Federal Register, Volume 59 Issue 240 (Thursday, December 15, 1994)

[Federal Register Volume 59, Number 240 (Thursday, December 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30816]

[[Page Unknown]]

[Federal Register: December 15, 1994]

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DEPARTMENT OF JUSTICE
Antitrust Division

United States, the State of Florida and the State of Maryland v.
Browning-Ferris 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 proposed Final Judgment,
Stipulation, and Competitive Impact Statement have been filed with the
United States District Court for the District of Columbia in the above-
captioned case.
On December 1, 1994, the United States, the State of Florida, and
the State of Maryland filed a complaint to block the proposed
acquisition by Browning-Ferris Industries, Inc. (``BFI'') of the stock
of Attwoods plc (``Attwoods''). BFI provides waste hauling service
throughout the United States; Attwoods provides waste hauling service
in the state of Florida and in the mid-Atlantic region of the United
States. The Complaint alleges that the acquisition may substantially
lessen competition in the provision of small containerized hauling
service in the areas of Florida, Maryland, Pennsylvania, and Delaware.
The proposed Final Judgment requires that BFI divest certain of
Attwoods' assets that provide small containerized hauling service in
the following areas: (1) Duval and Clay counties, Florida; (2)
Frederick and Washington counties, Maryland; (3) Chester County,
Pennsylvania; and (4) Sussex County, Delaware/the Southern Eastern
Shore of Maryland. The proposed Final Judgment also requires that BFI
offer a one year contract with limited liquidated damages (Exhibit A of
the proposed Final Consent Judgment) to small containerized hauling
customers in Baltimore City, Baltimore County, Anne Arundel County,
Calvert County, Howard County, Carroll County, Harford County, Prince
George's County, and Montgomery County, Maryland. Additionally, the
proposed Final Judgment requires that BFI offer a two year contract
with limited liquidated damages (Exhibit B of the proposed Final
Judgment) to small containerized hauling customers in Polk and Broward
counties, Florida.
Public comment is invited within the statutory 60-day period. Such
comments will be published in the Federal Register and filed with the
Court. Comments should be addressed to Anthony V. Nanni, Chief,
Litigation I Section, U.S. Department of Justice, Antitrust Division,
1401 H St., NW., suite 4000, Washington, DC 20530 (phone 202/307-6576).
Constance K. Robinson,
Director of Operations.

Stipulation

United States of America, State of Florida by and through its
Attorney General Robert A. Butterworth; and State of Maryland by and
through its Attorney General J. Joseph Curran, Jr., Plaintiffs v.
Browning-Ferris Industries, Inc., Defendant. Civil Action No.: 94-
2588. Filed: 12/1/94. Judge Richey.

It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The Court has jurisdiction over the subject matter of this
action and over each of the parties hereto, and venue of this action is
proper in the District of Columbia.
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(b)-(h)), and without further notice to any party or other
proceedings, provided that plaintiffs have not withdrawn their consent,
which they may do at any time before the entry of the proposed Final
Judgment by serving notice thereof on the defendant and by filing that
notice with the Court.
3. The parties shall abide by and comply with the provisions of the
proposed Final Judgment pending entry of the Final Judgment, and shall,
from the date of the filing of this Stipulation, comply with all the
terms and provisions thereof as though the same were in full force and
effect as an order of the Court.
4. In the event plaintiffs withdraw their consent or 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: December 1, 1994.

For Plaintiff United States of America:
Anne K. Bingaman,
Assistant Attorney General.
Steven C. Sunshine.
Constance K. Robinson.
Willie L. Hudgins, Jr.,
DC Bar #37127.
Nancy H. McMillen.
Peter H. Goldberg,
DC Bar #055608.
Evangelina Almirantearena,
Attorneys, U.S. Department of Justice, Antitrust Div.
For Defendant Browning-Ferris Industries, Inc.
Rufus Wallingford,
Executive Vice President and General Counsel.
For Plaintiff State of Maryland.
J. Joseph Curran, Jr.,
Deputy Attorney General.
Ellen S. Cooper,
Assistant Attorney General, Chief, Antitrust Division.
Alan M. Barr,
Assistant Attorney General, Deputy Chief, Antitrust Division.
John R. Tennis,
Assistant Attorney General.
For Plaintiff State of Florida.
Robert A. Butterworth,
Attorney General.
Jerome W. Hoffman,
Chief, Antitrust Section.
Lizabeth A. Leeds,
Assistant Attorney General.
So Ordered.
United States District Judge.

Final Judgment

United States of America, State of Florida, by and through its
Attorney General Robert A. Butterworth; and State of Maryland, by
and through its Attorney General J. Joseph Curran, Jr., Plaintiffs
v. Browning-Ferris Industries, Inc., Defendant. Civil Action No.:
94-2588. Filed: 12/1/94. Judge Richey.
Whereas, plaintiffs, United States of America (hereinafter ``United
States''), the State of Florida (hereinafter ``Florida''), and the
State of Maryland (hereinafter ``Maryland''), having filed their
Complaint herein on December 1, 1994, and plaintiffs and defendant, by
their respective attorneys, having consented to the entry of their
Final Judgment without trial or adjudication of any issue of fact or
law herein, and without the Final Judgment constituting any evidence
against or an admission by any party with respect to any issue of law
or fact herein;
And whereas, defendant has agreed to be bound by the provisions of
this Final Judgment pending its approval by the Court;
And whereas, prompt and certain divestiture of certain assets and
the prompt adoption of contract terms to assure that competition is not
substantially lessened is the essence of this agreement;
And whereas, the parties intend to require defendant to divest, as
viable business operations, the Small Container Business of Attwoods;
And whereas, defendant has represented to plaintiffs that the
divestiture and contract changes required below can and will be made
and that defendant will later raise no claims of hardship or difficulty
as grounds for asking the Court to modify any of the divestiture or
contract provisions contained below;
Now, therefore, before the taking of any testimony, and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby ordered, adjudged, and
decreed as follows:

Jurisdiction

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

II.

Definitions

As used in this Final Judgment:
A. ``Solid waste hauling'' means the collection and transportation
to a disposal site of trash and garbage (but not medical waste; organic
waste; special waste, such as contaminated soil; sludge, or recycled
materials) from residential, commercial and industrial customers. Solid
waste hauling includes hand pickup, containerized pick-up and roll-off
service.
B. ``BFI'' means defendant Browning-Ferris Industries, Inc., a
Delaware corporation with its headquarters in Houston, Texas, and
includes its successors and assigns, their subsidiaries, affiliates,
directors, officers, managers, agents and employees.
C. ``Attwoods'' means Attwoods plc, a British corporation with its
headquarters in Buckinghamshire, U.K., and its successors and assigns,
their subsidiaries, affiliates, directors, officers, managers, agents,
and employees.
D. ``Small Container Business of Attwoods'' means the provision by
Attwoods of solid waste hauling service to commercial customers using
frontend load trucks to service small containers in Frederick County,
Maryland; Washington County, Maryland; by the operations of Attwoods'
Salisbury, Maryland Division; in Duval and Clay Counties, Florida; and
the provision by Attwoods of solid waste hauling service to commercial
customers using frontend load and rearload trucks to service small
containers in Chester County, Pennsylvania.
E. ``Honey Brook Assets'' means the assets of Honey Brook Division
of Attwoods with an office on Chestnut Tree Road, Honey Brook,
Pennsylvania, the provides solid waste hauling services in the Chester
County, Pennsylvania area. Honey Brook Assets include all customer
lists, contracts and accounts, and contracts for disposal of solid
waste at disposal facilities, all trucks, containers, equipment,
material, supplies, computer software, bank accounts, and all other
tangible and intangible assets, rights and other benefits presently
owned, licensed, possessed or used by the Honey Brook Division.
F. ``All Jax Assets'' means the assets of County Sanitation Inc.,
an Attwoods subsidiary, d/b/a All Jax Waste Services, with an office at
8619 Western Way, Jacksonville, Florida, that provides solid waste
hauling services in the Duval County and Clay County, Florida area. The
All Jax Assets include all customer lists, contracts and accounts, all
contracts for disposal of solid waste at disposal facilities, all
trucks, containers, equipment, material, supplies, computer software,
bank accounts, and all other tangible and intangible assets, rights and
other benefits presently owned, licensed, possessed or used by County
Sanitation d/b/a/ All Jax Waste Service.
G. ``Frederick Assets'' means the assets of the Frederick Division
of Attwoods with an office at 8145 Reichs Ford Road, Frederick,
Maryland, that provides solid waste hauling services in the western
Maryland area. Frederick Assets include all customer lists, contracts
and accounts, all contracts for disposal of solid waste at disposal
facilities, all trucks, containers, equipment, material, supplies,
computer software, bank accounts, and all other tangible and intangible
assets, rights and other benefits presently owned, licensed, possessed
or used by the Frederick Division.
H. ``Salisbury Assets'' means the assets of the Salisbury Division
of Attwoods with an office at 9140 Ocean Highway, Delmar, Maryland,
that provides solid waste hauling services in the Maryland and southern
Delaware area. Salisbury Assets include all customer lists, contracts
and accounts, all contracts for disposal of solid waste at disposal
facilities, all trucks, containers, equipment, material, supplies,
computer software, bank accounts, and all other tangible and intangible
assets, rights and other benefits presently owned, licensed, possessed
or used by the Salisbury Division.
I. ``Divestiture Assets'' refers to the Honey Brook Assets, All Jax
Assets, Frederick Assets, and Salisbury Assets taken together.
J. ``Small Container'' means a 1 to 10 cubic yard container.

