01-13863. United States v. The News Corporation Limited, Fox Television Holdings, Inc., and Chris-Craft Industries, 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 Complaint, proposed Final Judgment, Hold Separate Stipulation and Order, and Competitive Impact Statement were filed with the U.S. District Court for the District of Columbia in United States v. News Corporation Limited, Fox Television Holdings, Inc., and Chris-Craft Industries, Inc., Civ. Action No. 1:01CV00771. On April 11, 2001, the United States filed a Complaint, which sought to enjoin The News Corporation Limited (“News Corp”) and its subsidiary, FOX Television Holdings, Inc., from acquiring Chris-Craft Industries (“Chris-Craft”). The Complaint alleged that News Corp's acquisition of Chris-Craft would substantially lessen competition in the sale of broadcast television spot advertising in violation of the Clayton Act, as amended, 15 U.S.C. 18, in the Salt Lake City, Utah market. The proposed Final Judgment, also filed on April 11, 2001, requires defendants to divest KTVX-TV, a Salt Lake City, Utah ABC affiliate, to preserve competition in the sale of broadcast television spot advertising time in the Salt Lake City market. A Hold Separate Stipulation and Order, entered by the Court on April 16, 2001, requires defendants to maintain, prior to divestiture, the competitive independence and economic viability of the assets subject to divestiture under the proposed Final Judgment. A Competitive Impact Statement filed by the United States describes the Complaint, proposed Final Judgment, Hold Separate Stipulation and Order, and the remedies available to private litigants who may have been injured by the alleged violations.

Copies of the Complaint, proposed Final Judgment, Hold Separate Stipulation and Order and Competitive Impact Statement are available for inspection at the U.S. Department of Justice, Antitrust Division, 325 Seventh Street, NW., Room 215, Washington, DC 20530 (telephone: [phone]), and at the Clerk's Office of the United States District Court for the District of Columbia, Washington, DC. Copies of these materials may be obtained upon request and payment of a copying fee.

Public comment 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 J. Robert Kramer II, Chief, Litigation II Section, Antitrust Division, U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington, DC 20530 (telephone: [phone]).

Constance K. Robinson,

Director of Operations and Merger Enforcement.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. The News Corporation Limited, Fox Television Holdings, Inc., and Chris-Craft Industries, Inc., Defendants.

Filed: Apr. 17, 2001

Hold Separate Stipulation and Order

It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:

I. Definitions

As used in this Hold Separate Stipulation and Order:

A. “News Corp” means defendant The News Corporation Limited, and Australian corporation with its headquarters in Sydney, New South Wales, Australia, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

B. “FOX” means defendant FOX Television Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of News Corp with headquarters in Los Angeles, California, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

C. “Chris-Craft” means defendant Chris-Craft Industries, Inc., a Delaware corporation with its headquarters in New York, New York, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

D. “KTVX-TV” means the broadcast television station located in the Salt Lake City DMA owned by defendant Chris-Craft through its subsidiary United Television, Inc. operating at Channel 4.

E. “Divestiture Assets” means all of the assets, tangible or intangible, used in the operation of KTVX-TV, including, but not limited to, all real property (owned or leased) used in the operation of the station, all broadcast equipment, office equipment, office furniture, fixtures, materials, supplies, and other tangible property used in the operation of the station: all licenses, permits, authorizations, and applications therefor issued by the Federal Communications Commission (“FCC”) and other government agencies related to that station; all contracts (including programming contracts and rights), agreements, network affiliation agreements, leases and commitments and understandings of defendant Chris-Craft relating to the operation of KTVX-TV; all trademarks, service marks, trade names, copyrights, patents, slogans, programming materials, and promotional materials relating to KTVX-TV; all customer lists, contracts, accounts, and credit records; and all logs and other records maintained by defendant Chris-Craft in connection with KTVX-TV.

F. “KSTU-TV” means the broadcast television station located in the Salt Lake City DMA owned by defendant News Corp through its subsidiary FOX operating at Channel 13.

G. “DMA” means designated market area as defined by A.C. Nielsen Company based upon viewing patterns and used by the Investing In Television BIA Market Report 2000 (3rd edition). DMAs are ranked according to the number of households therein and are used by broadcasters, advertisers and advertising agencies to aid in evaluating television audience size and composition.

