[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14046]
[[Page Unknown]]
[Federal Register: June 14, 1994]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Pilkington plc and Pilkington 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. 16(b)-(h), that a proposed Final Judgment,
Stipulation, and Competitive Impact Statement have been filed with the
United States District Court for the District of Arizona at Tucson in
United States v. Pilkington plc and Pilkington Holdings Inc., Civil No.
94-345 TUC-WDB as to both defendants.
The Complaint alleges that the defendants violated Sections 1 and 2
of the Sherman Act by restraining exports of float glass design and
construction services by enforcing territorial and other restraints in
license agreements entered into long ago that are now unjustified by
sufficiently valuable intellectual property rights. Most of the
agreements are more than 20 years old.
The proposed Final Judgment enjoins defendants from enforcing
license provisions that restrain their United States-based licensees'
freedom to use float glass technology anywhere in the world, and from
enforcing license restrictions against their other licensees that
restrain the licensees' freedom to use float glass technology in the
United States. It also enjoins defendants from asserting any
proprietary know-how rights in such technology against individuals or
firms in the United States who are not licensees.
Float glass technology is used to make over 90 percent of the glass
used for windows, windshields, architectural panels, and mirrors.
Public comment on the proposed Final Judgment is invited within the
statutory 60-day comment period. Such comments and responses thereto
will be published in the Federal Register and filed with the Court.
Comments should be directed to Gail Kursh, Chief, Professions and
Intellectual Property Section, room 9903, U.S. Department of Justice,
Antitrust Division, 555 4th Street, NW., Washington, DC 20001
(telephone: 202/307-5799).
Constance K. Robinson,
Director of Operations, Antitrust Division.
United States District Court for the District of Arizona
United States of America, Plaintiff, v. Pilkington plc and
Pilkington Holdings Inc., Defendants. Civil Action No. 94-345.
Filed: May 25, 1994. Judge Browning.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
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 of Arizona;
2. The parties consent 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 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; and
3. Defendants agree to be bound by the provisions of the proposed
Final Judgment pending its approval by the Court. If the Plaintiff
withdraws its consent or if the proposed Final Judgment is not entered
pursuant to this Stipulation, this Stipulation shall be of no effect
whatsoever, and the making of this Stipulation shall be without
prejudice to any party in this or in any other proceeding.
Dated this 25th day of May, 1994.
For Plaintiff The United States of America.
Robert E. Litan,
Deputy Assistant Attorney General.
Mark C. Schecther,
Deputy Director of Operations.
Gail Kursh,
Chief, Professions & Intellectual Property Section.
David C. Jordan,
Assistant Chief Professions & Intellectual Property Section.
K. Craig Wildfang,
Special Counsel to the Assistant Attorney General, Antitrust
Division.
Kurt Shaffert,
Thomas H. Liddle,
Molly DeBusschere,
John B. Arnett, Sr.,
M. Lee Doane,
Attorneys, U.S. Dep't. of Justice, Antitrust Division, room 9903,
J.C.B. 555 4th Street, N.W., Washington D.C. 20001, 202/307-0467.
For the Defendants:
Rober E. Leverton,
Chief Executive, Pilkington plc.
Peter H. Grunwell,
Director, Plikington Holdings Inc.
John H. Shenefield,
Counsel for Defendants, Pilkington plc and Pilkington Holdings, Inc.
United States District Court for the District of Arizona
United States of America, Plaintiff, v. Pilkington plc; and
Pilkington Holdings Inc., Defendants. Civil Action No. 94-345.
Filed: May 25, 1994, Judge Browning.
Final Judgment
Plaintiff, the United States of America, having filed its Complaint
on May 25, 1994, and plaintiff and defendants, by their respective
attorneys, having consented to the entry of this Final Judgment without
trial or adjudication of any issue of fact or law, and before the
taking of any testimony in this action, and without this Final Judgment
constituting any evidence against or an admission by any defendant to
any such issue;
And defendants having 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 hereto, 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
sections 1, 2 and 6a of the Sherman Antitrust Act, 15 U.S.C. 1, 2, 6a.
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. ``Confidentiality'' means the non-disclosure of information
under an agreement, undertaking or obligation arising under applicable
law to maintain its secrecy and/or limit its use.
C. ``Fees'' means money paid to the defendants for the right to use
FLOAT TECHNOLOGY, including, but not limited to, royalties, lump sum
payments and line fees.
D. ``Final Award'' means the Final Award dated August, 1992 in the
arbitration proceedings between PPG Industries, Inc. and PILKINGTON.
E. ``Flat Glass'' means glass formed in a flat shape and glass
formed flat and then bent or curved.
F. ``Float Glass'' means FLAT GLASS manufactured by floating molten
glass on the surface of a bath of molten metal.
G. ``Float Technology'' means float process technology in existence
on or before the date of the STIPULATION that is appropriate and useful
for the design, construction, and/or operation of a float bath used in
making FLOAT GLASS.
H. ``Foreign Licensee'' means any LICENSEE that is not a U.S.
LICENSEE.
I. ``Licensee'' means any person, company, or entity that has
entered into a LICENSE AGREEMENT with PILKINGTON.
J. ``License Agreement'' means any AGREEMENT, whether or not
denominated as such, in being as of the date of the STIPULATION, that
provided or provides for, or acknowledges or recognizes, the licensing
of, or the right to use, FLOAT TECHNOLOGY for the manufacture of FLOAT
GLASS, including, without limitation, any AGREEMENT (i) For
sublicensing or (ii) for settling any dispute regarding rights to FLOAT
TECHNOLOGY.
K. ``Limitations'' means: (1) Any limitation, or restriction of
territories, fields, markets, or customers for the design and
construction, or supervision of construction, of FLOAT GLASS plants, or
the manufacture of FLOAT GLASS; and/or (2) any restriction or
limitation, or purported restriction or limitation of the use of FLOAT
TECHNOLOGY, whether the result of an affirmative prohibition or a
limited authorization.
L. ``Non-licensee'' means any person, company, or entity which has
not entered into a LICENSE AGREEMENT with PILKINGTON.
