[Federal Register Volume 64, Number 234 (Tuesday, December 7, 1999)]
[Notices]
[Pages 68377-68387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31626]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Fiat S.p.A., Fiat Acquisition 
Corporation, New Holland N.V., New Holland North America, Inc., and 
Case Corporation; Proposed Final judgment and Competitive Impact 
Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sections 16 (b) through (h), that a Complaint, 
Hold Separate Stipulation and Order, and a proposed Final Judgment were 
filed with the United States District Court for the District of 
Columbia in United States of America v. Fiat S.p.A., Fiat Acquisition 
Corporation, New Holland N.V., New Holland North America, Inc., and 
Case Corporation, Civil No. 1:99CV02927JR on November 4, 1999. On 
November 19, 1999, the United States filed a Competitive Impact 
Statement. The Complaint alleged that the proposed acquisition of 
certain assets of Case Corporation (``Case'') by Fiat S.p.A. would 
violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, in the 
markets for two-wheel-drive and four-wheel-drive agricultural tractors, 
large square balers, small square balers and self-propelled windrowers. 
The proposed Final Judgment, filed at the same time as the Complaint, 
requires New Holland and Case, among other things, to do the following: 
(1) Sell New Holland's Versatile line of our-wheel-drive tractors; (2) 
sell New Holland's Genesis line of large two-wheel-drive agriculture 
tractors; and (3) sell Case's interest in Hay & Forage Industries 
(``HFI''), a joint venture that sells hay tools. The proposed Final 
judgment requires that the purchaser of the divested assets continue to 
operate them in the manufacture and distribution of four-wheel-drive, 
large two-wheel-drive tractors and hay tools. The Competitive Impact 
Statement describes the Complaint, the proposed Final judgment, the 
industry, and the remedies available to private litigants who may have 
been injured by the alleged violation. Copies of the Complaint, Hold 
Separate Stipulation and Order, proposed Final judgment, and 
Competitive Impact Statement are available for inspection in Room 215 
of the U.S. Department of Justice, Antitrust Division, 325 7th Street, 
NW, Washington, DC, and at the office of the Clerk of the United States 
District Court for the District of Columbia, Washington, DC. Copies of 
any of these materials may be obtained upon request and payment of a 
copying fee.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, and response thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to J. Robert Kramer II, Chief, Litigation III Section, Antitrust 
Division, United States Department of Justice, 1401 H Street, NW, Suite 
3000, Washington, DC 20530 (telephone: 202-307-0924).
Constance K. Robinson,
Director of Operations.

Hold Separate Stipulation and order

    It is hereby stipulated by and between the undersigned parties, by 
their respective attorneys that:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Fiat'' means defendant Fiat S.p.A., an Italian corporation 
with its headquarters in Turin, Italy, its successors and assigns, and 
its subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    B. ``Case'' means Case Corporation, a Delaware corporation with its 
headquarters in Racine, Wisconsin, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    C. ``HFI'' means Hay and Forage Industries, the hay and forage 
equipment manufacturing joint venture between Case and AGCO Corporation 
(``AGCO'') whose plant is located in Hesston, Kansas.
    D. ``Hold Separate Assets'' means the assets required to be 
divested under the proposed Final Judgment, as defined in

[[Page 68378]]

Section II.J of the proposed Final Judgment.

II. Objectives

    The proposed Final Judgment filed in this case is meant to ensure 
Fiat's prompt divestiture of certain assets to remedy the effects that 
the United States alleges would otherwise result from Fiat's proposed 
acquisition of Case. This Hold Separate Stipulation and Order ensures 
that, prior to such divestitures, the Hold Separate Assets be 
maintained and operated as independent, economically viable, ongoing 
business concerns in the manufacture and sale of tractors and hay and 
forage equipment until the required divestitures are complete.

III. Jurisdiction and Venue

    The Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto, and venue of this action is proper 
in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

    A. The parties stipulate that a Final Judgment in the form attached 
hereto may be filed with and entered by the Court, upon the motion of 
any party or upon the Court's own motion, at any time after compliance 
with the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. 16), and without further notice to any party or other 
proceedings, provided that the United States has not withdrawn its 
consent, which it may do at any time before the entry of the proposed 
Final Judgment by serving notice thereof on defendants and by filing 
that notice with the Court.
    B. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment pending entry of the Final Judgment by the 
Court, or until expiration of time for all appeals of any Court ruling 
declining entry of the proposed Final Judgment, and shall, from the 
date of the signing of this Hold Separate Stipulation and Order by the 
parties, comply with all the terms and provisions of the proposed Final 
Judgment as though the same were in full force and effect as an Order 
of the Court.
    C. This Hold Separate Stipulation and Order shall apply with equal 
force and effect to any amended proposed Final Judgment agreed upon in 
writing by the parties and submitted to the Court.
    D. In the event the United States has withdrawn its consent, as 
provided in Paragraph IV.A above, or if the proposed Final Judgment is 
not entered pursuant to this Hold Separate Stipulation and Order, or if 
the time has expired for all appeals of any Court ruling declining 
entry of the proposed Final Judgment, and the Court has not otherwise 
ordered continuing compliance with the terms and provisions of the 
proposed Final Judgment, then the parties are released from all further 
obligations under this Hold Separate Stipulation and Order, and the 
making of this Hold Separate Stipulation and Order shall be without 
prejudice to any party in this or any other proceeding.
    E. Defendants represent that the divestiture ordered in the 
proposed Final Judgment can and will be made, and that defendants will 
later raise no claim of hardship or difficulty as grounds for asking 
the Court to modify any of the divestiture provisions contained 
therein.

