[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17114]
[[Page Unknown]]
[Federal Register: July 15, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Gerald Petty d/b/a Tri-R-Disposal, et al.;
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 lodged with the
United States District Court for the Central District of Illinois in
United States of America v. Gerald Petty d/b/a Tri-R-Disposal, et al.,
Civil Action No. 94-3142. The Complaint in this case alleged that the
defendants exchanged rate information among themselves and jointly
advertised rates to facilitate price increases for waste services in
the Christian County, Illinois area in violation of section 1 of the
Sherman Act, 15 U.S.C. 1. The proposed Final Judgment enjoins the
defendants from directly or indirectly disclosing to any other
defendant or any other person engaged in the waste services business
any rate prior to its having been disclosed to the general public and
from advertising, publishing, announcing or disseminating any rate for
waste services jointly or in concert or connection with any other
defendant or any other person engaged in providing waste services. Each
defendant is required to establish an antitrust compliance program.
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, should be directed to Marvin
Price, Acting Chief, Chicago Office, 209 South LaSalle Street,
Antitrust Division, U.S. Department of Justice, Chicago, Illinois 60604
(telephone: (312) 353-7530).
Constance K. Robinson,
Director of Operations.
In the United States District Court for the Central District of
Illinois, Springfield Division: United States of America, Plaintiff,
v. Gerald Petty d/b/a Tri-R-Disposal; and Leo Carey and Grace Carey,
individually and d/b/a Carey's Disposal Service, Defendants. Civil
No. 94-3142.
Complaint
The United States of America, plaintiff, by its attorneys acting
under the direction of the Attorney General of the United States,
brings this civil action to obtain equitable relief against the
defendants named herein and complains and alleges as follows:
I.
Jurisdiction and Venue
1. This Complaint is filed under section 4 of the Sherman Act (15
U.S.C. 4), as amended, in order to prevent and restrain violations by
the defendants of section 1 of the Sherman Act (15 U.S.C. 1).
2. Each defendant resides in the Central District of Illinois
within the meaning of 28 U.S.C. 1391(b).
II.
Definitions
3. ``Waste Services'' means any collection, pick-up, hauling,
transportation, dumping, recycling, sale or disposal of garbage, trash,
rubbish, scrap, by-products or other waste materials.
III.
Defendants
4. Defendant Gerald Petty operates a waste services business as a
sole proprietor under the name Tri-R-Disposal in and around Christian
County, Illinois (hereinafter the ``Christian County area'').
5. Defendants Leo Carey and Grace Carey operate a waste services
business as sole proprietors under the name Carey's Disposal Service in
and around the Christian County area.
IV.
Trade and Commerce
6. During the period covered by this complaint, each of the
defendants engaged in the business of providing waste services to
residential and commercial customers in and around the Christian County
area.
7. The defendants' business activities are within the flow of and
substantially affect interstate commerce.
V.
Violation Alleged
8. Beginning at least as early as September 26, 1993, and
continuing until on or about November 7, 1993, the defendants engaged
in a continuing combination and conspiracy in unreasonable restraint of
trade and commerce in violation of Section 1 of the Sherman Act, 15
U.S.C. Sec. 1.
9. The combination and conspiracy consisted of a continuing
agreement, understanding and concert of action among the defendants to
use joint advertising to facilitate a coordinated increase in the rates
charged for waste services in the Christian County area.
10. For the purpose of forming and carrying out the aforesaid
combination and conspiracy, the defendants did the following things,
among others:
(a) disseminated information among themselves relating to possible
rate increases; and
(b) jointly advertised rates for their waste services.
VI.
Effects
11. The combination and conspiracy had an effect on interstate
commerce in that competition among the defendant waste services
businesses was unreasonably restrained and consumers of waste services
were deprived of the benefits of free and open competition in the sale
of waste services.
VII.
Claim for Equitable Relief
12. The illegal agreement, combination and conspiracy alleged in
this complaint is likely to recur unless the injunctive relief prayed
for herein is granted.
VIII.