M. ``North America'' means the United States of America, Canada and
the Republic of Mexico.
N. ``Pilkington'' means Defendant Pilkington plc.
O. ``Stipulation'' means the stipulation entered into by the
parties to this action dated May 25, 1994.
P. ``Subject Float Technology'' means FLOAT TECHNOLOGY that in
relation to any given LICENSEE was disclosed to that LICENSEE under its
LICENSE AGREEMENT other than FLOAT TECHNOLOGY disclosed by PILKINGTON
to any U.S. LICENSEE while PILKINGTON owned 50% or more of that U.S.
LICENSEE.
Q. ``U.S. Licensee'' means any LICENSEE that was or is incorporated
in the United States or had or has its principal place of business in
the United States, but shall not include any subsidiaries, affiliates
or parents of any such LICENSEE nor any person while it is a
subsidiary, affiliate or parent of any defendant. For purposes of this
definition, an ``affiliate'' is an entity in which a person has an
equity interest, directly or indirectly, of 50% or less; a
``subsidiary'' is an entity in which a person has an equity interest,
directly or indirectly, of more than 50%; a ``parent'' is an entity
that has, directly or indirectly, more than 50% of the equity interest
of another entity.
R. ``U.S. Non-Licensee'' means any NON-LICENSEE that is domiciled
or incorporated in the United States and that has its principal place
of business in the United States.
III
Applicability
This Final Judgment applies to defendants and to each of 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.
IV
Injunction
Defendants are enjoined and prohibited as follows:
A. U.S. Licensees
1. Except as provided in subparagraph A.4. hereof, no defendant
shall enter into, maintain, enforce or claim any right under any
AGREEMENT to the extent such AGREEMENT requires, or purports to
require, any U.S. LICENSEE to pay FEES, observe LIMITATIONS, or
maintain CONFIDENTIALITY (subject to subparagraph A.3.) with respect to
the use or sublicensing of any SUBJECT FLOAT TECHNOLOGY.
2. Except as provided in subparagraph A.4. hereof, no defendant
shall assert against any U.S. LICENSEE any proprietary FLOAT TECHNOLOGY
know-how rights (including any claim of CONFIDENTIALITY, subject to
subparagraph A.3.) that it may have or claim with respect to any:
(a) Subject Float Technology; or
(b) FLOAT TECHNOLOGY not disclosed directly to that U.S. LICENSEE
but otherwise in the possession of that U.S. LICENSEE unless for each
item or combination of items thereof
(i) it has a good faith argument that such item, or combination of
items, is a trade secret under applicable law, and
(ii) it has a good faith argument that it has been acquired in
breach of CONFIDENTIALITY or otherwise unlawfully.
3. Defendants may assert against U.S. LICENSEES a claim of breach
of CONFIDENTIALITY in respect of SUBJECT FLOAT TECHNOLOGY, but only if
the claim is made as to that which is a trade secret under applicable
law and is either:
(a) Based upon a U.S. LICENSEE's failure to make lawful and
commercially reasonable efforts to preserve the CONFIDENTIALITY of
SUBJECT FLOAT TECHNOLOGY; or
(b) Based upon a U.S. LICENSEE'S failure to include in any
AGREEMENT transferring FLOAT TECHNOLOGY a lawful and commercially
reasonable provision requiring the transferee to maintain the
CONFIDENTIALITY of the transferred FLOAT TECHNOLOGY.
4. The provisions of subparagraphs A.1. and A.2. hereof shall not
preclude in any way defendants from pursuing fully any claims for an
account of profits, damages or any other monetary relief based on
conduct occurring before the date of the STIPULATION in any proceedings
instituted before that date.
B. U.S. Non-Licensees
1. No defendant shall enter into or enforce any AGREEMENT with any
employee, contractor, supplier, consultant, or the like who is a U.S.
NON-LICENSEE that contains any obligation of CONFIDENTIALITY to or for
the benefit directly or indirectly of PILKINGTON with respect to FLOAT
TECHNOLOGY, or any covenant to refrain from competing or engaging in
any line of business relative to FLOAT TECHNOLOGY, that is of longer
duration or greater scope than permitted under applicable law, provided
that plaintiff agrees that defendants shall not be in contempt of this
Final Judgment if they enter into or seek to enforce any such AGREEMENT
based on a good faith argument that such AGREEMENT is permitted by
applicable law.
2. No defendant shall assert against U.S. NON-LICENSEES (other than
in respect of AGREEMENTS referred to in subparagraph B.1. above) any
proprietary FLOAT TECHNOLOGY know-how rights (including any claim of
CONFIDENTIALITY) that it may have or claim with respect to any FLOAT
TECHNOLOGY disclosed by PILKINGTON to any U.S. LICENSEE, unless for
each item or combination of items thereof:
(a) Defendant has a good faith argument that such item, or
combination of items, is a trade secret under applicable law;
(b) Defendant has a good faith argument that such item, or
combination of items, has been acquired in breach of CONFIDENTIALITY or
otherwise unlawfully;
(c) Defendant has, within fourteen (14) days after any such
assertion:
(i) Made a showing in writing to the Department of Justice,
Antitrust Division in support of the arguments described in
subparagraphs 2(a) and 2(b), above;
(ii) Identified, enumerated, and described such item or combination
of items (in sufficient detail and with sufficient clarity to
distinguish them from information not a trade secret under applicable
law) on a list submitted to the Antitrust Division and to the U.S. NON-
LICENSEE against whom such right is asserted; and
(d) Such U.S. NON-LICENSEE is unwilling to make lawful and
commercially reasonable efforts to maintain the CONFIDENTIALITY of any
such item or combination of items for which it has received actual
notice of a defendant's claim of proprietary rights therein pursuant to
subparagraph 2(c)(ii), above, and for which a defendant has made the
requisite showing pursuant to subparagraph 2(c)(i), above.