H. “Acquirer” means the entity to whom defendants divest the Divestiture Assets.

II. Objectives

The Final Judgment filed in this case is meant to ensure defendants' prompt divestiture of the Divestiture Assets for the purpose of maintaining a viable competitor in the sale of television advertising time in the Salt Lake City DMA and to remedy the anticompetitive effects that the United States alleges would otherwise result from News Corp's proposed acquisition of Chris-Craft. This Hold Separate Stipulation and Order ensures, prior to such divestiture, that the Divestiture Assets remain independent, economically viable, and an ongoing business concern that will remain independent and uninfluenced by the consummation of News Corp's acquisition of Chris-Craft, and that competition is maintained during the pendency of the ordered divestiture.

III. Jurisdiction and Venue

The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

A. The parties stipulate that a Final Judgment in the form attached hereto as Exhibit A may be filed with and entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. 16), and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court.

B. Defendants shall abide by and comply with the provisions of the proposed Final Judgment, pending the Judgment's entry by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Final Judgment, and shall, from the date of the signing of this Stipulation by the parties, comply with all the terms and provisions of the proposed Final Judgment as though the same were in full force and effect as an order of the Court.

C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has signed this Hold Separate Stipulation and Order.

D. This Stipulation shall apply with equal force and effect to any amended proposed Final Judgment agreed upon in writing by the parties and submitted to the Court.

E. In the event (1) the United States has withdrawn its consent, as provided in Section IV(A) above, or (2) the proposed Final Judgment is not entered pursuant to this Stipulation, the time has expired for all appeals of any Court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then the parties are released from all further obligations under this Stipulation, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding.

F. Defendants represent that the divestiture ordered in the prosed Final Judgment can and will be made, and that defendants will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.

G. The parties recognize that there could be a delay in obtaining approval by or a ruling of a government agency related to the divestitures required by Section IV of the Final Judgment, notwithstanding the good faith efforts of the defendants and any prospective Acquirer, as defined in the Final Judgment. In this circumstance, plaintiff will, in the exercise of its sole discretion give special consideration to forbearing from applying for the appointment of a trustee pursuant to Section V(A) of the Final Judgment, or from pursuing legal remedies available to it as a result of such delay, provided that; (1) defendants have entered into one or more definitive agreements to divest the Divestiture Assets, as defined in the Final Judgment, and such agreements and the Acquirer have been approved by the United States; (2) all papers necessary to secure any governmental approvals and/or rulings to effectuate such divestitures (including but not limited to the FCC, Securities and Exchange Commission, and Internal Revenue Service approvals or rulings) have been filed with the appropriate agency; (3) receipt of such approvals are the only closing conditions that have not been satisfied or waived; and (4) defendants have demonstrated that neither they nor the prospective Acquirer is responsible for such delay.

V. Hold Separate Provisions

Until the divestiture required by the Final Judgment has been accomplished:

A. Defendants shall preserve, maintain, and continue to operate KTVX-TV as a competitively independent, ongoing economically viable competitive business, with its assets, management, decision-making functions and operations separate, distinct, and apart from KTSU-TV and News Corp's and FOX's other operations. Within twenty (20) calendar days after the entry of this Hold Separate Stipulation and Order, defendants will inform the United States of the steps defendants have taken to comply with this Hold Separate Stipulation and Order.

B. Defendants shall take all steps necessary to ensure that (1) KTVX-TV will be maintained and operated as an independent, ongoing, economically viable and active competitor to the other television stations in the Salt Lake City DMA; (2) management of KTVX-TV, including the performance of decision-making functions regarding marketing and pricing, will be kept separate and apart from and not influenced by defendant News Corp or FOX; and (3) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making associated with KTVX-TV will be kept separate and apart from that of KSTU-TV and News Corp's or FOX's other operations.

C. Defendants shall use all reasonable efforts to maintain and increase sales of advertising time by KTVX-TV and shall maintain at 2000 or previously approved levels for 2001, whichever are higher, promotional, advertising, sales, technical assistance, marketing and merchandising support for KTVX-TV.

D. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain the Divestiture Assets as an economically viable and competitive ongoing business, consistent with the requirements of Sections V(A) and V(B).

E. Defendants shall take all steps necessary to ensure that the Divestiture Assets are fully maintained in operable condition and shall maintain and adhere to normal repair and maintenance schedules for the Divestiture Assets.

F. Defendants shall not, except as part of a divestiture approved by the United States in accordance with the terms of the Final Judgment, remove, sell, lease, assign, transfer, license, pledge for collateral, or otherwise dispose of any of the Divestiture Assets.

G. Defendants shall maintain, in accordance with sound accounting principles, separate, accurate and complete financial ledgers, books and records that report on a periodic basis (such as the last business day of every month), consistent with past practices, the assets, liabilities, expenses, revenues, and income of the Divestiture Assets.

