[Federal Register Volume 61, Number 178 (Thursday, September 12, 1996)]
[Notices]
[Pages 48164-48169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23378]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Brush Fibers, 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 Eastern District of Pennsylvania
in the above-captioned case.
On August 29, 1996, the United States filed a civil antitrust
Complaint to prevent and restrain Brush Fibers, Inc., from conspiring
to lessen and eliminate competition for tampico fiber sold in the
United States in violation of Section 1 of the Sherman Act (15 U.S.C.
1). Tampico fiber is a vegetable fiber grown in Mexico and used as a
filler in industrial and consumer brushes. The complaint alleges that
the defendant agreed with its co-conspirator supplier to resell tampico
fiber at prices fixed by the supplier and other co-conspirators.
The proposed Final Judgment would prohibit the defendant from
directly or indirectly agreeing with a supplier to fix the price at
which tampico fiber may be resold by the defendant or any other
distributor. The proposed Final Judgment also would prohibit the
defendant from entering into any agreement or understanding with any
other distributor or with any supplier of tampico fiber for (1)
raising, fixing, or maintaining the price or other terms or conditions
for the sale or supply of tampico fiber; (2) allocating sales,
territories, or customers for tampico fiber; (3) eliminating or
discouraging new entry into the tampico fiber market; and (4)
eliminating or otherwise restricting the supply of tampico fiber to any
customer. Finally, the proposed Final Judgment would also prohibit the
exchange of current and future price information, information regarding
sales volume, or the location or identity of customers with any other
distributor of tampico fiber or with any supplier other than its own.
Public comment is invited within the statutory sixty (60) day
period. Such comments will be published in the Federal Register and
filed with the Court. Comments should be addressed to Robert E.
Connolly, Chief, Middle Atlantic Office, U.S. Department of Justice,
Antitrust Division, The Curtis Center, 6th and Walnut Streets, Suite
650 West, Philadelphia, PA 19106, (telephone number 215-597-7405).
Rebecca P. Dick,
Deputy Director of Operations.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
(1) The parties consent that a final judgment in the form hereto
attached may be filed and entered by the Court at any time after the
expiration of the sixty (60) day period for public comment provide by
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h),
without further notice to any party or other proceedings, either upon
the motion of any party or upon the Court's own motion, provided that
plaintiff has not withdrawn its consent as provided herein;
(2) The plaintiff may withdraw its consent hereto at any time
within said period of sixty (60) days by serving notice thereof upon
the other party hereto and filing said notice with the Court;
(3) In the event the plaintiff withdraws its consent hereto, this
stipulation shall be of no effect whatever in this or any other
proceeding and the making of this stipulation shall not, in any manner,
prejudice any consenting party to any subsequent proceedings.
Dated:
Respectfully submitted,
[[Page 48165]]
For the Plaintiff:
Joel I. Klein,
Acting Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Robert E. Connolly,
Chief, Middle Atlantic Office.
Edward S. Panek
Michelle A. Pionkowski
Roger L. Currier
Joseph Muoio,
Attorneys, Antitrust Division, U.S. Department of Justice, Middle
Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,
Philadelphia, PA 19106, Tel.: (215) 597-7401.
For the Defendant:
Ian Moss,
President, Brush Fibers, Inc.
Final Judgment
Plaintiff, the United States of America, filed its complaint on
. Plaintiff and defendant, by their respective attorneys, have
consented to the entry of this final judgment without trial or
adjudication of any issue of fact or law. This final judgment shall not
be evidence against or an admission by any party to any issue of fact
or law. Defendant has agreed to be bound by the provisions of this
final judgment pending its approval by the Court.
Therefore, before the taking of any testimony and without trial or
adjudication of any such issue of fact or law herein, and upon consent
of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED as follows.
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The complaint states a
claim upon which relief may be granted against defendant under Section
1 of the Sherman Act, 15 U.S.C. 1.
II
Definitions
As used in this final judgment:
A. ``Agreement'' means any contract, agreement or understanding,
whether oral or written, or any term or provision thereof.
B. ``Person'' means any individual, corporation, partnership,
company, sole proprietorship, firm or other legal entity.
C. ``Tampico fiber'' is a natural vegetable fiber produced by the
lechuguilla plant and grown in the deserts of northern Mexico. It is
harvested by individual farmers, processed, finished and exported to
the United States and worldwide, where it is used as brush filling
material for industrial and consumer brushes. It is available in
natural white, bleached white, black, gray and a wide variety of
mixtures.