C. Agreements with Foreign Licensees
No defendant shall enter into, maintain, enforce or claim any right
under any AGREEMENT to the extent such AGREEMENT contains any
LIMITATIONS on a FOREIGN LICENSEE regarding its use or sublicensing of
any FLOAT TECHNOLOGY that would have the effect of prohibiting or
limiting the manufacture of FLOAT GLASS in NORTH AMERICA, provided that
defendants may charge commercially reasonable and non-discriminatory
FEES for the use or sublicensing of FLOAT TECHNOLOGY other than that
disclosed by PILKINGTON to a U.S. LICENSEE; and provided further that a
defendant may enforce CONFIDENTIALITY against any FOREIGN LICENSEE for
use of FLOAT TECHNOLOGY, but, with respect to FLOAT TECHNOLOGY
disclosed by PILKINGTON to a U.S. LICENSEE, only to the extent that the
defendant has a good faith argument that the items or combination of
items of such FLOAT TECHNOLOGY involved are trade secrets under
applicable law.
D. Exports to the United States
No defendant shall, with the intent of restraining or limiting the
amount of exports of FLOAT GLASS to the United States:
1. assert any proprietary FLOAT TECHNOLOGY know-how rights with
respect to SUBJECT FLOAT TECHNOLOGY or
2. enter into, maintain, enforce or claim any right under any
AGREEMENT with any LICENSEE.
E. Price of Float Technology
No defendant shall enter into, maintain or enforce any AGREEMENT
that fixes, maintains or stabilizes the price to be charged for the use
of any FLOAT TECHNOLOGY in the United States.
F. Representations
With respect to all FLOAT TECHNOLOGY disclosed by PILKINGTON to any
U.S. LICENSEE, no defendant shall represent to any person anywhere in
the world that the person will or may incur liability to any defendant
as a result of that person using, or contracting for the use of, or
financing, facilitating, or promoting another person's use of such
FLOAT TECHNOLOGY insofar as the same is acquired directly from any U.S.
LICENSEE or any U.S. NON-LICENSEE provided that nothing shall limit or
restrict any defendant from representing, claiming or enforcing any
right to which either defendant may now or hereafter be entitled other
than as is expressly enjoined by this Final Judgment.
G. Public Domain
1. Within sixty (60) days of the entry of this Final Judgment,
PILKINGTON shall identify the FLOAT TECHNOLOGY found to be public
knowledge in the FINAL AWARD to the Department of Justice, Antitrust
Division; to all U.S. LICENSEES; and to all U.S. NON-LICENSEES who
shall request the same in writing.
2. In the event that SUBJECT FLOAT TECHNOLOGY is: (a) Formally
acknowledged in writing by PILKINGTON to be in the public domain, or
(b) is determined to be in the public domain in a final award in any
arbitration proceedings to which PILKINGTON is a party or (c) is held
to be in the public domain in any proceedings to which PILKINGTON is a
party conducted in a court of competent jurisdiction and provided that
any such determination or holding is an essential relevant part of a
final non-appealable decision or judgment binding upon PILKINGTON, then
within sixty (60) days of such acknowledgment, award for judgment
PILKINGTON shall send notice thereof identifying such public domain
FLOAT TECHNOLOGY to the Department of Justice, Antitrust Division; to
all U.S. LICENSEES; and to all U.S. NON-LICENSEES who previously made a
request pursuant to subparagraph G.1. above.
H. Patents
Nothing in this Paragraph IV shall be construed to apply to any
lawful use of any patent or any patent right to which defendants may
now or hereafter be entitled.
I. Construction
Nothing in this Paragraph IV shall be considered by implication
either to permit or to prohibit any agreements, conduct or practices
not expressly covered by this Final Judgment. Nothing in this Paragraph
IV shall be construed as permission to engage in conduct that is not
lawful, or as legalizing otherwise unlawful conduct nor as a
determination that any conduct affected or subject to this Paragraph IV
is unlawful. The legality or illegality of any conduct not expressly
covered by this Final Judgment is left unaffected by the entry of this
Final Judgment.
J. Records
During the term of this Final Judgment defendants shall maintain a
file in the United States at the offices of defendant Pilkington
Holdings Inc. containing the documents created or received after the
date of this Final Judgment and identified further in this paragraph
and during the term of this Final Judgment shall produce the same to
the Department of Justice, Antitrust Division within sixty (60) days of
a written request given to defendants at the principal office of
Pilkington Holdings Inc., subject to any lawful privilege:
1. A copy of each LICENSE AGREEMENT entered into or amended;
2. A copy of each complaint (or its equivalent) filed in any
proceeding, and each other document in which defendants asserted
against any U.S. LICENSEE or U.S. NON-LICENSEE any proprietary FLOAT
TECHNOLOGY know-how rights (including any claim of CONFIDENTIALITY);
3. A copy of each document constituting or containing a
determination in any proceeding, or any acknowledgement by defendants
that any item or combination of items of FLOAT TECHNOLOGY is, or has
become, publicly known.
4. A copy of each document constituting or containing: (a) Any
request for the communication of FLOAT TECHNOLOGY or a grant of rights
to FLOAT TECHNOLOGY for the manufacture of FLOAT GLASS or sublicensing
from any U.S. LICENSEE or U.S. NON-LICENSEE, and (b) defendant's
response to any such request.
V
Notification
Within sixty (60) days after the entry of this Final Judgment,
defendants shall either: (a) Deliver by certified or registered mail to
each person to whom it has granted a LICENSE, or with whom it has
entered into any confidentiality agreement pertaining to FLOAT GLASS,
including without limitation equipment fabricators, suppliers, and
employees a copy of this Final Judgment and the accompanying
Competitive Impact Statement; or (b) cause to be published in one or
more journals a copy of this Final Judgment or a summary of this Final
Judgment, which journals and summary shall be agreed upon by plaintiff
and defendants, and defendants shall promptly certify in writing to
plaintiff the fact of their compliance with this provision.
VI
Reporting
A. To determine or secure compliance with this Final Judgment, duly
authorized representatives of the plaintiff shall, upon written request
of the Assistant Attorney General in charge of the Antitrust Division,
on reasonable notice given to defendants at their principal office,
subject to any lawful privilege, be permitted:
1. Access during normal office hours to inspect and copy all books,
ledgers, accounts, correspondence, memoranda and other documents and
records in the possession, custody, or control of defendants, which may
have counsel present, relating to any matters contained in this Final
Judgment. PILKINGTON may elect, with respect to any such materials as
may be located outside the United States of America at the time it
receives such notice, to provide such access at a location within the
United States that is reasonably acceptable to the duly authorized
representative in lieu of providing access at the situs of the
materials.