H. Defendants shall take no action that would jeopardize, delay, or impede the sale of the Divestiture Assets.

I. Defendants' employees with primary responsibility for sales, marketing and programming of KTVX-TV shall not be transferred or reassigned to any other station, except for transfer bids initiated by employees pursuant to each defendant's regular, established job posting policy. Defendants shall provide the United States with ten (10) calendar days' notice of such transfer.

J. Prior to consummation of their transaction, defendants shall appoint Gregory Nathanson to oversee the Divestiture Assets, and who will be responsible for defendants' compliance with this section. Gregory Nathanson shall have complete managerial responsibility for the Divestiture Assets, subject to the provisions of the Final Judgment. In the event he is unable to perform his duties, defendants shall appoint, subject to the approval of the United States, a replacement within ten (10) working days. Should defendants fail to appoint a replacement acceptable to the United States within this time period, the United States shall appoint a replacement.

K. Defendants shall take no action that would interfere with the ability of any trustee appointed pursuant to the Final Judgment to monitor and complete the divestiture pursuant to the Final Judgment to a purchaser acceptable to the United States.

L. This Hold Separate Stipulation and Order shall remain in effect until consummation of the divestiture required by the proposed Final Judgment or until further order of the Court.

Dated: April 11, 2001.

For Plaintiff, United States of America.

Carolyn L. Davis,

Esquire, PA Bar #36136, United States Department of Justice, Antitrust Division, Litigation II Section, 1401 H Street, NW, Suite 3000, Washington, DC 20530, [phone].

Respectfully submitted,

For Defendants, The News Corporation Limited and Fox Television Holdings, Inc.

Lloyd Constantine,

Esquire, Constantine & Partners, 477 Madison Avenue, New York, NY 10022, [phone]

For Defendants, Chris-Craft Industries.

Neal Stoll,

Esquire, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, [phone].

Order

It Is So Ordered by the Court, this 16th day of April, 2001.

Coller Kolla-Kotelly,

United States District Judge.

United States District Court for the District of Columbia

[Civil Action No. 01 0771]

United States of America, Plaintiff, v. The News Corporation Limited, Fox Television Holdings, Inc., and Chris-Craft Industries, Inc., Defendants.

Final Judgment

Whereas, plaintiff, United States of America, filed its Complaint on April 11th, 2001, plaintiff and defendants, The News Corporation Limited (“News Corp”), Fox Television Holdings, Inc. (“FOX”), and Chris-Craft Industries, Inc. (“Chris-Craft”), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any part regarding any issue of fact or law.

And Whereas, defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;

And Whereas, the essence of this Final Judgment is the prompt and certain divestiture of certain rights or assets by the defendants to assure that competition is not substantially lessened;

And Whereas, plaintiff requires defendants to make certain divestitures for the purpose of remedying the loss of competition alleged in the Complaint;

And Whereas, defendants have represented to the United States that the divestitures required below can and will be made and that defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below;

Now, Therefore, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is Ordered, Adjudged, and Decreed:

I. Jurisdiction

This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. 18).

II. Definitions

As used in this Final Judgment:

A. “News Corp” means defendant The News Corporation Limited, an Australian corporation with its headquarters in Sydney, New South Wales, Australia, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

B. “FOX” means defendant FOX Television Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of News Corp with headquarters in Los Angeles, California, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

C. “Chris-Craft” means defendant Chris-Craft Industries, Inc., a Delaware corporation with its headquarters in New York, New York, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

D. “KTVX-TV” means the broadcast television station located in the Salt Lake City DMA owned by defendant Chris-Craft through its subsidiary United Television, Inc. operating at Channel 4.

E. “Divestiture Assets” means all of the assets, tangible or intangible, used in the operation of KTVX-TV, including, but not limited to, all real property (owned or leased) used in the operation of the station, all broadcast equipment, office equipment, office furniture, fixtures, materials, supplies, and other tangible property used in the operation of the station; all licenses, permits, authorizations, and applications therefore issued by the Federal Communications Commission (“FCC”) and other government agencies related to that station; all contracts (including programming contracts and rights), agreements, network affiliation agreements, leases and commitments and understandings of defendant Chris-Craft relating to the operation of KTVX-TV; all trademarks, service marks, trade names, copyrights, patents, slogans, programming materials, and promotional materials relating to KTVX-TV; all customer lists, contracts, accounts, and credit records; and all logs and other records maintained by defendant Chris-Craft in connection with KTVX-TV.

F. “DMA” means designated market area as defined by A.C. Nielsen Company based upon viewing patterns and used by the Investing In Television BIA Market Report 2000 (3rd edition) DMAs are ranked according to the number of households therein and are used by broadcasters, advertisers and advertising agencies to aid in evaluating television audience size and composition.