D. ``Resale price'' means any price, price floor, price ceiling,
price range, or any mark-up, formula or margin of profit relating to
tampico fiber sold by distributors.
III
Applicability
A. This final judgment applies to the defendant and to its
officers, directors, agents, employees, subsidiaries, successors and
assigns, and to all other persons in active concert or participation
with any of them who shall have received actual notice of this final
judgment by personal service or otherwise.
B. The defendant shall require, as a condition of any sale or other
disposition of all, or substantially all, of its stock or assets used
in the manufacture or sale of tampico fiber, that the acquiring party
or parties agree to be bound by the provisions of this final judgment,
and that such agreement be filed with the Court.
IV
Prohibited Conduct
As to tampico fiber imported into or sold in the United States, the
defendant is enjoined and restrained from:
A. directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any rights under any contract,
agreement, arrangement, understanding, plan, program, combination or
conspiracy with any other distributor or with any supplier of tampico
fiber to:
(1) raise, fix, or maintain the prices or other terms or conditions
for the sale or supply of tampico fiber;
(2) allocate sales volumes, territories or customers for tampico
fiber;
(3) discourage or eliminate any new entrant into the tampico fiber
market; and
(4) restrict or eliminate the supply of tampico fiber to any
customer;
B. communicating to, requesting from or exchanging with any
distributor or supplier (other than its own supplier) of tampico fiber
any current or future price, price change, discount, or other term or
condition of sale charged or quoted or to be charged or quoted to any
customer or potential customer for tampico fiber, whether communicated
in the form of a specific price or in the form of information from
which such specific price may be computed;
C. distributing to any distributor or supplier (other than its own
supplier) of tampico fiber price lists or other pricing material that
is used, has been used, or will be used in computing prices or terms or
conditions of sale charged or to be charged for tampico fiber;
D. communicating to, requesting from or exchanging with any
distributor or supplier (other than its own supplier) of tampico fiber
information regarding the volume of sales of tampico fiber or the
locatIon or identity of customers;
E. directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any right under any contract,
agreement, understanding, plan or program with any supplier to fix or
maintain the prices at which tampico fiber may be resold or offered for
sale by defendant or any other distributor; and
F. participating or engaging directly or indirectly through any
trade association, organization or other group in any activity which is
prohibited in Section IV (A)-(E) above.
V
Permitted Conduct
A. Other than Section IV(A) of this final judgment, nothing
contained in this final judgment shall prohibit the defendant from
negotiating or communicating with any distributor or supplier of
tampico fiber or with any agent, broker or representative of such
distributor or supplier solely in connection with bona fide proposed or
actual purchases of tampico fiber from, or sale of tampico fiber to,
that distributor or supplier.
B. Nothing contained in this final judgment shall prohibit the
defendant from unilaterally deciding to resell tampico at prices
suggested by its supplier. However, any instance in which a supplier
suggests the prices at which the defendant should resell tampico shall
be reported in writing with a copy to the defendant's Antitrust
Compliance Officer. This report shall state the date, time and place of
the communication, whether it was oral or written, the name and title
of the other person or persons involved in the communication, briefly
describe the pricing information provided, and if the communication was
written, have attached a copy of the document containing the reference
to the suggested resale prices. Such reports shall be retained in the
files of the defendant, and copies thereof shall be delivered to the
Antitrust Division by the defendant on or about such anniversary date
of this final judgment.