V. Hold Separate Provisions

    Until the divestitures required by the proposed Final Judgment bave 
been accomplished:
    A. Fiat shall preserve, maintain, and operate the Hold Separate 
Assets as viable competitive businesses, with management and direction 
of research, development, production, sales, and operations of such 
assets held entirely separate, distinct and apart from those of Fiat. 
Fiat shall not coordinate with the management of the Hold Separate 
Assets in its production, marketing or sale of any products with that 
of any of the Hold Separate Assets that Fiat will own as a result of 
the acquisition of Case. Within fifteen (15) days of the entering of 
this Hold Separate Stipulation and Order, Fiat will inform the United 
States of the steps taken to comply with this provision.
    B. Fiat shall not influence or attempt to influence any operational 
or financial decision of HFI and shall not obtain, directly or 
indirectly, any information, except information that is clearly 
necessary for Fiat to comply with federal, state or local laws and 
regulations or financial information that has been made available to 
potential purchasers. Fiat or Case Corporation shall cause the Case-
appointed members of the HFI Management Committee to resign and shall 
assign to AGCO Case's right to appoint members of the HFI Management 
Committee pending the divestiture. If AGCO agrees that the current 
Case-appointed HFI General Manager continues in his position, Fiat and 
Case will ensure that he complies with the firewall specified in 
Section V.D. In the event that the current Case-appointed HFI General 
Manager resigns his position as HFI General Manager, Fiat or Case shall 
assign to AGGO Case's right to appoint the HFI General Manager. In 
addition, Fiat or Case shall immediately vest all unvested pension and 
other equity rights of the current Case-appointed HFI General Manager 
and provide that employee all benefits the employee would be entitled 
to if terminated without cause. Within ten (10) working days of the 
entering of this Hold Separate Stipulation and Order by the Court, Fiat 
will inform the United States of the steps to comply with this 
provision.
    C. Fiat shall take all steps necessary to ensure that the Hold 
Separate Assets will be maintained and operated as ongoing, 
economically viable and active competitors in the development, 
production and sale of tractors and hay and foraging equipment, that 
the management of the Hold Separate Assets will not be influenced by 
Fiat, and that the books, records, competitively sensitive sales, 
marketing and pricing information, and decision-making associated with 
the Hold Separate Assets including the performance and decision-making 
functions regarding internal research and development, sales and 
pricing, will be kept separate and apart from the business of Fiat. 
Fiat's influence over the Hold Separate Assets shall be limited to that 
necessary to carry out Fiat's obligations under this Hold Separate 
Stipulation and Order and the proposed Final Judgment.
    D. Defendants shall construct and maintain in place a firewall that 
prevents any information about the Hold Separate Assets, including but 
not limited to information about AGCO's and defendants' requirements, 
purchases, or future requirements for tractors and for hay and foraging 
equipment manufactured by HFI, from flowing to any employee of 
defendants not involved in the operation of the Hold Separate Assets. 
To implement this provision, defendants shall identify those employees 
involved in the operation of the Hold Separate Assets, and all 
employees not so identified shall be prohibited from receiving any 
information from or about the Hold Separate Assets, including but not 
limited to defendants' and AGCO's requirements, purchases, or future 
requirements for tractors and for hay and foraging equipment from HFI. 
All identified employees who receive any such information shall be 
prohibited from passing on such information to employees not so 
identified.
    E. Fiat shall, within ten (10) business days of the filing of the 
Complaint, submit to the Department of Justice a document setting forth 
in detail the procedures to effect compliance with

[[Page 68379]]

