[Federal Register Volume 61, Number 114 (Wednesday, June 12, 1996)]
[Notices]
[Pages 29763-29768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14473]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. A&L Mayer Associates, Inc., et al. No. 96-CV-40-
44 (E.D. Pa., Filed May 30, 1996); Proposed Final Judgment and
Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16 (b)-(h), that a proposed Final Consent
Judgment, Stipulation and Competitive Impact Statement have been filed
with the United States District Court for the Eastern District of
Pennsylvania in the above-captioned case.
On May 30, 1996, the United States filed a civil antitrust
Complaint to prevent and restrain A&L Mayer Associates, Inc., A&L
Mayer, Inc. and Fibras Saltillo, S.A. de C.V., from conspiring to fix
prices and allocate the sales volume of tampico fiber imported and sold
in the United States in violation of Section 1 of the Sherman Act (15
U.S.C. 1). Tampico fiber is a vegetable fiber grown in Mexico and used
as a filler in industrial and consumer brushes.
The complaint alleges that the defendants agreed with unnamed co-
conspirators to: (1) Fix the prices of tampico fiber imported into the
United States; (2) fix the resale prices charged by their United States
distributors; and (3) allocate tampico fiber sales between their
distributors.
The proposed Final Judgment would prohibit the defendants from
entering into any agreement or understanding with any other processor
of tampico fiber or any of such processor's distributors for:
(1) Raising, fixing, or maintaining the price or other terms or
conditions for the sale or supply of tampico fiber;
(2) Allocating sales volume, geographic markets or customers for
tampico fiber;
(3) Taking concerted action to discourage or eliminate new entrants
into the tampico fiber market; and
(4) Taking concerted action to restrict or eliminate the supply of
tampico fiber to any customer.
The proposed Final Judgment would also prohibit the defendants from
adhering to or adopting any resale
[[Page 29764]]
pricing policy and from terminating or threatening to terminate any
distributor for that distributor's pricing.
Public comment is invited within the statutory sixty (60) day
period. Such comments will be published in the Federal Register and
filed with the Court. Comments should be addressed to Robert E.
Connolly, Chief, Middle Atlantic Office, U.S. Department of Justice,
Antitrust Division, The Curtis Center, 6th and Walnut Streets, Suite
650 West, Philadelphia, PA 19106 (telephone number 215-597-7405).
Rebecca P. Dick,
Deputy Director of Operations.
In the United States District Court for the Eastern District of
Pennsylvania
United States of America, Plaintiff, v. A&L Mayer Associates,
Inc.; A&L Mayer, Inc.; and Fibras Saltillo, S.A. DE C.V.;
Defendants. Civil Action No. 96-CV-4044, Judge Jay C. Waldman.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
(1) The parties consent that a final judgment in the form hereto
attached may be filed and entered by the Court at any time after the
expiration of the sixty (60) day period for public comment provided by
the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16 (b)-(h),
without further notice to any party or other proceedings, either upon
the motion of any party or upon the Court's own motion, provided that
plaintiff has not withdrawn its consent as provided herein;
(2) The plaintiff may withdraw its consent hereto at any time
within said period of sixty (60) days by serving notice thereof upon
the other party hereto and filing said notice with the Court;
(3) In the event the plaintiff withdraws its consent hereto, this
stipulation shall be of no effect whatever in this or any other
proceeding and the making of this stipulation shall not in any manner
prejudice any consenting party to any subsequent proceedings.
Dated: May 31, 1996.
For the Plaintiff:
Anne K. Bingaman,
Assistant Attorney General.
Joel I. Klein,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Robert E. Connolly,
Chief, Middle Atlantic Office.
For the Defendants:
A&L Mayer Associates, Inc.
A&L Mayer, Inc.
Fibras Saltillo, S.A. DE C.V.
Respectfully submitted,
Edward S. Panek.
Michelle A. Pionkowski.
Roger L. Currier.
Joseph Muoio,
Attorneys, Antitrust Division, U.S. Department of Justice, Middle
Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,
Philadelphia, PA 19106, Tel.: (215) 597-7401.
In the United States District Court for the Eastern District of
Pennsylvania
United States of America, Plaintiff, v. A&L Mayer Associates,
Inc.; and Fibras Saltillo, S.A. DE C.V., Defendants. Civil Action
No. 96-CV-4044, Judge Jay C. Waldman.