[[Page 48166]]
VI
Compliance Program
The defendant shall establish within thirty (30) days of entry to
this final judgment and shall, thereafter, maintain a program to insure
compliance with this final judgment, which program shall include at a
minimum the following:
A. designating an Antitrust Compliance Officer responsible, on a
continuing basis, for achieving compliance with this final judgment and
promptly reporting to the Department of Justice any violation of the
final judgment;
B. within sixty (60) days after the date of entry of this final
judgment, furnishing a copy thereof to each of its own, its
subsidiaries' and its affiliates' (1) officers, (2) directors, and (3)
employees or managing agents who are engaged in, or have responsibility
for or authority over, the pricing of tampcio fiber; and advising and
informing each such person that his or her violation of this final
judgment could result in a conviction for contempt of court and
imprisonment and/or fine;
C. within seventy five (75) days after the date of entry of this
final judgment, certifying to the plaintiff whether it has designated
an Antitrust Compliance Officer has been distributed the final judgment
in accordance with Sections VI (A) and (B) above;
D. within thirty (30) days after each such person becomes an
officer, director, employee or agent of the kind described in Section
VI(B), furnishing to him or her copy of this final judgment together
with the advice specified in Section VI(B);
E. annually distributing the final judgment to each person
described in Sections VI (B) and (D);
F. annually briefing each person described in Sections VI (B) and
(D) as to the defendant's policy regarding compliance with the Sherman
Act and with this final judgment, including the advice that defendant
will make legal advice available to such persons regarding any
compliance questions or problems;
G. annually obtaining (and maintaining) from each person described
in Sections (VI) (B) and (D) a certification that he or she:
(1) has read, understands, and agrees to abide by the terms of this
final judgment;
(2) has been advised of and understands the company's policy with
respect to compliance with the Sherman Act and the final judgment;
(3) has been advised and understands that his or her non-compliance
with the final judgment may result in conviction for criminal contempt
of court and imprisonment and/or fine; and
(4) is not aware of any violation of the final judgment that has
not been reported to the Antitrust Compliance Officer; and
H. on or about each anniversary date of the entry of the final
judgment, submitting to the plaintiff an annual declaration as to the
fact and manner of its compliance with this final judgment, including
any reports responsive to Section V of this final judgment.
VII
Inspection and Compliance
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 Department of Justice
shall, upon written request of the Attorney General or of the Assistant
Attorney General in charge of the Antitrust Division, and on reasonable
notice to the defendant made to its principal office, be permitted:
(1) access, during the defendant's 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 the
defendant, which have counsel present, relating to any matters
contained in this final judgment; and
(2) subject to the reasonable convenience of the defendant and
without restraint or interference from it, to interview officers,
employees and agents of the defendant, who may have counsel present,
regarding any such matters;
(B) upon the written request of the Attorney General or of the
Assistant Attorney General in charge of the Antitrust Division made to
the defendant's principal office, the defendant 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 or documents obtained by the means provided in
this Section VII of the final judgment shall be divulged by any
representative of the Department of Justice to any person other than a
duly authorized representative of the Executive Branch of the United
States, except in the course of legal proceedings to which the United
States is a party, or for the purpose of securing compliance with this
final judgment, or as otherwise required by law;
D. if at the time information or documents are furnished by the
defendant to plaintiff, the defendant represents and identifies in
writing the material in any such information or documents to which a
claim of protection may be asserted under Rule 26(c)(7) of the Federal
Rules of Civil Procedure, and such defendant 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 ten (10) days notice
shall be given by plaintiff to the defendant prior to divulging such
material in any legal proceeding (other than a grand jury proceeding)
to which the defendant is not a party; and
E. nothing set forth in this final judgment shall prevent the
Antitrust Division from utilizing other investigative alternatives,
such as Civil Investigative Demand process provided by 15 U.S.C. 1311-
1314 or a federal grand jury, to determine if the defendant has
complied with this final judgment.
VIII
Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
either of the parties to this final judgment to apply to this Court at
any time for such further orders or directions as may be necessary or
appropriate for the construction or carrying out of this final
judgment, for the modification of any of the provisions hereof, for
this enforcement of compliance herewith, and for the punishment of
violations hereof.
IX
Ten-Year Expiration
This final judgment will expire on the tenth anniversary of its
date of entry.
X
Public Interest
Entry of this final judgment is in the public interest.
Dated:
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UNITED STATES DISTRICT JUDGE
Competitive Impact Statement
Pursuant to Section 2 of the Antitrust Procedures and Penalties Act
(``APPA''), 15 U.S.C. 16(b), the United States files this Competitive
Impact Statement relating to the proposed final judgment as to United
States v. Brush Fibers, Inc., submitted for entry in this civil
antitrust proceeding.
I
Nature and Purpose of the Proceedings
On , the United States filed a civil antitrust complaint
alleging that under Section 4 of the Sherman Act, as
[[Page 48167]]
amended, 15 U.S.C. 4, certain companies and individuals, including the
above-named defendant, combined and conspired from at least as early as
January 1990 to April 1995, to lessen and eliminate competition in the
sale of tampico fiber in the United States, in violation of Section 1
of the Sherman Act, 15 U.S.C. 1.
Specifically, BFI agreed with its supplier to fix and maintain
resale prices for tampico fiber in the United States at amounts set by
the supplier. Moreover, the complaint alleges, BFI continued to adhere
to the resale price agreement even after learning that it was part of a
larger agreement involving its supplier and other co-conspirators,
including the only other major United States distributor of tampico
fiber. The overall conspiracy, which also included an allocation of
sales and production levels, had the effect of cartelizing nearly all
sales of tampico fiber in the United States and artificially inflating
the price of tampico fiber.