Paragraph D. The Department of Justice shall have the sole discretion 
to approve the compliance plan and shall notify defendants within three 
(3) business days whether it approves of or rejects the compliance 
plan. In the event that the compliance plan is rejected, the reasons 
for the rejection shall be provided to defendants and defendants shall 
be given the opportunity to submit, within two (2) business days of 
receiving the notice of rejection, a revised compliance plan. If the 
parties cannot agree on a compliance plan within an additional three 
(3) business days, a plan will be devised by the Department of Justice 
and implemented by defendants.
    F. Fiat shall provide and maintain sufficient working capital to 
maintain the Hold Separate Assets as viable, ongoing operations, 
consistent with current business plans.
    G. Fiat shall provide and maintain sufficient lines and sources of 
credit to maintain the Hold Separate Assets as viable, ongoing 
operations, consistent with current business plans.
    H. Fiat shall use all reasonable efforts to maintain and increase 
the sales of the Hold Separate Assets, including funding at previously 
approved levels for 1999 for internal research and development, sales, 
marketing, and support for the Hold Separate Assets.
    I. Fiat shall not sell, lease, assign, transfer or otherwise 
dispose of, or pledge as collateral for loans, assets that may be 
required to be divested pursuant to the proposed Final Judgment.
    J. Except in the ordinary course of business or as is otherwise 
consistent with this Hold Separate Stipulation and Order, defendants 
shall not transfer or terminate, or alter, to the detriment of any 
employee, any current employment or salary agreements for any employee 
who, on the date of entry of this Hold Separate Stipulation and Order, 
works for Case or Fiat and whose primary responsibility relates to the 
Hold Separate Assets.
    K. Within ten (10) days of the filing of this Hold Separate 
Stipulation and Order, defendants shall appoint one or more persons 
from current management, acceptable to the United States in its sole 
discretion, who shall have complete managerial responsibility for the 
Hold Separate Assets, subject to the provisions of this Hold Separate 
Stipulation and Order and the proposed Final Judgment, until such time 
as this Hold Separate Stipulation and Order is terminated. In the event 
that such manager(s) is unable to perform his or her duties, Fiat shall 
appoint from the current management of the Hold Separate Assets, 
subject to the approval of the United States in its sole discretion, a 
replacement within ten (10) working days. Should Fiat fail to initially 
appoint a manager acceptable to the United States, or fail to appoint 
any replacement required within ten (10) working days, the United 
States shall appoint the manager.
    L. Fiat shall take no action that would interfere with the ability 
of any trustee appointed pursuant to the proposed Final Judgment to 
complete the divestiture pursuant to the proposed Final Judgment to a 
suitable purchaser.
    M. This Hold Separate Order and Stipulation shall remain in effect 
until the divestitures required by the Final Judgment are complete, or 
until further Order of the Court.

    Dated: November 4, 1999.
For Plaintiff United States of America
Joan Farragher, Esquire,
U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, N.W., Suite 3000, Washington, D.C. 20005, 
(202) 307-0001.

For Defendants
Steven C. Sunshine, Esq.,
Counsel for Fiat S.p.A., New Holland N.V., New Holland N.A., and 
Fiat Acquisition Corp., Sherman & Sterling, 801 Pennsylvania Avenue, 
NW., Washington, DC 20004-2604, (202) 508-8022.

Richard J. Favretto, Esq.,
Counsel for Case Corporation, Mayer, Brown & Platt, 1909 K Street, 
NW., Washington, DC 20006, (202) 263-3000.
    So Ordered:
    Dated:
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United States District Judge

Final Judgment

    Whereas, plaintiff, the United States of America (``United 
States''), and defendants Fiat S.p.A., Fiat Acquisition Corporation, 
New Holland N.V., New Holland North America, Inc., and Case 
Corporation, by their respective attorneys, having consented to the 
entry of this Final Judgment without trial or adjudication of any issue 
of fact or law herein, and without this Final Judgment constituting any 
evidence against or an admission by any party with respect to any issue 
of law or fact herein;
    And whereas, defendants have agreed to be bound by the provisions 
of this Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of the identified assets to assure that competition 
is not substantially lessened;
    And whereas, plaintiff requires defendants to make a certain 
divestiture for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendants have represented to the plaintiff that the 
divestiture ordered herein can and will be made and that defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
below;
    Now, therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
decreed as follows:

I. Jurisdiction

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

II. Definitions

    As used in this Final Judgment:
    A. ``Fiat'' means defendant Fiat S.p.A., an Italian corporation 
with its headquarters in Turin, Italy, its successors and assigns, and 
its subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    B. ``Fiat Acquisition'' means Fiat Acquisition Corporation, a 
subsidiary of Fiat, and its successors and assigns, its subsidiaries, 
divisions, groups, affiliates, partnerships, joint ventures, directors, 
officers, managers, agents, and employees.
    C. ``New Holland N.V.'' means defendant New Holland N.V., a 
Netherlands corporation, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    D. ``New Holland'' means defendant New Holland North America, Inc., 
a subsidiary of New Holland N.V. and a Delaware corporation, with its 
headquarters in New Holland, Pennsylvania, its successors and assigns, 
its subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    E. ``Case'' means Case Corporation, a Delaware Corporation with its 
headquarters in Racine, Wisconsin, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, directors, officers, managers, agents, and employees.
    F. ``HFI'' means Hay and Forage Industries, the hay and forage

[[Page 68380]]

