[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Notices]
[Pages 8653-8663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5040]



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DEPARTMENT OF JUSTICE

United States v. Waste Management, Inc.; Proposal 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 Consent 
Judgment, Stipulation, and Competitive Impact Statement have been filed 
with the United States District Court for the Southern District of 
Georgia in the above-captioned case.
    On February 15, 1996, the United States filed a civil antitrust 
Complaint to prevent and restrain Waste Management, Inc. (``WMI''), 
Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management of 
Savannah, and Waste Management of Louisiana, Inc. (``WML''), d/b/a 
Waste Management of Central Louisiana from maintaining and enhancing 
their market power by using contracts that have restrictive and 
anticompetitive effects, in violation of Section 2 of the Sherman Act, 
15 U.S.C. 2.
    The Complaint alleges that: (1) Defendant WMG has market power in 
small containerized hauling service in the Savannah, GA market and 
Defendant WML has market power in small containerized hauling service 
in the Central Louisiana market; (2) Defendants, acting with specific 
intent, used and enforced contracts containing restrictive provisions 
to exclude and constrain competition and to maintain and enhance their 
market power in small containerized hauling service in those markets; 
(3) in the context of their large market shares and market power, 
Defendants' use and enforcement of those contracts in the Savannah and 
Central Louisiana markets has had anticompetitive and exclusionary 
effects by significantly increasing barriers to entry facing new 
entrants and barriers to expansion faced by small incumbents; (4) 
Defendants' market power is maintained and enhanced by their use and 
enforcement of those contracts; and, (5) as a result, there is a 
dangerous probability that Defendants will achieve monopoly power in 
the Savannah and Central Louisiana markets.
    The proposed Final Consent Judgment would require that, in dealing 
with small-container customers in the Savannah and Central Louisiana 
markets, Defendants only to enter into contracts containing 
significantly less restrictive terms than the contracts they now have 
in use in those markets. Specifically, the Defendants will be 

[[Page 8654]]
prohibited from using any contract with small-container customers in 
the Savannah and Central Louisiana markets that:
    (1) Has an initial term longer than two years (unless a longer term 
is requested by the customer and other conditions are met);
    (2) Has any renewal term longer than one year;
    (3) Requires the customer give notice of termination more than 30 
days prior to the end of a term;
    (4) Requires the customer to pay liquidated damages over 3 times 
the greater of its prior monthly charge or its average monthly charge 
during the first year of the initial term of the customer's contract, 
or over 2 times the greater of its prior monthly charge or its average 
monthly charge thereafter;
    (50 Requires the customer to give Waste Management notice of any 
offer by or to another solid waste hauling firm or requires the 
customer to give it a reasonable opportunity the right to respond to 
such an offer for any period not covered by the contract (``right to 
compete'' clause);
    (6) Is not labeled ``Service Contract'' and is not easily readable; 
or
    (7) Requires a customer to give Waste Management the right or 
opportunity to provide hauling services for all solid wastes and 
recyclables, unless the customer affirmatively indicates that is its 
desire. Furthermore, Defendants would be prohibited from enforcing 
provisions in existing contracts that are inconsistent with the Final 
Judgment.
    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., N.W., Suite 4000, Washington, D.C. 20530 (phone 202/307-
6576).
Rebecca P. Dick,
Deputy Director of Operations.

United States District Court for the Southern District of Georgia, 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and 
Waste Management of Louisiana, Inc., d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc., Defendants. Civil 
Action No.: CV496-35, filed: February 15, 1996.

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 for the purposes of this 
proceeding. Defendant Waste Management of Georgia, Inc., d/b/a Waste 
Management of Savannah, transacts business and is found within the 
district. Defendants Waste Management of Louisiana, Inc., d/b/a Waste 
Management of Central Louisiana, and Waste Management, Inc. consent to 
personal jurisdiction in this proceeding. Defendants waive any 
objections as to venue and the parties stipulate that venue for this 
action is proper in the Southern District of Georgia;
    2. The parties consent that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion, at any time after compliance with 
the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. Sec. 16(b)-(h)), 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 the Defendants and by 
filing that notice with the Court; and
    3. Defendants agree to be bound by the provisions of the proposed 
Final Judgment pending its approval by the Court. If the Plaintiff 
withdraws its consent or if the proposed Final Judgment is not entered 
pursuant to this Stipulation, this Stipulation shall be of no effect 
whatsoever, and the making of this Stipulation shall be without 
prejudice to any party in this or in any other proceeding.

    Dated this 15th day of February, 1996.

    Respectfully submitted,
    For the Plaintiff the United States of America:

Anne K. Bingaman,

Assistant Attorney General, Antitrust Division, U.S. Department of 
Justice.

Lawrence R. Fullerton,

Deputy Assistant Attorney General.

Rebecca P. Dick,

Deputy Director of Operations.

Harry D. Dixon, Jr.,

United States Attorney, Southern District of Georgia.

Anthony V. Nanni,

Chief, Litigation I Section.

Nancy H. McMillen,

Peter H. Goldberg,

Evangelina Almirantearena,

Attorneys, U.S. Department of Justice, Antitrust Division, City 
Center Building, Suite 4000, 1401 H Street, N.W., Washington, D.C. 
20530, 202/307-5777.

    For the Defendants Waste Management, Inc., Waste Management of 
Georgia, Inc., and Waste Management of Louisiana, Inc.:
Robert Bloch, Esquire,
Mayer Brown & Platt, 2000 Pennsylvania Ave., N.W., Washington, D.C. 
20006.
Michael Sennett, Esquire,
Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison Street, 
Chicago, IL 60602.
Glen M. Darbyshire, Esquire (Georgia Bar #205210),
Hunter, Maclean, Exley & Dunn, P.C., 200 East St. Julian Street, 
Savannah, GA 31412-0048, (912) 236-0261.

United States District Court for the Southern District of Georgia, 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, 
Waste Management of Louisiana, Inc., d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc., Defendants. Civil 
Action No.: CF496-35, filed: Feb. 15, 1996.

Final Judgment

    Whereas Plaintiff, United States of America, having filed its 
Complaint in this action on February 15, 1996, and Plaintiff and 
Defendants, by their respective attorneys, having consented to the 
entry of this Final Judgment without trial or adjudication of any issue 
of fact or law; and without this Final Judgment constituting any 
evidence or admission by any party with respect to any issue of fact or 
law;
    Now, therefore, before any testimony is taken, and without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is hereby
    Ordered, adjudged and decreed as follows:
    
[[Page 8655]]


I.

