[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Notices]
[Pages 15795-15803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7975]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Central Parking Corporation and Allright
Holdings, Inc.; Proposed Final Judgment and Competitive Impact
Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. section 16(b) through (h), that a proposed
Final Judgment, Stipulation and Competitive Impact Statement have been
filed with the United States District Court for the District of
Columbia in United States v. Central Parking Corporation and Allright
Holdings, Inc., No. 1:99CV00652. On March 16, 1999, the United States
filed a Complaint alleging that the proposed merger of Central Parking
and Allright Holdings would violate section 7 of the Clayton Act, 15
U.S.C. 18. The proposed Final Judgment, filed the same time as the
Complaint, requires the defendants to divest their interest in certain
parking facilities in Cincinnati and Columbus, Ohio; Nashville,
Knoxville, and Memphis, Tennessee; Dallas, Houston, El Paso, and San
Antonio, Texas; Baltimore, Maryland; Denver, Colorado; Jacksonville,
Tampa, and Miami, Florida; San Francisco, California; Kansas City,
Missouri; New York, New York; and Philadelphia, Pennsylvania. Copies of
the Complaint, proposed Final Judgment and Competitive Impact Statement
are available for inspection on the Antitrust Division's web site
(www.usdoj.gov/atr/cases.html); at the Antitrust Division, 325 7th
Street, NW Room 215, Washington, DC 20530 (telephone: 202-514-2481);
and at the Office of the Clerk of the United States District Court for
the District of Columbia, Washington, DC.
[[Page 15796]]
Public comment is invited within 60 days of the date of this
notice. Comments, with Antitrust Division responses, will be published
in the Federal Register and filed with the Court. Comments should be
directed to Craig Conrath, Chief, Merger Task Force, Antitrust
Division, 1401 H Street, NW, Suite 4000, Washington, DC 20530 (Tel.
202-307-0001).
Constance K. Robinson,
Director of Operations and Merger Enforcement.
Stipulation
It is 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 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. 16), and without further notice to any party or other
proceedings, provided that the United States 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. The defendants (as defined in Section II of the proposed Final
Judgment attached hereto) agree to abide by and comply with the
provisions of the proposed Final Judgment pending entry of the Final
Judgment by the Court, 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 the same were in full force and
effect as an order of the Court;
4. In the event the United States withdraws its consent, as
provided in paragraph 2 above, or if 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 has not otherwise ordered continued compliance
with the terms and provisions of the proposed Final Judgment, this
Stipulation shall be of no effect whatever, and the making of this
Stipulation shall be without prejudice to any party in this or any
other proceeding;
5. Central and Allright represent that the divestitures ordered in
the proposed Final Judgment can and will be made, and that Central and
Allright will later raise no claims of hardship or difficulty as
grounds for asking the court to modify any of the divestiture
provisions contained therein;
6. All parties agree that this agreement can be signed in multiple
counterparts.
Dated: March 12, 1999.
For Plaintiff United States
Allee A. Ramadhan (162131),
John C. Filippini (165159),
Joseph M. Miller (439965),
U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401
H Street, NW, Suite 4000, Washington, DC 20005, (202) 307-0001.
For Defendant Central Parking Corporation
David Marx, Jr.,
James H. Sneed (194803),
McDermott, Will & Emery, 227 West Monroe Street, Chicago, IL 60606,
(312) 984-7668.
For Defendant Allright Holdings, Inc.
Michael L. Weiner,
Charles B. Crisman, Jr. (240135),
Skadden, Arps, Slate, Meagher & Flom L.L.P., 919 Third Avenue, New
York, NY 10022, (212) 735-2632.
Final Judgment
Whereas, plaintiff, the United States of America, and defendants
Central Parking Corporation (``Central'') and Allright Holdings, Inc.
(``Allright''), 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 provision 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 parking facilities to ensure that competition is
not substantially lessened;
And whereas, plaintiff requires defendants to make certain
divestitures for the purpose of preserving competition in the off-
street parking services markets specified in the Complaint;
And whereas, defendants have represented to the plaintiff that the
divestitures 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 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 each of the parties hereto and
over the subject matter of this action. The Complaint states a claim
upon which relief may be granted against defendants, as hereinafter
defined, under section 7 of the Clayton Act, as amended, 15 U.S.C. 18.