equipment manufacturing joint venture between Case and Hesston 
Corporation, which has a plant located in Hesston, Kansas.
    G. ``Hay and Forage Assets'' means Case's ownership interest in 
HFI.
    H. ``2WD Assets'' means New Holland's Genesis line of two-wheel-
drive (``2WD'') tractors, including:
    (1) All tangible assets that comprise the 2WD Assets business in 
North America, including research and development activities; all 
manufacturing equipment, tooling and fixed assets, personal property, 
inventory, office furniture, materials, supplies, and other tangible 
property and all other assets used exclusively in connection with the 
2WD Assets; all licenses, permits and authorizations issued by any 
governmental organization for the 2WD Assets; all contracts, teaming 
arrangements, agreements, leases, commitments and understandings 
relating to the 2WD Assets, including supply agreements; all lists and 
credit records of ultimate customers; repair and tractor performance 
records and all other records relating to the 2WD Assets; and the sale 
of the New Holland Winnipeg, Manitoba, Canada plant;
    (2) Any and all intangible assets used in the development, 
production, servicing and sale of 2WD Assets, including, but not 
limited to: (a) the Genesis brand name and all other intellectual 
property rights used exclusively in connection with the 2WD Assets; (b) 
with respect to all other intellectual property rights used in 
connection with both the 2WD Assets and other nondivested New Holland 
assets, a transferable, paid-up license, exclusive in the 2WD Assets 
field of use; (c) all existing licenses and sublicenses relating 
exclusively to the 2WD Assets; and (d) a transferable, paid-up 
sublicense, exclusive in the 2WD Assets field of use, to all other 
existing licenses and sublicenses relating to the 2WD Assets. 
Intellectual property rights comprise, but are not limited to, patents, 
licenses and sublicenses, technical information, computer software and 
related documentation, know-how, trade secrets, drawings, blueprints, 
designs, design protocols, specifications for materials and substances, 
quality assurance and control procedures, design tools and simulation 
capability, manuals, and all research data concerning historic and 
current research and development relating to the 2WD Assets.
    I. ``4WD Assets'' means New Holland's Versatile line of four-wheel-
drive (``4WD'') tractors and its tracked tractor line that is in 
development, including:
    (1) All tangible assets that comprise the 4WD Assets business in 
North America, including research and development activities; all 
manufacturing equipment, tooling and fixed assets, personal property, 
inventory, office furniture, materials, supplies, and other tangible 
property and all other assets used exclusively in connection with the 
4WD Assets; all licenses, permits and authorizations issued by any 
governmental organization for the 4WD Assets; all contracts, teaming 
arrangements, agreements, leases, commitments and understandings 
relating to the 4WD Assets, including supply agreements; all ultimate 
customer lists and credit records; and all other records relating to 
the 4WD Assets; and a sale of the New Holland Winnipeg, Manitoba, 
Canada plant;
    (2) Any and all intangible assets used in connection with the 4WD 
Assets, including, but not limited to: (a) the Versatile brand name and 
all other intellectual property rights used exclusively in connection 
with the 4WD Assets; (b) with respect to all other intellectual 
property rights used in connection with both the 4WD Assets and other 
nondivested New Holland assets, a transferable, paid-up license, 
exclusive in the 4WD Assets field of use; (c) all existing licenses and 
sublicenses relating exclusively to the 4WD Assets; and (d) a 
transferable, paid-up sublicense, exclusive in the 4WD Assets field of 
use, to all other existing licenses and sublicenses relating to the 4WD 
Assets. Intellectual property rights comprise, but are not limited to, 
patents, licenses and sublicenses, technical information, computer 
software and related documentation, know-how, trade secrets, drawings, 
blueprints, designs, design protocols, specifications for materials and 
substances, quality assurance and control procedures, design tools and 
simulation capability, manuals, and all research data concerning 
historic and current research and development relating to the 4WD 
Assets.
    J. ``Divested Assets'' means ``Hay and Forage Assets,'' 2WD 
Assets'' and ``4WD Assets.'' The sale of each of the Divested Assets 
shall include the purchaser's right to reasonable access to the 
technical, service, production and administrative employees of the 
defendants for a period not to exceed 12 months from the date of 
purchase.

III. Applicability

    A. The provisions of this Final Judgment apply to the defendants, 
as defined above, and all other persons in active concert or 
participation with any of them who shall have received actual notice of 
this Final Judgment by personal service or otherwise.
    B. Defendants shall require, as a condition of the sale of all or 
substantially all of their assets of lesser business units that include 
the Divested Assets, that the purchaser or purchasers agree to be bound 
by the provisions of this Final Judgment.

IV. Divestitures

    A. Defendants are hereby ordered and directed, in accordance with 
the terms of this Final Judgment, within one hundred and fifty (150) 
calendar days after the filing of the Complaint in this matter, or 
within five (5) days after notice of entry of this Final Judgment, 
whichever is later, to sell the Divested Assets as viable, ongoing 
businesses to a purchaser or purchasers acceptable to the United States 
in its sole discretion.
    B. Defendants shall use their best efforts to accomplish said 
divestiture as expeditiously as possible. The United States, in its 
sole discretion, may extend the time period for any divestiture for an 
additional period of time not to exceed thirty (30) calendar days.
    C. In accomplishing the divestitures ordered by this Final 
Judgment, defendants shall make known promptly, by usual and customary 
means, the availability of the Divested Assets. Defendants shall inform 
any person making an inquiry regarding a possible purchase that the 
sale is being made pursuant to this Final Judgment and provide such 
person with a copy of this Final Judgment. Defendants shall also offer 
to furnish to all prospective purchasers, subject to customary 
confidentiality assurances, all information regarding the Divested 
Assets customarily provided in a due diligence process, except such 
information subject to attorney-client privilege or attorney work-
product privilege. Defendants shall make such information available to 
the United States at the same time that such information is made 
available to any other person.
    D. Defendants shall permit prospective purchasers of the Divested 
Assets to have reasonable access to personnel and to make inspection of 
the Divested Assets; access to any and all zoning, building, and other 
permit documents and information; and access to any and all financial, 
operational, or other documents and information as is