III

Applicability

A. The provisions of this Final Judgment apply to the defendant,
its successors and assigns, its subsidiaries, affiliates, directors,
officers, managers, agents, and employees, and 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. BFI shall require, as a condition of the sale or other
disposition of all or substantially all of the Divestiture Assets, that
the acquiring party or parties agree to be bound by the provisions of
this Final Judgment.
C. Nothing contained in 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.
D. Unless otherwise stated herein, BFI's obligations become
effective upon its ownership of more than 50.0 percent of the ordinary
shares of Attwoods plc.

Divestiture of Assests

A. BFI is hereby ordered and directed, within 90 days following the
date a majority of the Attwoods Board of Directors is elected or
appointed by BFI, but in no event later than March 30, 1995, to divest
all of the Divestiture Assets, unless the United States, after
consultation with Florida and Maryland, consents that only some portion
of the Divestiture Assets need be divested. BFI is further ordered and
directed to notify plaintiffs in writing immediately when it has
elected or appointed a majority of the Attwoods Board of Directors.
B. Unless the United States, after consultation with Florida and
Maryland, otherwise consents, divestiture under Section IV.A, or by the
trustee appointed pursuant to Section V, shall be accomplished in such
a way as to satisfy the United States, in its sole determination after
consultation with Florida and Maryland, that the Honey Brook Assets,
the All Jax Assets, the Frederick Assets, and the Salisbury Assets can
and will be operated by the purchaser or purchasers as viable, ongoing
businesses engaged in solid waste hauling in their respective areas.
Divestiture under Section IV.A or by the trustee, shall be made to a
purchaser or purchasers for whom it is demonstrated to the satisfaction
of the United States, after consultation with Florida and Maryland,
that (1) the purchase or purchases is or are for the purpose of
competing effectively in at least small container solid waste hauling
and (2) the purchaser or purchasers has or have the managerial,
operational, and financial capability to compete effectively in at
least small container solid waste hauling.
C. BFI shall not require of the purchaser or purchasers, as a
condition of sale, that any current employee of the Divestiture Assets
be offered or guaranteed continued employment after the divestiture.
D. BFI shall take all reasonable steps to accomplish quickly the
divestitures contemplated by this Final Judgment.

Appointment of Trustee

A. In the event that BFI has not divested all of its interest
required by Section IV.A by the time set forth in Section IV.A, the
Court shall, on application of the United States, after consultation
with Florida and Maryland, appoint a trustee selected by the United
States to effect the remainder of the divestiture required by Section
IV.A. After the appointment of a trustee becomes effective, only the
trustee shall have the right to sell the assets required to be divested
pursuant to Section IV.A. The trustee shall have the power and
authority to accomplish the divestiture at the best price then
obtainable upon a reasonable effort by the trustee, subject to the
provisions of Section VI of this Final Judgment, and shall have such
other powers as the Court shall deem appropriate. Defendant shall not
object to a sale by the trustee on any grounds other than the trustee's
malfeasance, or on the grounds that the sale is contrary to the express
terms of this Final Judgment. Any such objections by defendant must be
conveyed in writing to plaintiffs and the trustee within ten (10) days
after the trustee has provided the notice required under Section VI.
B. The trustee shall serve at the cost and expense of BFI, on such
terms and conditions as the Court may prescribe, 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, all remaining
money shall be paid to BFI and the trust shall then be terminated. The
compensation of such trustee shall be reasonable 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.
C. BFI shall use its 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 of the Divestiture Assets, and defendant shall
develop financial or other information relevant to such assets as the
trustee may reasonably request, subject to reasonable protection for
trade secret or other confidential research, development, or commercial
information. Defendant shall take no action to interfere with or to
impede the trustee's accomplishment of the divestiture.
D. After its appointment, the trustee shall file monthly reports
with the parties and the Court setting forth the trustee's efforts to
accomplish the divestiture ordered under this Final Judgment. If the
trustee has not accomplished such divestiture within six (6) months
after its appointment, the trustee shall thereupon 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. The trustee shall at the same time
furnish such report to the parties, who shall each have the right to be
heard and to make additional recommendations consistent with the
purpose of the trust. The Court shall thereafter enter such orders as
it shall deem appropriate in order to carry out the purpose of the
trust, which may, if necessary, include extending the trust and the
term of the trustee's appointment by a period requested by the United
States, after consultation with Florida and Maryland.
E. Defendant shall give 45 days' notice to the United States, to
Florida and to Maryland prior to:

(1) Acquiring any interest in any assets other than in the
ordinary course of business of any person that, at any time during
the 12 months immediately preceding the acquisition, was engaged in
the solid waste hauling industry in Maryland, Florida, Delaware or
Pennsylvania where that person had small container revenues in
excess of $500,000 per year or total revenues in excess of $1
million per year;
(2) Acquiring any capital stock, or any other securities with
voting rights of any supplier of solid waste hauling services, that
at any time during the twelve (12) months immediately preceding the
acquisition had been engaged in the solid waste hauling industry in
Maryland, Florida, Delaware or Pennsylvania where that person had
small container revenues in excess of $500,000 per year or total
revenues in excess of $1 million per year;
(3) Selling or transferring to any firm engaged in the solid
waste hauling industry in the United States any of defendant's
assets other than in the ordinary course of business that at any
time during the 12 months immediately preceding the sale or transfer
were used in the solid waste hauling industry in Maryland, Florida,
Delaware or Pennsylvania where the assets are small container assets
that generated in excess of $500,000 in revenues per year or where
total revenues are in excess of $1 million per year;
(4) Selling or transferring to any firm engaged in the solid
waste hauling industry in Maryland, Florida, Delaware or
Pennsylvania any of defendant's equity securities or any other
securities with voting rights if the sale would give control over a
solid waste hauling operation that generated small container
revenues in excess of $500,000 per year or total revenues of $1
million per year.

F. Defendant shall give 45 days' notice to the United States and to
Maryland prior to:

G. Defendant shall give 45 days' notice to the United States and to
Florida prior to:

(1) Acquiring any interest in any assets other than in the
ordinary course of business of any person that, at any time during
the 12 months immediately preceding the acquisition, was engaged in
the solid waste hauling industry in Florida, where the revenues of
that person, when aggregated with the revenues of any person or
persons acquired in the previous 6 months, exceed the revenue limits
of paragraph E (1) above;
(2) Acquiring any capital stock, or any other securities with
voting rights of any supplier of solid waste hauling services, that
at any time during the 12 months immediately preceding the
acquisition had been engaged in the solid waste hauling industry in
Florida, where the revenues of that person, when aggregated with the
revenues of any person or persons acquired in the previous 6 months,
exceed the revenue limits of paragraph E (2) above.

H. The purchaser or purchasers of the Divestiture Assets, or any of
them, shall not, without the prior written consent of the United
States, after consultation with Florida and Maryland, sell any of those
assets to, or combine any of those assets with, those of BFI during the
life of this decree. Furthermore, the purchaser or purchasers of the
Divestiture Assets, or any of them, shall notify plaintiffs 45 days in
advance of any proposed sale of all or substantially all of the assets,
or control over those assets, acquired pursuant to this Final Judgment.

