[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20854]


[[Page Unknown]]

[Federal Register: August 25, 1994]


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DEPARTMENT OF JUSTICE
Antitrust Division

 

United States v. S.C. Johnson & Son, Inc. and Bayer A.G.; 
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 Northern District of Illinois at 
Rockford in United States v. S.C. Johnson & Son, Inc. and Bayer A.G., 
Civil No. 94 C 50249, as to both defendants.
    The Complaint alleges that the defendants violated Section 1 of the 
Sherman Act by entering into an agreement by which Bayer licensed S.C. 
Johnson to use Cyfluthrin in household insecticides in the United 
States, refrained from licensing other firms to use Cyfluthrin, and 
ended its own plans to compete with S.C. Johnson in the sale of 
household insecticides in the United States. S.C. Johnson is the 
country's largest maker of household insecticides with total sales 
between 45-60% of the market.
    The proposed Final Judgment enjoins defendants from entering into 
any agreement to allocate markets for the sale of household 
insecticides, and it requires them to license others, on reasonable 
terms, to use or sell Cyfluthrin. The judgment also enjoins defendants 
from entering into any exclusive license for any active ingredient, if 
the license agreement has been disapproved by the United States, and it 
requires S.C. Johnson to provide the government prior notice of any 
such exclusive license with any person other than Bayer.
    Household insecticides are chemical products sold in a wide variety 
of forms (e.g. aerosols, bait traps) for use by consumers to kill ants, 
roaches, and other insects that infest dwellings.
    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, N.W., Washington, D.C. 20001 
[(telephone: 202) 307-5799)].
Joseph H. Widmar,
Deputy Assistant Attorney General,
Antitrust Division.
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Bayer A.G., Defendants. Civil No. 94C50249.

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
obtain equitable and other relief against the defendants named herein, 
and complains and alleges as follows:

I

Jurisdiction, Venue, And Defendants
    1. This complaint is filed under Section 4 of the Sherman Act, 15 
U.S.C. 4, in order to prevent and restrain violations, as hereinafter 
alleged, by defendants of Section 1 of the Sherman Act, 15 U.S.C. 1.
    2. Bayer A.G. (``Bayer''), a German corporation with its principal 
place of business at 5090 Leverkusen-Bayerwerk, Germany, is made a 
defendant. Bayer wholly owns and closely controls Miles, Inc., an 
Indiana corporation that maintains an established place of business at 
9801 West Higgins Road, Rosemont, Illinois, in the Northern District of 
Illinois. Bayer, through its subsidiary, Miles, Inc., is found and 
transacts business in the Northern District of Illinois. Venue as to 
Bayer is proper under 15 U.S.C. 22 and 28 U.S.C. 1391 (c).
    3. S.C. Johnson & Son, Inc. (``Johnson''), a Wisconsin corporation 
with its principal place of business at 1525 Howe Street, Racine, 
Wisconsin, is made a defendant. Johnson is found and transacts business 
in the Northern District of Illinois. Venue as to Johnson is proper 
under 15 U.S.C. 22 and 28 U.S.C. 1391 (c).

II

Trade And Commerce
    4. Defendant Bayer and its subsidiaries receive large amounts of 
money in the form of payments from manufacturers for the sale of active 
ingredients for use in household insecticides in the United States, and 
defendant Johnson and its subsidiaries receive large amounts of money 
from the sale of household insecticides to retailers and consumers 
throughout the United States. Defendants' business activities and 
operations, as hereinafter described, involve or affect the interstate 
and international flow of funds and are within the flow of, and have a 
substantial effect upon, interstate and foreign commerce.