Jurisdiction

    This Court has jurisdiction of the subject matter of this action 
and of the persons of the Defendants, Waste Management, Inc., Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and 
Waste Management of Louisiana, Inc., d/b/a Waste Management of Central 
Louisiana. The Complaint states a claim upon which relief may be 
granted against the Defendants under Section 2 of the Sherman Act, 15 
U.S.C. 2.

II.

Definitions

    As used in this Final Judgment:
    (A) ``Savannah market'' means Chatham, Effingham, and Bryan 
Counties, Georgia.
    (B) ``Central Louisiana market'' means Rapides, Natchitoches, 
Avoyelles, Red River, Winn, and Sabine Parishes, Louisiana.
    (C) ``Solid waste hauling'' means the collection and transportation 
to a disposal site of trash and garbage (but not construction and 
demolition debris; medical waste; hazardous waste; organic waste; or 
special waste, such as contaminated soil, or sludge; or recyclable 
materials) from residential, commercial and industrial customers. Solid 
waste hauling includes hand pick-up, containerized pick-up, and roll-
off service.
    (D) ``Defendants'' means defendant Waste Management, Inc., a 
Delaware corporation with its headquarters in Oak Brook, Illinois, 
defendant Waste Management of Georgia, Inc. d/b/a Waste Management of 
Savannah, a Georgia corporation with offices in Savannah, Georgia, and 
defendant Waste Management of Louisiana, Inc., d/b/a Waste Management 
of Central Louisiana, a Louisiana corporation with offices in 
Alexandria, Louisiana, and includes their officers, directors, 
managers, agents, employees, successors, assigns, parents, and 
subsidiaries.
    (E) ``Small Container'' means a 2 to 10 cubic yard container.
    (F) ``Small Containerized Solid Waste Hauling Service'' means 
providing solid waste hauling service to customers by providing the 
customer with a Small Container that is picked up mechanically using a 
frontload, rearload, or sideload truck, and expressly excludes hand 
pick-up service, and service using a compactor attached to or part of a 
small container.
    (G) ``Customer'' means a Small Containerized Solid Waste Hauling 
Service customer.

III.

Applicability

    This Final Judgment applies to Defendants and to their officers, 
directors, managers, agents, employees, successors, assigns, parents 
and subsidiaries, and to all other persons in active concert or 
participation with any of them who shall have received actual notice of 
this Final Judgment by personal service or otherwise. 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.

IV.

Prohibited Conduct

    Defendants are enjoined and restrained as follows:
    (A) Except as set forth in paragraph IV (B) and (G), Defendants 
shall not enter into any contract with a Customer for a service 
location in the Savannah or Central Louisiana markets that:
    (1) Has an initial term longer than two (2) years;
    (2) Has any renewal term longer than one (1) year;
    (3) Requires that the Customer give Defendants notice of 
termination more than thirty (30) days prior to the end of any initial 
term or renewal term;
    (4) Requires that the Customer pay liquidated damages in excess of 
three times the greater of its prior monthly charge or its average 
monthly charge over the most recent six months during the first year of 
the initial term of the Customer's contract;
    (5) Requires that the Customer pay liquidated damages in excess of 
two times the greater of its prior monthly charge or its average 
monthly charge over the most recent six months after the Customer has 
been a Customer of a Defendant for a continuous period in excess of one 
(1) year;
    (6) Requires the Customer to give Defendants notice of any offer by 
or to another solid waste hauling firm or requires the Customer to give 
Defendants a reasonable opportunity to respond to such an offer for any 
period of covered by the contract (sometimes referred to as a ``right 
to compete'' clause);
    (7) Is not easily readable (e.g., formatting and typeface) and is 
not labeled, in large letters, SERVICE CONTRACT; or
    (8) Requires a Customer to give Defendants the right or opportunity 
to provide hauling service for recyclables or more than one solid waste 
hauling service for a Customer unless the Customer affirmatively 
chooses to have Defendant do so by so stating on the front of the 
contract.
    (B) Notwithstanding the provisions of paragraph IV(A) of this Final 
Judgment, Defendants may enter into a contract with a Customer for a 
service location in the Savannah or Central Louisiana markets with an 
initial term in excess of two years provided that:
    (1) The Customer has acknowledged in writing that the Defendants 
have offered to the Customer the form contracts Defendants are required 
herein to offer generally to Customers;
    (2) the Customer has the right to terminate the contract after 2 
years by giving notice to Defendants thirty (30) days or more prior to 
the end of that 2 year period;
    (3) the contract otherwise complies with the provisions of 
paragraph IV(A) (2)-(8); and
    (4) the number of service locations subject to contracts permitted 
under subparagraph (B) in either the Savannah or Central Louisiana 
markets does not exceed 25% of the total number of service locations 
for small containerized solid waste hauling service in each such market 
in any year.
    (C) From the date of filing of an executed Stipulation in the form 
attached hereto as Exhibit A, Defendants shall offer to new Customers 
with service locations in the Savannah and Central Louisiana markets 
only contracts that conform to the requirements of paragraphs IV (A) or 
(B) of this Final Judgment, except as provided in IV(G).
    (D) Except as provided in IV(G), within thirty (30) days following 
the entry of this Final Judgment, Defendants shall send to all existing 
Customers with service locations in the Savannah and Central Louisiana 
markets with contracts having an initial term longer than 2 years and 
which otherwise do not conform with paragraph IV(B) a notice in the 
form attached hereto as Exhibit B.
    (E) Except as provided in IV(G), for each Customer with a contract 
having an initial term longer than 2 years and which otherwise does not 
conform to paragraph IV(B) that enters a renewal term 120 days after 
entry of this Final Judgment, Defendants shall send a reminder to that 
Customer in the form attached hereto as Exhibit C ninety (90) days or 
more prior to the effective date of the renewal term. This reminder may 
be sent to the Customer as part of a monthly bill, but if it is, it 
must be displayed on a separate page and in large print.
    (F) Upon entry of this Final Judgment, Defendants may not enforce 
those 

[[Page 8656]]
contract provisions that are inconsistent with this Final Judgment.
    (G) Notwithstanding the provisions of this Final Judgment, 
Defendants may enter into contracts with municipal or governmental 
entities that are not in compliance with paragraphs IV (A)-(F) provided 
that those contracts are awarded to Defendants on the basis of a formal 
request for bids or a formal request for proposals issued by the 
Customer.
    (H) Notwithstanding the provisions of this Final Judgment, 
Defendants shall not be required to do business with any Customer.