[[Page 68381]]

customarily provided as part of a due diligence process.
    E. Defendants shall not interfere with any negotiations by any 
purchaser or purchasers to employ any Defendants' employee who works at 
the Divested Assets, or whose principal responsibility concerns the 
Divested Assets.
    F. Defendants shall not take any action, direct or indirect, that 
would impede in any way the operation of any business connected with 
the assets to be divested, or take any action, direct or indirect, that 
would impede the divestiture of any asset for two years after the 
divestiture.
    G. Defendants shall not take any action, direct or indirect, that 
would prevent or discourage in any way any dealer from distributing the 
Divested Assets for two years after the divestiture. Nothing in this 
provision, however, shall prevent the defendants from promoting and 
selling in the ordinary course of business products that compete with 
the Divested Assets.
    H. Unless the United States otherwise consents in writing, the 
divestitures pursuant to section IV of this Final Judgment, or by a 
trustee appointed pursuant to section V, shall include all the Divested 
Assets operated in place pursuant to the Hold Separate Stipulation and 
Order. Such divestiture shall be accomplished by selling or otherwise 
conveying the Divested Assets to a purchaser or purchasers in such a 
way as to satisfy the United States, in its sole discretion, that the 
Divested Assets can and will be used by the purchaser as part of a 
viable, ongoing business, engaged in the manufacture and distribution 
of: 2WD tractors, 4 WD tractors, and/or hay and forage equipment. Each 
divestiture, whether pursuant to section IV or section V of this Final 
Judgment, shall be made to a purchaser that has satisfied the United 
States in its sole discretion, that it: (1) Has the capability and 
intent of competing effectively in the development, production and sale 
of the divested asset; (2) has the managerial, operational, and 
financial capability to compete effectively in the manufacture of the 
divested asset; and (3) is not hindered by the terms of any agreement 
between the purchaser and defendants which gives defendants the ability 
unreasonably to raise the purchaser's costs, to lower the purchaser's 
efficiency, or otherwise to interfere with the ability of the purchaser 
to compete.
    I. In connection with any divestiture of 4WD Assets and/or 2WD 
Assets pursuant to section IV of this Final Judgment, or by a trustee 
appointed pursuant to section V, not accompanied by the sale of the 
Winnipeg plant, the defendant shall offer the purchaser a short-term, 
transitional agreement, not to exceed two years in length, to 
manufacturer and deliver to the purchaser in a timely manner, the 
purchaser's requirements for Genesis and/or Versatile series tractors 
and parts, on such terms and conditions as are reasonably designed to 
enable the purchaser(s) to compete with defendants in the sale of 4WD 
and 2WD tractors, and are acceptable to the United States in its sole 
discretion.
    J. Under each divestiture pursuant to Section IV of this final 
Judgment, or by a trustee appointed pursuant to Section V, defendants 
retain the right to negotiate a transitional supply agreement to 
manufacture and deliver to defendants in a timely manner defendants' 
requirements for Genesis and Versatile tractors and hay and forage 
equipment. Such agreements shall not include the use of the Versatile 
or Genesis trade names and shall not last for a term longer than, for 
2WD or 4WD tractors, 24 months from the filing of the Hold Separate 
Stipulation and Order in this case, and for hay tools and forage 
equipment, 18 months from the filing of the Hold Separate Stipulation 
and Order in this case. Transfer pricing shall be based on auditable 
cost data and such agreements shall include terms and conditions 
reasonably designed to enable the defendants to compete with 
purchaser(s) in the sale of 4WD tractors, 2WD tractors and hay tools 
and forage equipment. The terms and conditions of any such agreements 
must be acceptable to the United States in its sole discretion. Such 
agreements may only be amended with the prior approval of the United 
States in its sole discretion.