The complaint seeks a judgment by the Court declaring that the
defendant engaged in an unlawful combination and conspiracy in
restraint of trade in violation of the Sherman Act. It also seeks an
order by the Court to enjoin and restrain the defendant from any such
activities or other activities having a similar purpose or effect in
the future.
The United States and the defendant have stipulated that the
proposed final judgment may be entered after compliance with the APPA,
unless the United States withdraws its consent.
The Court's entry of the proposed final judgment will terminate
this civil action against the defendant, except that the Court will
retain jurisdiction over the matter for possible further proceedings to
construe, modify or enforce the judgment, or to punish violations of
any of its provisions.
II
Description of The Practices Giving Rise to the Alleged Violations of
the Antitrust Laws
As defined in the complaint, tampico fiber is a natural vegetable
fiber produced by the lechuguilla plant and grown in the deserts of
northern Mexico. It is harvested by individual farmers, processed,
finished and exported worldwide, where it is used as brush filling
material for industrial and consumer brushes. It is available in
natural white, bleached white, black, gray and a wide variety of
mixtures.
The complaint further alleges that the defendant accounted for
aggregate United States sales of tampico fiber of approximately $10
million during the period from January of 1990 through April of 1995.
During this time, the defendant obtained from a Mexican processor,
through an intermediary company, substantial quantities of tampico
fiber. The defendant, acting as the Mexican processor's exclusive
United States distributor, sold this tampico fiber to its customers
throughout the United States, including those located in the Eastern
District of Pennsylvania, in a continuous and uninterrupted flow of
interstate commerce. Similarly, the complaint alleges that non-
defendant co-conspirators sold and shipped additional substantial
quantities of tampico fiber in a continuous and uninterrupted flow of
interstate commerce from another processing facility in Mexico through
their exclusive United States distributor to customers throughout the
United States, including some located in the Eastern District of
Pennsylvania.
The complaint alleges that the defendant and co-conspirators
engaged in an agreement, the effect of which was to fix the resale
prices of tampico fiber sold in the United States. Resale price sheets
were provided to the defendant and another co-conspirator United States
distributor by their respective co-conspirator suppliers. As a
condition of becoming and remaining a United States distributor of
tampico fiber, the defendant agreed by written contract with its
supplier to sell at the prices listed on the price sheet. From at least
January 1990 on, the defendant and the other United States' distributor
of tampico fiber had identical price sheets prepared by their
respective co-conspirator suppliers, and the majority of sales were
made by the distributors at these list prices or other agreed-upon
prices.
The defendant continued to observe the resale price maintenance
scheme even after learning of collusive agreements between the two
Mexican suppliers of tampico fiber. The resale price scheme had the
effects of fixing and stabilizing the resale prices of tampico fiber.
The defendant's conduct also lessened or eliminated competition between
the two principal United States distributors of tampico fiber. The
anticompetitive effects of the defendant's conduct were heightened
because it was one of only two significant United States distributors
of tampico fiber. The defendant's adherence to the resale price
maintenance scheme together with other acts of its co-conspirators had
the effect of cartelizing nearly all sales of tampico fiber in the
United States and artificially inflating the prices of tampico fiber.
BFI's supplier in this scheme has already plead guilty and agreed to
enter a consent decree in response to criminal and civil charges
relating to the entire agreement.
III
Explanation of the Proposed Final Judgment
The United States and the defendant have stipulated that a final
judgment, in the form filed with the Court, may be entered by the Court
at any time after compliance with the APPA, 15 U.S.C. 16 (b)-(h). The
proposed final judgment provides that the entry of the final judgment
does not constitute any evidence against or an admission by any party
with respect to any issue of fact or law. Under the provisions of
Section 2(e) of the APPA, entry of the proposed final judgment is
conditioned upon the Court finding that its entry will be in the public
interest.
The proposed final judgment contains two principal forms of relief.
First, the defendant is enjoined from repeating the conduct it
undertook in connection with the tampico fiber conspiracy and from
certain other conduct that could have similar anticompetitive effects.
Second, the proposed final judgment places affirmative burdens on the
defendant to pursue an antitrust compliance program directed toward
avoiding a repetition of the tampico fiber conspiracy.