V.

Reporting

    (A) To determine or secure compliance with this Final Judgment, 
duly authorized representatives of the Plaintiff shall, upon written 
request of the Assistant Attorney General in charge of the Antitrust 
Division, on reasonable notice given to Defendants at their principal 
offices, subject to any lawful privilege, be permitted:
    (1) Access during normal office hours to inspect and copy all 
books, ledgers, accounts, correspondence, memoranda and other documents 
and records in the possession, custody, or control of Defendants, which 
may have counsel present, relating to any matters contained in this 
Final Judgment.
    (2) Subject to the reasonable convenience of Defendants and without 
restraint or interference from them, to interview officers, employees, 
or agents of Defendants, who may have counsel present, regarding any 
matters contained in this Final Judgment.
    (B) Upon written request of the Assistant Attorney General in 
charge of the Antitrust Division, on reasonable notice given to 
Defendants at their principal offices, subject to any lawful privilege, 
Defendants shall submit such written reports, under oath if requested, 
with respect to any matters contained in this Final Judgment.
    (C) No information or documents obtained by the means provided by 
this Section shall be divulged by the Plaintiff to any person other 
than a duly authorized representative of the Executive Branch of the 
United States government, except in the course of legal proceedings to 
which the United States is a party, or for the purpose of securing 
compliance with this Final Judgment, or as otherwise required by law.
    (D) If at the time information or documents are furnished by 
Defendants to Plaintiff, Defendants represent and identify in writing 
the material in any such information or document to which a claim of 
protection may be asserted under Rule 26(c)(7) of the Federal Rules of 
Civil Procedure, and Defendants mark each pertinent page of such 
material ``Subject to Claim of protection under Rule 26(c)(7) of the 
Federal Rules of Civil Procedure,'' then ten days notice shall be given 
by Plaintiff to Defendants prior to divulging such material in any 
legal proceeding (other than a grand jury proceeding) to which 
Defendants are not a party.

VI.

Further Elements of Judgment

    (A) This Final Judgment shall expire on the tenth anniversary of 
the date of its entry.
    (B) Jurisdiction is retained by this Court over this action and the 
parties thereto for the purpose of enabling any of the parties thereto 
to apply to this Court at any time for further orders and directions as 
may be necessary or appropriate to carry out or construe this Final 
Judgment, to modify or terminate any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

VII.

Public Interest

    Entry of this Final Judgment is in the public interest.
    Entered: ____________
    United States District Judge
----------------------------------------------------------------------

Exhibit A

United States District Court for the Southern District of Georgia, 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and 
Waste Management of Louisiana, Inc., d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc., Defendants. Civil 
Action No.: CV496-35, filed: February 15, 1996.

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 for the purposes of this 
proceeding. Defendant Waste Management of Georgia, Inc., d/b/a Waste 
Management of Savannah, transacts business and is found within the 
district. Defendants Waste Management of Louisiana, Inc., d/b/a Waste 
Management of Central Louisiana, and Waste Management, Inc. consent to 
personal jurisdiction in this proceeding. Defendants waive any 
objection as to venue and the parties stipulate that venue for this 
action is proper in the Southern District of Georgia;
    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 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 the Defendants and by filing that 
notice with the Court; and
    3. Defendants agree to be bound by the provisions of the proposed 
Final Judgment pending its approval by the Court. If the Plaintiff 
withdraws its consent or if the proposed Final Judgment is not entered 
pursuant to this Stipulation, this Stipulation shall be of no effect 
whatsoever, and the making of this Stipulation shall be without 
prejudice to any party in this or in any other proceeding.

    Dated this ____th day of February, 1996.

    Respectfully submitted,
    For the Plaintiff the United States of America:
Anne K. Bingaman,

Assistant Attorney General, Antitrust Division, U.S. Department of 
Justice.

Lawrence R. Fullerton,

Deputy Assistant Attorney General.

Rebecca P. Dick,

Deputy Director of Operations.

Harry D. Dixon, Jr.,

United States Attorney, Southern District of Georgia.

Anthony V. Nanni,

Chief, Litigation I Section.

Nancy H. McMillen,

Peter H. Goldberg,

Evangelina Almirantearena,

Attorneys, U.S. Department of Justice, Antitrust Division, City Center 
Building, Suite 4000, 1401 H. Street, N.W., Washington, D.C. 20530, 
202/307-5777.

[[Page 8657]]

    For the Defendants Waste Management, Inc., Waste Management of 
Georgia, Inc., and Waste Management of Louisiana, Inc.:
Robert Bloch, Esquire,
Mayer Brown & Platt, 2000 Pennsylvania Ave., N.W., Washington, D.C. 
20006.
Michael Sennett, Esquire,
Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison Street, 
Chicago, IL 60602.

Exhibit B

Notice to Customers

    Dear Valued Customer: [Insert name of local operating company] 
is offering a new two year contract to all small containerized solid 
waste hauling customers with service locations in [insert market 
here]. We would like to take this opportunity to offer this contract 
to you. Of course, if you prefer, you can continue with your 
existing contract.
    In most cases, this new contract will have terms that are more 
advantageous to customers than their current contracts. This new 
contract has the following features:

     an initial term of 2 years (unless you request a longer 
term);
     a renewal term of 1 year;
     at the end of your initial term, you may take no action 
and your contract will renew or you can choose not to renew the 
contract by simply giving us notice at any time up to 30 days prior 
to the end of your term;
1 if you request a contract with a term longer than 2 years, you can 
cancel that contract after 2 years by giving us notice at any time 
up to 30 days prior to the end of the first 2 years;
     if you terminate the contract at any other time, you 
will be required to pay, as liquidated damages, no more than 3 times 
the greater of your prior monthly or average monthly charge. If 
you've been a customer continuously for more than 1 year, the 
liquidated damages would be reduced to 2 times the greater of your 
prior monthly or average monthly charge;
     you will not be required to give us notice of any offer 
from another waste hauling firm or to give us an opportunity to make 
a counteroffer although you may do so if you wish;
     you will be able to choose on the contract which 
specific types of waste hauling services you would like us to 
perform.

    You may obtain a new contract containing these terms by calling 
[insert CSR telephone number or sales rep name and number].
    If you prefer, you may continue with your existing contract. If 
you retain your existing contract, we will not enforce any terms 
that are inconsistent with the new form contract terms.
    We thank you for your business and look forward to a continued 
relationship with you. If you have any questions, please call [WM 
contact person and phone number].