III

Background
    5. Household insecticides are chemical products that are sold in a 
wide variety of forms (e.g., aerosols, baits, powders, and traps) for 
use by consumers to trap or kill ants, roaches, crickets, and other 
undesirable insects that invade and infest houses, apartments and other 
dwellings. Because of their low cost, superior efficacy, and ease of 
use, there are no good substitutes for household insecticides, and thus 
they constitute a relevant product market.
    6. The relevant geographic market for the sale of household 
insecticides is the United States. Annual retail sales of household 
insecticides in the United States exceeded $450 million in 1993.
    7. The United States market for household insecticides is highly 
concentrated. Johnson is the largest manufacturer of household 
insecticides in the United States, with total sales between 45-60% of 
the market. Johnson's two next-largest competitors in the sale of 
household insecticides each have sales of no more than 12% of the 
market, and the shares of Johnson's three other major competitors range 
from 6 to 10% of the market.
    8. Successful new entry into or expansion within the United States 
market for household insecticides is difficult. To be successful, a new 
entrant must demonstrate that its household insecticide has superior 
safety and efficacy, attributes that are solely dependent upon the 
active ingredient chosen for use in the product. Active ingredients 
must comply with state and federal government regulations for safety 
and efficacy prior to sale in the United States. Compliance with such 
laws and regulations is an expensive and time-consuming process that 
often takes more than three years and costs over $10 million to 
complete.
    9. Bayer is one of a small number of firms in the world that engage 
in research and development of active ingredients for household 
insecticides. Bayer has numerous patents in countries around the world, 
including United States patents, on such active ingredients. Bayer 
makes and sells, or licenses others to make and sell, such active 
ingredients in various countries, including the United States.
    10. Bayer, which makes and sells household insecticides in many 
countries outside the United States, is one of the few significant 
potential entrants into the United States household insecticides 
market. Bayer earlier had planned and made preparations to enter the 
United States household insecticides market with a new product, called 
Laser. Laser's chief active ingredient was Cyfluthrin, developed and 
patented by Bayer and widely considered to be superior to other active 
ingredients because of its long-lasting killing power. Through Laser, 
Bayer could have become one of Johnson's major competitors in the 
household insecticides market in the United States.

IV

Violation Alleged
    11. Beginning at least as early as March 1988 and continuing to the 
present, Johnson and Bayer entered into an agreement to unreasonably 
restrain trade and commerce and lessen competition in the manufacture 
and sale of household insecticides in the United States in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1.
    12. For the purpose of forming and effectuating this agreement, 
defendants did the following things, among others:
    (a) Bayer licensed Johnson to use Clyfluthrin in household 
insecticides in the United States, and granted Johnson a right of first 
refusal for exclusive rights for the United States on future active 
ingredients developed by Bayer for household insecticides;
    (b) Bayer refrained from licensing Johnson's competitors to use or 
sell Cyfluthrin; and
    (c) Bayer ended its plans to market Laser and compete with Johnson 
in the United States household insecticides market.

V

Competitve Effects
    13. Defendants agreement and activities have had the following 
direct, substantial, and reasonably foreseeable effects, among others:
    (a) Incentives for Bayer to compete with Johnson in the manufacture 
and sale of household insecticides in the United States have been 
substantially reduced; and
    (b) Competition generally in the market for the sale of household 
insecticides in the United States has been unnecessarily and 
unreasonably restrained.

VI

Prayer For Relief
    Wherefore, plaintiff prays:
    1. That Johnson and Bayer be enjoined and restrained from entering 
into any agreement or understanding the purpose or effect of which is 
to allocate or divide territories or markets for the sale of household 
insecticides;
    2. That Johnson and Bayer be enjoined from entering into any 
exclusive license for an active ingredient patented by Bayer without 
plaintiff's prior approval;
    3. That Johnson and Bayer be enjoined from entering into or 
carrying out an exclusive license to make, use or sell Cyfluthrin in 
the United States without plaintiff's prior approval;
    4. That Johnson be enjoined and restrained from obtaining from 
anyone an exclusive license for any active ingredient for use in any 
household insecticide without prior notice (and if necessary, provision 
of additional information regarding the arrangement) to plaintiff;
    5. That plaintiff have such other relief as may be just and proper; 
and
    6. That plaintiff be awarded its costs in this action.

    Dated: August 3, 1994.