G. “Acquirer” means the entity to whom defendants divest the Divesture Assets.

III. Applicability

A. This Final Judgment applies to News Corp, FOX, and Chris-Craft, as defined above, and all other persons in active concert or participation with either of them who receive actual notice of this Final Judgment by personal service or otherwise.

B. Defendants shall require, as a condition of the sale or other disposition of all or substantially all of their assets or of lesser business units that include the Divestiture Assets, that the purchaser agrees to be bound by the provisions of this Final Judgment.

IV. Divestitures

A. Defendants are ordered and directed to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States in its sole discretion, before the later of (1) one hundred and fifty (150) calendar days after the filing of the Complaint in this matter or (2) five (5) days after notice or the entry of this Final Judgment by the Court. The United States, in its sole discretion, may agree to an extension of this time period of up to two thirty (30) day time periods, not to exceed sixty (60) calendar days in total, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Divestiture Assets, and to obtain all regulatory approvals necessary for such divestitures, as expeditiously as possible.

B. In accomplishing the divestiture ordered by this Final Judgment, defendants promptly shall make known, by usual and customary means, the availability of the Divestiture Assets. Defendants shall inform any person making inquiry regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process, except such information or documents subject to the attorney-client or work product privileges. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.

C. Defendants shall provide the Acquirer and the United States information relating to the personnel involved in the operation of the Divestiture Assets to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer to employ any defendant employee whose primary responsibility relates to the operation of the Divestiture Assets.

D. Defendants shall permit prospective Acquirers of the Divestiture Assets to have reasonable access to personnel and to make inspections of the physical facilities of the television station to be divested; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.

E. Defendants shall warrant to the Acquirer of the Divestiture Assets that the assets will be operational on the date of sale.

F. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.

G. Defendants shall warrant to the Acquirer of the Divestiture Assets that there are no material defects in the environmental, zoning or other permits pertaining to the operation of the assets, and that following the sale of the Divestiture Assets, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning or other permits relating to the operation of the Divestiture Assets.

H. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by trustee appointed pursuant to Section V, of this Final Judgment, shall include the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing commercial television broadcasting business. The divestiture of such assets will remedy the competitive harm alleged in the Complaint. The divestiture, whether pursuant to Section IV or V of this Final Judgment,

(1) Shall be made to an Acquirer that, in the United States's sole judgment, has the intent and capability (including the necessary managerial, operational, and financial capability) of competing effectively in the commercial television broadcasting business in the Salt Lake City DMA; and

(2) Shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and defendants give defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.

V. Appointment of Trustee

A. If defendants have not divested the Divestiture Assets within the time period specified in Section IV(A), defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.

B. After the appointment of a trustee become effective, only the trustee shall have the right to sell the Divestiture Assets. The trustee shall have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the cost and expense of defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the divestiture.

C. Defendants shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the United States and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section VI.

D. The trustee shall serve at the cost and expense of defendants, on such terms and conditions as the United States approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to defendants and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.

E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities related to the business to be divested and defendants shall develop financial and other information relevant to such business as the trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the trustee's accomplishment of the divestiture.

F. After its appointment becomes effective, the trustee shall file monthly reports with the United States and the Court, setting forth the trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest the Divestiture Assets.

G. If the trustee has not accomplished such divestiture within six (6) months after its appointment, the trustee shall promptly file with the court a report setting forth: (1) the trustee's efforts to accomplish the required divestiture, (2) the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and (3) the trustee's recommendations. To the extent such reports contain information that the trustee deems confidential, such report shall not be filed in the public docket of the Court. The trustee at the same time shall furnish such report to the United States, who shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of this Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's appointment by a period requested by the United States.

VI. Notice of Proposed Divestiture

A. Within two (2) business days following execution of a definitive divestiture agreement, defendants or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or V of this Final Judgment. If the trustee is responsible, it shall similarly notify defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.

B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from defendants, the proposed Acquirer, any other third party, or the trustee if applicable additional information concerning the proposed divestiture, the proposed Acquirer and any other potential Acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.

C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from defendants, the proposed Acquirer, any third party and the trustee, whichever is later, the United States shall provide written notice to defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to defendants' limited right to object to the sale under Section V(C) of this final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, a divestiture proposed under Section IV or V shall not be consummated. Upon objection by defendants under Section V(C), a divestiture proposed under Section V shall not be consummated unless approved by the Court.

VII. Financing

Defendants shall not finance all or any part of any purchase made pursuant to this Final Judgment.