Reminder to Customers

    Your contract will automatically renew on MM/DD/YY unless we 
receive your cancellation by MM/DD/YY.
    You may also obtain a new form contract with some terms more 
advantageous to you than your current contract.
    You may obtain a new contract containing these terms by calling 
(insert CSR telephone number or sales rep name and number).

United States District Court for the Southern District of Georgia 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc.,d/b/a Waste Management of Savannah, 
Waste Management of Louisiana, Inc., d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc., Defendants. [Civil 
Action No.: CV496-35 Filed: February 15, 1996.]

Competitive Impact Statement

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

I.

Nature and Purpose of the Proceeding

    On February 15, 1996, the United States filed a civil antitrust 
Compliant to prevent and restrain Waste Management, Inc. (``WMI''), 
Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management of 
Savannah, and Waste Management of Louisiana, Inc. (``WML''), d/b/a 
Waste Management of Central Louisiana from using contracts that have 
restrictives and anticompetitive effects in the small containerized 
hauling service markets in Savannah and Central Louisiana, in violation 
of Section 2 of the Sherman Act, 15 U.S.C. As alleged in the Compliant, 
Defendants has attempted to monopolize small containerized hauling 
service in the Savannah and Central Louisiana geographic markets by 
using and enforcing contracts containing restrictive provisions to 
maintain and enhance their existing market power there.
    The Complaint alleges that: (1) Defendant WMG has market power in 
small containerized hauling services in the Savannah, GA market and 
Defendant WML has market power in small containerized hauling service 
in the Central Louisiana market; (2) Defendants, acting with specific 
intent, used and enforced contracts containing restrictives provisions 
to exclude and constrain competition and to maintain and enhance their 
market power in small containerized hauling service in those markets; 
(3) in the context of their large market shares and market power, 
Defendants' use and enforcement of those contracts in the Savannah and 
Central Louisiana markets has had anticompetitive and exclusionary 
effects by significantly increasing barriers to entry facing new 
entrants and barriers to expansion faced by small incumbents; (4) 
Defendants' market power is maintained and enhanced by their use and 
enforcement of those contracts; and, (5) as a result, there is a 
dangerous probability that Defendants will achieve monopoly power in 
the Savannah and Central Louisiana markets.
    In its Compliant, Plaintiff seeks, among other relief, a permanent 
injunction preventing Defendants from continuing any of the 
anticmpetitive practices alleged to violate the Sherman Act, and thus 
affording fair opportunities for other firms to compete in small 
containerized hauling service in the Savannah and Central Louisiana 
markets.
    The United States and Defendants 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 Defendants' 
actions in the Savannah and Central Louisiana markets. Under the 
proposed Final Judgment, as explained more fully below, in dealing with 
small-container customers in the Savannah and Central Louisiana 
markets, Defendants would only be permitted to enter into contracts 
containing significantly less restrictive terms than the contracts they 
now in use in those markets. Furthermore, Defendants would be 
prohibited from enforcing provisions in existing contracts that are 
inconsistent with the Final Judgment.
    The United States and the Defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA. 
Entry of the proposed Final Judgment would

[[Page 8658]]

terminate the 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.

Description of the Events Giving Rise to the Alleged Violation

    Waste Management, Inc. (``WMI''), a subsidiary of WMX Technologies, 
Inc., is the world's largest company engaged in the solid waste hauling 
and disposal business, with operations throughout the United States. 
WMI had total 1994 revenues of approximately $5.8 billion.
    Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management 
of Savannah, is a subsidiary of WMI with its principal offices in 
Savannah, GA. It is the largest solid waste hauling and disposal 
company in the Savannah market. WMG had revenues of over $14 million in 
its 1994 fiscal year.
    Waste Management of Louisiana, Inc. (``WML''), d/b/a Waste 
Management of Central Louisiana, is also a subsidiary of WMI. It has 
offices in Alexandria, LA and Natchitoches, LA. It is the largest solid 
waste hauling and disposal company in the Central Louisiana market. WML 
had revenues over $3 million in its 1994 fiscal year.

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 do residential customers. Waste generated 
by commercial customers is generally placed in metal containers of two 
to ten cubic yards provided by their hauling company. In the markets at 
issue, two 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. 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, trash cans, or small 
plastic containers at curbside.
    Industrial or roll-off customers include factories and construction 
sties. 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 similar to the 
waste of commercial customers, but in much greater 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. Relevant Product Market

    The revelant product market is small containerized hauling service. 
There are no practical substitutes for this service. Small 
containerized hauling service customers will not generally switch to 
noncontainerized service in the event of a price increase, because it 
is too impractical and more costly for those customers to bag and carry 
their volume of trash to the curb for hand pick-up. Similarly, roll-off 
service is much too costly and the container takes up too much space 
for most small containerized hauling service customers. Only customers 
that generate the largest volumes of compactible 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.

C. Relevant Geographic Markets

    The relevant geographic markets are the Savannah market and the 
Central Louisiana market. Small containerized 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.

D. Defendants' Attempt to Monopolize

    Defendant WMG has market power in small containerized hauling 
service in the Savannah market. WMG has maintained a very high market 
share since at least 1991--consistently in excess of 60 percent.
    Defendant WML has market power in small containerized hauling 
service in the Central Louisiana market. WML has maintained a very high 
market share since at least 1988--consistently in excess of 60 percent.
    There are substantial barriers to entry and to expansion into the 
small containerized hauling markets in Savannah and in Central 
Louisiana. A new entrant or small incumbent hauler must be able to 
achieve minimum efficient scale to be competitive. First, it must be 
able to generate enough revenues to cover significant fixed costs and 
overhead.
    Second, a new entrant or small incumbent hauler must be able to 
obtain enough customers to use its trucks efficiently. For example, it 
is not efficient to use a truck half a day because the firm doesn't 
have enough customers to fill up the truck.
    Third, a new entrant or small incumbent hauler needs to obtain 
customers that are close together on its routes (called ``route 
density''). Having customers close together enables a company to pick 
up more waste in less time (and generate more revenues in less time). 
The better a firm's route density, the lower its operating costs.
    Until a firm overcomes these barriers, the new entrant or small 
incumbent will have higher operating costs than Defendants in the 
relevant geographic markets, may not operate at a profit, and will be 
unable effectively to constrain pricing by Defendants in those markets.
    Defendant WMG in the Savannah market and Defendant WML in the 
Central Louisiana market have entered into written contracts with the 
vast majority of their small containerized hauling customers. Many of 
these contracts contain terms that, when taken together in the relevant 
markets where Defendants have market power, make it more difficult and 
costly for customers to switch to a competitor of Defendants and allows 
Defendants to bid to retain customers approached by a competitor.