Prayer for Relief
Wherefore, plaintiff prays:
(a) that the Court adjudge and decree that defendants have engaged
in an unlawful agreement, combination and conspiracy in unreasonable
restraint of interstate trade and commerce in violation of Section 1 of
the Sherman Act;
(b) that for a period of ten years the Court enjoin each defendant,
its agents, employees, successors and assigns, and all other persons
acting or claiming to act under, through or for any defendant, from:
(i) advertising, publishing, announcing or disseminating any rate
or rate increase for any waste service jointly or in concert or in
connection with any other defendant or any person engaged in providing
waste services; and
(ii) directly or indirectly disclosing to any other defendant or
any other person engaged in providing waste services any rate prior to
its having been disclosed to the general public;
(c) That each defendant be required to institute a compliance
program;
(d) That for ten years after the entry of the Final Judgment, on or
before its anniversary date, each defendant shall file with plaintiff
an annual declaration reporting that such defendant has complied with
the terms of the Final Judgment and has engaged in no activities of the
type prohibited by the Final Judgment; and
(e) That this Court order such other and further relief as the
nature of the case may require and that the Court deems just and
proper.
Dated:
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.
Mark Schechter,
Marvin Price,
Attorneys, U.S. Department of Justice, Antitrust Division.
Frances C. Hulin,
By: James A. Lewis, United States Attorney, Central District of
Illinois, Springfield Division.
Susan H. Booker,
Attorney, Midwest Office, U.S. Department of Justice, Antitrust
Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-
7530.
In the United States District Court for the Central District of
Illinois Springfield Division: United States of America, Plaintiff,
v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace
Carey, individually and d/b/a Carey's Disposal Service, Defendants.
Civil No. 94-3142.
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 thereto, and venue of this action
is proper in the Central District of Illinois;
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. Sec. 16), and without further notice to any party or other
proceedings, provided that plaintiff has not withdrawn its consent,
which it may do at any time before the entry of the proposed Final
Judgment by serving notice thereof on defendants and by filing that
notice with the Court;
3. The parties shall abide by and comply with the provisions of the
Final Judgment pending its entry, and shall, from the date of the
filing of this Stipulation, comply with all terms and provisions
thereof as though the same were in full force and effect as an order of
the Court; and
4. In the event plaintiff withdraws its consent of if the proposed
Final Judgment is not entered pursuant to this Stipulation, this
Stipulation shall be of no effect whatever, and the making of this
Stipulation shall be without prejudice to any party in this or any
other proceeding.
Dated:
For plaintiff United States of America:
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.
Mark Schechter,
Marvin Price,
Attorneys, U.S. Department of Justice, Antitrust Division.
Frances C. Hulin,
By: James A. Lewis, United States Attorney, Central District of
Illinois, Springfield Division.
Susan H. Booker,
Attorney, Midwest Office, U.S. Department of Justice, Antitrust
Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-
7530.
For defendant Gerald Petty
Dan Austin, Esq.,
Meyer, Austin, Romano & Lacey P.C., P.O. Box 140, Taylorville, IL
62568.
For defendants Leo and Grace Carey
David Fines, Esq.,
Hershey, Beavers, Periad, Graham, and Fines, P.O. Box 320, Taylorville,
IL 62568.
In the United States District Court for the Central District of
Illinois Springfield Division: United States of America, Plaintiff,
v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace
Carey, individually and d/b/a Carey's Disposal Service, Defendants
Civil No. 94-3142. Filed: May 31, 1994.
Final Judgment
Plaintiff, United States of America, filed its Complaint on May 31,
1994. Plaintiff and defendants, by their respective attorneys, have
consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law. This Final Judgement shall
not be evidence against or an admission by any party with respect to
any issue of fact or law. Therefore, before any testimony is taken, and
without trial or adjudication of any issue of fact or law, and upon
consent of the parties, it is hereby
Ordered, adjudged and decreed, as follows:
I.
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting to this Final Judgment. The
Complaint states a claim upon which relief may be granted against each
defendant under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.
II.