Final Judgment
Plaintiff, the United States of America, filed its complaint on May
31, 1996. Plaintiff and defendants, by their respective attorneys, have
consented to the entry of this final judgment without trial or
adjudication of any issue of fact or law. This Final Judgment shall not
be evidence against or an admission by any party to any issue of fact
or law. Defendants have agreed to be bound by the provisions of this
Final Judgment pending its approval by the Court.
THEREFORE, before the taking of any testimony and without trial or
adjudication of any such issue of fact or law herein, and upon consent
of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The complaint states a
claim upon which relief may be granted against defendants under Section
1, of the Sherman Act, 15 U.S.C. Sec. 1.
II
Definitions
As used in this final judgment:
A. ``Agreement'' means any contract, agreement or understanding,
whether oral or written, or any term or provision thereof.
B. ``Person'' means any individual, corporation, partnership,
company, sole proprietorship, firm or other legal entity.
C. ``Tampico fiber'' is a natural vegetable fiber produced by the
lechuguilla plant and grown in the deserts of northern Mexico. It is
harvested by individual farmers, processed, finished and exported to
the United States and worldwide where it is used as brush filling
material for industrial and consumer brushes. It is available in
natural white, bleached white, black, gray and a wide variety of
mixtures.
D. ``Resale price'' means any price, price floor, price ceiling,
price range, or any mark-up, formula or margin of profit relating to
tampico fiber sold by distributors.
III
Applicability
A. This final judgment applies to each of the defendants and to
their officers, directors, agents, employees, subsidiaries, successors
and assigns, and to 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. Each defendant shall require, as a condition of any sale or
other disposition of all, or substantially all, of its stock or assets
used in the manufacture and/or sale of tampico fiber, that the
acquiring party/parties agree to be bound by the provisions of this
final judgment, and that such agreement be filed with the Court.
IV
Prohibited Conduct
As to tampico fiber imported into or sold in the United States,
each defendant is enjoined and restrained from:
A. directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any rights under any contract,
agreement, arrangement, understanding, plan, program, combination or
conspiracy with any other processor of tampico fiber or any of such
processor's distributors for:
(1) raising, fixing, or maintaining the prices or other terms or
conditions for the sale or supply of tampico fiber;
(2) allocating sales volumes, geographic markets or customers for
tampico fiber;
(3) taking concerted action to discourage or eliminate new entrants
into the tampico fiber market; and
[[Page 29765]]
(4) taking concerted action to restrict or eliminate the supply of
tampico fiber to any customer;
B. directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any right under any contract,
agreement, understanding, plan or program with any distributor to fix
or maintain the prices at which tampico fiber sold by defendants may be
resold or offered for sale by any distributor;
C. directly or indirectly adopting, promulgating, suggesting,
announcing or establishing any resale pricing policy for tampico fiber;
D. threatening any distributor with termination or terminating any
distributor on the basis of that distributor's pricing; or discussing
with any present or potential distributor any decision regarding
termination of any other distributor for any reason directly or
indirectly related to the latter distributor's resale pricing;
provided, however, that nothing herein shall prohibit any defendant
from terminating a distributor for any reason other than the
distributor's resale pricing; and
E. participating or engaging directly or indirectly through any
trade association, organization or other group in any activity which is
prohibited in IV (A)-(D) above.
V
Permitted Communication
Other than Section IV(A) of this Final Judgment, nothing contained
in this final judgment shall prohibit a defendant from negotiating,
arranging or communicating with another processor of tampico fiber, or
any of such processor's distributors or with any agent, broker or
representative of such processor or distributor solely in connection
with bona fide proposed or actual purchases of tampico fiber from, or
sale of tampico fiber to, that processor or distributor.