[[Page 8659]]

    The contracts enhance and maintain Defendants' market power in the 
Savannah and Central Louisiana markets by significantly raising the 
cost and time required by a new entrant or small incumbent firm to 
build its customer base and obtain efficient scale and route density. 
Therefore, Defendants' use and enforcement of these contracts in the 
Savannah and Central Louisiana markets raise barriers to entry and 
expansion in those markets. Those contract terms are:
    a. A provision giving Defendants the exclusive right to collect and 
dispose of all the customers' solid waste and recyclables;
    b. An initial term of three years;
    c. A renewal term of three years that automatically renews unless 
the customer sends Defendants a written notice of cancellation by 
certified mail more than 60 days from the end of the initial or renewal 
term;
    d. A term that requires a customer that terminates the contract at 
any other time to pay Defendants, as liquidated damages, its most 
recent monthly charge times six (if the remaining term is six or more 
months) or its most recent monthly charge times the number of months 
remaining under the contract (if the remaining term is less than six 
months); and
    e. A ``right to compete'' clause that requires the customer to give 
Defendants notice of any offer by or to a hauling competitor or 
requires the customer to give Defendants a reasonable opportunity to 
respond to such an offer for any period not covered by the contract.
    The appearance and format of the contracts also enhances 
Defendants' ability to use the contracts to maintain their market power 
in these markets. The provisions that make it difficult for a customer 
to switch to a competing hauler are not obvious to customers in the 
relevant markets. The document is not labeled ``Contract'' so its 
legally binding nature is not always apparent to the customer. Also, 
all the restrictive provisions mentioned above are in small print on 
the back of the document.
    Defendats' use and enforcement of the contracts described above in 
the Savannah and Central Louisiana markets have raised the barriers 
already faced by new entrants and small existing firms in those 
markets. Defendants' use and enforcement of the contracts has reduced 
the likelihood that the customers will switch to a Defendant's 
competitor. Given Defendants' market power, this has made it more 
difficult for competitors to achieve efficient scale, obtain sufficient 
customers to use their trucks efficiently, and develop sufficient route 
density to be profitable and to constrain Defendants' pricing in those 
markets.

III

Explanation of the Proposed Final Judgment

    The proposed Final Judgment will end the unlawful practices 
currently used by Defendants to perpetuate and enhance their market 
power in the Savannah and Central Louisiana markets. It requires 
Defendants to offer less restrictive contracts to small containerized 
hauling customers in the Savannah and Central Louisiana markets.\1\

    \1\ The proposed Final Judgment applies to all contracts entered 
into by Defendants with customers for service locations in the 
relevant markets except contracts described in Paragraph IV (G). 
Contracts awarded to Defendants by municipal or government entities 
as a result of a formal request for bids or a formal request for 
proposals need not contain the provisions dictated by the proposed 
Final Judgment. These contracts were excluded from the decree to 
assure that competition for such bids would not be adversely 
affected by preventing Defendants from bidding.
---------------------------------------------------------------------------

    In particular, Paragraphs IV (A) and (B) prohibit Defendants from 
entering into contracts containing the type of restrictive terms 
described above. Paragraphs IV(C), (D), (E), and (F) are designed to 
bring existing contracts into compliance with the proposed Final 
Judgment on an expeditious basis.

A. Prohibition of Contract Terms and Formats

    The Contracts used most frequently by defendants in the relevant 
markets have an initial term of three years and renew automatically and 
perpetually for additional three-year terms unless cancelled by the 
customer. In these markets, given that the Defendants have market power 
and a vast majority of their existing customers are subject to such 
contracts, the long initial term and long renewal terms prevent new 
entrants and small incumbents, no matter how competitive, from quickly 
obtaining enough customers that are close together to be profitable. 
Shortening the initial term and the renewal term will allow competitors 
to compete for more of the customer base each year and, if they compete 
effectively, to obtain efficient scale and route density more quickly. 
This, in turn, will enhance competition in the relevant markets and 
will help offset Defendants' market power.
    Paragraph IV(A)(1) prohibits Defendants from using contracts for 
service locations in the Savannah and Central Louisiana markets that 
have an initial term longer than two years, except under certain very 
limited circumstances.
    A contract with an initial term in excess of two years in the 
relevant markets is permitted, under limited circumstances, pursuant to 
Paragraph IV(B) of the proposed Final Judgment, but the contracts must 
otherwise conform to the Final Judgment. The United States is aware 
that some customers, for valid business reasons such as long-term price 
assurance, want contracts with an initial term longer than two years. 
Paragraph IV(B) is intended to permit customers who want them to have 
such contracts, while ensuring that customers who have not made such a 
choice do not, nevertheless, find themselves with long contracts. Under 
Paragraph IV(B)(1), Defendants may sign a contract of longer than two 
years with a customer, but only if the customer has been offered the 
two year contract and has acknowledged, in writing, that this offer was 
made.\2\ Even if the customer signs a contract with an initial term 
longer than two years, the customer retains the right to terminate that 
contract at the end of the first two years, without payment of any 
liquidated damages, pursuant to Paragraph IV(B)(2). Paragraph IV(B) was 
included to give Defendants the ability to contract with customers who 
truly want a longer term, for the United States anticipates that 
contracts with initial terms longer than two years will be the 
exception, not the rule. To assure such an outcome, Paragraph IV(B)(4) 
limits the number of service locations subject to such contracts in 
either the Savannah or Central Louisiana markets to no more than 25 
percent of the total number of small containerized solid waste hauling 
service locations in each relevant market.