V. Appointment of Trustee

    A. In the event that defendants have not divested the Divested 
Assets within the time specified in Section IV of this Final Judgment, 
the Court shall appoint, on application of the United States, a trustee 
selected by the United States, to affect the divestitures of the 
Divested Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divested Assets. The trustee 
shall have the power and authority to accomplish the divestitures at 
the best price then obtainable upon a reasonable effort by the trustee, 
subject to the provisions of Sections IV and V of this Final Judgment, 
and shall have such other powers as the Court shall deem appropriate. 
Subject to Section V.C. of this Final Judgment, the trustee shall have 
the power and authority to hire at the cost and expense of defendants 
any investments bankers, attorneys, or other agents reasonably 
necessary in the judgment of the trustee to assist in the divestitures, 
and such professionals and agents shall be accountable solely to the 
trustee. The trustee shall have the power and authority to accomplish 
the divestitures at the earliest possible time to a purchaser or 
purchasers acceptable to the United States, in its sole discretion, and 
shall have such other powers as this Court shall deem appropriate. 
Defendants shall not object to a sale by the trustee on any ground 
other than the trustee's malfeasance. Any such objections by defendants 
must be conveyed in writing to the United States and the trustee within 
ten (10) calendar days after the trustee has provided the notice 
required under Section VI of this Final Judgment.
    C. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the Court may prescribe and the trustee 
shall account for all monies derived from the sale of the Divested 
Assets sold and all costs and expenses so incurred. After approval by 
the Court of the trustee's accounting, including fees for its services 
and those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendants and the trust shall then be 
terminated. The compensation of the trustee and of any professionals 
and agents retained by the trustee shall be reasonable in light of the 
value of the divested Assets and based on a fee arrangement providing 
the trustee with an incentive based on the price and terms of the 
divestitures and the speed with which they are accomplished.
    D. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestitures, including their best efforts 
to effect all necessary regulatory or other approvals. The trustee and 
any consultants, accountants, attorneys, and other persons retained by 
the trustee shall have full and complete access to the personnel, 
books, records, and facilities of the businesses to be divested, and 
defendants shall develop financial or other information relevant to the 
Divested Assets customarily provided in a due diligence process as the 
trustee may reasonably request, subject to customary confidentiality 
assurances. Defendants shall permit prospective purchasers or the 
Divested Assets to have reasonable access to personnel and to make such 
inspection of physical facilities and any and all financial, 
operational or other documents and other information as may be relevant 
to

[[Page 68382]]

the divestitures required by their Final Judgment.
    E. After its appointment, the trustee shall file monthly reports 
with the parties and the Court setting forth the trustee's efforts to 
accomplish the divestitures ordered under the Final Judgment; provided, 
however, that to the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the Divested Assets, and shall 
describe in detail each contact with any such person during that 
period. The trustee shall maintain full records of all efforts made to 
sell the Divested Assets.
    F. If the trustee has not accomplished such divestitures within six 
(6) months after its appointment, the trustee thereupon shall file 
promptly with the Court a report setting forth: (1) The trustee's 
efforts to accomplish the required divestitures; (2) the reasons, in 
the trustee's judgment, why the required divestitures have not been 
accomplished; and (3) the trustee's recommendations; provided, however, 
that to the extent such reports contain information that the trustee or 
the defendants deem confidential, such reports shall not be filed in 
the public docket of the Court. The trustee shall at the same time 
furnish such report to the parties, who shall each have the right to be 
heard and to make additional recommendations consistent with the 
purpose of the trust. The Court shall enter thereafter such orders as 
it shall deem appropriate in order to carry out the purpose of the 
trust, which may, if necessary, include extending the trust and the 
term of the trustee's appointment by a period requested by the United 
States.

VI. Notice of Proposed Divestitures

    A. Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, any proposed divestiture 
pursuant to Section IV or V of this Final Judgment, defendants or the 
trustee, whichever is then responsible for effecting the divestiture, 
shall notify the United States of the proposed divestiture. If the 
trustee is responsible, it shall similarly notify defendants. The 
notice shall set forth the details of the proposed transaction and 
shall list the name, address, and telephone number of each person not 
previously identified who offered to, or expressed an interest in or a 
desire to, acquire any ownership interest in the businesses to be 
divested that is the subject of the binding contract, together with 
full details of same. Within fifteen (15) calendar days of receipt by 
the United States of such notice, the United States, in its sole 
discretion, may request from defendants, the proposed purchaser, or any 
other third party additional information concerning the proposed 
divestiture and the proposed purchaser. Defendants and the trustee 
shall furnish any additional information requested from them within 
fifteen (15) calendar days of the receipt of the request, unless the 
parties shall otherwise agree. Within thirty (30) calendar days after 
receipt of the notice or within twenty (20) calendar days after the 
United States has been provided the additional information requested 
from defendants, the proposed purchaser, and any third party, whichever 
is later, the United States shall provide written notice to defendants 
and the trustee, if there is one, stating whether or not it objects to 
the proposed divestiture. If the United States provides written notice 
to defendants and the trustee, if there is one, that it does not 
object, then the divestiture may be consummated, subject only to 
defendants' limited right to object to the sale under Section V.B of 
this Final Judgment. Absent written notice that the United States does 
not object to the proposed purchaser or upon objection by the United 
States, a divestiture proposed under Section IV or V shall not be 
consummated. Upon objection by defendants under the provision in 
Section V.B, a divestiture proposed under Section V shall not be 
consummated unless approved by the Court.
    B. Purchasers of the 2WD Assets and 4WD Assets must be defined 
simultaneously by the defendants, or by the applicable trustee, in 
order that the proposed divestitures may be reviewed jointly by the 
United States.