II. Definitions
As used in this Final Judgment:
A. ``Central'' means defendant Central Parking Corporation, a
Tennessee corporation with its headquarters in Nashville, Tennessee,
and includes its successors and assigns, and its subsidiaries,
divisions, groups, affiliates, partnerships, joint ventures, directors,
officers, managers, agents, and employees.
B. ``Allright'' means defendant Allright Holdings, Inc., a Delaware
corporation with its headquarters in Houston, Texas, and includes its
successors and assigns, and its subsidiaries, divisions, groups,
affiliates, partnerships, joint ventures, directors, officers,
managers, agents, and employees.
C. ``Owned Parking Facilities'' shall consist of all assets and
properties owned by defendants listed in Schedule A.
D. ``Parking Facility Agreements'' shall consist of all agreements
between or among the defendants and the owner or manager of the parking
facilities listed in Schedule B.
E. ``Acquirer'' means the entity or entities to whom the defendants
divest the Parking Facilities, or that succeed to the defendants'
interests in any Parking Facility Agreement that is transferred
pursuant to this Final Judgment.
F. ``Parking Facilities'' means the properties listed in Schedules
A and B.
G. ``Divest'' or ``Divestiture'' means, (1) in connection with the
Owned Parking Facilities listed in Schedule A, their sale, and (2), in
connection with the Parking Facilities listed in Schedule B, the
transfer of the Parking Facility Agreements by termination or
assignment.
III. Applicability
A. The provisions of this Final Judgment apply to the defendants,
their successors and assigns, subsidiaries, directors, officers,
managers, agents, and employees, and all other persons in
[[Page 15797]]
active concert or participation with any of them who shall have
received actual notice of this Final Judgment by personal service or
otherwise.
B. Defendant Central shall require, as a condition of the sale of
all or substantially all of its assets, that the Acquirer or Acquirers
agree to be bound by the provisions of this Final Judgment; however,
defendant Central need not obtain such an agreement from an Acquirer in
connection with the divestiture of the Parking Facilities.
IV. Divestitures
A. Defendants are hereby ordered and directed, in accordance with
the terms of this Final Judgment, within one hundred and fifty (150)
calendar days after the filing of the Complaint in this matter, or
within five (5) days after notice of entry of the Final Judgment,
whichever is later, to divest all Parking Facilities identified in
Schedules A and B to this Final Judgment as viable, ongoing parking
services businesses. The divestiture of Parking Facilities shall be to
an Acquirer or Acquirers acceptable to the United States in its sole
discretion.
B. In accomplishing the divestitures ordered by this Final
Judgment, defendants promptly shall make known, by usual and customary
means, the availability of the Parking Facilities to be divested.
Defendants shall inform any person making an inquiry that the
divestiture is being made pursuant to this Final Judgment and provide
such person with a copy of this Final Judgment. Defendants shall also
offer to furnish to all bona fide prospective Acquirers, subject to
customary confidentiality assurances, all information regarding the
Parking Facilities customarily provided in a due diligence process
except such information subject to attorney-client privilege or
attorney work-product privilege. Defendants shall make available such
information to the United States at the same time that such information
is made available to any other person.
C. Defendants shall permit prospective Acquirers of the Parking
Facilities to have access to personnel and to any and all zoning,
building, and other permit documents and information, and to make
inspection of the Parking Facilities and of any and all financial,
operational, or other documents and information customarily provided as
part of a due diligence process.
D. Defendants shall use their best efforts to accomplish the
divestitures ordered by this Final Judgment as expeditiously as
possible. The United States, in its sole discretion, may extend the
time period for any divestiture for two (2) additional thirty (30) day
periods, not to exceed sixty (60) calendar days in total.