Definitions
As used in this Final Judgment:
(A) ``Defendant'' or ``defendants'' means each of the named
defendants in this action; each affiliate or partnership of any of
them; and each officer, employee, agent, and other person acting for or
on behalf of any of them or any of their affiliates or partnerships;
(B) ``Intracompany communication'' means any communication relating
solely to the operations of a company that is solely between
individuals who are officers or employees of that company;
(C) ``Person'' means any individual, partnership, firm,
association, corporation, or other business or legal entity. In the
case of an individual, the term also means any employee, agent or other
person acting for or on behalf of the individual. In the case of any
business or legal entity, the term also means each subsidiary,
affiliate, division or partnership of the business or legal entity and
each officer, director, employee, agent or other person acting for or
on behalf of any of them;
(D) ``Rate'' means any actual, proposed or list price, bid or
quote, and any information relating to any price, bid or quote,
including but not limited to any profit margin; premium; markup;
commission; discount; labor, unit, material, equipment, fees, or other
costs; formulas or other methods used to determine any price or cost;
and credit or payment terms;
(E) ``Waste Services'' means any collection, pick-up, hauling,
transportation, dumping, recycling, sale or disposal of garbage, trash,
rubbish, scrap, by-products or other waste materials.
III.
Defendants
(A) Defendant Gerald Petty operates a waste services business under
the name Tri-R-Disposal in Christian County, Illinois.
(B) Defendants Leo and Grace Carey operate a waste services
business under the name Carey's Disposal Service in Christian County,
Illinois.
IV.
Applicability
(A) The provisions of this Final Judgment shall apply to
defendants, to each of their successors and assigns, and to all other
persons in active concert or participation with any of them who shall
have received actual notice of this Final Judgment by personal service
or otherwise.
(B) Nothing herein contained shall suggest that any portion of this
Final Judgment is or has been created for the benefit of any third
party and nothing herein shall be construed to provide any rights to
any third party.
(C) Defendants shall each require, as a condition of the sale or
other disposition of all or substantially all of their assets used in
providing waste services that the acquiring party or parties agree to
be bound by the provisions of this Final Judgment.
V.
Prohibited Conduct
(A) Each defendant is enjoined and restrained from directly and
indirectly disclosing to any other defendant or any other person
engaged in providing waste services any rate prior to its having been
disclosed to the general public.
(B) Each defendant is enjoined and restrained from advertising,
publishing, announcing, or disseminating any rate for any waste
services jointly or in concert or in connection with any other
defendant or any other person engaged in providing waste services.
(C) Nothing in Section V of this Final Judgment shall prohibit any:
(1) intracompany communication;
(2) defendant from engaging in any good faith communication
relating to any actual or possible contract to provide waste services
or to purchase waste services from any other person engaged in
providing waste services as long as both (i) the purpose or effect of
any such communication or contract is not to eliminate or suppress
competition in the supply or sale of waste services; and (ii) the
information disclosed during any such communication and the scope of
any such contract are no broader than is necessary to provide or
purchase the specific waste services in question.
VI.
Compliance Program
(A) Defendants are ordered to establish and maintain an antitrust
compliance program which shall include designating, within 30 days of
entry of this Final Judgment, an Antitrust Compliance Officer with
responsibility for accomplishing the antitrust compliance program and
with the purpose of achieving compliance with this Final Judgment. The
Antitrust Compliance Officer shall, on a continuing basis, supervise
the review of the current and proposed activities of his or her company
to ensure that it complies with this Final Judgment. The Antitrust
Compliance Officer shall be responsible for accomplishing the following
activities:
(1) Distributing, within 60 days from entry of this Final Judgment,
a copy of this Final Judgment to all owners, officers, and employees
who have responsibility for approving, disapproving, monitoring,
recommending or implementing any prices;
(2) Distributing in a timely manner a copy of this Final Judgment
to any owner, officer, or employee who succeeds to a position described
in Section VI(A)(1);
(3) Briefing annually those persons designated in Sections VI(A)(1)
and (2) on the meaning and requirements of this Final Judgment and the
antitrust laws;
(4) Obtaining from each owner, officer or employee designated in
Section VI(A)(1) and (B)(2) a written certification that he or she (a)
has read, understands, and agrees to abide by the terms of this Final
Judgment;
(b) understands that failure to comply with this Final Judgment may
result in conviction for criminal contempt of court; and (c) is not
aware of any violation of the Final Judgment that has not been reported
to the Antitrust Compliance Officer; and
(5) Maintaining a record of recipients from whom the certification
in Section VI(A)(4) has been obtained.