    Anne K. Bingaman, Assistant Attorney General; Robert E. Litan, 
Deputy Assistant Attorney General; Mark C. Schechter,  Deputy 
Director, Office of Operations; Gail Kursh, Chief, Professions & 
Intellectual Property Section, Antitrust Division, U.S. Department 
of Justice
    Anthony E. Harris, Bar No. 01133713; Kurt Shaffert, Attorneys, 
Antitrust Division, U.S. Dept. of Justice, 555 4th Street, N.W., 
Room 9903, JCB, Washington, D.C. 20001, (202) 307-0951
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Bayer A.G., Defendants Civil 94C50249 No. Filed:

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 Northern District of Illinois, Western Division;
    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 plaintiff 
withdraws its consent, or if the proposed Final Judgment is not entered 
pursuant to the terms of the 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.
    For Plaintiff: Anne K. Bingaman, Assistant Attorney General; 
Robert E. Litan, Deputy Assistant Attorney General; Mark C. 
Schechter, Deputy Director, Office of Operations; Gail Kursh, Chief, 
Professions & Intellectual Property Section, Antitrust Division, 
U.S. Department of Justice.

    Anthony E. Harris, Bar No. 01133713; Kurt Shaffert, Attorneys, 
Antitrust Division, U.S. Dept. of Justice, 555 4th Street, N.W., 
Room 9903, JCB, Washington, D.C. 20001, (202) 307-0951.
    For Defendant S.C. Johnson & Son, Inc.: Maurice J. McSweeney, 
Esquire Foley & Lardner 777 East Wisconsin Avenue Milwaukee, 
Wisconsin 53202-5367
    For Defendant Bayer A.G.: Tefft W. Smith, Esquire, Bar No. 
2655314, Kirkland & Ellis, 50th Floor, 200 East Randolph Drive, 
Chicago, Illinois 60601, (312) 861-2000.
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Bayer A.G., Defendants. Civil No. 94C50249.

Final Judgment

    Plaintiff, the United States of America, having filed its Complaint 
on August 4, 1994, and plaintiff and defendants, S.C. Johnson & Son, 
Inc. and Bayer A.G., 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 without this Final Judgment constituting 
evidence against or admission by any party with respect to any issue of 
fact or law;
    Now, therefore, before the taking of any testimony and without 
trial or adjudication of any issue of fact or law, it is hereby 
Ordered, Adjudged and Decreed:

I

Jurisdiction
    This Court has jurisdiction of the subject matter and each of the 
parties to this action. The Complaint states a claim upon which relief 
may be granted against S.C. Johnson & Son, Inc. and Bayer A.G. under 
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.

II

Definitions
    As used in this Final Judgment:
    (A) ``Active ingredient'' means any chemical compound or substance 
used or contemplated for use in the United States as a knock-down, 
debilitating, or killing agent in a household insecticide, regardless 
of whether that compound or substance has been approved by federal or 
state regulatory authorities.
    (B) ``Exclusive license'' means any agreement for the license or 
supply of an active ingredient that directly or indirectly, implicitly 
or explicitly, limits access to S.C. Johnson & Son, Inc. or to S.C. 
Johnson & Son, Inc. and the licensor.

III

Applicability
    This Final Judgment applies to S.C. Johnson & Son, Inc.'s and to 
Bayer A.G.'s officers, directors, subsidiaries, agents, employees, 
successors, and assigns, and to all other persons in active concert of 
participation with any of them who receive actual notice of this Final 
Judgment pursuant to F.R.C.P. 65(d).