E. Defendants shall use all commercially practical means to enable
the Acquirer of any Parking Facility to employ any person whose primary
responsibility concerns any parking services business connected with
the Parking Facilities. Defendants shall not interfere with any
negotiations by any Acquirer to employ any Central or Allright (or
former Central or Allright) employee where primary responsibility
concerns any parking services business connected with the Parking
Facilities. Defendants shall provide to any Acquirer information
relating to such personnel to enable the Acquirer to make offers of
employment, and defendants shall remove any impediments that may deter
these employees from accepting such employment, including but not
limited to, non-compete agreements.
F. Defendants shall not take any action, direct or indirect, that
will impede in any way the operation of any parking business connected
with the Parking Facilities, or take any action, direct or indirect,
that would impede the divestiture of any Parking Facility.
G. Defendants may not enter into any agreement to operate any
parking business at the facilities listed in Scheduled B within two (2)
years of divestiture.
H. Unless the United States otherwise consents in writing, the
divestitures pursuant to Section IV, or by trustee appointed pursuant
to Section VI, shall include all the Parking Facilities and be
accomplished by divesting the Parking Facilities to an Acquirer or
Acquirers in such a way as to satisfy the United States, in its sole
discretion, that the Parking Facilities can and will be used by the
Acquirers as viable ongoing off-street parking services businesses, and
the divestitures will remedy the harm alleged in the Complaint. The
divestitures, whether pursuant to Section IV or Section VI of the Final
Judgment, shall be made to an Acquirer or Acquirers that, in the United
States' sole judgment, has the intent and capability (including the
necessary managerial, operational, and financial capability) of
competing effectively with the defendants in providing off-street
parking services.
V. Notice of Proposed Divestitures
A. 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 proposed divestiture
pursuant to Section IV or VI of this Final Judgment, defendants or the
trustee, whichever is then responsible for effecting the divestiture,
shall notify the United States of the proposed divestiture. If the
trustee is responsible, it shall similarly notify defendants. The
notice shall set forth the details of the proposed divestiture.
B. The notice of any proposed divestiture shall 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, management or leasehold interest in the facility 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
the United States of a divestiture notice, the United States, in its
sole discretion, may request from defendants, the proposed Acquirer,
the trustee, or any other third party additional information concerning
the proposed divestiture and the proposed Acquirer. Defendants 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 United States has been provided the additional information
requested from the defendants, the proposed Acquirer, the trustee, or
any third party, whichever is later, the United States shall provide
written notice to defendants 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 defendants (and the trustee, if
applicable) that it does not object, then the divestiture may be
consummated, subject only to defendants' limited right to object to the
sale under Section VI(F) of this Final Judgment.
C. Absent written notice that the United States does not object to
the proposed Acquirer, or upon objection by the United States, a
proposed divestiture under Section IV or Section VI may not be
consummated. Upon objection by defendants under the provision in
Section VI(F), a divestiture proposed under Section VI shall not be
consummated unless approved by the Court.
VI. Appointment of Trustee
A. In the event that defendants have not divested the Parking
Facilities as specified in Section IV of this Final Judgment, the Court
shall appoint, on
[[Page 15798]]
application of the United States, a trustee selected by the United
States, to effect the divestiture of each such Parking Facility.
B. After the appointment of a trustee becomes effective, only the
trustee shall have the right to divest Parking Facilities.
C. The trustee shall have the power and authority to accomplish any
and all divestitures of Parking Facilities 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.
D. Subject to Section VI(G) of this Final Judgment, the trustee
shall have the power and authority to hire at the cost and expense of
the defendants any investment bankers, attorneys, or other agents
reasonably necessary in the judgment of the trustee to assist in the
divestitures or terminations, and such professionals and agents shall
be accountable solely to the trustee. The trustee shall have the power
and authority to accomplish the divestitures at the earliest possible
time.
E. The trustee shall have the authority to accomplish the
divestitures of Parking Facilities to an Acquirer or Acquirers
acceptable to the United States, in its sole discretion, and shall have
such other powers as this Court shall deem appropriate.
F. Defendants shall not object to a divestiture by the trustee on
any ground other than the trustee's malfeasance. Any such objections by
defendants must be conveyed in writing to the United States and the
trustee within ten (10) calendar days after the trustee has provided
the notice required under Section V of this Final Judgment.