VI
Compliance Program
Each defendant shall establish within thirty (30) days of entry of
this final judgment and shall thereafter for so long as it or its
employees are engaged in the manufacture or sale of tampico fiber,
maintain a program to insure compliance with this final judgment, which
program shall include at a minimum the following:
A. designating an Antitrust Compliance Officer responsible, on a
continuing basis, for achieving compliance with this final judgment and
promptly reporting to the Department of Justice any violation of the
final judgment;
B. within sixty (60) days after the date of entry of this final
judgment, furnishing a copy thereof to each of its own, its
subsidiaries', and its affiliates' (1) officers, (2) directors, and (3)
employees or managing agents who are engaged in, or have responsibility
for or authority over, the pricing of tampico fiber; and advising and
informing each such person that his or her violation of this final
judgment could result in a conviction for contempt of court and
imprisonment and/or fine;
C. within seventy five (75) days after the date of entry of this
final judgment, certifying to the plaintiff whether it has designated
an Antitrust Compliance Officer and has distributed the final judgment
in accordance with Sections VI (A) and (B) above;
D. within thirty (30) days after each such person becomes an
officer, director, employee or agent of the kind described in Section
VI (B), furnishing to him or her a copy of this final judgment together
with the advice specified in Section VI (B);
E. annually distributing the final judgment to each person
described in Sections VI (B) and (D);
F. annually briefing each person described in Sections VI (B) and
(D) as to defendants's policy regarding compliance with the Sherman Act
and with this final judgment, including the advice that such defendant
will make legal advice available to such persons regarding any
compliance questions or problems;
G. annually obtaining (and maintaining) from each person described
in Sections VI (B) and (D) a certification that he or she:
(1) has read, understands and agrees to abide by the terms of this
final judgment;
(2) has been advised of and understands the company's policy with
respect to compliance with the Sherman Act and the final judgment;
(3) has been advised and understands that his or her non-compliance
with the final judgment may result in conviction for criminal contempt
of court and imprisonment and/or fine; and
(4) is not aware of any violation of the final judgment that has
not been reported to the Antitrust Compliance Officer; and
H. on or about each anniversary date of the entry of the final
judgment, submitting to the plaintiff an annual declaration as to the
fact and manner of its compliance with this final judgment.
VII
Inspection and Compliance
For the purpose of determining or securing compliance with this
final judgment and subject to any legally recognized privilege, from
time to time:
A. duly authorized representatives of the Department of Justice
shall, upon written request of the Attorney General or of the Assistant
Attorney General in charge of the Antitrust Division, and on reasonable
notice to a defendant made to its principal office, be permitted:
(1) access, during office hours of such defendant, to inspect and
copy all books, ledgers, accounts, correspondence, memoranda and other
records and documents in the possession or under the control of such
defendant, which may have counsel present, relating to any matters
contained in this final judgment; and
(2) subject to the reasonable convenience of such defendant and
without restraint or interference from it, to interview officers,
employees and agents of such defendant, 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
a defendant's principal office, such defendant shall submit such
written reports, under oath if requested, with respect to any of the
matters contained in this final judgment, as may be requested;
C. no information or documents obtained by the means provided in
this Section VII of the final judgment shall be divulged by any
representative of the Department of Justice 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, 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 a
defendant to plaintiff, such defendant represents and identifies 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 such defendant marks 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) days notice
shall be given by plaintiff to such defendant prior to divulging such
material in any legal processing (other than a grand jury
[[Page 29766]]
proceeding) to which such defendant is not a party; and
E. nothing set forth in this final judgment shall prevent the
Antitrust Division from utilizing other investigative alternatives,
such as Civil Investigative Demand process provided by 15 U.S.C.
Secs. 1311-1314 or a federal grand jury, to determine if the defendant
has complied with this final judgment.
VIII
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 or 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
violations hereof.
IX
Ten-Year Expiration
This final judgment will expire on the tenth anniversary of its
date of entry.
X
Public Interest
Entry of this final judgment is in the public interest.
Dated: ____________
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UNITED STATES DISTRICT JUDGE
In the United States District Court for the Eastern District of
Pennsylvania
United States of America, Plaintiff, v. A&L Mayer Associates,
Inc.; A&L Mayer, Inc.; and Fibras Saltillo, S.A. DE C.V.,
Defendants. Civil Action No. 96-CV-4044, Judge Jay C. Waldman.
Competitive Impact Statement
Pursuant to Section 2 of the Antitrust Procedures and Penalties Act
(``APPA''), 15 U.S.C. Sec. 16(b), the United States files this
Competitive Impact Statement relating to the proposed final judgment as
to United States v. A&L Mayer Associates, Inc., et al., submitted for
entry in this civil antitrust proceeding.
I
Nature and Purpose of the Proceedings
On ________, the United States filed a civil antitrust complaint
alleging that under Section 4 of the Sherman Act, as amended, 15 U.S.C.
Sec. 4, the above-named defendants combined and conspired with others
from at least as early as January 1990 to April 1995, to lessen and
eliminate competition in the sale of tampico fiber in the United
States, in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.
A companion criminal information against A&L Mayer Associates, Inc. was
filed on ________. The civil complaint alleges that as part of the
conspiracy, the defendants and co-conspirators among other things:
(a) fixed the prices at which tampico fiber was imported into the
United States;
(b) fixed the resale prices for tampico fiber charged by their
exclusive United States distributors; and
(c) allocated sales between such distributors.