A. Prohibited Conduct
Section IV of the proposed final judgment broadly enjoins the
defendant from conspiring to fix prices, allocate sales, discourage new
entrants, or otherwise restrict or eliminate the supply of tampico
fiber sold to any customer in the United States, or from communicating
certain pricing or sales information that could further such a
conspiracy (IV (A), (B), (C) and (D)); from agreeing with a supplier to
set or control the resale prices of defendant or any other distributor
to its customers (IV (E)); and from joining any group whose aims or
activities are prohibited by Sections IV (A)-(E) of the final judgment
(IV (F)).
Specifically, as regards tampico fiber sold in the United States,
Sections IV (A)-(F) of the proposed final judgment provides as follows.
Section IV (A) of the proposed final judgment enjoins the defendant
from directly or indirectly agreeing with any other distributor or with
any supplier of tampico fiber to (1) raise, fix or maintain the prices
or other terms or conditions for the sale or supply of tampico fiber;
(2) allocate sales volumes, territories or customers for tampico fiber;
(3) discourage or
[[Page 48168]]
eliminate any new entrant into the tampico fiber market; and (4)
restrict or eliminate the supply of tampico fiber to any customer.
Section IV(B) of the proposed final judgment enjoins the defendant
from communicating to, requesting from or exchanging with any
distributor or supplier (other than its own supplier) of tampico fiber
any current or future price, price change, discount or other term or
condition of sale charged or quoted, or to be charged or quoted to any
customer or potential customer for tampico fiber, whether communicated
in the form of a specific price or in the form of information from
which such specific price may be computed.
Section IV(C) of the proposed final judgment enjoins the defendant
from distributing to any distributor or supplier (other than its own
supplier) of tampico fiber price lists or other pricing material that
is used, has been used, or will be used in computing prices or terms or
conditions of sale charged or to be charged for tampico fiber.
Section IV(D) of the proposed final judgment enjoins the defendant
from communicating to, requesting from or exchanging with any
distributor or supplier (other than its own supplier) of tampico fiber
information regarding the volume of sales of tampico fiber or the
location or identity of customers.
Section IV(E) of the proposed final judgment enjoins the defendant
from directly or indirectly entering into, adhering to, maintaining,
furthering, enforcing or claiming any right under any contract,
agreement, understanding, plan or program with any supplier to fix or
maintain the prices at which tampico fiber may be resold or offered for
sale by defendant or any other distributor.
Section IV(F) of the proposed final judgment enjoins the defendant
from participating or engaging, directly or indirectly, through any
trade association, organization or other group, in any activity which
is prohibited in Sections IV (A)-(E) of the proposed final judgment.
B. Permitted Conduct
Two exceptions to the broad prohibitions of Section IV of the
proposed final judgment are contained in Section V. Section V(A)
permits any necessary negotiations or communications with any
distributor or supplier, or any agent, broker or representative of such
distributor or supplier in connection with bona fide proposed or actual
purchases of tampico fiber from or sales of tampico fiber to that
distributor or supplier. Section V(B) makes it clear that the final
judgment does not prohibit the defendant from unilaterally deciding to
resell tampico fiber at prices suggested by its supplier. However, the
defendant is obliged to make and retain written reports as to any
suggestion by its supplier as to appropriate resale prices and deliver
copies of the written reports to the Antitrust Division on or about
each anniversary date of the final judgment.
C. Defendant's Affirmative Obligations
Section VI requires that within thirty (30) days of entry of the
final judgment, the defendant adopt or pursue an affirmative compliance
program directed toward ensuring that its employees comply with the
antitrust laws. More specifically, the program must include the
designation of an Antitrust Compliance Officer responsible for
compliance with the final judgment and reporting any violations of its
terms. It further requires that the defendant furnish a copy of the
final judgment to each of its officers and directors and each of its
employees who is engaged in or has responsibility for or authority over
pricing of tampico fiber within sixty (60) days of the date of entry,
and to certify that it has distributed those copies and designated an
Antitrust Compliance Officer within seventy-five (75) days. Copies of
the final judgment also must be distributed to anyone who becomes such
an officer, director or employee within thirty (30) days of holding
that position and to all such individuals annually.
Furthermore, Section VI requires the defendant to brief each
officer, director and employee engaged in or having responsibility over
pricing of tampico fiber as to the defendant's policy regarding
compliance with the Sherman Act and with the final judgment, including
the advice that his or her violation of the final judgment could result
in a conviction for contempt of court and imprisonment, a fine, or
both, and that the defendant will make legal advice available to such
persons regarding compliance questions or problems. The defendant
annually must obtain (and maintain) certifications from each such
person that the aforementioned briefing, advice and a copy of the final
judgment were received and understood and that he or she is not aware
of any violation of the final judgment that has not been reported to
the Antitrust Compliance Officer. Finally, the defendant must submit to
the plaintiff an annual declaration as to the fact and manner of its
compliance with the final judgment, including any reports responsive to
Section V of the final judgment.