VIII. Affidavits

A. Within twenty (20) calendar days of the filing of the Complaint and every thirty (30) calendar days thereafter until the divestiture has been completed, whether pursuant to Section IV or V of this Final Judgment, defendants shall deliver to the United States an affidavit as to the fact and manner of their compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any person during that period. Each such affidavit shall also include a description of the efforts that defendants have taken to solicit buyers for the Divestiture Assets and to provide required information to prospective purchasers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by defendants, including limitations on information, shall be made within fourteen (14) days of receipt of such affidavit.

B. Within twenty (20) calendar days of the filing of the Complaint in this manner, defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an ongoing basis to comply with Section IV of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.

C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.

IX. Compliance Inspection

A. For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time duly authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants, be permitted:

(1) access during defendants' office hours to inspect and copy or, at plaintiff's option, to require defendants provide copies of, all books, ledgers, accounts, records and documents in the possession, custody, or control of the defendants, who may have counsel present, relating to any matters contained in this Final Judgment, and

(2) to interview, either informally or on the record, defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the interviewee's reasonable convenience and without restraint or interference by defendants.

B. Upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit such written reports, under oath if requested, relating 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 shall be divulged by the United States to any person other than an authorized representative of the Executive Branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.

D. If at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give defendants ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).

X. No Reacquisition

During the term of this Final Judgment, defendants may not reacquire any part of the Divestiture Assets or enter into any local marketing agreement, joint sales agreement, or any other cooperative selling arrangement with respect to the Divestiture Assets.

XI. Retention of Jurisdiction

This Court retains jurisdiction to enable any party to this Final Judgment 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 any of its provisions, to enforce compliance, and to punish violations of its provisions.

XII. Expiration of Final Judgment

Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.

XIII. Public Interest Determination

Entry of this Final Judgment is in the public interest.

Court Approval Subject to Procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. 16.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. The News Corporation Limited, Fox Television Holdings, Inc., Chris-Craft Industries, Inc., Defendants.

Judge: Colleen Kollar-Kotelly

Competitive Impact Statement

The United States, pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA”), 15 U.S.C. § 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

The United States filed a civil antitrust Complaint on April 11, 2001, alleging that the proposed acquisition of Chris-Craft Industries, Inc. (“Chris-Craft”) by The News Corporation Limited (“News Corp”) and Fox Television Holding, Inc. (“FOX”) would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18. The Complaint alleges that the acquisition will result in News Corp's KSTU-TV, a FOX affiliate, and Chris-Craft's KTVX-TV, an ABC affiliate, being under New Corp's ownership and control. These two stations together account for approximately 40% of the broadcast television spot advertising revenue in the Salt Lake City market and currently compete vigorously against one another because local and national business consumers find them close substitute due to the demographic reach of the stations.

As alleged in the Complaint, the proposed transaction would likely lead to higher prices for advertisers who purchase broadcast television spot advertising in the Salt Lake City market. Accordingly, the prayer for relief in the Complaint seeks: (a) adjudication that News Corp's proposed acquisition of Chris-Craft described in the Complaint would violate Section 7 of the Clayton Act; (b) preliminary and permanent injunctive relief preventing the consummation of the proposed acquisition; (c) an award to the United States of the costs of this action; and (d) such other relief as is just and proper.

Shortly before the Complaint was filed, the United States reached a proposed settlement that would permit News Corp and Chris-Craft to consummate their acquisition provided that they divest KTVX-TV, the television station News Corp will acquire from Chris-Craft in Salt Lake City. The settlement consists of a proposed Final Judgment and a Hold Separate Stipulation and Order, which were filed simultaneously with the Complaint on April 11, 2001. The United States and defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment, and a punish violations thereof.

II. The Alleged Violation

A. The Defendants

News Corp is a foreign corporation existing under the laws of Australia and has its headquarters and principal place of business in Sydney, New South Wales, Australia. News Corp, through its subsidiary, FOX, owns 23 television stations in the United States. News Corp also owns cable and satellite distribution businesses and produces films for the television and the motion picture industries. FOX is a corporation existing under the laws of Delaware with its headquarters in Los Angeles, California. Through its subsidiaries, FOX owns and operates television stations in the United States, including KSTU-TV in Salt Lake City.

Chris-Craft is a corporation existing under the laws of Delaware with its headquarters in New York, New York. Chris-Craft, through its subsidiaries, BHC and United Television, owns and operates 10 television stations in the United States, including KTVX-TV in Salt Lake City.