G. The trustee shall serve at the cost and expense of defendants,
on such terms and conditions as the Court may prescribe, and shall
account for all monies derived from the divestiture of each Parking
Facility divested by the trustee. The trustee shall also account for
all costs and expenses incurred to accomplish the divestitures. 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 defendants and the trust
shall then be terminated. The compensation of such trustee and of any
professionals and agents retained by the trustee shall be reasonable in
light of the value of the divested facility 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.
H. Defendants shall use their best efforts to assist the trustee in
accomplishing the required divestitures, including 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 Parking Facilities to be divested, and
defendants shall develop financial or other information relevant to the
businesses to be divested customarily provided in a due diligence
process as the trustee may reasonably request, subject to customary
confidentiality assurances. Defendants shall take no action to
interfere with or impede the trustee's accomplishment of the
divestitures. Defendants shall permit bona fide prospective Acquirers
of the Parking Facilities 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 divestitures required by this Final Judgment.
I. After its appointment, the trustee shall file monthly reports
with the parties and the Court setting forth the trustee's efforts to
accomplish the divestitures 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 Parking Facilities 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 Parking Facilities.
J. If the trustee has not accomplished such divestitures within
ninety (90) days 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 divestitures, (2) the reasons, in
the trustee's judgment, why the required divestitures have not been
accomplished, and (3) the trustee's recommendations; 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. The trustee shall at the same time furnish such
report to the parties, 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.
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
divestitures have been completed pursuant to Section IV or VI of this
Final Judgment, defendants shall deliver to the United States an
affidavit as to the fact and manner of compliance with Section IV or VI
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 Parking Facilities to be divested, and shall described
in detail each contact with any such person during that period. Each
such affidavit shall also include a description of the efforts that
defendants have taken to solicit an Acquirer for any and all Parking
Facilities, to provide required information to prospective Acquirers,
including the limitations, if any, on such information. Assuming the
information set forth in the affidavit is true and complete, any
objection by the United States to information provided by defendants,
including limitations on information, shall be made within fourteen
(14) days of receipt of such affidavit.
B. Until one year after all the divestitures have been completed,
defendants shall preserve all records of all efforts made to effect
each divestiture.
VIII. Compliance Inspection
For purposes of determining or securing compliance with the Final
Judgment 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 Assistant Attorney General in
charge of the Antitrust Division, and on reasonable notice to
defendants made to their principal offices, shall be permitted:
[[Page 15799]]
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 the matters contained in this
Final Judgment; 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 Assistant Attorney General in
charge of the Antitrust Division, defendants shall submit such written
reports, under oath if requested, with respect to any matter contained
in the Final Judgment.
C. No information or documents obtained by the means provided in
Sections VII or VIII 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 United States, defendants represent and identify in
writing the material in any such information or documents to 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 ten (10) calendar days
notice shall be given by the United States to defendants prior to
divulging such material in any legal proceeding (other than a grand
jury proceeding) to which defendants are not a party.
IX. 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.
X. Financing
Defendants are ordered and directed not to finance all or part of
any divestiture made pursuant to Sections IV or VI of this Final
Judgment.
XI. Termination
Unless this Court grants an extension, this Final Judgment will
expire upon the tenth anniversary of the date of its entry.
XII. Public Interest
Entry of this Final Judgment is in the public interest.
Dated ____________________, 1999.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16.
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United States District Judge
Schedule A
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City Facility
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San Antonio, TX.............. Allright Facility 45 at 408 Martin St.
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Schedule B
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City Facility
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Baltimore, MD................ Central Facility 40 at 1 South Street.
Cincinnati, OH............... Allright Facility 81 at 312 Elm St.
Central Facility 20 at 30 W. 4th St.
Columbus, OH................. Allright Facility 33 at 503 S. Front St.
Central Facility 117 at 329 State St.
Dallas, TX................... Allright Facility 381 at 608 N. St Paul St.
Allright Facility 382 at 2013 San Jacinto St.
Allright Facility 383 at 502 N. St Paul St.