VII. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter and every thirty (30) calendar days thereafter until the 
divestitures have been completed pursuant to Section IV or V of this 
Final Judgment, defendants shall deliver to the United States an 
affidavit as to the fact and manner of compliance with Section IV or V 
of this Final Judgment. Each such affidavit shall include, inter alia, 
the name, address, and telephone number of each person who, at any time 
after the period covered by the last such report, made an offer to 
acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or was contacted or made an inquiry about acquiring, any 
interest in the Divested Assets, and shall describe in detail each 
contact with any such person during that period. Each such affidavit 
shall also include a description of the efforts that defendants have 
taken to solicit buyers for the Divested Assets, and to provide 
required information to prospective purchasers, including the 
limitations, if any, on such information. Assuming the information set 
forth in the affidavit is true and complete, any objection by the 
United States to information provided by defendants, including 
limitations on information, shall be made within fourteen (14) days of 
receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to the United States an 
affidavit which describes in detail all actions defendants have taken 
and all steps defendants have implemented on an ongoing basis to 
preserve the Divested Assets pursuant to Section VIII of this Final 
Judgment and the Hold Separate Stipulation and Order entered by the 
Court. The affidavit also shall describe, but not be limited to, 
defendants' efforts to maintain and operate the Divested Assets as an 
active competitor, maintain the management, staffing, research and 
development activities, sales, marketing and pricing of the Divested 
Asset, and maintain the Divested Assets in operable condition at 
current capacity configurations. Defendants shall deliver to the United 
States an affidavit describing any changes to the efforts and actions 
outlined in defendants' earlier affidavit(s) filed pursuant to this 
Section within fifteen (15) calendar days after the change is 
implemented.
    C. Until one year after the divestiture has been completed, 
defendants shall preserve all records of all efforts made to preserve 
the Divested Assets and to effect the divestitures.

VIII. Hold Separate Order

    Until the divestiture required by the Final Judgment has been 
accomplished, defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestiture 
of the Divested Assets.

IX. Financing

    Defendants are ordered and directed not to finance all or any part 
of any

[[Page 68383]]

acquisition by any person made pursuant to Sections IV or V of this 
Final Judgment.

X. Compliance Inspection

    For purposes of determining or securing compliance with this Final 
Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time.
    A. Duly authorized representatives of the United States Department 
of Justice, upon written request of the Attorney General or the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to defendants made to their principal offices, shall 
be permitted:
    (1) Access during office hours of defendants to inspect and copy 
all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the possession or under the control of 
defendants, who may have counsel present, relating to any matter 
contained in this Final Judgment and the Hold Separate Stipulation and 
Order; and
    (2) Subject to the reasonable convenience of defendants and without 
restraint or interference from them, to interview, either informally or 
on the record, their officers, employees, and agents, 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 
defendants at their principal offices, defendants shall submit such 
written reports, under oath if requested, with respect to any matter 
contained in this Final Judgment and the Hold Separate Stipulation and 
Order.
    C. No information or documents obtained by the means provided in 
Sections V, VI, VII or X of this Final Judgment shall be divulged by a 
representative of the United States 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 (including grand jury proceedings), of 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 the United States, defendants represent and identify in 
writing the material in any such information or documents as 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 the United States shall 
give ten (10) calendar days' notice to defendants prior to divulging 
such material in any legal proceeding (other than a grand jury 
proceeding) to which defendants are not a party.

XI. Retention of Jurisdiction

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

XII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire upon the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Final Judgment is in the public interest.

Dated------------------------------------------------------------------

----------------------------------------------------------------------
United States District Judge

Competitive Impact Statement

    The United States, pursuant to Section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA''), 14 U.S.C. 16(b)-(h), files 
this Competitive Impact Statement relating to the proposed Final 
Judgment submitted for entry in this civil antitrust proceeding.

1. Nature and Purpose of the Proceeding

    On November 4, 1999, the United States filed a civil antitrust 
Complaint alleging that the proposed acquisition of Cases Corporation 
(``Case'') by Fiat S.p.A. (``Fiat''), and Fiat subsidiaries, Fiat 
Acquisition Corporation (``Fiat Acquisition''), New Holland, N.V., and 
North Holland North America, Inc. (``New Holland''), would violate 
Section 7 of the Clayton Act, as amended, 15 U.S.C. 18. the Complaint 
alleges that the acquisition likely would substantially reduce 
competition in the manufacture and sale of four-wheel-drive (``4WD'') 
tractors and large two-wheel-drive (``2WD'') tractors, and in the 
manufacture and sale of small square balers, large square balers, and 
self-propelled windrowers (collectively ``hay and forage equipment''), 
in the United States and Canada. The Compliant seeks: (1) A judgment 
that the proposed acquisition would violate Section 7 of the Clayton 
Act; (2) injunctive relief preventing consummation of the proposed 
acquisition; (3) an award of costs to the plaintiff; and (4) such other 
relief as the Court may deem just and proper.
    When it filed the Complaint, the United States also filed a Hold 
Separate Stipulation and Order and a proposed Final Judgment, which 
would settle the lawsuit. The proposed Final Judgment permits Fiat and 
its subsidiaries to acquire Case, but requires divestitures that will 
preserve competition in the five relevant product markets alleged in 
the Complaint. The proposed Final Judgment orders defendants to divest 
New Holland's Genesis line of 4WD tractors; New Holland's Versatile 
line of 2WD tractors and its line of tracked tractors that is currently 
in development; and Case's ownership interest in Hay and Forage 
Industries (``HFI''), a joint venture that makes hay and forage 
equipment.
    Defendants must accomplish the divestitures within one hundred and 
fifty (150) calendar days after the filing of the Compliant, or five 
(5) days after notice of the entry of the proposed Final Judgment by 
the Court, whichever is later, to purchasers acceptable to the United 
States. If the defendants do not do so within the time specified in the 
proposed Final Judgment, a trustee appointed by the Court would be 
empowered for an additional six months to sell those assets. If the 
trustee is unable to do so in that time, the Court could enter such 
orders as it might deem appropriate to carry out the purpose of the 
Final Judgment, which may, if necessary, include extending the trust 
and the trustee's appointment by a period requested by the United 
States.
    In addition, under the terms of the Hold Separate Stipulation and 
Order, defendants must hold specified assets separate and apart from 
their other businesses until the required divestitures have been 
accomplished. Until the required divestitures are accomplished, 
defendants must preserve and maintain the specified assets to be 
divested as saleable and economically viable ongoing concerns.
    The parties have stipulated that the proposed Final Judgment may be 
entered after compliance with the APPA. Entry of the proposed Final 
Judgment would 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.

