure that existed prior to the acquisition and will preserve
the existence of an independent competitor.
VII. Standard of Review Under the APPA for Proposed Final Judgment
The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject to sixty-day comment
period, after which the court shall determine whether entry of the
proposed Final Judgment ``is in the public interest.'' In making the
determination, the court may consider.
(1) The competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies actually considered, and any other
considerations bearing upon the adequacy of such judgment;
(2) The impact of entry of such judgment upon the public
generally and individuals alleging specific injury from the
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial.
15 U.S.C. 16(e). As the Court of Appeals for the District of Columbia
Circuit recently held, the APPA permits a court to consider, among
other things, the relationship between the remedy secured and the
specific allegations set forth in the government's complaint, whether
the decree is sufficiently clear, whether enforcement mechanisms are
sufficient, and whether the decree may positively harm third parties.
See
[[Page 73074]]
United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995).
In conducting this inquiry, ``the Court is nowhere compelled to go
to trial or to engage in extending proceedings which with have the
effect of vitiating the benefits of prompt and less costly settlement
through the consent decree process.'' \1\ Rather,
\1\ 119 Cong. Rec. 244598 (1973). See also United States v.
Gillette Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public
interest'' determination can be made properly on the basis of the
Competitive Impact Statement and Response to Comments filed pursuant
to the APPA. Although the APPA authorizes the use of additional
procedures, 15 U.S.C. Sec. 16(f), those procedures are
discretionary. A court need not invoke any of them unless it
believes that the comments have raised significant issues and that
further proceedings would aid the court in resolving those issues.
See H.R. 93-1463, 93rd Cong. 2d Sess. 8-9, reprinted in (1974) U.S.
Code Cong. & Ad. News 6535, 6538.
---------------------------------------------------------------------------
absent a showing to corrupt failure of the government to discharge
its duty, the Court, in making its public interest finding, should *
* * carefully consider the explanations of the government in the
competitive impact statements and its responses to comments in order
to determine whether those explanations are reasonable under the
circumstances.
United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. para.
61,508, at 71,980 (W.D. Mo. 1977).
Accordingly, with respect to the adequacy of the relief secured by
the decree, a court, a court may not ``engage in an unrestricted
evaluation of what relief would best serve the Public.'' United States
v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988); quoting United States
v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981); see also,
Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent requires that
[t]the balancing of competing social and political interests
affected by a proposed antitrust consent decree must be left, in the
first instance, to the discretion of the Attorney General. The
court's role in protecting the public interest is one of insuring
that the government has not breached its duty to the public in
consenting to the decree. The court is required to determine not
whether a particular decree is the one that will best serve society,
but whether the settlement is `within the reaches of the public
interest.' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.\2\
\2\ United States v. Bechtel, 648 F.2d at 666 (internal
citations omitted) (emphasis added); see United States v. BNS, Inc.,
858 F.2d at 463; United States v. National Broadcasting Co., 449 F.
Supp. 1127, 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716.
See also United States. v. American Cyanamid Co., 719 F.2d 558, 565
(2d Cir. 1983).
---------------------------------------------------------------------------
The proposed Final Judgment, therefore, should not be reviewed
under a standard of whether it is certain to eliminate every
anticompetitive competitive effect of a particular practice or whether
it mandates certainty of the free competition in the future. Court
approval of a final judgment requires a standard more flexible and less
strict than the standard required for a finding of liability. ``[A]
proposed decree must be approved on even if it falls short of the
remedy the court impose on its own, as long as it falls within the
range of acceptability or is `within the reaches of public interest'
(citations omitted).''\3\
---------------------------------------------------------------------------
\3\ United States v. American Tel & Tel., Co., 552 F. Supp. 131,
150 (D.C.C. 1982), aff'd sub nom. Maryland v. United States, 460
U.S. 1001 (1983), quoting Gillette, 406 F. Supp. at 716; United
States v. Alcan Aluminum, Ltd., 605 F. Supp. 619 (W.D. Ky. 1985).
---------------------------------------------------------------------------
VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: December 6, 1999.
For Plaintiff United States of America:
Respectfully submitted,
Nina B. Hale,
Washington Bar #18776.
Laura M. Scott,
Virginia Bar #36587.
Trial Attorneys, U.S. Department of Justice, Antitrust Division, 325
Seventh Street, NW, Suite 500, Washington, DC 20004, 202-307-0892 202-
307-2441 (Facsimile).
[FR Doc. 99-33410 Filed 12-28-99; 8:45 am]
BILLING CODE 4410-11-M