IV

Injunctive Relief
    (A) S.C. Johnson & Son, Inc. and Bayer A.G. are each enjoined and 
restrained from entering into or carrying out any agreement or 
understanding, the purpose or effect of which would be to allocate or 
divide territories or markets for the distribution or sale of household 
insecticides, unless any such agreement or understanding relates 
exclusively to markets other than the United States and has no effect 
on United States commerce.
    (B) S.C. Johnson & Son, Inc. and Bayer A.G. are each enjoined and 
restrained from entering into any exclusive license between them for 
any active ingredient, the patent rights to which are beneficially 
owned by Bayer A.G., if such license has been disapproved by the U.S. 
Department of Justice as provided herein.
    S.C. Johnson & Son, Inc. and Bayer A.G. each must provide the U.S. 
Department of Justice at least 90 days' written notice of their intent 
to enter into any exclusive license between them. If requested by the 
Department of Justice within 30 days after its receipt of such notice, 
S.C. Johnson & Son, Inc. and Bayer A.G. must supply, within 30 days of 
such request, all information in their possession reasonably necessary 
to enable the Department to determine the competitive effect of their 
exclusive license. The Department must exercise its unconditional right 
to disapprove an exclusive license between S.C. Johnson & Co., Inc. and 
Bayer A.G. by so notifying them in writing within 90 days after 
receiving defendants' notice of intent.
    (C) S.C. Johnson & Son, Inc. and Bayer A.G. are each enjoined and 
restrained from entering into, carrying out, or operating under any 
exclusive license to make, use or sell Cyfluthring in the United 
States. Bayer A.G. must offer, to any person who requests it, a license 
to use or sell Cyfluthrin in the United States, upon reasonable and 
mutually agreeable terms and conditions, but no minimum royalty payment 
shall be required under such license. Nothing herein, however, shall 
prohibit Bayer A.G. from reserving exclusively for itself Cyfluthrin or 
any other active ingredient, or from discontinuing the manufacture, 
sale or use in the United States of Cyfluthrin or any other active 
ingredient.
    (D) No more than 180 days and not less than 90 days before entering 
into any exclusive license with any person other than Bayer A.G., for 
any active ingredient other than Cyfluthrin, S.C. Johnson & Son, Inc. 
must provide the U.S. Department of Justice written notice of such 
license agreement. If requested by the Department of Justice within 30 
days after its receipt of such notice, S.C. Johnson & Son, Inc. must 
supply within 30 days after such request, all information in its 
possession reasonably necessary to determine the competitive effect of 
such license agreement.

V

Compliance Program: S.C. Johnson & Son, Inc.
    S.C. Johnson & Son, Inc. shall maintain an antitrust compliance 
program, which shall include:
    (A) distributing within 60 days from the entry of this Final 
Judgment, a copy of the Final Judgment and Competitive Impact Statement 
to all officers with responsibility for research and development, 
manufacturing, sales or marketing of household insecticides in the 
United States;
    (B) distributing in a timely manner a copy of the Final Judgment 
and Competitive Impact Settlement to any person who succeeds to a 
position described in Paragraph V(A);
    (C) briefing annually those persons designated in Paragraph V(A) 
and (B) on the meaning and requirements of this Final Judgment and the 
antitrust laws, including potential antitrust concerns raised by patent 
licensing agreement;
    (D) obtaining from each person designated in Paragraph V(A) and (B) 
an annual written certification that he or she: (1) Has read, 
understands and agrees to abide by this Final Judgment; (2) has been 
advised and understands that noncompliance with this Final Judgement 
may result in his or her conviction for criminal contempt of court and/
or fine; and (3) is not aware of any violation of this Final Judgment; 
and
    (E) maintaining for inspection by plaintiff a record of recipients 
to whom this Final Judgment and Competitive Impact Statement have been 
distributed and from whom the certification required by Paragraph V(D) 
has been obtained.

VI

Compliance Program: Bayer A.G.
    Bayer A.G. shall maintain an antitrust compliance program, which 
shall include:
    (A) distributing within 60 days from the entry of this Final 
Judgment, a copy of the Final Judgment and Competitive Impact Statement 
to all officers, directors, and employees of Bayer A.G.'s household 
insecticide unit having signing authority on behalf of Bayer A.G.;
    (B) distributing in a timely manner a copy of the Final Judgment 
and Competitive Impact Statement to any person who succeeds to a 
position described in Paragraph VI (A);
    (C) briefing those persons designated in Paragraph VI (A) and (B) 
on the meaning and requirements of this Final Judgment and the 
antitrust laws, including potential antitrust concerns raised by patent 
licensing agreements;
    (D) obtaining from each person designated in Paragraph VI (A) and 
(B) an annual written certification that he or she: (1) has read, 
understands and agrees to abide by this Final Judgment; (2) has been 
advised and understands that noncompliance with this Final Judgment may 
result in his or her conviction for criminal contempt of court and/or 
fine; and (3) is not aware of any violation of this Final Judgment; and
    (E) maintaining for inspection by plaintiff a record of recipients 
to whom this Final Judgment and Competitive Impact Statement have been 
distributed and from whom the certification required by Paragraph VI 
(D) has been obtained.