VII.
Certification
(A) Within 75 days of the entry of this Final Judgment, defendants
shall each certify to plaintiff whether the defendant has designated an
Antitrust Compliance Officer and has distributed the Final Judgment in
accordance with Section VI(A)(1) above.
(B) For ten years after the entry of this Final Judgment, on or
before its anniversary date, each defendant shall file with the
plaintiff an annual statement as to the fact of its compliance with the
provisions of Sections V and VI(A).
(C) If defendant's Antitrust Compliance Officer learns of any
violations of any of the terms and conditions contained in this Final
Judgment, defendant shall immediately notify the plaintiff and
forthwith take appropriate action to terminate or modify the activity
so as to comply with this Final Judgment.
VIII.
Plaintiff Access
(A) For the purpose of determining or securing compliance with this
Final Judgment, and for no other purpose, duly authorized
representatives of plaintiff shall, upon written request of the
Assistant Attorney General in charge of the Antitrust Division, and on
reasonable notice to any defendant, be permitted, subject to any
legally recognized privilege:
(1) Access during that defendant's office hours to inspect and copy
all records and documents in its possession or under its control,
relating to any matters contained in this Final Judgment; and
(2) To interview that defendant's officers, employees, trustees or
agents, who may have counsel present, regarding any such matters. The
interviews shall be subject to that defendant's reasonable convenience
and without restraint or interference from any defendant.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, any defendant, shall submit such
written reports, under oath if requested, relating to any of the
matters contained in this Final Judgment as may be requested, subject
to any legally recognized privilege.
(C) No information or documents obtained by the means provided in
Section VIII shall be divulged by the plaintiff to any person other
than a duly authorized representative of the Executive Branch of the
United States, except in the course of legal proceedings to which the
United States is a party, or for the purpose of securing compliance
with this Final Judgment, or as Potherwise required by law.
(D) Nothing set forth in this Final Judgment shall prevent the
Antitrust Division from utilizing other investigative alternatives,
such as the Civil Investigative Demand process provided by 15 U.S.C.
1311-1314 or a Federal grand jury, to determine if the defendant has
complied with this Final Judgment.
IX. Further Elements of Final Judgment
(A) This Final Judgment shall expire ten (10) years from the date
of its entry.
(B) Jurisdiction is retained by this Court to enable any of the
parties to the Final Judgment to apply to this Court at any time for
such 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.
(C) Entry of this Final Judgment is in the public interest.
Dated:
----------------------------------------------------------------------
United States District Judge
The United States District Court, for the Central District of
Illinois, Springfield Division: United States of America, Plaintiff,
v. Gerald Petty, d/b/a/ Tri-R-Disposal; and Leo Carey and Grace
Carey, individually and d/b/a Carey's Disposal Service, Defendants,
Civil No. 94-3142.
Competitive Impact Statement
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. 16(b)-(h), the United States of America files this
Competitive Impact Statement relating to the proposed Final Judgment
submitted for entry with the consent of all defendants in this civil
antitrust proceeding.
I. Nature and Purpose of the Proceedings
On May 31, 1994, the United States filed a civil antitrust
complaint under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, seeking
to enjoin the defendants from engaging in an alleged combination and
conspiracy to suppress competition in the supply of residential and
commercial waste services in and around Christian County, Illinois,
through the joint advertisement of rates because the combination and
conspiracy is an unreasonable restraint of interstate commerce in
violation of Section 1 of the Sherman Act (15 U.S.C. 1).
The Complaint alleges that the defendants:
(1) Disseminated information among themselves relating to possible
rate increases; and
(2) Jointly advertised rates for their waste services. The
complaint requests that the defendants be enjoined from directly or
indirectly disclosing any rate to any defendant or person prior to it
having been announced to the general public and from publishing,
announcing or disseminating any rate for waste services jointly or in
connection with any defendant or person engaged in providing waste
services. The complaint further requests that the defendants be
required to institute an antitrust compliance program and file an
annual certification of compliance with the terms of the Final Judgment
as entered.