Central Facility 61 at Corner of Routh St. and Ross St.
Denver, CO................... Allright Facility 108 at 1801 Market St.
Allright Facility 268 at 1735 Blake St.
Allright Facility 269 at 1775 Blake St.
Allright Facility 485 at 1670 Larimer St.
Central Facility 21 at 17th and Blake St.
Central Facility 50 at 1627 California St.
El Paso, TX.................. Allright Facility 208 at 149 Ochoa St.
Allright Facility 205 at 605 Myrtle Ave.
Houston, TX.................. Allright Facility 589 at 1110 Lamar St.
Central Facility 31 at 1111 Fannin St.
Allright Facility 168 at 1204 Bagby St.
Allright Facility 501 at 1000 Bell Ave.
Jacksonville, FL............. Allright Facility 13 at 425 W. Adams St.
Allright Facility 21 at 304 N. Pearl St.
Allright Facility 22 at 325 N. Broad St.
Allright Facility 82 at SW Corner Clay/Forsyth.
Central Facility 107 at 213-4 Julie St.
Kansas City, MO.............. Allright Facility 155 at 714 E. 11th St.
Knoxville, TN................ Allright Facility 110 at 505 Locust St S.W.
Allright Facility 149 at 408 Church Ave. S.W.
Allright Facility 181 at 508A Clinch Ave.
Memphis, TN.................. Allright Facility 335 at 215 Jefferson Ave.
[[Page 15800]]
Allright Facility 333 at 199 Jefferson Ave.
Allright Facility 381 at 120 Union Ave.
Allright Facility 141 at 188 South Main St.
Central Facility 510 at 54 N. 2nd St.
Central Facility 511 at 160 Court St.
Central Facility 512 at 20 S. Front St.
Central Facility 513 at 100 N. Front St.
Central Facility 517 at 236 Adams St.
Central Facility 525 at 444 North Main St.
Miami, FL.................... Allright Facility 161 at 153 SE 2nd St.
Central Facility 6136 at 300 SE 3rd Ave.
Central Facility 6137 at 301 SE 3rd Ave.
Central Facility 6138 at 200 SE 3rd Ave.
Nashville, TN................ Allright Facilities 64 and 118 at 210-220 4th Ave. S.
Allright Facility 11 at 143 7th Ave. No.
Allright Facility 34 at 719-721 Church St.
Allright Facility 115 at 217 7th Ave. So.
Allright Facility 70 at 703 3rd Ave. N.
Allright Facility 6 at 168 8th Ave. N.
Allright Facility 114 at SW Corner of 2nd Ave. S and Molloy St.
Central Facility 89 at 501 Broadway.
Central Facility 85 at 149 7th Ave. S.
Central Facility 27 at 128 8th Ave. N.
Central Facility 109 at 147 4th Avenue N.
Central Facility 36 at 144 5th Avenue N.
Central Facility 53 at 116 5th Avenue N.
Allright Facilities 35 and 48 at 411 Church St.
New York, NY................. Central Facility 2227 at 345 W. 58th St.
Allright Facility 249 at 14-26 S. William St.
Allright Facility 41 at 136 W. 40th St.
Allright Facility 282 at 401-471 W. 42nd St.
Philadelphia, PA............. Central Facility 27 at 210 W. Rittenhouse Sq.
Allright Facility 81 at 1215 Walnut St.
San Antonio, TX.............. Allright Facility 38 at 422 Bonham St.
Allright Facility 18 at 309 Elm St.
Allright Facility 42 at 303 Blum St.
Central Facility 709 at 300 East Houston St.
Central Facility 789 at 240 Broadway St.
Central Facility 790 at 110 Broadway St.
Central Facility 794 at 213 Broadway St.
San Francisco, CA............ Central Facility 135 at 3rd. and Brannan St.
Tampa, FL.................... Allright Facility 415 at 1001 N. Morgan St.