    \2\ The United States envisions that the customer's written 
acknowledgment that the two year contract was offered, but declined, 
by the customer could be made by having the customer check an 
appropriate box on the face of the contract near the customer's 
signature, or by some similar mechanism.
---------------------------------------------------------------------------

    Paragraph IV(A)(2) prohibits Defendants from signing a contract 
with a renewal term longer than one year in length, down from the 
three-year renewal term used as a standard in the Savannah and Central 
Louisiana markets.
    Paragraph IV(A)(3) increases the period of time that a customer may 
notify Defendants of its intention not to renew the contract from a 
period ending 60 days before the end of any initial or renewal term to 
a period ending 30 days before the end of any such term. This allows 
the customer to make a decision concerning renewal closer to the end of 


[[Page 8660]]
the contract term. A customer is more likely to consider whether or not 
it wants its existing contract renewal the closer than customer is to 
the end of the contract term. Paragraph IV(A)(3) assures that a 
customer will be able to choose not to renew its contract up to 30 days 
from the end of the contract term. Paragraph IV(A)(3) also eliminates 
the requirement that a customer give its nonrenewal notice in writing 
and send it to Defendants by certified mail. A telephone call or letter 
is sufficient under the proposed Final Judgment. These changes in the 
notification provisions make it easier for the customer not to renew 
within the terms of the contract. This, in turn, enhances customer 
choice and enables a new entrant or small incumbent to compete for more 
customers.
    A liquidated damages provision is intended to allow a seller to 
recover otherwise unrecoverable costs where the amount of the damage 
resulting from a breach of contract is difficult to determine. 
Defendants do incur some unrecoverable costs, including sales costs, in 
contracting with customers for small containerized solid waste hauling 
services. The contract currently most widely used by Defendants in the 
relevant markets contain the following liquidation damages provision 
for early termination: the customer must pay six times its prior 
monthly charge unless the contract has a remaining term of less than 
six months, in which case the customer pays its prior monthly charge 
times the number of months remaining in its contract term. If this case 
went to trial, the United States believes it could prove that these 
liquidated damages far surpass the contracting costs the Defendants 
incur, and that, in the relevant markets where Defendants have market 
power, Defendants have threatened to enforce such liquidated damages 
provisions with the effect that customers did not switch to new 
entrants and small incumbents when they desired to do so. In the 
presence of market power, the threat of enforcing large liquidated 
damages provisions can deter sufficient customers from switching to a 
competitor and harm competition.
    Paragraphs IV(A) (4) and (5) reduce the amount of liquidated 
damages Defendants can collect from a customer. The liquidated damages 
Defendants may collect from a customer in the relevant markets during 
the first year of the initial term of a customer's contract are reduced 
to the greater of three times the customer's prior monthly charge or 
average monthly charge over the prior six months. A firm that has been 
a customer of a Defendant for a continuous period in excess of one year 
can be required to pay Defendants no more than two times the greater of 
the customer's prior monthly charge or average monthly charges over the 
past six months. The changes made in the liquidated damages provisions 
make it less expensive (and therefore more likely) that a customer can 
switch to a competing hauler should it choose to do so during the 
contract term. Defendants have incurred costs to sign small 
containerized solid waste hauling customers to contracts. However, as 
customers pay their monthly bills over time, the unrecovered amount of 
those costs decreases. That fact is reflected in the proposal Final 
Judgment by the reduction of the liquidated damages Defendants may 
collect once a firm has been Defendants' customer for more than one 
year.
    Paragraph IV(A)(6) prohibits Defendants from including a ``right to 
compete'' clause in their contracts in the relevant markets. That 
clause requires a customer to give Defendants notice of any offer by or 
to another solid waste hauling firm or requires the customer to give 
Defendants a reasonable opportunity to respond to such an offer for any 
period not covered by the contract. Defendants currently use a clause 
in the vast majority of contracts in use in the Savannah and Central 
Louisiana markets.\3\ Such a clause enables a firm with market power 
easily to deny a sufficient customer base to new entrants or small 
incumbents because the customer must notify it of the terms of offers 
from competitors before the competitor obtains a single customer's 
business. It is a simple matter for the dominant firm to match or beat 
the competitor's price and induce the customer not to switch to the 
competitor. Furthermore, it allows the dominant firm to target price 
reductions only to those customers approached by a competitor without 
dropping prices across the board. The existence of this clause reduces 
a new entrant's expected profitability for luring a customer away from 
Defendants. It has the effect of retarding entry. The Final Judgment 
prohibits the use of this provision in the relevant markets.

    \3\ The clause reads: ``RIGHT TO COMPETE. Customer grants to 
Contractor the right to compete with any offer which Customer 
receives (or intends to make) relating to the provision of 
nonhazardous waste collection and disposal services upon the 
termination of this Agreement for any reason, and agrees to give 
Contractor written notice of any such offer and reasonable 
opportunity to respond to it.''
---------------------------------------------------------------------------

    The contracts predominantly used by Defendants in the relevant 
markets currently give Defendants the exclusive right to perform all of 
a customer's solid waste hauling services and recycling, just because 
the customer has signed a contract for small containerized solid waste 
hauling service. Paragraph IV(A)(8) of the proposed Final Judgment 
prohibits this provision in the relevant markets. Instead, it provides 
that Defendants may perform only those services a customer selects. 
Defendants may perform all types of solid waste hauling services and 
recycling for a customer only if the customer affirmatively chooses to 
have Defendants do so by so stating on the front of the contract.\4\ 
The United States does not intend this provision to prohibit Defendants 
from requiring that it be the exclusive supplier of any type of service 
for which it contracts with a customer. For example, if a customer 
contracts with Defendants to perform small containerized solid waste 
hauling service at a specific service location, Defendants may require 
that it be the exclusive supplier for that service at that location.

    \4\ The United States anticipates that the customer should be 
able to affirmatively indicate its choice of service types by 
checking a box, by writing in the type of service it wants on the 
front of the contract, or by some similar mechanism.
---------------------------------------------------------------------------

    Paragraph IV(A)(7) of the proposed Final Judgment also requires 
Defendant to change the appearance and format of its contracts in the 
relevant markets. If this case went to trial, evidence from customers 
in those markets would show that some of them were not aware they had 
signed legally binding documents. Therefore, the proposed Final 
Judgment requires that the document be labeled ``SERVICE CONTRACT'' in 
large letters. Furthermore, evidence from customers in the relevant 
markets would show that the contractual provisions that enable a firm 
with market power to restrict customers from switching to a competitor 
are in very small print on the back of the document. The proposed Final 
Judgment requires that the contracts used in the relevant markets be 
easily readable in formatting and type-face.