Notification

A. BFI or the trustee, whichever is then responsible for effecting
the divestiture required herein, shall notify plaintiffs of any
proposed divestiture required by Section IV or V of this Final
judgment. If the trustee is responsible, it shall similarly notify BFI.
The notice shall set forth the details of the proposed transaction and
list the name, address, and telephone number of each person not
previously identified who offered or expressed an interest or desire to
acquire any ownership interest in the Divestiture Assets or any of
them, together with full details of the same. Within fifteen (15) days
after receipt of the notice, plaintiffs may request additional
information concerning the proposed divestiture, the proposed
purchaser, and any other potential purchaser. BFI or the trustee shall
furnish the additional information within fifteen (15) days of the
receipt of the request. Within thirty (30) days after receipt of the
notice or within fifteen (15) days after receipt of the additional
information, whichever is later, the United States, after consultation
with Florida and Maryland, shall notify in writing BFI and the trustee,
if there is one, if it objects to the proposed divestiture. If the
United States fails to object within the period specified, or if the
United States notifies in writing BFI and the trustee, if there is one,
that it does not object, then the divestiture may be consummated,
subject only to BFI's limited right to object to the sale under Section
V.A. Upon objection by the United States, after consultation with
Florida and Maryland, or by BFI under Section V.A, the proposed
divestiture shall not be accomplished unless approved by the Court.
B. Thirty (30) days from the date when BFI elects or appoints a
majority of the Board of Directors of Attwoods, but in no event later
than December 30, 1994, and ever thirty (30) days thereafter until the
divestiture has been completed, BFI shall deliver to plaintiffs a
written report as to the fact and manner of compliance with Section IV
of this Final Judgment. Each such report shall include, for each person
who during the preceding thirty (30) days made an offer, expressed an
interest or desire to acquire, entered into negotiations to acquire, or
made an inquiry about acquiring any ownership interest in the
Divestiture Assets or any of them, the name, address, and telephone
number of that person and a detailed description of each contract with
that person during that period. BFI shall maintain full records of all
efforts made to divest the Divestiture Assets or any of them.

VII

Financing

BFI shall not finance all or any part of any purchase made pursuant
to Sections IV or V of this Final Judgment without the prior written
consent of the United States, after consultation with Florida and
Maryland.

VIII

Contractual Revisions

A. In accordance with paragraph VIII B, below, BFI shall alter the
contracts it uses with its small container solid waste commercial
customers in the following Maryland areas: Anne Arundel County,
Baltimore City, Baltimore County, Calvert County, Carroll County,
Harford County, Howard County, Montgomery County and Prince George's
County to the form contained in the attached Exhibit A.
B. BFI shall offer contracts in the form attached as Exhibit A to
all new small container solid waste commercial customers or customers
that sign new contracts for small container solid waste commercial
service effective beginning on the date BFI acquires a majority of
Attwoods' ordinary shares. BFI shall offer such contracts to all other
small container solid waste commercial customers in the above area by
December 1, 1995.
C. In accordance with paragraph VIII D below BFI shall alter the
contracts it uses with its small container solid waste commercial
customers in the following areas of Florida: Broward County and Polk
County to the form contained in the attached Exhibit B.
D. BFI shall offer contracts in the form attached as Exhibit B to
all new small container solid waste commercial customers or customers
that sign contracts for small container solid waste commercial service
effective beginning on the date BFI acquires a majority of Attwood's
ordinary shares. BFI shall offer such contracts to all other small
container solid waste commercial customers in Broward County, Florida
and Polk County, Florida by December 1, 1995.

Compliance Inspection

For the purpose of determining or securing compliance with this
Final Judgment, and subject to any legally recognized privilege, from
time to time:
A. Duly authorized representatives of the United States, Florida,
or Maryland, including consultants and other persons retained by the
plaintiffs, shall, upon the written request of the Assistant Attorney
General in charge of the Antitrust Division or the Attorney General of
the State of Florida or the Attorney General of the State of Maryland,
respectively, and on reasonable notice to BFI made to its principal
offices, be permitted:

1. Access during office hours to inspect and copy all books,
ledgers, accounts, correspondence, memoranda, and other records and
documents in the possession or under the control of defendant, which
may have counsel present, relating to any matters contained in this
Final Judgment; and
2. Subject to the reasonable convenience of BFI and without
restraint or interference from them, to interview BFI directors,
officers, employees, and agents who may have counsel present,
regarding any such matters.

B. Upon the written request of the Assistant Attorney General in
charge of the Antitrust division or the Attorney General of the State
of Florida or the Attorney General of the State of Maryland,
respectively, made to BFI at its principal offices, BFI shall submit
such written reports, under oath if requested, with respect to any of
the matters contained in this Final Judgment as may be requested.
C. No information nor any documents obtained by the means provided
in this Section IX shall be divulged by any representative of the
United States or the Office of the Attorney General of Florida or the
Office of the Attorney General of Maryland to any person other than a
duly authorized representative of the Executive Branch of the United
States or of the Office of the Attorney General of Florida or of the
Office of the Attorney General of Maryland, except in the course of
legal proceedings to which the United States or the Attorney General of
Florida or the State of Maryland 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 BFI to
plaintiffs, BFI represents and identifies in writing the material in
any such information or documents for which a claim of protection may
be asserted under Rule 26(c)(7) of the Federal Rules of Civil
Procedure, and BFI marks each pertinent page of such material,
``Subject to claim of protection under Rule 26(c)(7) of the Federal
Rules of Civil Procedure,'' then plaintiffs shall given ten (10) days
notice to BFI prior to divulging such material in any legal proceeding
(other than a grand jury proceeding) to which BFI is not a party.

Retention of Jurisdiction

Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders and directions as may be necessary or
appropriate for the construction, implementation, or modification of
any of the provisions of this Final Judgment, for the enforcement of
compliance herewith, and for the punishment of any violations hereof.

Termination

This Final Judgment will expire on the tenth anniversary of the
date of its entry.

XII

Public Interest

Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16

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United States District Judge

Exhibit A

Contract for Solid Waste Services

Date: ____________

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Service Location (which shall be deemed to include all locations to
which the identified location is relocated or reestablished.)

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Street No. & Name

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City Zip

Telephone Fax
Dear ____________:
Thank you for choosing BFI as your waste services company. Our aim
is to provide this essential service so responsibly and dependably that
you don't need to give it a second thought. We will do our best to keep
you satisfied and want you to tell us when we don't. This contract will
continue in effect for one year and will renew for successive one-year
periods unless terminated in writing at least 30 days prior to the end
of a period. You may also terminate when appropriate under ``Our
Guaranty.''

Our Mission

Our Mission is to provide the highest quality waste collection,
transportation, processing, disposal and related services to both
public and private customers worldwide. We will carry out our Mission
efficiently, safely and in an environmentally responsible manner with
respect for the role of government in protecting the public interest.

Our Guaranty

We guarantee the quality of our waste services. If our services do
not measure up to the standards described in this contract, and we do
not correct the problems with 48 hours (excluding Sundays) after we
receive written notice from you (unless the problem is caused by
circumstances outside our reasonable control), you may terminate our
services and this contract without penalty.

Our Responsibilities

1. The specific services we will provide, and the schedule and
initial charges for each service, are listed below. We will give you at
least 30 days written notice if we increase our charges, which we
reserve the right to do from time to time proportionately in connection
with increases in costs for disposal, longer transportation distances,
fuel, regulatory compliance, taxes, and increases in average weight per
container yard. In connection with increases in the cost of disposal,
we frequently do not receive advance notice of increases. We reserve
the right to pass on to you such increases without 30 days advance
notice but will give you as much notice as possible. Customers will be
provided in writing with the formula used in calculating increases
based upon increases in disposal fees. We will advise Customer in
writing of the reason for the increase and do our best to satisfy any
concerns you have about any increases. Any other type of price increase
requires your written consent.
2. Our employees will be friendly, courteous and responsive. They
will, in writing, have gone through a customer satisfaction and safety
training program, and will provide quality, professional service.
3. We will provide and maintain the equipment you need for the
deposit and other handling of the materials that we have agreed to pick
up from you.
4. We are committed to making every pick-up as scheduled, but if we
are unable to do so, we will make every effort to let you know in
advance and reschedule it within 24 hours.