----------------------------------------------------------------------------------------------------------------
Certificate of Service
I hereby certify that on March 16, 1999, I served a copy of the
Complaint, Final Judgment and Stipulation on each of the defendants
listed below:
Counsel for Central Parking Corporation
David Marx, Jr., Esq.,
McDermott, Will & Emery, 227 West Monroe Street, Chicago, IL 60606,
(312) 984-7668 (By facsimile and express mail).
Counsel for Allright Holdings, Inc.
Michael L. Weiner, Esq.,
Skadden, Arps, Slate, Meagher & Flom L.L.C., 919 Third Avenue, New
York, NY 10022, (212) 735-3000 (By facsimile and express mail).
Joseph M. Miller,
DC Bar No. 439965, U.S. Department of Justice, Antitrust Division, 1401
H Street, NW, Suite 4000, Washington, D.C. 20530, (202) 305-8462.
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 be proposed Final
Judgment submitted for entry in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
The plaintiff filed a civil antitrust Complaint in this Court on
March 16, 1999, alleging that the proposed merger between Central
Parking Corporation (Central) and Allright Holdings, Inc. (Allright)
would violate section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint
alleges that Central and Allright own, lease, and manage off-street
parking facilities for motorists in several cities of the United
States, and that they are direct and substantial competitors of each
other in certain local parking markets identified in the Complaint. The
Complaint also states that Central is the largest parking management
company, in terms of parking locations, spaces, and parking revenues,
that Allright is the second largest parking management company in
[[Page 15801]]
the United States, and that they are two of only four such companies
with a nationwide presence. The proposed acquisition would give Central
a dominant market share of off-street parking facilities for motorists
in local markets identified in the Complaint. In such markets,
meaningful entry would be unlikely, untimely, and insufficient to
undermine anticompetitive effects likely to result from the proposed
merger.
The prayer for relief seeks: (a) adjudication that Central's
proposed merger with Allright would violate section 7 of the Clayton
Act; (b) permanent injunctive relief preventing the consummation of the
proposed acquisition; (c) and such relief as is proper.
A proposed settlement has now been reached which is designed to
eliminate the anticompetitive effects likely to result from the
proposed merger. Within five months after the filng of the Complaint in
this case, the defendants have agreed to divest their parking
facilities in those local markets in which they are likely to be able
to exert market power as a result of the proposed merger. A Stipulation
and proposed Final Judgment embodying the settlement has been filed
with the Court.
The proposed Final Judgment orders the defendants to divest certain
of their off-street parking facilities which they operate, within five
months after the filing of the Complaint in this case, unless the
United States grants an extension of time. If the defendants fail to
divest these parking properties within the five month period, the Court
may appoint a trustee to divest the parking facilities identified in
the Final Judgment. The proposed Final Judgment also prohibits the
defendants from taking any action that would impede the operation of
the parking facilities. The proposed Final Judgment also requires that
the divestitures be made to an acquirer or acquirers that have the
capability and intent to compete effectively in the provision of off-
street parking services.
The plaintiff and the defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment would terminate this 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. The Alleged Violations
A. The Defendants
Central is headquartered in Nashville, Tennessee and provides off-
street parking services to motorists in the United States, Canada,
Mexico, Germany, Spain, and Malaysia. It is the largest company in the
United States offering such services, in terms of the number of
facilities. The company operates over 2,400 parking facilities
containing over a million spaces. Its portfolio of parking facilities
include owned, leased and managed properties. In fiscal year 1997,
Central had revenues of $222,976,000.
Allright is headquartered in Houston, Texas and provides off-street
parking services to motorists in the United States. The company is
currently 44.5% owned by Apollo Real Estate Investment Fund II, L.P.,
44.5% owned by AEW Partners L.P., 9.1% owned by management, and 1.9%
owned by certain financial advisors to Apollo and AEW and one member of
the previous Allright management team. It is the second largest parking
company, in terms of the number of locations in the United States.
Allright operates over 2,300 parking facilities containing nearly
600,000 spaces. Like Central, its portfolio of parking facilities
includes owned, leased and managed properties. In fiscal year 1997,
Allright had annual revenues of $178,637,000.