B. Transition Rules

    In the Stipulation consenting to the entry of the proposed Final 
Judgment, Defendants agreed to abide by the provisions of the proposed 
Final Judgment immediately upon the filing of the Complaint, i.e., as 
of February 15, 1996. Among other things, the transition provisions 
described herein will require Defendants to abide by the foregoing 
limitations and prohibitions when entering into any contracts with new 
small containerized hauling customers after February 15, 1996. Certain 
additional provisions of the proposed 

[[Page 8661]]
Final Judgment also apply to existing customer contracts that are 
inconsistent with the proposed Final Judgment's requirements for new 
customer contracts.
    Under Paragraph IV(C), Defendants must offer contracts that conform 
with Paragraphs IV(A) or (B) of the proposed Final Judgment to all new 
customers with service locations in the Savannah and Central Louisiana 
markets beginning today, the date of the filing of the executed 
Stipulation.
    Under Paragraph IV(D), within 30 days of the entry of the proposed 
Final Judgment, Defendants must notify existing customers in the 
Savannah and Central Louisiana markets who have contracts with an 
initial term longer than two years and do not otherwise comply with the 
proposed Final Judgment of their right to sign a new contract complying 
with the proposed Final Judgment. These notices must also inform any 
customers choosing to retain their existing contracts that no 
provisions inconsistent with the proposed Final Judgment will be 
enforced against them. With regard to municipal and government 
entities, Defendants are not required to notify those entities with 
nonconforming contracts that were awarded on the basis of a formal 
request for bids or a formal request for proposals issued by the 
customer.
    Paragraph IV(E) requires Defendants to give an additional notice in 
the form of a reminder to any customer subject to a nonconforming 
contract that enters a renewal term 120 days or more after the entry of 
the proposed Final Judgment. Defendants must send the reminder to each 
such customer ninety (90) days or more prior to the effective date of 
the renewal term. The reminder informs the customer that it must cancel 
its contract by a certain date or the contract will renew. It also 
reminds the customer that it may enter into a new contract conforming 
to the proposed Final Judgment on request and that terms in the 
customer's existing contract that are inconsistent with the new form 
will not be enforced against it. Defendants may send this reminder as 
part of a monthly bill, as long as it appears on a separate page and in 
large print so that it will be noticeable.
    Under Paragraph IV(F), Defendants may not enforce contract 
provisions inconsistent with the Final Judgment upon entry of the Final 
Judgment by the Court.
    Under Paragraphs IV (G) and (H), the proposed Final Judgment makes 
clear that contracts awarded by municipal or government entities on the 
basis of a formal request for bids or proposals issued by the customer 
need not comply with Paragraphs IV (A)-(F). Moreover, nothing in the 
proposed Final Judgment requires Defendants to do business with any 
customer.
    Paragraphs IV (C)-(F) further two consistent goals. Opportunities 
for competition in small containerized hauling service in the relevant 
markets will be fostered by a rapid end to the provisions that 
significantly raise entry barriers in the relevant markets. At the same 
time, the transition rules avoid creating any unnecessary disruption of 
the customers' trash hauling service that might result from voiding all 
nonconforming contracts. Existing customers are not required to 
terminate or amend their existing contracts with Defendants; the choice 
belongs to the customer. However, Defendants may not enforce against 
any customer any provision inconsistent with the proposed Final 
Judgment.
    To ensure that existing customers learn of their rights under the 
proposed Final Judgment, Paragraphs IV (D) and (E) require Defendants 
to notify customers of their rights under the Final Judgment and remind 
them of their right to terminate their existing contract or to sign a 
new contract form.

C. Enforcement

    Section V of the proposed Final Judgment establishes standards and 
procedures by which the Department of Justice may obtain access to 
documents and information from Defendants related to their compliance 
with the proposed Final Judgment.

D. Duration

    Section VI of the proposed Final Judgment provides that the Final 
Judgment will expire on the tenth year after its entry. Jurisdiction 
will be retained by the Court to conduct further proceedings relating 
to the Final Judgment, as specified in Section VI.

IV

Remedies Available to Potential Private Litigants

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

V

Procedures Available for Modification of the Proposed Final Judgment

    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least 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 NW., Suite 4000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI

Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, litigation against Defendants. The United States could 
have brought suit and sought preliminary and permanent injunctions 
against the use and enforcement of these contracts by Defendants in the 
relevant markets. The United States is satisfied, however, that the 
relief outlined in the proposed Final Judgment will elimination 
Defendants' ability to use restrictive and anticompetitive contracts to 
maintain and enhance their market power in the relevant markets. The 
United States believes that these contracts will no 

[[Page 8662]]
longer inhibit the ability of a new entrant to compete with the 
Defendants. The relief sought will allow new entry and expansion by 
existing firms in those markets.

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). As the D.C. Circuit recently held this statute permits 
a court to consider, among other things, the relationship between the 
remedy secured and the specific allegations set forth in the 
government's complaint, whether the decree is sufficiently clear, 
whether enforcement mechanisms are sufficient, and whether the decree 
may positively harm third parties. See United States v. Microsoft, 56 
F.3d 1448, 1462 (D.C. Cir. 1995). In conducting this inquiry, ``the 
Court is nowhere compelled to go to trial or to engage in extended 
proceedings which might have the effect of vitiating the benefits of 
prompt and less costly settlement through the consent decree process.'' 
\5\ Rather,

    \5\ 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 Responses 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.
---------------------------------------------------------------------------

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. para. 
61,508, at 71,980 (W.D. Mo. 1977).
    The Court's inquiry, under the APPA, is whether the settlement is 
``within the reaches of the public interest.''\6\ The proposed Final 
Judgment enjoins the Defendants' continued use of overly restrictive 
contract terms and opens local markets to increased competition, thus 
effectively furthering the public interest.

    \6\ United States v. Bechtel, 648 F.2d 660, 666 (9th Cir.), 
cert. denied, 454 U.S. 1083 (1981); (citations omitted) (emphasis 
added); see United States v. BNS, Inc., 858 F.2d 456, 463, (9th Cir. 
1988); 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 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984); 
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).
---------------------------------------------------------------------------

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: February 15, 1996.

    Respectfully submitted,
Nancy H. McMillen,
Peter H. Goldberg,
Evangelina Almirantearena,
Attorneys, Antitrust Division, U.S. Department of Justice, 1401 H 
Street NW., Suite 4000, Washington, D.C. 20530, (202) 307-5777.