Your Responsibilities

1. You agree that BFI will provide the specified services for all
your non-hazardous waste. You agree not to deposit radioactive,
volatile, corrosive, highly flammable, explosive, infectious, toxic or
hazardous waste in our equipment and will indemnify us from resulting
liabilities if you do. Anything else that is deposited in our truck
becomes our property at that time.
2. You agree to provide us with access to our equipment over
surfaces that can sustain the weight and operation of our vehicles. You
also agree not to overload (by weight or volume), abuse or move our
equipment; but if it does need to be moved, you will call us.
3. You agree to use your best efforts to keep people from coming
into contact with our equipment other than those who are authorized and
trained to use it.
4. You agree to pay our bills monthly, within ten days after they
are received. We reserve the right to charge a late fee on all past due
payments.
5. If you terminate this contract during your first 10 months as a
BFI customer (other than as provided under ``Our Guaranty''), you agree
to pay us, as liquidated damages and not as a penalty, two times your
prior average monthly charges. If you terminate after you have been a
BFI customer for more than 10 months (other than as provided under
``Our Guaranty''), you agree to pay us as liquidated damages an amount
equal to one month average charges.
We look forward to a long-lasting relationship, so please let us
know if you have any problems or concerns as they occur and give us the
opportunity to provide solutions. As we deliver our services, we will
continuously look for ways to keep you satisfied.

Service Description
--------------------------------------------------------------------------------------------------------------------------------------------------------
Zero Monthly
Line No. System Qty. Cont Vol Freq Comp On Pick up/ Est. TCT Est. Disp Min equip
Size Code call haulrate hauls flag MNTS site hauls charges
--------------------------------------------------------------------------------------------------------------------------------------------------------
N 1.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
E 2.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
W 3.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
O 1.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
L 2.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
D 3.................................. ...... ...... ...... ...... ...... ...... ...... ........ ...... ...... ...... ...... ...... .......
--------------------------------------------------------------------------------------------------------------------------------------------------------

Other Services:--------------------------------------------------------

Other Charges:---------------------------------------------------------

CUSTOMER---------------------------------------------------------------

Name of Operating Browning-Ferris Industries Subsidiary

By:--------------------------------------------------------------------

BY:--------------------------------------------------------------------

Title:-----------------------------------------------------------------

Agreed to this ______ day of __________ 19 ____
Service to Start On:---------------------------------------------------

Exhibit B

Contract for Solid Waste Services

Date: ____________

Service Location (which Business Name shall be deemed to include all
locations to which the identified location is relocated or
reestablished.)

----------------------------------------------------------------------

Business Name

----------------------------------------------------------------------

Street No. & Name------------------------------------------------------

City Zip------------------------------------------------------------
----------------------------------------------------------------------

----------------------------------------------------------------------

Telephone Fax
Dear ____________:
Thank you for choosing BFI as your waste services company. Our aim
is to provide this essential service so responsibly and dependably that
you don't need to give it a second thought. We will do our best to keep
you satisfied and want you to tell us when we don't. This contract will
continue in effect for two years and will renew for successive one-year
periods unless terminated in writing at least 30 days prior to the end
of a period. You may also terminate when appropriate under ``Our
Guaranty.''

Our Mission

Our Guaranty

We guarantee the quality of our waste services. If our services do
not measure up to the standards described in this contract, and we do
not correct the problem with 48 hours (excluding Sundays) after we
receive written notice from you (unless the problem is caused by
circumstances outside our reasonable control), you may terminate our
services and this contract without penalty.

Our Responsibilities

1. The specific services we will provide, and the schedule and
initial charges for each service, are listed below. We will give at
least 30 days written notice if we increase our charges, which we
reserve the right to do from time to time proportionately in connection
with increases in costs for disposal, longer transportation distances,
fuel, regulatory compliance, taxes, and increases in average weight per
container yard. In connection with increases in the cost of disposal,
we frequently do not receive advance notice of increases. We reserve
the right to pass on to you such increases without 30 days advance
notice but will give you as much notice as possible. Customers will be
provided in writing with the formula used in calculating increases
based upon increases in disposal fees. We will advise Customer in
writing of the reason for the increase and do our best to satisfy any
concerns you have about any increases. Any other type of price increase
requires your written consent.
2. Our employees will be friendly, courteous and responsive. They
will, in writing, have gone through a customer satisfaction and safety
training program, and will provide quality, professional service.
3. We will provide and maintain the equipment you need for the
deposit and other handling of the materials that we have agreed to pick
up from you.
4. We are committed to making every pick-up as scheduled, but if we
are unable to do so, we will make every effort to let you know in
advance and reschedule it within 24 hours.

Your Responsibilities

1. You agree that BFI will provide the specified services for all
your non-hazardous waste. You agree not to deposit any radioactive,
volatile, corrosive, highly flammable, explosive, infectious, toxic or
hazardous waste in our equipment and will indemnify us from resulting
liabilities if you do. Anything else that is deposited in our truck
becomes our property at that time.
2. You agree to provide us with access to our equipment over
surfaces that can sustain the weight and operation of our vehicles. You
also agree not to overload (by weight or volume), abuse or move our
equipment; but if it does need to be moved, you will call us.
3. You agree to use your best efforts to keep people from coming
into contact with our equipment other than those who are authorized and
trained to use it.
4. You agree to pay our bills monthly, within ten days after they
are received. We reserve the right to charge a late fee on all past due
payments.
5. If you terminate this contract during your first 10 months as a
BFI customer (other than as provided under ``Our Guaranty''), you agree
to pay us, as liquidated damages and not as a penalty, three times your
prior average monthly charges. If you terminate after you have been a
BFI customer for more than 10 months (other than as provided under
``Our Guaranty''), you agree to pay us as liquidated damages an amount
equal to two months average charges.
We look forward to a long-lasting relationship, so please let us
know if you have any problems or concerns as they occur and give us the
opportunity to provide solutions. As we deliver our services, we will
continuously look for ways to keep you satisfied.

Service Description
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pick Zero Mim. Monthly
Line No. System Qty Cont Vol Freq Comp On up/HAU Est. TCT Est. Disp haul equip.
size code call rate hauls flag mnts site rate charges
--------------------------------------------------------------------------------------------------------------------------------------------------------
N 1.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
E 2.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
W 3.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
O 1.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
L 2.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
D 3.................................... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... .......
--------------------------------------------------------------------------------------------------------------------------------------------------------

Other Services---------------------------------------------------------

Other Charges:---------------------------------------------------------

CUSTOMER---------------------------------------------------------------

Name of Operating Browning-Ferris Industries Subsidiary
By:--------------------------------------------------------------------
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
Agreed to this ________ day of ____________ 19____
Service to Start On:---------------------------------------------------

Exhibit B

Competitive Impact Statement

United States of America, State of Florida, by and through its
Attorney General Robert A. Butterworth, and State of Maryland, by
and through its Attorney General J. Joseph Curran, Jr., Plaintiffs
v. Browning-Ferris Industries, Inc., Defendant.

Civil Action No.: 1:94CV02588, Judge Richey.

Filed: 12/2/94.
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 proceeding.

Nature and Purpose of the Proceeding

The United States filed a civil antitrust Complaint under Section
15 of the Clayton Act, 15 U.S.C. 25, on December 1, 1994, alleging that
the proposed acquisition of the ordinary shares of Attwoods plc
(``Attwoods'') by Browning-Ferris Industries, Inc. (``BFI'') would
constitute a violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
The State of Florida and the State of Maryland, by and through their
respective Attorneys General, are co-plaintiffs with the United States
in this action.^{1
---------------------------------------------------------------------------

\1\The APPA obligates only the United States to file a
Competitive Impact Statement.
---------------------------------------------------------------------------