B. Description of the Events Giving Rise to the Alleged Violation
On or about September 21, 1998, Central and Allright entered into
an agreement whereby Allright will become a wholly owned subsidiary of
Central, which will continue as the surviving entity in structure and
in name. Current Central shareholders will own approximately 80% of
Central's common stock, and current Allright shareholders will own
approximately 20% of Central's common stock. The total value of the
proposed merger at the time it was announced was approximately $585
million.
C. Anticompetitive Consequences of the Proposed Merger
The Complaint alleges that off-street parking services for
motorists constitutes a line of commerce, or relevant product market,
for antitrust purposes. It also alleges that relevant geographic
markets in which to measure the effects of the proposed merger are no
larger than the central business districts (CBDs) of the cities
identified in the Complaint. The Complaint further alleges that Central
and Allright are direct and substantial competitors in offering off-
street parking services to consumers.
Central and Allright establish parking prices, either unilaternally
or in conjunction with the owners of parking facilities, on a location-
by-location basis. In determining the appropriate price and service for
any location, the defendants consider the prices charged by other
providers of off-street parking services in the geographic market, as
well as overall demand for parking services, and the availability of
other off-street parking locations. The Complaint alleges that the
proposed merger threatens competition by substantially increasing
Central's market shares in the relevant markets, and accordingly, would
allow Central to exercise substantial control over prices and services
available to consumers.
Entry into the relevant markets is unlikely to occur in response to
a small but significant price increase. To enter a relevant market and
discipline a noncompetitive price increase, a firm must add to the
supply of parking spaces that motorists view as substitutes. Creation
of new parking spaces in a CBD, however, is most often a byproduct of
construction or tearing down of buildings. Given the local character of
competition, the cost of land, the limited availability of
substitutable parking facilities, and the alternative options for the
use of convenient land in the market, entry cannot be viewed as a
likely and timely response that would undermine an anticompetitive
price increase.
III. Explanation of the Proposed Final Judgment
The proposed Final Judgment would preserve competition in the
relevant markets identified in the Complaint by reducing Central's
market share where Central would be dominant as a result of the
proposed merger. To that end, it requires the divestiture of 74 off-
street parking facilities owned, leased or managed by Central and
Allright in 18 cities. This relief is designed to ensure that the
merger does not increase Central's market share in the local markets of
the relevant cities to a level likely to lend to the exercise of market
power.
Section IV of the proposed Final Judgment requires the defendants
to divest those parking facilities identified in Schedules A and B of
the Final Judgment as viable, ongoing businesses. Under the proposed
Final Judgment, the defendants must take all reasonable steps necessary
to accomplish quickly the divestiture of the specified assets, and
shall cooperate with bona fide prospective purchasers by supplying all
[[Page 15802]]
information relevant to the proposed sale. Unless the United States
grants an extension of time, the defendants must divest the parking
facilities within 150 days after the Complaint is filed. Until the
divestitures take place, the parking properties must continue to be
operated as parking facilities.
The defendants are also prohibited from entering into any agreement
to operate any of the leased or managed properties divested within two
(2) years of the divestiture.
If the defendants fail to divest any of the parking facilities
within the time period specified in the Final Judgment, or extension
thereof, the Court, upon application of the United States, shall
appoint a trustee to effect the required divestitures. If a trustee is
appointed, Section VI of the proposed Final Judgment provides that the
defendants will pay all costs and expenses of the trustee and any
professionals and agents retained by the trustee. The compensation paid
to the trustee and any persons retained by the trustee shall be
reasonable and shall be based on a fee arrangement providing the
trustee with an incentive based on the price and terms of the
divestitures and the speed with which they are accomplished. After
appointment, the trustee will file monthly reports with the United
States, the defendants and the Court, setting forth the trustee's
efforts to accomplish the divestitures ordered under the proposal Final
Judgment. If the trustee has not accomplished the divestitures within
ninety (90) days after its appointment, the trustee shall promptly file
with the Court a report setting forth (1) the trustee's efforts to
accomplish the required divestitures, (2) the reasons, in the trustee's
judgment, why the required divestitures have not been accomplished, and
(3) the trustee's recommendations. At the same time, the trustee will
furnish such report to the United States and defendants, who will each
have the right to be heard and to make additional recommendations
consistent with the purpose of the trust.