2. Subject to the reasonable convenience of defendants and without
restraint or interference from it, to interview officers, employees, or
agents of defendants, who may have counsel present, regarding any
matters contained in the Final Judgment. PILKINGTON may elect to make
available for such interviews those of its officers, employees, or
agents whose regular work station is outside the United States of
America at a location within the United States that is reasonably
acceptable to the duly authorized representative.
B. Upon written request of the Assistant Attorney General in charge
of the Antitrust Division, on reasonable notice given to defendants at
their principal office, subject to any lawful privilege, defendant
shall submit such written reports, under oath if requested, with
respect to any matters contained in this Final Judgment.
C. No information or documents obtained by the means provided by
this Section VI shall be divulged by the plaintiff to any person other
than a duly authorized representative of the Executive Branch of the
United States government, 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
defendant to plaintiff, defendant represents and identifies in writing
the material in any such information or document to which a claim of
protection may be asserted under Rule 26(c)(7) of the Federal Rules of
Civil Procedure, and 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 10 days' notice shall be given
by plaintiff to defendant prior to divulging such material in any legal
proceeding (other than a grand jury proceeding) which defendant is not
a party.
VII
Further Elements of Judgment
A. This Final Judgment shall expire on the tenth anniversary of its
entry.
B. Jurisdiction is retained by this Court over this action and the
parties thereto for the purpose of enabling any of the parties thereto
to apply to this Court at any time for further orders and directions as
may be necessary or appropriate to carry out or construe this Final
Judgment, to modify or terminate any of its provisions, to enforce
compliance, and to punish violations of its provisions.
VIII
Public Interest
Entry of this Final Judgment is in the public interest.
Entered:____________---------------------------------------------------
UNITED STATES DISTRICT JUDGE
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United States District Court for the District of Arizona
United States of America, Plaintiff, v. Pilkington plc and
Pilkington Holdings Inc., Defendants. Civil Action No. 94-345,
Filed: May 25, 1994, Judge Browning.
Competitive Impact Statement
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act (15 U.S.C. 16(b)), the United States of America hereby files this
Competitive Impact Statement relating to the proposed Final Judgment
submitted for entry against Pilkington plc (``Pilkington'') and
Pilkington Holdings Inc., Pilkington's indirectly, wholly-owned
American subsidiary, in this civil antitrust action.
I
Nature and Purpose of the Proceeding
A. The Complaint
The government filed this civil antitrust suit on May 25, 1994,
alleging that defendants violated Sections 1 and 2 of the Sherman Act
by enforcing and maintaining agreements and understandings that
unreasonably restrain interstate and foreign trade in the construction
and operation of float glass plants and in float glass process
technology, and by monopolizing the world market for the design and
construction of float glass plants. Specifically, the Complaint alleges
that, without sufficiently valuable intellectual property rights and
through a network of bilateral patent and know-how license agreements
and various understandings with most other float glass manufacturers in
the world, defendants:
(a) Allocated and divided territories for, and limited the use of,
float glass technology worldwide;
(b) Interpreted and enforced the territorial and use restrictions
in the license agreements so that their combined effect prevented
competitors from using or developing competing float glass technology;
(c) Required competitors to prove that all of the licensed
technology had become publicly known before being relieved of the
territorial and use restrictions;
(d) Imposed and enforced restrictions on competitors' ability to
sublicense float glass technology;
(e) Imposed and enforced reporting and grant-back provisions in the
license agreements;
(f) Imposed and enforced restrictions on exports of glass by
licensees from and to the United States; and
(g) Continued enforcement of the territorial, use, and sublicense
restrictions indefinitely, even after no further licensing royalties
were payable and the licensed patents had expired.
The Complaint also alleges that Pilkington has monopolized the
world market for the design and construction of float glass plants
through license agreements that impose unreasonable restrictions on
licensees and by other predatory and exclusionary conduct. Finally, the
Complaint alleges that the conduct described above has had and
continues to have direct, substantial, and reasonably foreseeable
adverse effects on U.S. export trade and commerce in providing services
and related equipment and materials for the design and construction of
float glass plants outside the United States.
The prayer for relief seeks: (1) A declaration that the provisions
in Pilkington's license agreements with float glass manufacturers that
have the purpose or effect of limiting or restricting: (a) The
territory in which a manufacturer may make or sell float glass, or (b)
the use of float glass technology Pilkington originally disclosed to
that manufacturer, or derived therefrom, are illegal and unenforceable;
(2) an injunction against defendants' enforcing any such provisions;
(3) an injunction against defendants' (a) interfering with the efforts
of any person (i) in this country to provide or perform services for
the design or construction of float glass plants anywhere in the world,
or (ii) anywhere in the world to provide or perform services for the
design or construction of float glass plants in the United States
(including representing that such services would violate or infringe
defendants' intellectual property rights, (b) interfering with the
design, construction, or operation of any such plant or the sale or
shipment of glass from those plants, or (c) monopolizing or attempting
to monopolize the market for the design and construction of float glass
plants; and (4) costs.
B. The Technology Market Involved
Flat glass includes glass formed in a flat shape or bent or curved
for further fabrication and is used principally for windows in
dwellings and commercial buildings, automobile windshields and other
glass parts, architectural products, and mirrors. Almost all flat glass
currently sold worldwide is made by the ``float'' process, which
involves floating molten glass on the surface of a bath of molten
metal, usually tin, which is sealed with a protective atmosphere. In a
continuous process, molten glass is delivered to one end of the tin
bath and is removed at the opposite end as a continuous ribbon of flat
glass after cooling until it is rigid enough to retain its shape during
removal.