The United States and the defendants have stipulated and agreed
that the proposed Final Judgment may be entered after compliance with
the Antitrust Procedures and Penalties Act, unless the United States
withdraws its consent. Entry of the proposed Final Judgment will
terminate this action as to each of the defendants, except the Court
will retain jurisdiction to construe, modify, or enforce the provisions
of the proposed Final Judgment and to punish violations of the Final
Judgment.
II. Events Giving Rise to the Alleged Violation
At all times relevant to the allegations contained in the
complaint, each of the defendants operated a waste services business in
Christian County, Illinois. The defendants held dominant positions in
the market for such services. The United States' complaint in this case
alleges that the defendants engaged in a conspiracy that unreasonably
restrained competition in the sale of waste services through the use of
joint advertising to facilitate a coordinated increase in the rates
charged for waste services in the Christian County area. The complaint
alleges that the defendants disseminated among themselves information
about rate increases and jointly advertised rates for their waste
services.
III. Explanation of the Proposed Final Judgment
A. Prohibited Conduct
Section V(A) prohibits the defendants from directly or indirectly
disclosing to any other defendant or any other person engaged in the
waste services business any rate prior to its having been disclosed to
the general public. Section V(B) of the Final Judgment prohibits the
defendants from advertising, publishing, announcing or disseminating
any rate for waste services jointly or in concert or in connection with
any other defendant or any other person engaged in providing waste
services.
B. Compliance Program and Certification
In addition to the prohibitions contained in Section V of the
proposed Final Judgment, the defendants are required to implement an
antitrust compliance program as set forth in Section VI.
As part of the compliance program, each defendant is required to
distribute copies of the Final Judgment to all owners, officers and
employees responsible in any way for prices and to any person who
succeeds to the position as an owner, officer or employee responsible
for prices. Additionally, such individuals must execute a certification
of compliance as set forth more fully in section VI(A)(4). Each
defendant must also submit an annual statement to the United States as
to its compliance with the Final Judgment as required under section
VII(B).
C. Applicability to Successors and Assigns
Section IV of the Proposed Final Judgment makes the Final Judgment
applicable to the successors and assigns of each defendant. Each
defendant must require, as a condition of the sale of its business or
assets used in its waste services business, that the buyer agree to be
bound by the provisions of the Final Judgment.
IV. 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 Antitrust Procedures and Penalties Act,
provided the United States has not withdrawn its consent. The Act
conditions the entry upon the Court's determination that the proposed
Final Judgment is in the public interest.
The Act provides a period of at least 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 wants to comment should do so within 60
days of the date of publication of this Competitive Impact Statement in
the Federal Register. The United States will evaluate the comments,
determine whether it should withdraw its consent, 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.
Written comments should be submitted to: Marvin Price, Acting
Chief, Midwest Office, Antitrust Division, United States Department of
Justice, 209 South LaSalle Street, Suite 600, Chicago, Illinois 60604.
Under section IX of the proposed Judgment the Court will retain
jurisdiction over this matter for the purpose of enabling any of the
parties to apply to the Court for such further orders or directions as
may be necessary or appropriate for the construction, implementation,
modification, or enforcement of the Final Judgment, or for the
punishment of any violations of the Final Judgment.
V. Alternatives to the Proposed Final Judgment
The proposed Final Judgment provides all the relief as to the
defendants necessary to cure the violations alleged in the complaint.
The Judgment will enjoin the defendants from resuming operation of the
alleged conspiracy. Because the Judgment provides all of the relief
against the defendants that the United States would have sought through
a trial, the United States did not seriously consider any alternatives
to the Judgment.
VI. Determinative Documents
No documents were determinative in formulating the proposed
Judgment, and the United States therefore has not attached any such
documents to the Judgment.
Dated:
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Mark Schechter,
Marvin Price,
Attorneys, U.S. Department of Justice, Antitrust Division.
Frances C. Hulin,
By: James A. Lewis, United States Attorney, Central District of
Illinois, Springfield Division.
Respectfully submitted.
Susan H. Booker,
Attorney, Midwest Office, U.S. Department of Justice, Antitrust
Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-
7530.
[FR Doc. 94-17114 Filed 7-14-94; 8:45 am]
BILLING CODE 4410-01-M