The relief in the proposed Final Judgment is intended to remedy the
likely anticompetitive effects of the proposed merger between Allright
and Central. Nothing in the proposed Final Judgment is intended to
limit the United States's ability to investigate or bring actions,
where appropriate, challenging other past or future activities of the
defendants.
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 the 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 (60) 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 (60) 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 Final Judgment at any time prior
to its entry. The comments and the response of the United States will
be filed with the Court and published in the Federal Register.
Any such written comments should be submitted to: Craig W. Conrath,
Chief, Merger Task Force, Antitrust Division, United States Department
of Justice, 1401 H Street, NW, Suite 4000, Washington, DC 20530.
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, the filing of a complaint and a full trial on the
merits of its complaint. The United States is satisfied, however, that
the divestitures as called for by the proposed Final Judgment and other
relief contained in the proposed Final Judgment will preserve viable
competition in the relevant markets. Thus, the proposed Final Judgment
would achieve the relief the Government would have sought through
litigation, but avoids the time, expense and uncertainty of a full
trial on the merits of the complaint.
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 a sixty (60) day
comment period, after which the court shall determine whether entry of
the proposed Final Judgment ``is in the public interest.'' In making
that 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 United States Court of Appeals for the D.C.
Circuit recently held, this statute 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 United States v. Microsoft, 56 F.3d 1448, 1461-62 (D.C. Cir. 1995).
In conducting this inquiry, ``[t]he Court is nowhere compelled to
go to trial or to engage in extended proceedings which might have the
effect of vitiating the benefits of prompt and less costly settlement
through the consent decree process.'' \1\ Rather,
\1\ 119 Cong. Rec. 24598 (1973). See 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. 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. Rep. 93-1463, 93rd Cong.
2d Sess. 8-9 (1974), reprinted in U.S.C.C.A.N. 6535, 6538.
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[[Page 15803]]
[a]bsent a showing of 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 statement and its responses to comments in order
to determine whether those explanations are reasonable under the
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circumstances.
United States v. Mid-America Dairymen, Inc., 1997-1 Trade Cas.
para. 61,508, at 71.980 (W.D. Mo. 1997).
Accordingly, with respect to the adequacy of the relief secured by
the decree, 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), citing United States v. Bechtel
Corp., 648 F.2d 660, 666 (9th Cir. 1981); see also Microsoft, 56 F.3d
at 1460-62. Precedent requires that
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\ Bechtel, 648 F.2d at 666 (citations omitted)(emphasis
added); see BNS, 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 Microsoft, 56 F.3d at 1461
(whether ``the remedies [obtained in the decree are] so inconsonant
with the allegations charged as to fall outside of the `reaches of
the public interest' '')(citations omitted).
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The proposed Final Judgment, therefore, should not be reviewed
under a standard of whether it is certain to eliminate every
anticompetitive effect of a particular practice or whether it mandates
certainty of 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 even if it falls short of the remedy the court would
impose on its own, as long as it falls within the range of
acceptability or is within the reaches of public interest.'' \3\
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\3\ United States v. American Tel, and Tel Co., 552 F. Supp.
131, 151 (D.D.C. 1982), aff'd. sub nom. Maryland v. United States,
460 U.S. 1001 (1983), quoting Gillette Co., 406 F. Supp. at 716
(citations omitted); United States v. Alcan Aluminum Ltd., 605 F.
Supp. 619, 622 (W.D. Ky. 1985).
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This is strong and effective relief that should fully address the
likely competitive harm posed by the proposed merger.
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: March 23, 1999.
Respectfully submitted,
Allee A. Ramadhan, John C. Filippini, Joseph M. Miller,
Attorneys, Merger Task Force, U.S. Department of Justice, Antitrust
Division, 1401 H Street, N.W., Suite 4000, Washington, D.C. 20530,
(202) 307-0001.
[FR Doc. 99-7975 Filed 3-31-99; 8:45 am]
BILLING CODE 4410-11-M