The Complaint alleges that the effect of the acquisition may be
substantially to lessen competition in small containerized waste
hauling services in Chester County, Pennsylvania; Clay, Duval, Polk,
and Broward counties, Florida; Baltimore City, Baltimore County, and
Anne Arundel County, Maryland (``Baltimore market''); Wicomico,
Dorchester, Worcester, and Somerset counties, Maryland (``Southern
Eastern Shore market''); Sussex County, Delaware; and Frederick County
and Washington County, Maryland (``Western Maryland market'').
Plaintiffs seek, among other relief, a permanent injunction
preventing the defendant from, in any manner, combining its assets with
those of Attwoods in Duval and Clay counties, Florida; Chester County,
Pennsylvania; the Southern Eastern Shore market; Sussex County,
Delaware; and the Western Maryland market. By the terms of a Hold
Separate Stipulation and Order, which was filed simultaneously with the
proposed Final Judgment, defendant BFI must take certain steps to
ensure that, until the required divestiture has been accomplished, the
Attwoods' assets as outlined in the proposed Final Judgment will be
held separate and apart from defendant's other assets and businesses.
BFI must, until the required divestiture is accomplished, preserve and
maintain the specified Attwoods assets as saleable and economically
viable ongoing concerns.
The United States, its co-plaintiffs, and the defendant also have
filed a stipulation by which the parties consented to the entry of a
proposed Final Judgment designed to eliminate the anticompetitive
effects of the acquisition. Under the proposed Final Judgment, as
explained more fully below, BFI would be required, within 90 days
following the date a majority of the Attwoods Board of Directors is
elected or appointed by BFI, but in no event later than March 30, 1995,
to divest, as viable business operations, Attwoods' small container
businesses serving the Western Maryland market; Duval and Clay
counties, Florida; Chester County, Pennsylvania; and the areas where
Attwoods provides small container service from its Salisbury, Maryland
Division (the Southern Eastern Shore market and Sussex County,
Delaware). If BFI were not to do so within the time frame in the
proposed Final Judgment, a trustee appointed by the Court would be
empowered for an additional six months to sell those assets. If the
trustee is unable to do so in that time, the Court could enter such
orders as it shall deem appropriate to carry out the purpose of the
trust, which may, if necessary, include extending the trust and the
trustee's appointment by a period requested by the United States, after
consultation with its co-plaintiffs.
Additionally, under the proposed Final Judgment, as explained more
fully below, defendant BFI would be required to offer less restrictive
contracts to its small container solid waste hauling customers in the
Baltimore market, and the following neighboring counties: Carroll
County, Howard County, Harford County, Calvert County, Prince George's
County, and Montgomery County, Maryland; and in Polk and Broward
counties, Florida.
The United States, its co-plaintiffs, and the defendant have
stipulated that the proposed Final Judgment may be entered after
compliance with the APPA. Entry of the proposed Final Judgment would
terminate action, except that the Court would retain jurisdiction to
construe, modify, or enforce the provisions of the proposed Final
Judgment and to punish violations thereof.

II.

Description of the Events Giving Rise to the Alleged Violation

BFI is the world's second largest company engaged in the solid
waste hauling and disposal business, with operations throughout the
United States and in several foreign countries. BFI had total revenues
of over $3 billion from solid waste hauling and disposal in its 1993
fiscal year.
Attwoods plc is a United Kingdom company with solid waste hauling
operations in Florida and in the mid-Atlantic region of the United
States. Attwoods' U.S. revenues in 1993 were $327.9 million.
On September 20, 1994, BFI announced an unsolicited tender offer
for the ordinary shares of Attwoods plc, seeking to acquire enough
ordinary shares to give BFI control. If BFI were to acquire more than
50 percent of the ordinary shares of Attwoods plc, BFI's and Attwoods'
solid waste hauling service operations, in particular in the U.S.,
effectively would be merged.
A. The Solid Waste Hauling Industry
Solid waste hauling involves the collection of paper, food,
construction material and other solid waste from homes, businesses and
industries, and the transporting of that waste to a landfill or other
disposal site. These services may be provided by private haulers
directly to residential, commercial and industrial customers, or
indirectly through municipal contracts and franchises.
Service to commercial customers accounts for a large percentage of
total hauling revenues. Commercial customers include restaurants, large
apartment complexes, retail and wholesale stores, office buildings, and
industrial parks. These customers typically generate a substantially
larger volume of waste than that generated by residential customers.
Waste generated by commercial customers is generally placed in metal
containers of one to ten cubic yards provided by their hauling company.
One to ten cubic yard containers are called ``small containers.'' Small
containers are collected primarily by frontend load vehicles that lift
the containers over the front of the truck by means of a hydraulic
hoist and empty them into the storage section of the vehicle, where the
waste is compacted. Specially-rigged rearend load vehicles can also be
used to service some small container customers, but these trucks
generally are not as efficient as frontend load vehicles and are
limited in the sizes of containers they can safely handle. Frontend
load vehicles can drive directly up to a container and hoist the
container in a manner similar to a forklift hoisting a pallet; the
containers do not need to be manually rolled into position by a truck
crew as with a rearend load vehicle. Service to commercial customers
that use small containers is called ``small containerized hauling
service.''
Solid waste hauling firms also provide service to residential and
industrial (or ``roll-off'') customers. Residential customers,
typically households and small apartment complexes that generate small
amounts of waste, use noncontainerized solid waste hauling service,
normally placing their waste in plastic bags or trash cans at curbside.
Rearend load vehicles are generally used to collect waste from
residential customers and from those commercial customers that generate
relatively small quantities of solid waste, similar in amount and kind
to those generated by residential customers. Generally, rearend loaders
use a one or two person crew to manually load the waste into the rear
of the vehicle.
Industrial or roll-off customers include factories and construction
sites. These customers either generate non-compactible waste, such as
concrete or building debris, or very large quantities of compactible
waste. They deposit their waste into very large containers (usually 20
to 40 cubic yards) that are loaded onto a roll-off truck and
transported individually to the disposal site where they are emptied
before being returned to the customer's premises. Some customers, like
shopping malls, use large, roll-off containers with compactors. This
type of customer generally generates compactible trash, like cardboard,
in very great quantities; it is more economical for this type of
customer to use roll-off service with a compactor than to use a number
of small containers picked up multiple times a week.
B. Small Containerized Hauling Service
There are no practical substitutes for small containerized hauling
service. Small containerized hauling service customers will not
generally switch to noncontainerized hauling service because it is too
impractical and costly for those customers to bag and carry their trash
to the curb for hand pick-up. Small containerized hauling service
customers also value the cleanliness and relative freedom from
scavengers afforded by that service. Similarly, roll-off service is
much too costly and takes up too much space for most small
containerized hauling service customers. Only customers that generate
the largest volumes of solid waste can economically consider roll-off
service, and for customers that do generate large volumes of waste,
roll-off service is usually the only viable option. Accordingly, small
containerized hauling service is a line of commerce and a relevant
product market.
Solid waste hauling services are generally provided in very
localized areas. Route density (a large number of customers that are
close together) is necessary for small containerized solid waste
hauling firms to be profitable. In addition, it is not economically
efficient for heavy trash hauling equipment to travel long distances
from customers without collecting significant amounts of waste. Thus,
it is not efficient for a hauler to serve major metropolitan areas from
a distant base. Haulers, therefore, generally establish garages and
related facilities within each major local area served. Local laws or
regulations that restrict where waste can be disposed of may further
localize markets. Flow control regulations designate the disposal
facilities where trash picked up within a geographic area must be
disposed. Other local regulations may also prohibit the depositing of
trash from outside a particular jurisdiction in disposal facilities
located within that jurisdiction. These laws and regulations dictate
that haulers operate only in these local jurisdictions so that they may
use the designated disposal facilities. Thus, the Complaint alleges
that small containerized hauling services in certain specific
geographic areas constitute a line of commerce and a relevant market
for antitrust purposes.
The Complaint alleges each of the following as a relevant
geographic market for small containerized hauling services: (1) The
Baltimore market; (2) Broward County, Florida; (3) Chester County,
Pennsylvania; (4) Clay County, Florida; (5) Duval County, Florida; (6)
Polk County, Florida; (7) the Southern Eastern Shore market; (8) Sussex
County, Delaware; and (9) the Western Maryland market.
BFI and Attwoods compete with each other in small containerized
hauling services in each of the relevant geographic markets named, all
of which are highly concentrated and become substantially more
concentrated as a result of the proposed acquisition. In the markets of
concern, BFI and Attwoods have the following approximate shares of the
small containerized hauling business: (1) Baltimore market, BFI 31
percent, Attwoods 22 percent; (2) Broward County, Florida, BFI 11
percent, Attwoods 12 percent;\2\ (3) Chester County, Pennsylvania, BFI
38 percent, Attwoods 20 percent; (4) Clay County, Florida, BFI 27
percent, Attwoods 22 percent; (5) Duval County, Florida, BFI 38
percent, Attwoods 14 percent; (6) Polk County, Florida, BFI 33 percent,
Attwoods 18 percent; (7) the Southern Eastern Shore. BFI 31, Attwoods
24 percent; (8) Sussex County, Delaware, BFI 19 percent, Attwoods 27
percent; and (9) Western Maryland, BFI 38 percent, Attwoods 23 percent.
---------------------------------------------------------------------------