Commercial float glass manufacture requires relatively large-scale,
single-purpose plants that are not efficiently convertible to other
uses; and other manufacturing facilities are not efficiently
convertible to float glass production. The cost of designing and
constructing a typically-sized float glass plant, including equipment,
materials, and construction labor, is in the range of $100 to $150
million. During the years 1984-91, 55 new float plants were designed,
built, and placed in service worldwide; of those, nine are in North
America, including seven in the United States.
Between now and the end of the century, 30 to 50 new float glass
plants are planned or projected worldwide, amounting to expenditures of
as much as $5 billion. Many are expected to be built in developing
countries, where contracts are likely to be awarded to outside bidders
for plant design, engineering, construction, and construction
supervision services. Such services often include the specifying,
ordering, or procuring of process equipment and materials used in such
plants.
Persons in the United States would compete, if not restrained, for
the award of contracts to provide float glass design and construction
services. To the extent such persons successfully compete for contracts
to design and construct float glass plants to be built outside the
United States, the resulting U.S. export trade or commerce would
generate substantial domestic economic activity, including substantial
opportunities for domestic providers of engineering and design
services, equipment fabricators, and materials suppliers. It is
estimated that, when a U.S. firm designs and supervises construction of
a foreign plant costing roughly $100 million, approximately $35 to $50
million of that total eventually flows into the United States' economy
in orders for domestic materials, equipment, and services. It is
further estimated that, if not restrained, U.S. exporters of float
glass technology may be expected to obtain between 10 percent and 50
percent of the 30 to 50 new plants planned or projected over the next
several years. Thus, potential U.S. export sales for contractors,
fabricators, and suppliers could amount to $500 million to $2.5
billion.
II
The Practices and Events Giving Rise to the Alleged Sherman Act
Violations
A. Licensing Scheme
1. Background
Virtually all commercial flat glass was produced either by the old
sheet glass process or the old plate glass process until 1962. In the
late 1950s, Pilkington developed the first commercially successful
float process for making flat glass, which eventually replaced both
plate and sheet processes.\1\ Pilkington obtained hundreds of patents
worldwide covering its version of the float process and developed a
considerable body of related know-how.
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\1\Pilkington's float process substantially reduced capital and
operating costs, when compared with the plate process, by
eliminating the need for grinding and polishing, but was not at
first cost competitive with the sheet process. By 1970, float glass
had almost completely replaced plate glass and, because of quality
improvements and cost reductions, was competitive with sheet glass.
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Beginning in 1962, Pilkington entered into patent and know-how
license agreements with all its principal competitors. Now, over 90% of
flat glass worldwide is manufactured under a Pilkington license
agreement. Eight licenses were granted in the United States to: AFG
Industries, Inc. (``AFG''); Combustion Engineering, Inc. (now AFG);
Ford Motor Co. (``Ford''); Fourco Glass Co. (also now AFG); Guardian
Industries Corp. (``Guardian''); Pennsylvania Float Glass, Inc. (now
Guardian); PPG Industries, Inc. (``PPG''); and Libbey-Owens-Ford Co.
(``LOF'') (now owned 80% by Pilkington and 20% by Nippon Sheet Glass
Co. Ltd.).
2. The Agreements
The Pilkington float license agreements typically: (a) Provided for
Pilkington to disclose all ``float process''\2\ know-how it owned or
controlled at the time, and (b) granted non-exclusive licenses under
(i) patents and patent applications of a specified country or
countries, (ii) the ``float process'' know-how to be disclosed to the
licensee under the agreement, and (iii) all patented and unpatented
``float process'' improvements Pilkington owned, controlled, or
developed within a certain time period. Most licenses did not grant the
right to sublicense. Also, improvement exchange provisions of the
agreements required the licensee to grant-back to Pilkington (i.e.,
disclose and license) all patented and unpatented ``float process''
improvements the licensee owned, controlled, or discovered during the
exchange period. The license agreements required both lump-sum payments
and continuous royalties, and virtually all of them required that any
disputes be settled by arbitration in London under the law of England.
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\2\The license agreements very broadly defined ``float
processes'' as ``all processes * * * used for * * * production of
flat glass * * * with the aid of a bath of molten material * * *
with which the glass is in contact at any stage during its
production,'' but exclusing everything (i) prior to delivery of the
glass to the bath, and (ii) after its emergence from the lehr (where
it undergoes controlled cooling).
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The agreements imposed territorial and other use limitations by, in
effect, ``authorizing'' each licensee to practice the licensed patents
and use the licensed know-how only in a specified country or countries
(usually the licensee's own domestic market), and only to make and sell
flat glass.\3\ The license agreements also imposed restraints on
exports of glass from the specified territories. Those restraints
applied to some U.S. licensees as well as to certain foreign licensees
exporting to the United States. Export waivers have been granted by
Pilkington in some cases, but were often limited as to time, location,
and output.
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\3\While most agreements contained no express, contractual
prohibitions against manufacturing in any particular country outside
the specified, licensed countries, the grants are all limited
licenses, ``authorizing'' manufacture of float glass only in the
specified countries.
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Finally, the agreements imposed confidentiality and nondisclosure
obligations on the licensees for all the know-how disclosed, unless and
until the information or know-how becomes public knowledge. In
practice, Pilkington placed the burden on the licensee to make any
showing of public knowledge.
Today, virtually all of the original float license agreements
themselves, as well as their improvement exchange and disclosure
requirements, have terminated; the royalty obligations thereunder have
become fully paid up; Pilkington's principal float glass patents have
expired; and a substantial portion of its related know-how has become
publicly known. Yet, the territorial and use restrictions, the
confidentiality and nondisclosure obligations, the prohibition on
sublicensing, and the arbitration clause and choice of law provision
remain in full force and effect insofar as they apply to both licensed
original know-how and unpatented improvements, most of which the
world's flat glass producers have been using for decades.
As a result of the continuing restrictions in the agreements,
existing licensees, including those in the United States, cannot design
and build new float plants, or sublicense independent third parties to
do so, outside their licensed ``territories'' without Pilkington's
permission. Moreover, innovations in designs and technology that
improve float process efficiency and float glass quality are important
advantages in competing for contracts to design and construct (or
supervise construction of) float glass plants; thus, geographically
limiting the opportunities for economic exploitation of such
innovations not only reduces the effectiveness of such competition but
also reduces the incentives for innovation.