The complaint seeks a judgment by the Court declaring that the
defendants engaged in unlawful combinations and conspiracies in
restraint of trade in violation of the Sherman Act. It also seeks an
order by the Court to enjoin and restrain the defendants from any such
activities or other activities having a similar purpose or effect in
the future.
The United States and defendants have stipulated that the proposed
final judgment may be entered after compliance with the APPA, unless
the United States withdraws its consent.
The Court's entry of the proposed final judgment will terminate
this civil action against these defendants, except that the Court will
retain jurisdiction over the matter for possible further proceedings to
construe, modify or enforce the judgment, or to punish violations of
any of its provisions.
II
Description of the Practices Giving Rise to the Alleged Violations of
the Antitrust Laws
As defined in the complaint, tampico fiber is a natural vegetable
fiber produced by the lechuguilla plant and grown in the deserts of
northern Mexico. It is harvested by individual farmers, processed,
finished and exported worldwide, where it is used as brush filling
material for industrial and consumer brushes. It is available in
natural white, bleached white, black, gray and a wide variety of
mixtures.
The complaint further alleges that the defendant corporations
accounted for aggregate United States sales of tampico of approximately
$10 million during the period January of 1990 through April of 1995.
During the period of time covered by the complaint the defendants sold
and shipped substantial quantities of tampico fiber in a continuous and
uninterrupted flow of interstate commerce from the processing facility
of Fibras Saltillo, S.A. de C.V. in Mexico through A&L Mayer
Associates, Inc., with offices in New York, to their exclusive United
States distributor and the distributor's customers throughout the
United States, including those located in the Eastern District of
Pennsylvania. Similarly, the complaint alleges that non-defendant co-
conspirators sold and shipped additional substantial quantities of
tampico fiber in a continuous and uninterrupted flow of interstate
commerce from another processing facility in Mexico through their
exclusive United States distributor to customers through the United
States, including those located in the Eastern District of
Pennsylvania.
The complaint alleges that the defendants engaged in three forms of
concerted action and states three causes of action: (1) an agreement to
fix import prices, (2) an agreement to fix resale prices, and (3) an
agreement to allocate sales. Essentially, the complaint alleges that
defendants and their co-conspirators fixed the prices at which tampico
fiber was sold to their two exclusive United States distributors,
agreed on resale prices with those two distributors and agreed to a
percentage allocation of sales volume between those distributors.
The defendants and their co-conspirators went far beyond suggesting
resale prices for their distributors. Resale price sheets were provided
to the two United States distributors by the defendants and co-
conspirators. As a condition of becoming and remaining a United States
distributor of tampico, one of these distributors agreed by written
contract with one of the defendants to sell at the prices listed on the
price sheet. From at least January 1990 on, both of the two exclusive
United States' distributors of tampico had identical price sheets
supplied by the defendants and co-conspirators, and the majority of
sales were made by those distributors at these list prices or other
agreed upon prices.
The use of resale price maintenance by the defendants and co-
conspirators was designed to and had the effect of monitoring and
enforcing the horizontal price-fixing and sales volume allocation
agreements between the defendants and co-conspirators. The defendants'
conduct had the effect of lessening or eliminating competition between
the two United States distributors of tampico in order to maintain
prices at artificially high and non-competitive levels.
In furtherance of the conspiracy, the defendants and their co-
conspirators, among other things, periodically met, discussed and
agreed to new import and resale prices for tampico fiber, and met,
discussed and compared the annual
[[Page 29767]]
sales volumes of their United States distributors to ensure they were
at or about the percentages the defendants and co-conspirators had
agreed upon for each.
III
Explanation of the Proposed Final Judgment
The United States and the defendants have stipulated that a final
judgment, in the form filed with the Court, may be entered by the Court
at any time after compliance with the APPA, 15 U.S.C. Sec. 16 (b)-(h).
The proposed final judgment provides that the entry of the final
judgment does not constitute any evidence against or an admission by
any party with respect to any issue of fact or law. Under the
provisions of Section 2(e) of the APPA, entry of the proposed final
judgment is conditioned upon the Court finding that its entry will be
in the public interest.
The United States has filed a criminal information charging A&L
Mayer Associates, Inc. and unnamed co-conspirators with a conspiracy to
fix the prices and allocate sales of tampico fiber imported into and
sold in the United States, in violation of the Sherman Act (15 U.S.C.
Sec. 1).