\2\The market share data and HHI calculations in Broward County
and Polk County, Florida are based on open commercial areas not
subject to municipal or county franchises.
---------------------------------------------------------------------------

The acquisition would increase the Herfindahl-Hirschmann Index
(``HHI''),\3\ a measure of market concentration, by the following
amounts in the following areas: (1) Baltimore market, by about 1350, to
about 3300; (2) Broward County, Florida, by about 260 to about 2870;
(3) Chester County, Pennsylvania, by about 1500, to about 3750; (4)
Clay County, Florida, by about 1200, to about 4000; (5) Duval County,
Florida, by about 1025, to about 3475; (6) Polk County, Florida, by
about 1190, to about 4020; (7) the Southern Eastern Shore, by about
1450, to about 3650; (8) Sussex County, Delaware, by 1010, to about
2970; and (9) Western Maryland, by about 1725, to about 3950.
---------------------------------------------------------------------------

\3\The Herfindahl-Hirschmann Index (``HHI'') is a measure of
market concentration calculated by squaring the market share of each
firm competing in the market and then summing the resulting numbers.
For example, for a market consisting of four firms with shares of
30, 30, 20 and 20 percent, the HHI is 2600 (30 squared (900) plus 30
squared (900) plus 20 squared (400) plus 20 squared (400) = 2600).
The HHI, which takes into account the relative size and distribution
of the firms in a market, ranges from virtually zero to 10,000. The
index approaches zero when a market is occupied by a large number of
firms of relatively equal size. The index increases as the number of
firms in the market decreases and as the disparity in size between
the leading firms and the remaining firms increases.
---------------------------------------------------------------------------

A new entrant cannot constrain the prices of larger incumbents
until it achieves minimum efficient scale and operating efficiencies
comparable to the incumbent firms. In small containerized hauling
service, achieving comparable operating efficiencies requires achieving
route density comparable to existing firms, which typically takes a
substantial period of time. A substantial barrier to entry is the use
of long-term contracts coupled with selective pricing practices by
incumbent firms to deter new entrants into small containerized hauling
service and to hinder them in winning enough customers to build
efficient routes. Further, even if a new entrant endures and grows to a
point near minimum efficient scale, the entrant will often be purchased
by an incumbent firm and will be removed as a competitive threat.
Solid waste hauling is an industry highly susceptible to tacit or
overt collusion among competing firms. Overt collusion has been
documented in more than a dozen criminal and civil antitrust cases
brought in the last decade and a half. Such collusion typically
involves customer allocation and price fixing, and where it has
occurred, has been shown to persist for many years.
The elimination of one of a small number of significant
competitors, such as would occur as a result of the proposed
transaction in the alleged markets, significantly increases the
likelihood that consumers in these markets are likely to face higher
prices or poorer quality service.
Based on the foregoing and other facts, the Complaint alleges that
the effect of the proposed acquisition may be substantially to lessen
competition in the above-described geographic areas in the small
containerized hauling service market in violation of Section 7 of the
Clayton Act.

III.

Explanation of the Proposed Final Judgment

The provisions of the proposed Final Judgment are designed to
eliminate the anticompetitive effects of the acquisition in small
containerized hauling services in certain geographic markets by
establishing a new, independent and economically viable competitor in
those markets. The proposed Final Judgment requires BFI, within 90 days
following the date a majority of the Attwoods Board of Directors is
elected or appointed by BFI, but in no event later than March 30, 1995,
to divest, as viable ongoing businesses, the small container business
of Attwoods serving Chester County, Pennsylvania, Duval and Clay
counties, Florida, the Western Maryland market, Sussex County,
Delaware, and the Southern Eastern Shore market. The divestiture would
include both the small containerized hauling service assets and such
other assets as may be necessary to insure the viability of the small
container business. If BFI cannot accomplish these divestitures within
the above-described period, the Final Judgment provides that, upon
application (after consultation with the states of Florida and
Maryland) by the United States as plaintiff, the Court will appoint a
trustee to effect divestiture.
The proposed Final Judgment provides that the assets must be
divested in such a way as to satisfy plaintiff United States (after
consultation with the states of Florida and Maryland) that the
operations can and will be operated by the purchaser or purchasers as
viable, ongoing businesses that can compete effectively in the relevant
markets. Similarly, if the divestiture is accomplished by the trustee,
the assets must be divested in such a way as to satisfy plaintiff
United States (after consultation with the states of Florida and
Maryland) that the businesses can and will be operated as viable,
independent competitors by the purchaser or purchasers. The defendant
must take all reasonable steps necessary to accomplish the divestiture
and shall cooperate with bona fide prospective purchasers and, if one
is appointed, with the trustee.
If a trustee is appointed, the proposed Final Judgment provides
that BFI will pay all costs and expenses of the trustee. The trustee's
commission will be structured so as to provide an incentive for the
trustee based on the price obtained and the speed with which
divestiture is accomplished. After his or her appointment becomes
effective, the trustee will file monthly reports with the parties and
the Court, setting forth the trustee's efforts to accomplish
divestiture. At the end of six months, if the divestiture has not been
accomplished, the trustee and the parties will make recommendations to
the Court which shall enter such orders as appropriate in order to
carry out the purpose of the trust, including extending the trust or
the term of the trustee's appointment.
The proposed Final Judgment also requires BFI to offer less
restrictive contracts (attached to the proposed Final Judgment as
Exhibit A) to small containerized hauling customers in the Baltimore
market, and in the following neighboring counties: Howard, Carroll,
Harford, Prince George's, Calvert, and Montgomery.
These changes to the contracts involve substantially shortening the
term of contracts BFI uses from three years to one year and
substantially reducing the amount of liquidated damages. The proposed
Final Judgment requires that these revised contracts shall be offered
to all new small containerized hauling customers or to existing
customers that sign new contracts for small containerized hauling
services, effective beginning the date BFI acquires a majority of
Attwoods' ordinary shares. By December 1, 1995, BFI must offer the
revised contract attached as Exhibit A to the proposed Final Judgment
to all of its (and former Attwoods') small containerized hauling
service customers in the area described in the preceding paragraph.
The United States concluded divestiture was not necessary in the
Baltimore market and that a change in the types of contracts used with
small containerized hauling service in this market and in the adjoining
areas of Calvert, Carroll, Harford, Howard, Montgomery, and Prince
George's counties, Maryland, will adequately address the competitive
concerns posed by BFI's acquisition of a majority of Atwoods' ordinary
shares. A number of factors led to that decision, including the number
of existing competitors in the market; the size of the population and
number and density of commercial establishments requiring small
containerized hauling service; and the number of haulers that currently
do not provide but could, absent the long-term contracts that now
exist, easily and quickly provide small containerized hauling service
in the market. Due to these factors, requiring BFI to offer less
restrictive contracts both within the market and throughout the
neighboring counties eliminates a major barrier to entry and expansion.
Haulers already serving the market will be able to more easily expand
their current or build new routes and nearby haulers will be able to
build routes, thus constraining any possible anticompetitive price
increase by the post-acquisition firm.
The proposed Final Judgment also requires BFI to offer less
restrictive contracts (attached to the proposed Final Judgment as
Exhibit B) to small containerized hauling customers in Polk and Broward
counties, Florida. The changes to the contracts involve substantially
shortening the term of contracts BFI uses from five years to two years
and substantially reducing the amount of liquidated damages. The
proposed Final Judgment requires that these revised contracts shall be
offered to all new small containerized hauling customers or to existing
customers that sign new contracts for small containerized hauling
service, effective beginning the date BFI acquires a majority of
Attwoods' ordinary shares. By December 1, 1995, BFI must offer the
revised contract attached as Exhibit B to the proposed Final Judgment
to all of its (and former Atwoods') small containerized hauling service
customers in Polk and Broward counties, Florida.
The United States concluded that these contracts revisions in Polk
and Broward counties will adequately address the competitive concerns
posed by BFI's acquisition of the majority of Atwoods' stock in these
markets. In Broward County, the number and relative size of other
competitors, and the fact that the merged firm would have a market
share of 23 percent were all factors in reaching this conclusion. In
Polk County, which has only a limited amount of small containerized
hauling service that is open to private haulers (a large percentage of
the service is provided by municipalities), and is located 30 miles
from Tampa, a major metropolitan area, there are at least one or two
strong haulers that could easily and quickly enter if prices for small
containerized hauling service in Polk County were to rise to constrain
possible anticompetitive behavior. With less restrictive contracts
being used, these haulers would be able to obtain customers and build
sufficient route density to create profitable routes.
The relief sought in the various markets alleged in the complaint
has been tailored to insure that, given the specific conditions in each
market, the relief will protect consumers of small containerized
hauling service from higher prices and poorer quality service in those
markets that might otherwise result from the acquisition.