VII

Certifications
    (A) Within 75 days after the entry of this Final Judgment, S.C. 
Johnson & Son, Inc. and Bayer A.G. each shall certify to plaintiff 
whether it has made the distribution of this Final Judgment in 
accordance with Paragraphs V(A) and VI(A), respectively.
    (B) For ten years after the entry of this Final Judgment, on or 
before its anniversary date, S.C. Johnson & Son, Inc. and Bayer A.G. 
shall each certify annually to plaintiff whether it has complied with 
the provisions of Paragraphs V and VI, respectively.

VIII

Plaintiff's Access
    For the sole purpose of determining or securing compliance with 
this Final Judgment, and subject to any legally recognized privilege, 
authorized representatives of the U.S. Department of Justice, upon 
written request of the Assistant Attorney General in charge of the 
Antitrust Davison shall on reasonable notice be permitted;
    (A) access during regular business hours of S.C. Johnson & Son, 
Inc. and Bayer A.G. to inspect and copy all records and documents 
relating to any matters contained in this Final Judgment;
    (B) to interview S.C. Johnson & Son, Inc. and Bayer A.G. officers, 
directors, and employees, who may have counsel present, concerning such 
matters; and
    (C) to obtain written reports from S.C. Johnson & Son, Inc. and 
Bayer A.G. relating to any of the matters contained in the Final 
Judgment.
    Information provided to the Department of Justice pursuant to this 
provision or pursuant to Paragraph IV (B) or (D) of the Final Judgment 
must be kept confidential to the full extent permitted by law.

IX

Jurisdiction Retained
    Jurisdiction is retained by this Court for the purpose of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for 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.

X

Expiration of Final Judgment
    This Final Judgment shall expire 10 years from the date of its 
entry. Paragraph IV(D) of this Final Judgment, however, shall expire 
six years from the date of its entry.

XI

Public Interest Determination
    Entry of this Final Judgment is in the public interest.

    Dated:

United States District Judge.
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Bayer A.G., Defendants, Civil No. 94C50249.

Competitive Impact Statement

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. Sec. 16(b)-(h), the United States submits this 
Competitive Impact Statement relating to the proposed Final Judgment 
(or ``the Judgment'') submitted for entry against S.C. John & Son. Inc. 
(``Johnson'') and Bayer A.G. (``Bayer'') in this civil antitrust 
proceeding.

I

Nature and Purpose of the Proceeding
    The United States of America, acting under the direction of its 
Attorney General, filed this civil antitrust suit on August 4, 1994, 
alleging that defendants violated Section 1 of the Sherman Act, 15 
U.S.C. Sec. 1, by entering into an agreement and understanding that 
unreasonably restrained interstate trade in the manufacture and sale of 
household insecticides. The agreement featured an exclusive license 
arrangement and the transfer by Bayer to Johnson of the assets 
assembled by a Bayer subsidiary, Miles,Inc., to compete in the sale of 
household insecticides in the United States with a new product, called 
Laser. Laser's chief active ingredient was Cyfluthrin, which Bayer 
developed and patented. Specifically, the Complaint alleges that 
defendants engaged in the following activities:
    (a) Bayer licensed Johnson to use Clyfluthrin in household 
insecticides in the United States, and granted Johnson a right of first 
refusal for exclusive rights for the United States on future active 
ingredients developed by Bayer for household insecticides;
    (b) Bayer refrained from licensing Johnson's competitors to use or 
sell Cyflutrhin; and
    (c) Bayer ended its plans to market Laser and compete with Johnson 
in the United States household insecticides market.