The United States does not routinely file both civil and criminal
cases involving the same underlying conduct. It is appropriate to do so
in this case, however, because of the extent of the control of the
market by a small number of companies conspiring to eliminate price
competition in the sale of tampico fiber in the United States through a
comprehensive scheme of fixing the price of imported tampico,
allocating sales volumes between their exclusive distributors, and
dictating the prices at which those distributors resold tampico fiber
within the United States.
The proposed final judgment contains two principal forms of relief.
First, the defendants are enjoined from repeating the behavior which
characterized the tampico fiber conspiracy and from certain other
conduct that could have similar anticompetitive effects. Second, the
proposed final judgment places affirmative burdens on the defendants to
pursue a compliance program directed toward avoiding a repetition of
the tampico fiber conspiracy.
A. Prohibited Conduct
Section IV of the proposed final judgment broadly enjoins each
defendant from conspiring to fix prices, allocate sales, discourage new
entrants, or otherwise restrict or eliminate the supply of tampico
fiber sold to any customer in the United States, (IV (A)); from
engaging in any conduct to set or control the resale prices of any
distributor to their customers (IV (B), (C) and (D)); and from joining
any group whose aims or activities are prohibited by Sections IV (A)-
(D) of the final judgment (IV (E)). Specifically, as regards tampico
fiber sold in the United States, Sections IV (A)-(E) of the proposed
final judgment provide as follows.
Section IV(A) of the proposed final judgment enjoins the defendants
from directly or indirectly agreeing with any other processor of
tampico fiber or such processor's distributors to (1) Raise, fix, or
maintain the prices or other terms or conditions for the sale or supply
of tampico fiber; (2) allocate sales volumes, geographic markets or
customers for tampico; (3) discourage or eliminate new entrants in the
tampico fiber market; and (4) restrict or eliminate the supply of
tampico fiber to any customer.
Section IV(B) of the proposed final judgment enjoins the defendants
from directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any right under any contract,
agreement, understanding, plan or program with any distributor to fix
or maintain the prices at which tampico fiber sold by defendants may be
resold or offered for sale by an distributor.
Section IV(C) of the proposed final judgment enjoins the defendants
from directly or indirectly adopting, promulgating, suggesting,
announcing or establishing any resale pricing policy for tampico fiber.
Section IV(D) of the proposed final judgment enjoins the defendants
from threatening any distributor with termination or terminating any
distributor for that distributor's pricing; or discussing with any
present or potential distributor any decision regarding termination of
any other distributor for any reason directly or indirectly related to
the latter distributor's resale pricing; provided, however, that
nothing herein shall prohibit any defendant from terminating a
distributor for any reasons other than the distributor's pricing.
Section IV (E) of the proposed final judgment enjoins the
defendants from participating or engaging, directly or indirectly
through any trade association, organization or other group, in any
activity which is prohibited in Sections IV (A)-(D) of the proposed
final judgment.
B. Permitted Communications
The only exception to the board prohibitions of Section IV of the
proposed final judgment is contained in Section V and concerns any
necessary negotiations, arrangements or communications with another
processor or such processor's distributors or any agent, broker or
representative of such processor or distributor in connection with bona
fide proposed or actual purchases of tampico fiber from or sales of
tampico fiber to that processor or distributor.
C. Defendants' Affirmative Obligations
Section VI requires that within thirty (30) days of entry of the
final judgment, the defendants adopt or pursue an affirmative
compliance program directed toward ensuring that their employees comply
with the antitrust laws. More specifically, the program must include
the designation of an Antitrust Compliance Officer responsible for
compliance with the final judgment and reporting any violations of its
terms. It further requires that each defendant furnish a copy of the
final judgment to each of its officers and directors and each of its
employees who is engaged in or has responsibility for or authority over
pricing of tampico fiber within sixty (60) days of the date of entry,
and to certify that it has distributed those copies and designated an
Antitrust Compliance officer within seventy-five (75) days. Copies of
the final judgment also must be distributed to anyone who becomes such
an officer, director or employee within thirty (30) days of holding
that position and to all such individuals annually.
Furthermore , Section VI require each defendant to brief each
officer, director and employee engaged in or having responsibility over
pricing of tampico fiber as to the defendant's policy regarding
compliance with the Sherman Act and with the final judgment, including
the advice that his or her violation of the final judgment could result
in a conviction for contempt of court and imprisonment and/or fine and
that the defendant will make legal advice available to such persons
regarding compliance questions or problems. The defendants annually
must obtain (and maintain) certifications from each such person that
the aforementioned briefing, advice and a copy of the final judgment
were received and understood and that he or she is not aware of any
violation of the final judgment that has not been reported to the
Antitrust Compliance Officer. Finally,each defendant must submit to the
plaintiff an annual declaration as to the fact and manner of its
compliance with the final judgment.