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 defendant.

Procedures Available for Modification of the Proposed Final Judgment

The United States and defendant 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 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 Department of Justice, which remains free to withdraw its
consent to the proposed Judgment at any time prior to entry. 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: Anthony V. Nanni, Chief,
Litigation I Section, Antitrust Division, United States Department of
Justice, 1401 H Street, N.W., Suite 4000, Washington, D.C. 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.

VI.

Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed
Final Judgment, litigation against defendant BFI. The United States
could have brought suit and sought preliminary and permanent
injunctions against BFI's acquisition of the ordinary shares of
Attwoods. The United States is satisfied, however, that the divestiture
of the assets and the contract relief outlined in the proposed Final
Judgment, will establish viable small containerized hauling service
competitors in the markets identified by the United States as requiring
divestiture and lower entry barriers that would otherwise substantially
lessen competition in the markets identified for contractual relief.
The United States is satisfied that the proposed relief will prevent
the acquisition from having anticompetitive effects in those markets.
The divestiture and the proposed contractual relief will restore the
markets to the structure that existed prior to the acquisition, will
preserve the existence of independent competitors in those areas, and
will allow for new entry and expansion by existing firms in those
markets where contract relief is sought.

VII.

Standard of Review Under the APPA for Proposed Final Judgment

The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject to a sixty-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) (emphasis added). The courts have recognized that the
term ``public interest'' ``take[s] meaning from the purposes of the
regulatory legislation.'' NAACP v. Federal Power Comm'n, 425 U.S. 662,
669 (1976). Since the purpose of the antitrust laws is to ``preserve[e]
free and unfettered competition as the rule of trade,'' Northern
Pacific Railway Co. v. United States, 356 U.S. 1, 4 (1958), the focus
of the ``public interest'' inquiry under the APPA is whether the
proposed Final Judgment would serve the public interest in free and
unfettered competition. United States v. American Cyanamid Co., 719
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984);
United States v. Waste Management, Inc., 1985-2 Trade Cas, 66,651, at
63,046 (D.D.C. 1985). 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.''\4\ Rather,

\4\119 Cong. Rec. 24598 (1973). See 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,
15 U.S.C. Sec. 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, 93rd
Cong. 2d Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News
6535, 6538.
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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. 61,580,
at 71,980 (W.D. Mo. 1977).
It is also unnecessary for the district court to ``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). 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.\5\

\5\United States v. Bechtel, 648 F.2d at 666 (citations omitted)
(emphasis added); see United States v. BNS, Inc., 858 F.2d at 463;
United States v. National Broadcasting Co., 449 F. Supp. 1127, 1143
(C.D. Cal. 1978); United States v. Gillette Co., 406 F. Supp. at
716. See also United States v. American Cyanamid Co., 719 F.2d at
565.
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A proposed consent decree is an agreement between the parties which
is reached after exhaustive negotiations and discussions. Parties do
not hastily and thoughtlessly stipulate to a decree because, in doing
so, they

Waive their right to litigate the issues involved in the case and
thus save themselves the time, expense, and inevitable risk of
litigation. Naturally, the agreement reached normally embodies a
compromise; in exchange for the saving of cost and the elimination
of risk, the parties each give up something they might have won had
they proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681 (1971).

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.' (citations
omitted).''\6\
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\6\United States v. American Tel. and Tel Co., 552 F. Supp. 131,
150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460
U.S. 1001 (1983) quoting United States v. Gillette Co., supra, 406
F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. Supp.
619, 622 (W.D. Ky 1985).
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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: December 2, 1994.

Respectfully submitted,

Nancy H. McMillen,
Peter H. Goldberg,
DC Bar #055608
Evangelina Almirantearena,
Antitrust Division.

Certification of Service

I hereby certify that a copy of the foregoing has been served upon
Browning-Ferris Industries, Inc., the Office of the Attorney General of
the State of Florida, and the Office of the Attorney General of the
State of Maryland, by placing a copy of this Competitive Impact
Statement in the U.S. Mail, directed to each of the above-named parties
at the addresses given below, this second day of December, 1994.
Browning-Ferris Industries, Inc.: c/o Rufus Wallingford, Executive Vice
President and General Counsel, 757 North Eldridge Street, Houston,
Texas 77079
State of Maryland, Office of the Attorney General, Antitrust Division,
200 St. Paul Place, Baltimore, Maryland 21202
State of Florida, Office of the Attorney General, Department of Legal
Affairs, The Capitol, Tallahassee, Florida 32399-1050
Nancy H. McMillen,
Attorney.

Hold Separate Stipulation and Order

UNITED STATE OF AMERICA, State of Florida by and through its
Attorney General Robert A. Butterworth, and State of Maryland by and
through its Attorney General J. Joseph Curran, Jr., Plaintiffs v.
Browning-Ferris Industries, Inc., Defendant
Civil Action No.: 94 2588, Judge Richey.