Under Section VII of the final judgment, the Justice Department
will have access, upon reasonable notice, to the defendant's records
and personnel in order to determine defendant's compliance with the
judgment.
D. Scope of the Proposed Judgment
(1) Persons Bound by the Decree
The proposed judgment expressly provides in Section III that its
provisions apply to the defendant and each of its officers, directors,
agents and employees, subsidiaries, successors and assigns and to all
other persons who receive actual notice of the terms of judgment.
In addition, Section III of the judgment prohibits the defendant
from selling or transferring all or substantially all of its stock or
assets used in its tampico fiber business unless the acquiring party
files with the Court its consent to be bound by the provisions of the
judgment.
(2) Duration of the Judgment
Section IX provides that the judgment will expire on the tenth
anniversary of its entry.
E. Effect of the Proposed
Judgment on Competition
The prohibition terms of Section IV of the final judgment are
designed to ensure that the defendant will act independently in
determining the prices and terms and conditions at which it will sell
or offer to sell tampico fiber, and that there will be no
anticompetitve restraints (horizontal or vertical) in the tampico fiber
market. The affirmative obligations of Sections VI and VII are designed
to insure that the corporate defendant's employees are aware of their
obligations under the decree in order to avoid a repetition of behavior
that occurred in the tampico fiber industry during the conspiracy
period. Compliance with the proposed judgment will prevent price
collusion, allocation of sales, markets and customers, concerted
activities in restricting new entrants and customers, and resale price
restraints by the defendant with other tampico fiber distributors and
such distributors' suppliers.
IV
Remedies Available to Potential Private Plaintiffs
After entry of the proposed final judgment, any potential private
plaintiff who might have been damaged by the alleged violation will
retain the same right to sue for monetary damages and any other legal
and equitable remedies which he or she may have had if the proposed
judgment had not been
[[Page 48169]]
entered. The proposed judgment may not be used, however, as prima facie
evidence in private litigation, pursuant to Section 5(a) of the Clayton
Act, as amended, 15 U.S.C. 16(a).
V
Procedures Available for Modification of the Proposed Consent Judgment
The proposed final judgment is subject to a stipulation between the
government and the defendant which provides that the government may
withdraw its consent to the proposed judgment any time before the Court
has found that entry of the proposed judgment is in the public
interest. By its terms, the proposed judgment provides for the Court's
retention of jurisdiction of this action in order to permit any of the
parties to apply to the Court for such orders as may be necessary or
appropriate for the modification of the final judgment.
As provided by the APPA (15 U.S.C. 16), any person wishing to
comment upon the proposed judgment may, for a sixty-day (60) period
subsequent to the publishing of this document in the Federal Register,
submit written comments to the United States Department of Justice,
Antitrust Division, Attention: Robert E. Connolly, Chief, Middle
Atlantic Office, Suite 650 West, 7th and Walnut Streets, Philadelphia,
Pennsylvania 19106. Such comments and the government's response to them
will be filed with the Court and published in the Federal Register. The
government will evaluate all such comments to determine whether there
is any reason for withdrawal of its consent to the proposed judgment.
VI
Alternative to the Proposed Final Judgment
The alternative to the proposed final judgment considered by the
Antitrust Division was a full trial of the issues on the merits and on
relief. The Division considers the substantive language of the proposed
judgment to be of sufficient scope and effectiveness to make litigation
on the issues unnecessary, as the judgment provides appropriate relief
against the violations alleged in the complaint.
VII
Determinative Materials and Documents
No materials or documents were considered determinative by the
United States in formulating the proposed final judgment. Therefore,
none are being filed pursuant to the APPA, 15 U.S.C. 16(b).
Dated:
Respectfully submitted,
Joel I. Klein,
Acting Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Robert E. Connolly,
Chief, Middle Atlantic Office.
Edward S. Panek,
Michelle A. Pionkowski,
Roger L. Currier,
Joseph Muoio,
Attorneys, Antitrust Division, U.S. Department of Justice, Middle
Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,
Philadelphia, PA 19106, Tel.: (215) 597-7401.
[FR Doc. 96-23378 Filed 9-11-96; 8:45 am]
BILLING CODE 4410-01-M