The adverse impact of the continuing license restrictions is
substantial. Since Pilkington has no intellectual property rights of
substantial value, the restraints are neither ancillary nor reasonably
necessary to any legitimate purpose or transaction, and are, therefore,
unreasonable restraints on trade within the meaning of Section 1 of the
Sherman Act, 15 U.S.C. 1.
3. Current Status of Licenses
There are over 60 Pilkington float licenses agreements. Most of
therm contain no authorization for the licensee to manufacture or
sublicense outside its original territory now or at any time in the
future.
A small number of agreements provide that ``the territorial and
other limitations on use cease to apply'' after a period of time
(usually 30 years after commencement of royalty payments but, in any
case, not before the agreement terminates and the licenses granted
thereunder become paid up). Such licenses are held by just three
companies (other than Pilkington and its subsidiaries or affiliates).
In the absence of the stipulated Final Judgment, after 1996, only these
three companies will have worldwide rights to manufacture on their own
and to sublicense more than 50 percent-owned subsidiaries without any
additional royalty or lump-sum payment to Pilkington.\4\
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\4\But absent the stipulated Judgment, even those rights will
not allow these three companies to compete effectively in most
developing countries, where the future market is for new float
plants, because of ownership limitations there that require, as a
legal or practical matter, a domestic company to have majority
ownership of new manufacturing ventures.
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In sum, in the absence of the stipulated Final Judgment, the vast
majority of current and former Pilkington licensees (who together make
up the bulk of those competitors capable of providing float glass plant
design and construction services) continue to be restrained from either
manufacturing glass or sublicensing (selling) glass technology outside
their original territories.
B. Litigation
Pilkington has routinely used litigation, and threats of
litigation, to enforce its anticompetitive license restrictions. On
several occasions, Pilkington has actually sued or brought arbitration
proceedings against its American float glass licensees. In 1983,
Pilkington sued its U.S. licensee, Guardian Industries, alleging that
Guardian had improperly used and disclosed Pilkington's proprietary
know-how in building a float glass plant in Luxembourg. After an
adverse preliminary ruling by the court, Pilkington agreed to settle
its claims on terms favorable to Guardian, permitting Guardian to
construct float glass plants outside its previously-prescribed
territory in return for Guardian's agreement to preserve the
confidentiality of Pilkington's float technology.
Pilkington more successfully asserted claims against PPG in 1978
and again in 1985. In a 1985 arbitration concluded in 1992, Pilkington
was able to enforce its 1962 license agreement with PPG and to recover
damages from PPG stemming from PPG's construction of a float glass
plant in China in the early 1980s. The arbitrators determined that,
while much of Pilkington's alleged secret know-how was publicly known
by 1985, PPG had failed to prove that 45 specific items were publicly
known. The arbitrators did not consider the question of whether any of
those items were valid trade secrets.
Also in the early 1980's Pilkington sued U.S. licensee AFG over
unpaid royalties relating to AFG's operation of float glass plants
constructed using AFG's own technology. The case was settled in 1985,
resulting in substantial limitations on AFG's ability to use and sell
the disputed technology.
C. Other Exclusionary Conduct
The evidence demonstrates that Pilkington acted to restrict
competition and control output. Pilkington licensed its principal
competitors, which had the effect of minimizing the likelihood of their
developing competing float glass technologies. At the same time,
Pilkington turned down requests for float glass licenses from persons
who were not already flat glass producers. The territories to which
each licensee was limited by its float license agreement generally
corresponded to the territories in which it operated prior to entering
into that agreement. Thus, Pilkington's network of bilateral patent and
know-how licenses, containing territorial and other use limitations, as
well as confidentiality obligations, provided a framework for
Pilkington to control the worldwide market for float glass plant design
and construction services. The evidence also indicates Pilkington's
effort to coordinate activities of certain of its licensees, and
reflects a shared or common interest among certain licensees to limit
entry by competing technologies.
Pilkington exercised its right to grant or deny licenses not only
in its own self-interest to avoid direct competition, but also in ways
designed to benefit licensees in their territories. When Pilkington did
grant float licenses, it frequently did so only to firms controlled by
an existing licensee or to a joint venture of existing licensees.
One of Pilkington's goals in deciding whether to license, and in
imposing territorial/export restraints when it did, was to control
price, capacity, and output of flat glass. Pilkington sometimes reached
separate understandings with licensees who exceeded, or threatened to
exceed, the territorial or other limitations imposed by their licenses.
By discouraging or challenging the construction of new float plants
outside any licensee's original, assigned territory, Pilkington sought
to maintain control over glass output and the sale or disclosure of
float technology, for its own benefit, as well as that of the other
licensees. Pilkington also tried to dissuade flat glass distributors
and suppliers of materials and equipment used in building float plants
from dealing with non-licensees and threatened reprisals if they did.
Pilkington reserved for itself certain markets, and turned down
requests for licenses in those markets, including requests from
existing float licensees, for the two-fold purpose of exploiting those
markets itself, and controlling exports from those markets to other
parts of the world. Pilkington attempted to achieve this goal by
coordinating the shipment of glass to specific customers through
certain licensees and indirectly, its U.S. subsidiary LOF.
III
Explanation of the Proposed Final Judgment and Its Anticipated Effect
on Competition
The United States and the defendants have stipulated that the Court
may enter the proposed Final Judgment at any time after compliance with
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h). Under
the provisions of section 2(e) of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(e), the proposed Final Judgment may not be
entered unless the Court finds entry is in the public interest. Section
VIII of the proposed Final Judgment sets forth such a finding.
The proposed Final Judgment provides for affirmative and injunctive
relief, which is expected to eliminate any residual anticompetitive
effects of the restrictive license agreements and other conduct
challenged by the Complaint. Specifically, consistent with the United
States' antitrust jurisdiction under the Foreign Trade Antitrust
Improvements Act of 1982, 15 U.S.C. 6a, the Final Judgment would
eliminate all territorial and use limitations Pilkington imposed on its
U.S. licensees and allow them to manufacture on their own or sublicense
any third party to do so anywhere in the world, free of charge, using
the float technology disclosed and licensed to those licensees. Such
manufacturing and sublicensing rights would be subject only to limited
confidentiality obligations imposed under certain narrow and specific
conditions.