The Complaint alleges that the appropriate product market in which to 
access the competitive effect of the Cyfluthrin license and transfer of 
assets is the market for the manufacture and sale of household 
insecticides. This is the appropriate market because other types of 
insect killers, such as agricultural pesticides, are not good 
substitutes for household insecticides used to kill ants, roaches, and 
other insects that typically infest dwellings. The Complaint alleges 
that the entire United States is the relevant geographic market. In 
this market, the Complaint alleges, Johnson is the largest firm, and 
the licensing arrangement helped it to maintain its commanding 
position.
    The Judgment enjoins Johnson and Bayer from entering into any 
agreement to allocate territories or markets for the distribution or 
sale of household insecticides, unless such an agreement relates 
exclusively to markets other than the United States and has no effect 
on United States commerce, and requires that Bayer license Cyfluthrin 
to any person on reasonable terms and conditions.\1\ Further, the Final 
Judgment provides the Department with the opportunity to review any 
future exclusive licenses for new active ingredients that Johnson might 
seek to obtain from Bayer or any other person.\2\
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    \1\In this respect, the Judgment provides relief somewhat 
similar to the terms of a settlement of private litigation to which 
the defendants were also parties, Koerber v. S.C. Johnson & Son, 
Inc. and Bayer A.G., Civil No. 93C 20267, N.D. Ill. 1993. However, 
the Judgment, unlike the private settlement, leaves Bayer free to 
decide whether to license Cyfluthrin to others on terms more 
favorable than its license with Johnson.
    \2\The Judgment would prevent Bayer and Johnson from entering 
into any exclusive license for any active ingredient if the 
Department of Justice has disapproved such license within 90 days 
after receiving notice of defendants' intent to enter into the 
agreement.
---------------------------------------------------------------------------

    The Judgment requires the defendants to file annual reports with 
the Government that certify that each has distributed the Final 
Judgment to responsible executives and explained the terms of the 
Judgment to them. Entry of the Final Judgment will terminate the 
Government's action against the defendants,\3\ except that the Court 
will retain jurisdiction over the matter for further proceedings that 
may be required to interpret, enforce or modify the Judgment, or to 
punish violations of any of its provisions.
---------------------------------------------------------------------------

    \3\Bayer and Johnson have cooperated with the Department of 
Justice in this matter.
---------------------------------------------------------------------------

II

Description of the Activities Involved in the Alleged Violations
    During a three-year period between 1985 and March 1988, Miles, 
Inc., a U.S. subsidiary of Bayer, developed a new line of household 
insecticides to be marketed under the brand name ``Laser.'' The Laser 
products were to have contained a potent new active ingredient, 
Cyfluthrin, a chemical compound developed and patented by Bayer. 
Cyfluthrin promised to provide Laser a significant competitive 
advantage over existing U.S. household insecticides because it extended 
the insecticide's killing power up to three months after initial 
application.
    By early 1988, Miles had substantially completed its preparations 
to enter the U.S. household insecticides market. Evidence indicates 
that its entry would have been successful. According to Miles' 
projections, first-year sales of Laser products would have made Miles 
one of the nation's leading makers of household insecticides.
    In March 1988, however, Bayer canceled the Laser project. It 
instead agreed to sell Miles' Laser-related product research and 
packaging design to Johnson, and to license Johnson to use Cyfluthrin 
in its household insecticide products.\4\
---------------------------------------------------------------------------

    \4\Although the patent license states that it is nonexclusive, 
the United States believes that the license was actually exclusive. 
Bayer was subsequently approached by several Johnson competitors for 
Cyfluthrin licenses; it declined to license them to use the 
compound.
---------------------------------------------------------------------------

    Under the terms of that ten-year license agreement, Johnson agreed 
to pay Bayer a minimum of $5.2 million annually in addition to a 
specified per pound fee for the use of Cyfluthrin. In addition, Johnson 
acquired a right of first refusal to any other active ingredient Bayer 
later developed.
    Through this agreement, the United States alleges, Bayer 
effectively chose not to compete in the U.S. household insecticides 
market, instead, licensing to Johnson the right to use those assets 
Bayer had assembled and would require to compete in the United States.
    The agreement helped ensure Johnson's continued dominance of the 
highly concentrated U.S. household insecticides market. Johnson is the 
leading maker of household insecticides with somewhere between 45-60 
percent of total market sales. It is significantly larger than any of 
its six major competitors, whose market shares range from 6 to 12 
percent of overall sales. By purchasing some of the assets Bayer would 
have used in entering the market, and entering into what was in effect 
an exclusive license for Cyfluthrin, Johnson effectively eliminated 
competition that could have helped drive down prices or improve the 
quality of household insecticides. Because new entry or expansion in 
this market is difficult in light of the high cost and significant time 
it takes to comply with federal and state governmental regulations, new 
entry into or expansion within this market is unlikely to militate 
against the anti-competitive effects of the defendants' agreement.