Under Section VII of the final judgment, the Justice Department
will have access, upon reasonable notice, to
[[Page 29768]]
the defendants' records and personnel in order to determine defendants'
compliance with the judgment.
D. Scope of the Proposed Judgment
(1) Persons Bound by the Decree
The proposed judgment expressly provides in Section III that its
provisions apply to each of the defendants and each of their officers,
directors, agents and employees, subsidiaries, successors and assigns
and to all other persons who receive actual notice of the terms of
judgment.
In addition, Section III of the judgment prohibits each of the
defendants from selling or transferring all or substantially all of its
stock or assets used in its tampico fiber business unless the acquiring
party files with the Court its consent to be bound by the provisions of
the judgment.
(2) Duration of the Judgment
Section IX provides that the judgment will expire on the tenth
anniversary of its entry.
Effect of the Proposed Judgment on Competition
The prohibition terms of Section IV of the judgment are designed to
ensure that each defendant will act independently in determining the
prices, and terms and conditions at which it will sell or offer to sell
tampico fiber, and that there will be no conspirational restraints
(horizontal or vertical) in the tampico fiber market. The affirmative
obligations of Sections VI and VII are designed to insure that each
corporate defendant's employees are aware of their obligations under
the decree in order to avoid a repetition of behavior that occurred in
the tampico fiber industry during the conspiracy period. Compliance
with the proposed judgment will prevent price collusion, allocation of
sales, markets and customers, concerted activities in restricting new
entrants and customers, and resale price restraints by each of the
defendants with each other and with other tampico fiber processors and/
or distributors.
IV
Remedies Available to Potential Private Plaintiffs
After entry of the proposed final judgment, any potential private
plaintiff who might have been damaged by the alleged violation will
retain the same right to sue for monetary damages and any other legal
and equitable remedies which he/she may have had if the proposed
judgment had not been entered. The proposed judgment may not be used,
however, as prima facie evidence in private litigation, pursuant to
Section 5(a) of the Clayton Act, as amended, 15 U.S.C. Sec. 16(a).
V
Procedures Available for Modification of the Proposed Consent Judgment
The proposed final judgment is subject to a stipulation between the
government and the defendants which provides that the government may
withdraw its consent to the proposed judgment any time before the Court
has found that entry of the proposed judgment is in the public
interest. By its terms, the proposed judgment provides for the Court's
retention of jurisdiction of this action in order to permit any of the
parties to apply to the Court for such orders as may be necessary or
appropriate for the modification of the final judgment.
As provided by the APPA (15 U.S.C. Sec. 16), any person wishing to
comment upon the proposed judgment may, for a sixty-day (60) period
subsequent to the publishing of this document in the Federal Register,
submit written comments to the United States Department of Justice,
Antitrust Division, Attention: Robert E. Connolly, Chief, Middle
Atlantic Office, Suite 650 West, 7th and Walnut Streets, Philadelphia,
Pennsylvania 19106. Such comments and the government's response to them
will be filed with the Court and published in the Federal Register. The
government will evaluate all such comments to determine whether there
is any reason for withdrawal of its consent to the proposed judgment.
VI
Alternative to the Proposed Final Judgment
The alternative to the proposed final judgment considered by the
Antitrust Division was a full trial of the issues on the merits and
relief. The Division considers the substantive language of the proposed
judgment to be of sufficient scope and effectiveness to make litigation
on the issues unnecessary, as the judgment provides appropriate relief
against the violations alleged in the complaint.
VII
Determinative Materials and Documents
No materials or documents were considered determinative by the
United States in formulating the proposed Final Judgment. Therefore,
none are being filed pursuant to the APPA, 15 U.S.C. Sec. 16(b).
Dated: May 31, 1996.
Anne K. Bingaman,
Assistant Attorney General.
Joel I. Klein,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Robert E. Connolly,
Chief, Middle Atlantic Office.
Respectfully submitted,
Edward S. Panek.
Michelle A. Pionkowski.
Roger L. Currier.
Joseph Muoio,
Attorneys, Antitrust Division, U.S. Department of Justice, Middle
Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,
Philadelphia, PA 19106, Tel.: (215) 597-7401.
[FR Doc. 96-14473 Filed 6-11-96; 8:45 am]
BILLING CODE 4410-01-M