Certification of Service

    I hereby certify that a copy of the foregoing has been served upon 
Waste Management, Inc., Waste Management of Georgia, Inc., and Waste 
Management of Louisiana, Inc., 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 15th day of February, 1996.
Michael Sennett,
Esquire, Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison 
Street, Chicago, IL 60602.
Robert E. Bloch,
Esquire, Mayer, Brown & Platt, 2000 Pennsylvania Ave., N.W., 
Washington, D.C. 20003.
Harold Hellin,
Esquire,
Glen Darbyshire,
Esquire, Hunter, MacLean, Exler & Dunn, 200 East Street Julian, 
Savannah, GA 31401.
Nancy H. McMillen,
Attorney, U.S. Department of Justice, Antitrust Division, 1401 H 
Street, N.W., Suite 4000, Washington, D.C. 20530, (202) 307-5777.

United States District Court for the Southern District of Georgia, 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, 
Waste Management of Louisiana, Inc., d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc. Defendants. [Civil 
Action No.: CV496-35] filed February 15, 1996.

Motion of United States to Exclude Case From All Discovery Requirements 
and To Follow the Procedures of the Antitrust Procedures and Penalties 
Act

    The United States of America hereby moves the Court for an order to 
exclude this case from all discovery requirements under the Federal 
Rules of Civil Procedure and the Local Rules of the United States 
District Court for the Southern District of Georgia, given that the 
disposition of a negotiated civil antitrust case brought and settled by 
the United States is governed by the Antitrust Procedures and Penalties 
Act, 15 U.S.C. 16 (b)-(h) [hereinafter ``the APPA'']. The United States 
further moves the Court for inclusion in this Order for an exemption 
from the requirement that Defendants file any responsive pleading to 
the Complaint.
    As set forth below, the parties have consented to the entry of the 
proposed Final Judgment without trial or adjudication of any issue of 
fact or law, and without the Final Judgment constituting any evidence 
against or an admission by any party with respect to any such issue. 
Pursuant to the procedures of the APPA, discovery between the parties 
is unnecessary and would be contrary to the intentions of the parties. 
Therefore, the United States respectfully requests that the Court enter 
the attached Order which excludes the case from all discovery 
requirements 

[[Page 8663]]
of the Federal Rules of Civil Procedure and the Local Rules of the 
United States District Court for the Southern District of Georgia, and 
states that the disposition of the case will be consistent with the 
APPA.
    1. On February 15,1996, the United States filed a Complaint and a 
Stipulation by which the parties agreed to the Court's entry of an 
attached proposed Final Judgment following compliance with the APPA.
    2. The United States also filed on February 15, 1996, a Competitive 
Impact Statement as required by 15 U.S.C. 16(b).
    3. The APPA also requires the United States to publish a copy of 
the proposed Final Judgment and the Competitive Impact Statement in the 
Federal Register. It further requires the publication of summaries of 
the terms of the proposed Final Judgment and the Competitive Impact 
Statement in at least two newspapers of general circulation. This 
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. Following such publication in the newspapers and Federal 
Register, a sixty-day waiting period will begin. During this time, the 
United States will consider, and at the close of that period respond 
to, any public comments that it receives. It will publish the comments 
and its responses in the Federal Register. 15 U.S.C. 16(d).
    5. After the expiration of the sixty-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. 15 U.S.C. 16(d).
    6. After the filing of the Motion For Entry of the Final Judgment, 
the Court may enter the Final Judgment without a hearing, if it finds 
that the Final Judgment is in the public interest. 15 U.S.C. 16(e)-(f).
    7. The parties fully intend to comply with the requirements of the 
APPA.
    As stated above, the Antitrust Procedures and penalties Act governs 
the disposition of civil antitrust cases brought and settled by the 
United States. Discovery between the parties, which have consented to 
the proposed settlement filed with the Court, is unnecessary. 
Accordingly, the attached Order is justified and should be entered by 
the Court.

    Respectfully submitted,
Harry D. Dixon, Jr.,
United States Attorney, Southern District of Georgia, 100 Bull Street, 
Suite 201, Savannah, GA 31401, Tel.: (912) 652-4422.
Nancy H. McMillen,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H 
Street NW., Suite 4000, Washington, DC 20530, Tel.: (202) 307-5777.

Certificate of Service

    I hereby certify that on February 15, 1996, a true and correct copy 
of the foregoing has been served on the parties below by placing a copy 
of this MOTION OF UNITED STATES TO EXCLUDE CASE FROM ALL DISCOVERY 
REQUIREMENTS AND TO FOLLOW THE PROCEDURES OF THE ANTITRUST PROCEDURES 
AND PENALTIES ACT in the U.S. Mail, postage prepaid, to the addresses 
given below.
    For Defendants Waste Management of Georgia, Inc., Waste Management 
of Louisiana, Inc., and Waste Management, Inc.:

Michael Sennett, Esquire, Bell, Boyd & Lloyd, 3 First National Plaza, 
70 West Madison Street, Chicago, IL 60602
Robert Bloch, Esquire, Mayer, Brown & Platt, 2000 Pennsylvania Ave. 
NW., Washington, DC 20006
Harold Hellin, Esquire, Glen Darbyshire, Esquire, Hunter, MacLean, 
Exler & Dunn, 200 East Street Julian, Savannah, GA 31401.

Nancy H. McMillen,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H 
Street NW., Suite 4000, Washington, DC 20530, (202) 307-5777.

United States District Court for the Southern District of Georgia 
Savannah Division

    In the matter of United States of America, Plaintiff, v. Waste 
Management of Georgia, Inc., d/b/a Waste Management of Savannah, 
Waste Management of Louisiana, Inc. d/b/a Waste Management of 
Central Louisiana, and Waste Management, Inc., Defendants. Civil 
Action No.: CV496-35, filed: Feb. 15, 1996.

Order Excluding Case From All Discovery Requirements and To Follow the 
Procedures of the Antitrust Procedures and Penalties Act

    Plaintiff, the United States of America, has moved the Court to 
exclude this case from all discovery requirements under the Federal 
Rules of Civil Procedure and the Local Rules of the United States 
District Court for the Southern District of Georgia, given that the 
disposition of negotiated civil antitrust consent decrees are governed 
by the Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h). 
The Court is of the opinion that this motion should be granted.
    It is therefore Ordered that this case is excluded from all 
discovery requirements under the Federal Rules of Civil Procedure and 
the Local Rules of the United States District Court for the Southern 
District of Georgia. It is further ORDERED that the Defendants are not 
required to file any responsive pleading to the Complaint.
    It is also therefore Ordered that the procedures to be followed in 
this case shall be consistent with the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16 (b)-(h).

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

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United States District Judge.

[FR Doc. 96-5040 Filed 3-4-96; 8:45 am]
BILLING CODE 4410-01-M