The Judgment also would provide, in effect, a similar ``safe
harbor'' for any other American individual or firm who is not a
Pilkington float glass licensee to use any float technology in its
possession without liability to Pilkington. Further, the Judgment would
enjoin certain conduct having the purpose or effect of restricting
exports of float glass to the United States or limiting the use of
float technology or manufacture of float glass in North America.
Finally, the Judgment would enjoin the defendants from making certain
adverse representations about U.S. licensees or non-licensees and would
require the defendants to disclose to those American entities the
results of any adjudication of Pilkington's alleged trade secrets.
A. Section IV.A.: U.S. Licensees
The injunctive provisions of this subsection apply to Pilkington's
U.S. float glass licensees, defined as any person or entity
incorporated or having its principal place of business in the United
States and having entered into any agreement with Pilkington prior to
the stipulation date for the licensing of or the right to use float
glass technology. It does not apply to any subsidiary (at least 50
percent owned), affiliate (less than 50 percent owned), or parent of
any U.S. licensee,\5\ or to any person while it is a subsidiary,
affiliate, or parent of any defendant.
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\5\This exclusion is designed to prevent a foreign entity from
claiming the benefits of specific provisions of the proposed Final
Judgment designed for U.S. entities simply by acquiring, being
acquired by, or becoming affiliated with any American entity. United
States and foreign entities are treated differently under the
proposed Judgment (see Section IV.C.) because the jurisdictional
reach of the U.S. antitrust laws is limited.
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Specifically, subject to a narrow exception and certain conditions
noted below, subsection IV.A.1. would prohibit defendants from entering
into, maintaining, enforcing, or claiming any right under any agreement
or understanding that restrains in any way a U.S. licensee from using
or sublicensing anywhere in the world the float glass technology
Pilkington disclosed and licensed to it, or that requires such licensee
to pay royalties or lump sum or line fees for such use or sublicensing.
Also, subject to the same exception and conditions, subsection IV.A.2.
would prohibit defendants from asserting against a U.S. licensee any
alleged proprietary know-how rights in the same float technology
disclosed and licensed to that licensee.
The exception and conditions mentioned above are contained in
subsections IV.A.3. and IV.A.4. Subsection IV.A.3. provides that
defendants may assert a breach of confidentiality claim against a U.S.
licensee concerning licensed technology, only if the claim (i) pertains
to a trade secret under applicable law, and (ii) is based on the U.S.
licensee's failure either to make lawful and commercially reasonable
efforts itself to maintain confidentiality or to require by contract
anyone to whom it transfers such technology to do so. Subsection
IV.A.4. specifically preserves whatever claim a defendant may have for
an account of profits, damages, or any other monetary relief asserted
in any proceedings begun before the stipulation date and based on
conduct occurring before that date. However, this exception does not
allow defendants to bring future actions for monetary relief, whether
or not based on prior conduct.
Finally, subsection IV.A.2., again subject to the same exception
and conditions described above, also prohibits defendants from
asserting against a U.S. licensee any alleged proprietary know-how
rights in float technology acquired from any source other than
Pilkington, unless defendant have a good faith argument that each item,
or combination of items, of such technology: (i) Is a trade secret
under applicable law, and (ii) has been acquired in breach of
confidentiality or otherwise unlawfully.
B. Section IV.B.: U.S. Non-Licensees
The injunctive provisions of this subsection apply to any person or
entity domiciled or incorporated in the United States and having its
principal place of business here, but who has not entered into a float
glass license agreement with Pilkington. Such persons or entities fall
into two general categories: (i) Non-licensees who are nevertheless
under some contractual confidentiality or noncompete obligation for
Pilkington's benefit (e.g., employees, contractors, suppliers,
consultants, etc.), and (ii) persons who are not under any such
obligation.
As to the first category, subsection IV.B.1. of the proposed
Judgment prohibits defendants from entering into or enforcing any
agreement containing such a confidentiality obligation or covenant not
to compete that is longer in duration or greater in scope than
permitted under applicable law. That subsection, however, provides that
entering into or enforcing such an agreement will not constitute
contempt of the Judgment if defendants have a good faith argument that
it is permitted by applicable law.
Subsection IV.B.2. of the proposed Final Judgment applies to all
U.S. non-licensee competitors and potential entrants into the float
glass technology market. It prohibits defendants from asserting against
such a person alleged proprietary know-how rights in float glass
technology disclosed and licensed by Pilkington to any U.S. licensee,
unless each of several specific conditions are met. First, defendants
must have a good faith argument that each item, or combination of
items, of such technology asserted (i) is a trade secret under
applicable law, and (ii) has been acquired in breach of confidentiality
or otherwise unlawfully. Second, within 14 days after any such
assertion, defendants must (i) make a written showing to the Department
of Justice supporting both arguments referred to above, and (ii)
enumerate and describe each such item or combination of items asserted,
to distinguish them from information not a trade secret, on a list
submitted to both the Department and the U.S. non-licensee against whom
they are asserted. Finally, in order for Pilkington to assert a claim,
such U.S. non-licensee must be unwilling to make lawful and
commercially reasonable efforts to maintain the confidentiality of
those items or combination of items for which it has received actual
notice of defendants' claim, and for which they have made the requisite
showing.
C. Section IV.C.: Foreign Licensees
Subject to two conditions noted below, subsection IV.C. of the
proposed Judgment prohibits defendants from entering into, maintaining,
enforcing, or claiming a right under any agreement or understanding
that in any way restrains a foreign float glass licensee from using or
sublicensing float glass technology in North America. Further,
defendants may not charge any fees for the use or sublicensing in North
America of float glass technology disclosed by Pilkington to any U.S.
licensee, and may not enforce any confidentiality claims for the use or
sublicensing of such technology, unless defendants have a good faith
argument that each item or combination of items of such technology
involved is a trade secret. However, defendants may enforce
confidentiality claims against foreign licensees' use or sublicensing
in North America of float glass technology not disclosed to any U.S.
licensee, and may charge them commercially reasonable and non-
discriminatory fees for the use of such technology.