B. Description of the Events Giving Rise to the Alleged Violation

On August 13, 2000, News Corp; News Publishing Australia Ltd., a subsidiary of News Corp; FOX; and Chris-Craft, and its subsidiaries, BHC and United Television, entered into a $5.3 billion plan of merger under which News Corp would acquire Chris-Craft, BHC, and United Television. This proposed acquisition, which would lessen competition substantially in the provision of broadcast television spot advertising time in the Salt Lake City market, precipitated the United State's antitrust suit.

C. Anticompetitive Consequences of the Proposed Acquisition

1. The Sale of Broadcast Television Spot Advertising Time in the Salt Lake City DMA. The Complaint alleges that the provision of spot advertising time on broadcast television stations serving the Salt Lake City DMA^[1] constitutes a relevant product market under Section 7 of the Clayton Act. Broadcast television spot advertising comprises the majority of a broadcast television station's revenues and is sold either directly by the station, or through its national representative, or a localized, market-by-market basis. It is purchased by advertisers who want to target potential customers in specific geographic markets and differs from network and syndicated television advertising, both of which are sold by the major television networks and producers of syndicated programs on a nationwide basis and broadcast in every market where the network or syndicated program is aired.

Broadcast television spot advertising possesses unique attributes that set it apart from advertising using other types of media. In particular, only television combines sight, sound, and motion, thereby creating a more memorable advertisement. Moreover, of all media, broadcast television spot advertising reaches the largest percentage of all potential customers in a particular target market and is therefore especially effective in introducing and establishing the image of a product. For a significant number of advertisers, broadcast television spot advertising, because of its unique attributes, is an advertising medium for which there is no close substitute. Such customers would not switch to another advertising medium—such as radio, cable, or newspaper—if broadcast television spot advertising prices increased by a small but significant amount.

Even though some advertisers may switch some of their advertising to other media rather than absorb an increase in the price of broadcast television spot advertising, the existence of such advertisers would not prevent stations from profitably raising their prices a small but significant amount. During individualized negotiations between advertisers and broadcast television stations, advertisers provide stations with information about their advertising needs, including their target audience. This enables television stations to identify advertisers with strong preferences for broadcast television advertising. At a minimum, broadcast television stations could profitably raise prices to those advertisers who view broadcast television as a necessary advertising medium either as their sole method of advertising or as a necessary complement to other advertising media. Thus, the complaint alleges that the relevant product market in which to assess the competitive effects of this acquisition is the sale of broadcast television spot advertising.

The complaint further alleges that the Salt Lake City DMA constitutes a relevant geographic market within the meaning of Section 7 of the Clayton Act. Signals from broadcast television stations located in Salt Lake City reach viewers throughout the Salt Lake City DMA, but signals from broadcast television stations located outside the Salt Lake City DMA reach few viewers within the Salt Lake City DMA. Advertiser's use broadcast television stations within the Salt Lake City DMA to reach the largest possible number of viewers within the entire DMA. Some of these advertisers are located in the Salt Lake City DMA and need to reach customers there while others are regional or national businesses that want to target consumers in the Salt Lake City DMA. Advertising on television stations outside the Salt Lake City DMA therefore is not an alternative for these advertisers because such stations cannot be viewed by a significant number of potential customers within the DMA.

2. Harm to Competition in the Salt Lake City DMA. The Complaint alleges that News Corp's acquisition of Chris-Craft will likely have the following effects:

a. competition in the sale of broadcast television spot advertising in the Salt Lake City DMA would be a substantially lessened;

b. actual and potential competition between KSTU-TV and KTVX-TV in the sale of broadcast television spot advertising in the Salt Lake City DMA would be eliminated; and

c. the prices for broadcast television spot advertising in the Salt Lake City DMA would likely increase.

Specifically, the proposed acquisition would give News Corp ownership of two of the top four broadcast stations in the Salt Lake City DMA and would increase its market share of broadcast television spot advertising revenue from approximately 21% to 40%. The acquisition would also further concentrate the already highly concentrated Salt Lake City market by increasing the Herfindahl-Hirschman Index (“HHI”) (a measure of market concentration explained in Appendix A of the Complaint) by 785 points. Furthermore, the Complaint alleges that KSTU-TV and KTVX-TV compete head-to-head against each other in the sale of broadcast television spot advertising, largely because the demographic appeal of their programming makes them close substitutes for a significant number of advertisers. Advertisers are able to “play off” KSTU-TV and KTVX-TV against each other and obtain competitive rates for programs that target similar demographics. After the acquisition, a significant number of advertisers will be unable to reach their desired audiences with equivalent efficiency unless they use News Corp's stations. The acquisition, therefore, would enable News Corp unilaterally to raise prices.