It is stipulated and agreed by and between the undersigned parties:
1. As used in this Stipulation and Order:
(a) ``BFI'' means defendant Browning-Ferris Industries, Inc., a
Delaware corporation with its headquarters in Houston, Texas, and
includes its successors and assigns, their subsidiaries, affiliates,
directors, officers, managers, agents and employees. After BFI acquires
control of Attwoods plc, BFI includes Attwoods plc, but does not
include the entities described in paragraph (e)-(h) herein.
(b) ``Attwoods'' means Attwoods plc, a British corporation with its
headquarters in Buckinghamshire, U.K., and its successors and assigns,
their subsidiaries, affiliates, directors, officers, managers, agents
and employees.
(c) ``Small Container Business of Attwoods, means the provision by
Attwoods of solid waste hauling service to commercial customers using
frontend load trucks to service 1 to 10 cubic yard containers: in
Frederick County, Maryland; Washington County, Maryland; by the
operations of Attwoods, Salisbury, Maryland Division; in Duval and in
Clay Counties, Florida, and the provision by Attwoods of solid waste
hauling service to commercial customers using frontend load and
rearload trucks to service 1 to 10 cubic yard containers in Chester
County, Pennsylvania.
(d) ``Solid waste hauling'' means the collection and transportation
to a disposal site of trash and garbage (but not medical waste; organic
waste; special waste, such as contaminated soil; sludge; or recycled
materials) from residential, commercial and industrial customers. Solid
waste hauling includes hand pick-up, containerized pick-up and roll-off
service.
(e) ``Honey Brook Assets'' means the assets of the Honey Brook
Division of Attwoods with an office on Chestnut Tree Road, Honey Brook,
Pennsylvania, that provides solid waste hauling services in the Chester
County, Pennsylvania area. Honey Brook Assets include all customer
lists, contracts and accounts, all contracts for disposal of solid
waste at disposal facilities, all trucks, containers, equipment,
material, supplies, computer software, bank accounts, and all other
tangible and intangible assets, rights and other benefits presently
owned, licensed, possessed or used by the Honey Brook Division.
(f) ``All Jax Assets'' means the assets of County Sanitation Inc.,
an Attwoods subsidiary, d/b/a All Jax Waste Service, with an office at
8619 Western Way, Jacksonville, Florida, that provides solid waste
hauling services in the Duval County and Clay County, Florida area. The
All Jax Assets include all disposal of solid waste at disposal
facilities, all trucks, containers, equipment, material, supplies,
computer software, bank accounts, and all other tangible and intangible
assets, rights and other benefits presently owned, licensed, possessed
or used by County Sanitation d/b/a All Jax Waste Service.
(g) ``Frederick Assets'' means the assets of the Frederick Division
of Attwoods with an office at 8145 Reichs Ford Road, Frederick,
Maryland, that provides solid waste hauling services in the western
Maryland area. Frederick Assets include all customer lists, contracts
and accounts, all contracts for disposal of solid waste at disposal
facilities, all trucks, containers, equipment, material, supplies,
computer software, bank accounts, and all other tangible and intangible
assets, rights and other benefits presently owned, licensed, possessed
or used by the Frederick Division.
(h) ``Salisbury Assets'' means the assets of the Salisbury Division
of Attwoods with an office at 9140 Ocean Highway, Delmar, Maryland,
that provides solid waste hauling services in the Maryland and southern
Delaware area. Salisbury Assets include all customer lists, contracts
and accounts, all contracts for disposal of solid waste at disposal
facilities, all trucks, containers, equipment, material, supplies,
computer software, bank accounts, and all other tangible and intangible
assets, rights and other benefits presently owned, licensed, possessed
or used by the Salisbury Division.
2. It is the intent of the Final Judgment filed in this proceeding
to require BFI to divest as viable business operations the Small
Container Business of Attwoods. It is the intent of this Hold Separate
Stipulation and Order to insure, prior to such divestiture, that the
Divestiture Assets will remain available as a source of assets for a
prospective purchaser to insure such viability.
3. BFI shall preserve, hold, and continue to operate the Honey
Brook Assets, All Jax Assets, Frederick Assets, and Salisbury Assets
(``hereinafter referred to together as the `Divestiture Assets''') as
ongoing businesses with their assets, management and operations
entirely separate, distinct and apart from those of BFI, unless the
United States of America (hereinafter ``United States''), after
consultation with the State of Florida (hereinafter ``Florida'') and
the State of Maryland (hereinafter ``Maryland'') otherwise consents in
writing in advance. BFI shall use all reasonable efforts to maintain,
preserve and increase the customer base of the Divestiture Assets, and
to otherwise maintain the Divestiture Assets as viable and active
competitors in solid waste hauling in the areas in which they operate.
Nothing herein shall prevent BFI from appointing a person with
oversight responsibility for the Divestiture Assets to insure
compliance with this Stipulation and Order and the Final Judgment
provided that such person agrees to comply in all respects with the
terms of this Stipulation and Order.
4. BFI shall not sell, lease, assign, transfer or otherwise dispose
of, or pledge as collateral for loans (except such loans as are
currently outstanding or replacements or substitutes therefor), any
Divestiture Assets, except such assets as are replaced in the ordinary
course of business with newly purchased assets and are so identified as
replacement assets.
5. The provisions of paragraphs 3 and 4 include but are not limited
to: Preserving all facilities and equipment used for solid waste
hauling and their right and ability to be used or operated at the
site(s) where they are located or customarily used; preserving all
operating permits and permit applications (including proceeding with
such operation or application as is necessary to renew such permits,
make permanent any temporary permits, or obtain a permit applied for);
and preserving all administrative and support facilities within such
areas. It is expressly recognized that nothing herein shall prevent
BFI, upon divestiture of the Small Container Business in any area
identified in paragraph 1(c), from taking over the remaining
Divestiture Assets in that area.
6. BFI shall not use the ``Attwoods'' name or any other Attwoods
names or trademarks nor identify any relationship between BFI and
Attwoods in any advertising, sales or promotional activities pertaining
to solid waste hauling in the areas where the Divestiture Assets
operate until such time as the Divestiture Assets are divested. BFI
shall permit the use by the Divestiture Assets of the ``Attwoods'' name
or any other Attwoods names or trademarks presently being used by the
Divestiture Assets in their solid waste hauling operations until such
time as they are divested. Until such time, BFI shall not cause any
change in the identification of services provided by the Divestiture
Assets including identifications on correspondence, invoices or similar
documents.
7. BFI shall preserve all of the Divestiture Assets, except those
replaced with newly acquired assets in the ordinary course of business,
in a state of repair comparable to their state of repair as of December
1, 1994, subject to ordinary and customary wear and tear in the
ordinary course of business. BFI shall continue to perform normal
maintenance and to replace the Divestiture Assets in the ordinary
course of business.
8. To maintain the Divestiture Assets as viable, ongoing
businesses, BFI shall, until divestiture, (a) provide and maintain
sufficient working capital for the Divestiture Assets and (b) provide
and maintain sufficient lines and sources of additional credit for the
Divestiture Assets.
9. BFI shall refrain from taking any action that would jeopardize
the sale or operation of any of the Divestiture Assets as viable
ongoing concerns, including but not limited to refraining from causing
or allowing a shift of customers from any of the Divestiture Assets to
BFI or to any other provider of solid waste hauling. A rebuttable
presumption that BFI has caused or allowed a shift of customers shall
arise if, prior to divestiture of the Honey Brook Assets, the All Jax
Assets, the Frederick Assets, or the Salisbury Assets the number of
residential, commercial or industrial solid waste hauling customers
drops seven and one half (7.5) percent or more below the number
existing on December 1, 1994 for the specified asset, or if monthly
solid waste hauling revenues decline seven and one half (7.5) percent
or more below the December 1994 solid waste hauling revenues for the
specified Assets.
10. BFI shall maintain on behalf of the Divestiture Assets, in
accordance with sound accounting practices, separate, true and complete
financial ledgers, books and records reporting the profit and loss,
assets and liabilities, separately, of the Honey Brook Assets, the All
Jax Assets, the Frederick Assets, and the Salisbury Assets on a monthly
and quarterly basis.
11. BFI shall refrain from terminating or reducing any current
employment, salary, or benefit agreements for any management, sales,
marketing, mechanical, or other technical personnel employed by the
Divestiture Assets, except in the ordinary course of business, without
the prior written approval of the United States, after consultation
with Florida and Maryland.
12. In the absence of prior consent by the purchaser of any of the
Divestiture Assets, defendant is hereby enjoined and restrained until
six (6) months following the date of divestiture from negotiating for
or offering any employment to any person who is currently employed by
the Divestiture Assets acquired by said purchaser.
13. The defendant shall refrain from taking any action that would
have the effect of reducing the scope or level of competition between
the Divestiture Assets and other providers of solid waste hauling
without the prior written approval of the United States, after
consultation with Florida and Maryland.
14. BFI shall take all steps necessary to assure that no
proprietary business or financial information specific to the
Divestiture Assets is transferred or otherwise becomes available to
BFI's employees having direct marketing and sales responsibilities for
any area where BFI competes with the Divestiture Assets. This paragraph
includes, but is not limited to, contract, account or customer--
specific information of any kind, and pricing and marketing plans and
strategies of the Divestiture Assets.
15. Defendant shall take no action that would interfere with the
ability of the trustee appointed pursuant to the proposed Final
Judgment filed in this proceeding to sell the Divestiture Assets to a
suitable purchaser or purchasers.
16. This Hold Separate Stipulation and Order shall remain in effect
pending consummation of the divestiture contemplated by the proposed
Final Judgment filed in this proceeding or until further Order of the
Court.

Dated: December 1, 1994.

Respectfully submitted.
For Plaintiff United States of America: Anne K. Bingaman,
Assistant Attorney General, Steven C. Sunshine; Constance K.
Robinson, Attorneys, U.S. Department of Justice, Antitrust Division,
Willie L. Hudgins, Jr., DC Bar #37127, Nancy H. McMillen, Peter H.
Goldberg, DC Bar #055608; Evangelina M. Almirantearena, Attorneys,
U.S. Department of Justice, Antitrust Division.
For Defendant Browning-Ferris Industries, Inc.: Rufus
Wallingford, Executive Vice President and General Counsel.
For Plaintiff State of Maryland: J. Joseph Curran, Jr., Deputy
Attorney General; Ellen S. Cooper, Assistant Attorney General,
Chief, Antitrust Division; Alan M. Barr, Assistant Attorney General,
Deputy Chief, Antitrust Division; John R. Tennis, Assistant Attorney
General.
For Plaintiff State of Florida; Robert A. Butterworth, Attorney
General; Jerome W. Hoffman, Chief, Antitrust Section; Lizabeth A.
Leeds, Assistant Attorney General, Fl. Bar #0457991.

So Ordered.

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United States District Judge

Date:

[FR Doc. 94-30816 Filed 12-14-94; 8:45 am]
BILLING CODE 4410-01-M}