III

Explanation of the Proposed Final Judgment
    The United States, Johnson and Bayer 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. Sec. 16(b)-(h). 
The Judgment provides that its entry does not constitute any evidence 
or admission by any party with respect to any issue of fact or law.
    Under the provisions of Section 2(e) of the Antitrust Procedures 
and Penalties Act, 15 U.S.C. Sec. 16(e), the Judgment may not be 
entered unless the Court finds entry is in the public interest. Section 
XI of the proposed Final Judgment set forth such a finding.
A. Terms
    The Judgment provides that:
    (1) Johnson and Bayer are each enjoined and restrained from 
entering into any agreement or understanding, the purpose or effect of 
which would be to allocate or divide, territories or markets for the 
distribution or sale of household insecticides, unless any such 
agreement or understanding relates exclusively to markets other than 
the United States and has no effect on United States commerce.
    (2) Johnson and Bayer are each enjoined and restrained from 
entering into any exclusive license between them for any active 
ingredient, the patent rights to which are beneficially owned by Bayer, 
that the U.S. Department of Justice disapproves in writing. To ensure 
the Department of Justice has adequate notice of such agreements, 
Johnson and Bayer each must provide the Department at least 90 days' 
written notice of their intent to enter into such an exclusive license 
agreements, and if requested by the Department of Justice within 30 
days after its receipt of such notice, Johnson and Bayer must supply 
within 30 days of such request, all information in their possession 
reasonably necessary to enable the Department of Justice to determine 
the competitive effect of such license agreement.
    (3) Johnson and Bayer are each enjoined and restrained from 
entering into, carrying out, or operating under any exclusive license 
to make, use or sell Cyfluthrin in the United States. Bayer must offer 
to any person who requests, a license to use or sell Cyfluthrin in the 
United States, upon reasonable and mutually agreeable terms and 
conditions, but no minimum royalty payment shall be required under such 
license; and
    (4) No more than 180 days nor less than 90 days before entering 
into any exclusive license with any person other than Bayer, for any 
active ingredient other than Cyfluthrin, Johnson must provide the 
Department of Justice written notice of such license and, if requested 
by the Department of Justice within 30 days after its receipt of such 
notice, Johnson must supply within 30 days after such request, all 
information in its possession reasonably necessary to determine the 
competitive effect of such license agreement.
B. Effect on Competition
    The proposed Final Judgment will ensure that Johnson's competitors 
will have access to Cyfluthrin and thus likely promote competition in 
the household insecticide market. Nonexclusive licenses will be made 
available to Johnson's competitors on reasonable terms and conditions 
that are at least as favorable as the terms and conditions Bayer 
accorded Johnson, except that there will be no minimum royalty payments 
under such licenses. In addition, by prohibiting any market allocation 
agreements between the defendants, the Final Judgment ensures that the 
defendants will not be able to restrict potential competition in the 
U.S. household insecticides market.
    In addition, the proposed Final Judgment ensures that any exclusive 
or co-exclusive license agreement between Johnson, which is dominant in 
the household insecticides market, and Bayer for new active ingredients 
will not restrict competition in the household insecticides market. The 
proposed relief also ensures that the United States receives prior 
notice of any exclusive or co-exclusive license agreement between 
Johnson and any active ingredient manufacturer other than Bayer, and 
thus an opportunity to challenge any such agreement that the United 
States believes may substantially lessen competition in the household 
insecticides market. At the same time, Department of Justice review of 
any exclusive or co-exclusive license agreement for active ingredients 
contemplated by Johnson should not unreasonably restrict Johnson's 
ability to obtain the necessary active ingredients to formulate its 
household insecticide products and remain competitive in the household 
insecticides market.