3. Entry. The Complaint alleges that entry is unlikely to be timely, likely, or sufficient to restore the competition lost through the acquisition. Other broadcast television stations in the Salt Lake City DMA would not change their programming in response to a price increase imposed by News Corp after the acquisition. Programming schedules are complex and carefully constructed taking many factors into account, such as audience flow, station identity, and program popularity. As a result, a television station is unlikely to risk repositioning simply to capitalize on a small but significant price increase by News Corp after the acquisition.

Further, new entry into the Salt Lake City DMA is unlikely inasmuch as the Federal Communications Commission (“FCC”) regulates entry through the issuance of licenses, which are difficult to obtain. Even if a new signal became available, commercial success would come over a period of many years at best. Thus, entry into the Salt Lake City DMA broadcast television spot advertising market would not be timely, likely, or sufficient to deter News Corp from unilaterally raising prices.

III. Explanation of the Proposed Final Judgment

A. Divestiture and Hold Separate Provisions

The proposed Final Judgment will preserve competition in the sale of broadcast television spot advertising time in the Salt Lake City DMA by requiring the defendants to divest KTVX-TV, the Salt Lake City television station that News Corp will acquire as a result of the acquisition. The sale of KTVX-TV will eliminate completely the overlap created in Salt Lake City by the acquisition thereby completely restoring the pre-merger market structure and resolving any competitive concerns.

The divestiture requirements of the proposed Final Judgment, as stated in Section IV, direct defendants to divest KTVX-TX within one hundred fifty (150) days after filing of the Complaint or five (5) days after notice of the entry of the Final Judgment by the Court, whichever is later. The divestiture must be made to a buyer that in the United States' sole judgment has the intent and capability of competing effectively in the commercial television broadcast business in the Salt Lake City market. The United States, in the exercise of its sole discretion, may extend this time for two additional thirty (30) day periods. Defendants must use their best efforts to divest KTVX-TV as expeditiously as possible and, until the ordered divestiture takes place, the defendants must cooperate with any prospective purchasers.

Under the Hold Separate Stipulation and Order, until the ordered divestiture takes place, defendants shall preserve, maintain, and continue to operate KTVX-TX as a competitively independent, ongoing economically viable competitive business, with its assets, management, decision-making functions, and operations separate, distinct, and apart from KSTU-TV's and News Corp's other operations.

B. Trustee Provisions

In the event defendants fail to make the required divestiture of KTVX-TV within the time periods set forth in the proposed Final Judgment, a trustee will be appointed by the Court to effect the divestiture. News Corp will pay all costs and expenses of any trustee and of any professionals and agents retained by the trustee. After appointment, the trustee will report monthly to the United States, News Corp, and the Court on its efforts to accomplish the required divestiture. If the trustee has not accomplished the divestiture within six (6) months of its appointment, it shall inform the Court of its efforts to accomplish the required divestiture, the reasons the required divestiture has not been accomplished, and the trustee's recommendations.

C. Ban on Reacquisition

The defendants may not reacquire or enter into any local marketing agreement, joint sales agreement, or any other cooperative selling arrangement with respect to KTVX-TV during the term of the consent decree, which is for 10 years unless extended by the Court. The reacquisition of KTVX-TV, as well as arrangements whereby News Corp would manage KTVX-TV or sell advertising time in coordination with (or on behalf of) KTVX-TV would undermine, if not negate, the benefits of the relief obtained in the Salt Lake City DMA. Accordingly, this provision is necessary to protect the integrity of the relief.

The relief in the proposed Final Judgment is intended to remedy the likely anticompetitive effects of News Corp's proposed acquisition of Chris-Craft in the broadcast television spot advertising market in the Salt Lake City DMA. Nothing in the Final Judgment is intended to limit the United States' ability to investigate or to bring actions, where appropriate, challenging other past or future activities of defendants in any other markets.

IV. Remedies Available to Potential Private Litigants

Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

The United States and the defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.

The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the Federal Register. The United States will evaluate and respond to the comments. All comments will be given due consideration by the United States Department of Justice, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to its entry. The United States will evaluate and respond to the comments. The comments and the response of the United States will be filed with the Court and published in the Federal Register.

Any such written comments should be submitted to: J. Robert Kramer, II, Chief, Litigation II Section, Antitrust Division, United States Department of Justice, 1401 H Street, NW., Suite 3000, Washington, DC 20530.

The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment, as well as to punish violations of its provisions.