D. Other Provisions
Subsection IV.D. of the proposed Judgment prohibits defendants from
asserting any proprietary know-how rights or enforcing any agreements
with the intent of restraining or limiting the amount of exports of
float glass to the U.S. Subsection IV.E. prohibits defendants from
entering into, maintaining, or enforcing any agreement that fixes,
maintains, or stabilizes prices for the use of float glass technology
in the U.S. Subsection IV.F. prohibits defendants for representing to
any person anywhere in the world that the person's own use, or its
financing, promoting, or facilitating another person's use, of float
glass technology acquired directly from any U.S. licensee or U.S. non-
licensee would result in any liability to defendants.
Subsection IV.G. requires defendants to identify to the Department,
and to all U.S. licensees and all U.S. non-licensees who request it,
the float glass technology found to be public knowledge in the
arbitration proceedings concluded in August 1992 between Pilkington and
PPG. This subsection requires a similar identification for any such
technology disclosed and licensed to any U.S. licensee that Pilkington
acknowledges in writing to be in the public domain or that is so held
to be in any arbitration or court proceeding to which Pilkington is a
party.
E. Effect on Competition
The relief in the proposed Final Judgment is designed to ensure
that: (1) Pilkington's U.S. licensees, principally PPG, Ford, Guardian,
and AFG, will be free of the territorial and use restrictions in their
20 to 30-year-old license agreements to compete for the design and
construction of float glass plants abroad as well as in the U.S.; and
(2) U.S. firms with the requisite expertise that never were Pilkington
licensees but currently are attempting to enter the market will be free
to do so without unreasonable restraint or interference. The effective
removal of the license restrictions and the ``safe harbor'' provided by
the proposed Final Judgment should encourage and facilitate others with
the requisite expertise, including former employees of Pilkington and
its licensees, to enter the market. It is expected that the combination
of unrestrained existing manufacturers and new entrants will result in
improved glass processes at lower prices.
IV
Remedies Available to 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 suffered, as well as costs and reasonable attorney's fees.
Entry of the proposed Final Judgment will neither impair nor assist the
bringing of such actions. Under the provisions of section 5(a) of the
Clayton Act, 15 U.S.C. 16(a), the Judgment has no prima facie effect in
any subsequent lawsuits that may be brought against the defendants in
this matter.
V
Procedures Available for Modification of the Proposed Judgment
As provided by the Antitrust Procedures and Penalties Act, any
person believing that the proposed Final Judgment should be modified
may submit written comments to Gail Kursh, Chief, Professions and
Intellectual Property Section, U.S. Department of Justice, Antitrust
Division, 555 4th Street, NW., room 9903, Washington, DC 20001, within
the 60-day period provided by the Act. These comments, and the
Department's responses, will be filed with the Court and published in
the Federal Register. All comments will be given due consideration by
the Department of Justice, which remains free, pursuant to a
stipulation signed by the United States and defendants, to withdraw its
consent to the proposed Judgment at any time prior to entry. Section I
of 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 modification,
interpretation, or enforcement of the Final Judgment.
VI
Determinative Materials/Documents
No materials or documents of the type described in Section 2(b) of
the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16(b), were
considered in formulating the proposed Final Judgment.
VII
Alternative to the Proposed Final Judgment
The alternative to the proposed Final Judgment is a full trial on
the merits. That alternative was rejected because the relief provided
in the proposed Judgment will fully and effectively open the market to
competition, as well as eliminate any residual effects of the alleged
violations, and would produce immediate positive competitive impact;
litigation would involve obvious risks as well as substantial costs to
the United States; and preparing the case for trial, trying it, and
disposing of appeals after trial might delay obtaining any relief for
several years.
Dated: May 25, 1994.
Respectfully submitted,
K. Craig Wildfang,
Special Counsel to the Assistant Attorney General, Antitrust Division.
Kurt Shaffert,
Thomas H. Liddle,
Molly L. DeBusschere,
John B. Arnett, Sr.,
M. Lee Doane,
Attorneys, U.S. Department of Justice, Antitrust Division, 555 4th
Street, NW., Room 9903 JCB, Washington, D.C. 20001, 202/307-0467.
Certificate of Service
The undersigned hereby certifies that on this day of May, 1994
he caused true and correct copies of the foregoing Complaint,
Stipulation, Competitive Impact Statement, and Government's Motion
Under Local Rule 1.2(e)(1) To Assign This Case With Above-Named Related
Cases to be served by mail upon the following:
John H. Shenefield, Esq., Morgan, Lewis & Bockius, 1800 M Street, NW.,
Washington, DC 20036--Attorney for Defendants Pilkington plc,
Pilkington Holdings Inc., and Libbey-Owens-Ford Co. in CIV 92-752-TUC-
WDB, CIV 93-552-TUC-WDB, and CIV 94- TUC-WDB.
Thomas D. Barr, Esq., Cravath, Swayne & Moore, Worldwide Plaza, 825
Eighth Avenue, New York, NY 10019--Attorney for Plaintiff PPG
Industries, Inc. in CIV 92-775-TUC-WDB.
Kenneth C. Anderson, Esq., 685 Third Avenue, New York, NY 10017--
Attorney for Plaintiff International Technologies Consultants, Inc. in
CIV-93-552-TUC-WDB.
Jeffrey Willis, Esq., Streich Lang, 33 N. Stone Avenue, Tucson, AZ
85701--Attorney for Defendant Guardian Industries Corporation in CIV-
93-552-TUC-WDB.
Donald A. Wall, Esq., Squire, Sanders & Dempsey, Two Renaissance
Square, 40 North Central Avenue, Suite 2700, Phoenix, AZ 85004-4441--
Attorney for Defendant AFG Industries, Inc. in CIV-93-552-TUC-WDB.
K. Craig Wildfang,
Attorney for the United States.
[FR Doc. 94-14046 Filed 6-13-94; 8:45 am]
BILLING CODE 4410-01-M