IV

Remedies Available To Private Litigants
    Section 4 of the Clayton Act, 15 U.S.C. Sec. 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. Sec. 16(a), the Judgment has no prima facie 
effect in any subsequent lawsuits that may be brought against Johnson 
and Bayer in this matter.

V

Procedures Available For Modification Of The Proposed Final 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 set forth in 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 Bayer and Johnson, to 
withdraw its consent to the Judgment at any time prior to entry. 
Section IX of the 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 Judgment.

VI

Determinative Materials/Documents
    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 Judgment is a full trial on the 
merits. While the Department is confident of its ability to succeed in 
such a trial, the litigation involves difficult issues of law and fact. 
A favorable outcome is not a certainty. The Final Judgment agreed to by 
the parties provides all the relief that the United States sought in 
its complaint.

    Dated: August 3, 1994.

      Respectfully submitted,
Anthony E. Harris,
Bar No. 01133713.
Kurt Shaffert
    Attorneys, Antitrust Division, U.S. Department of Justice, 555 
4th Street, NW., Room 9901, Washington, DC 20001, 202/307-0951.
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Bayer A. G., Defendants. Civil No. 94C50249.

United States' Explanation of Consent Decree Procedures

    The United States submits this short memorandum summarizing the 
procedures regarding the Court's entry of the proposed Final Judgment. 
The Judgment would settle this case pursuant to the Antitrust 
Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (the ``APPA''), which 
applies to civil antitrust cases brought and settled by the United 
States.
    1. Today, the United States has filed a proposed Final Judgment and 
a Stipulation between the parties by which they agreed to the Court's 
entry of the proposed Final Judgment following compliance with the 
APPA.
    2. The United States has also filed a Competitive Impact Statement 
relating to the proposed Judgment [15 U.S.C. 16(b)].
    3. The APPA requires that the United States publish the proposed 
Final Judgment and Competitive Impact Statement in the Federal Register 
and in certain newspapers at least 60 days prior to entry of the Final 
Judgment. The notice will inform members of the public that they may 
submit comments about the Final Judgment to the United States 
Department of Justice, Antitrust Division [15 U.S.C. 16(b)-(c)].
    4. During the 60-day period, the United States will consider and 
respond to any comments it receives, and it will publish the comments 
and responses in the Federal Register.
    5. After the expiration of the 60-day period, the United States 
will file with the Court the comments, the government's responses, and 
a Motion For Entry of the Final Judgment (unless the United States 
decide to withdraw its consent to entry of the Final Judgment, as 
permitted by Paragraph 2 of the Stipulation) [see 15 U.S.C. 
Sec. 16(d)].
    6. At that time, pursuant to the APPA, 15 U.S.C. Sec. 16(e)-(f), 
the Court may enter the Final Judgment without a hearing, if the Court 
determines that the Final Judgment is in the public interest.

    Dated: August 4, 1994.

      Respectfully submitted,
Anthony E. Harris,
Bar No. 011333753.
Kurt Shaffert
    Attorneys, U.S. Department of Justice, Antitrust Division, 555 
4th Street, NW., Rm. 9901, Washington, DC 20001, 202/307-0951.
    United States of America, Plaintiff, v. S.C. Johnson & Son, Inc. 
and Defendants. Civil No. 94C50249.

Certificate of Service

    I hereby certify that on or before August 3, 1994, I hand-delivered 
a copy of the following set of pleadings to counsel for S.C. Johnson & 
Son, Inc. and Bayer A. G., respectively, Maurice J. McSweeney, Foley & 
Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-5367; 
and Tefft W. Smith, Kirkland & Ellis, 200 East Randolph Drive, Chicago, 
Illinois 60601:
    1. Complaint;
    2. Stipulation;
    3. Proposed Final Judgment;
    4. Competitive Impact Statement; and
    5. United States' Explanation of Consent Decree Procedures.

    Dated: August 3, 1994.
Anthony E. Harris,
Bar No. 01133753.
[FR Doc. 94-20854 Filed 8-24-94; 8:45 am]
BILLING CODE 4410-01-M