VI. Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits of its Complaint against defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against News Corp's acquisition of Chris-Craft. The United States is satisfied, however, that the divestiture of KTVX-TV and other relief contained in the proposed Final Judgment will preserve competition in the sale of the broadcast television spot advertising in the Salt Lake City DMA. Thus, the United States is convinced that the proposed Final Judgment, once implemented by the Court, will prevent News Corp's acquisition of Chris-Craft from having adverse competitive effects.

VII. Standard of Review Under the APPA for Proposed Final Judgment

The APPA requires that the proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (60) day comment period, after which the Court shall determine whether entry of the proposed Final Judgment is “in the public interest”. In making that determination, the Court may consider—

(1) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration or relief sought, anticipated effects of alternative remedies actually considered, and any other considerations bearing upon the adequacy of such judgment;

(2) The impact of entry of such judgment upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e). As the United States Court of Appeals for the District of Columbia Circuit held, the APPA permits a court to consider, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient and whether the device may positively harm third parties. See United States v. Microsoft Corp., 56 F.3d 1448, 1458-62 (D.C. Cir. 1995).

In conducting this inquiry, “the Court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” ^[2] Rather,

absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should * * * carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. ¶ 61,508, at 71,980, (W.D. Mo. 1977).

Accordingly, with respect to the adequacy of the relief secured by the decree, a court may not “engage in an unrestricted evaluation of what relief would best serve the public.” United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083 (1981)); see also Microsoft, 56 F.3d at 1458-62. Precedent requires that:

The balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “within the reaches of the public interest.” More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree.^[3]

The proposed Final Judgment, therefore, should not be reviewed under a standard of whether it is certain to eliminate every anticompetitive effect of a particular practice or whether it mandates certainty of free competition in the future. Court approval of a Final Judgment requires a standard more flexible and less strict than the standard required for a finding of liability. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ‘within the reaches of public interest.’ ” ^[4]

Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the Court to “construct [its] own hypothetical case and then evaluate the decree against that case.” Microsoft, 56 F.3d at 1459. Because the “Court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place,” it follows that the court “is only authorized to review the decree itself,” and not to “effectively redraft the complaint” to inquire into other matters that the United States might have, but did not pursue. Id.

VIII. Determinative Documents

There are no determinative materials or documents within the meaning of the APPA that were considered by the United states in formulating the proposed Final Judgment.

Dated: May 14, 2001.

Respectfully submitted,

Carolyn L. Davis,

Trial Attorney, Litigation II Section, Antitrust Division, U.S. Department of Justice, 1401 H Street, N.W., Suite 3000, Washington, D.C. 20530, [phone].

Certificate of Service

I hereby certify under penalty of perjury that copies of the COMPETITIVE IMPACT STATEMENT have been served upon The News Corporation Limited; FOX Television Holdings, Inc., and Chris-Craft Industries, Inc., by placing copies of the aforementioned documents in the U.S. Mail, directed to each of the above-named parties at the addresses given below, this 14th day of May 2001.

The News Corporation Limited and FOX Television Holdings, Inc., c/o Lloyd Constantine, Constantine & Partners, 477 Madison Avenue, New York, NY 10022.

Chris-Craft Industries, Inc., c/o Neal Stoll, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036.

Carolyn L. Davis,

Senior Trial Attorney, United States Department of Justice, Antitrust Division, 1401 H Street, N.W., Suite 3000, Washington, D.C. 20530, [phone].

Footnotes

1.  A “DMA,” or designated marketing area is a geographic unit defined by A.C. Nielsen Company, a firm that surveys television viewers and furnishes television stations, advertisers, and advertising agencies in a particular area with data to aid in evaluating audience size and composition. The Salt Lake City DMA generally encompasses the state of Utah.

2.  119 Cong. Rec. 24598 (1973); see also United States v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A “public interest” determination can be made properly on the basis of the Competitive Impact Statement and Response to Comments filed pursuant to the APPA. Although the APPA authorizes the use of additional procedures, see 15 U.S.C. § 16(f), those procedures are discretionary. A court need not invoke any of them unless it believes that the comments have raised significant issues and that further proceedings would aid the court in resolving those issues. See H.R. Rep. 93-1463, at 8-9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538.

3.  Bechtel, 648 F.2d at 666 (citations omitted)(emphasis added); see BNS, 858 F2d at 463; United States v. National Broad, Co., 449 F. Supp. 1127, 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716; see also Microsoft, 56 F.3d at 1461 (whether “the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the ‘reaches of the public interest’ ” (citations omitted)).

4.  United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983) (quoting Gillette Co., 406 F. Supp. at 716); see also United States v. Alcan Aluminum, Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985).