[[Page 68384]]

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction
    Fiat is an Italian corporation with its corporate headquarters and 
principal place of business in Turin, Italy. Fiat is an international 
automotive, construction and agricultural equipment company that 
manufactures cars, trucks, construction equipment, tractors, and hay 
and forage equipment. Fiat reported revenues of $56.6 billion in 1998.
    Among Fiat's subsidiaries are New Holland N.V., New Holland, and 
Fiat Acquisition. New Holland N.V. produces construction equipment, 
tractors, hay and forage equipment, and other agricultural equipment; 
it is the third largest supplier of agricultural equipment in the 
United States and Canada. New Holland manufactures 4WD agricultural 
tractors, large 2WD agricultural tractors and hay and forage equipment.
    Case is a Delaware corporation with its headquarters and principal 
place of business in Racine, Wisconsin. Case manufactures 4WD tractors 
and large 2WD agricultural tractors. Case also owns 50 percent of HFI, 
a joint venture which produces hay and forage equipment. HFI sells the 
equipment it manufactures to Case and its joint venture partner for 
distribution and sale under each company's respective trade names. In 
1998, Case reported revenues of $6.1 billion.
    On or about May 15, 1999, Fiat entered into an Agreement and Plan 
of Merger (``Agreement'') to acquire Case for approximately $4.3 
billion. Under the Agreement, Fiat Acquisition and Case will merge, 
with Case being the surviving entity. New Holland N.V. will 
subsequently acquire all the issued and outstanding shares of the 
surviving entity. This transaction, which would eliminate head-to-head 
competition between Case and New Holland and increase concentration in 
already highly concentrated markets for tractors and hay and forage 
equipment precipitated the government's suit.
B. The Markets
    1. Tractors. Agricultural tractors are used primarily on farms for 
a variety of applications, including pulling implements to till soil 
and to plant and cultivate crops. Agricultural tractors are produced in 
a range of horsepower (``hp'') and may be either wheeled or tracked. In 
general, as the size and weight of the implement increases, the 
horsepower of the tractor required to pull it increases as well. 4WD 
tractors are high horsepower (205 hp to 425 hp) tractors used mostly 
for heavy-duty farm applications, including tilling, cultivating, and 
pulling large implements. Large 2WD tractors are lower horsepower 
tractors that are typically used to pull medium-sized implements for 
farm applications that do not require the heavy-duty performance of a 
4WD tractor.
    2. Hay and Forage Equipment. A self-propelled windrower cuts hay, 
breaks it up for faster drying and lays it on the ground in long 
columns called windows that the hay can dry quickly. Balers collect hay 
after it has dried in the field, compact it into square bales, tie the 
bales together with twine, and eject them onto the ground for 
subsequent collection or transportation. A small square balers produces 
a bale of hay with a rectangular face less than two square feet in 
size; a large square baler generally produces an eight-foot long bale 
of hay with a rectangular face that is more than four square feet in 
size.

C. Harm to Competition as a Result of the Proposed Transaction

    The Complaint alleges that the acquisition would eliminate head-to-
head competition between Fiat and Case in markets for 4WD tractors, 
large 2WD tractors, small square balers, large square balers, and self-
propelled windrowers in the United States and Canada. The Complaint 
also alleges that the acquisition would significantly increase 
concentration in these markets. As a result of this increased 
concentration and reduced competition, farmers would likely face higher 
prices, lower quality, and less innovation in markets for 2WD tractors, 
large 2WD tractors, small square balers, and self-propelled windrowers. 
Furthermore, entry by new companies would not be timely, likely, or 
sufficient to prevent these anticompetitive effects.

III. Explanation of the Proposed Final Judgment

A. The Divestiture Requirements
    The provisions of the proposed Final Judgment are designed to 
preserve competition in markets for tractors and hay and forage 
equipment in the United States and Canada. To preserve competition in 
the markets for 4WD and 2WD tractors, Section IV.A of the proposed 
Final Judgment orders defendants to divest New Holland's Genesis line 
of large 2WD tractors, New Holland's Versatile line of 4WD tractors, 
and its line of tracked tractors that is currently in development. To 
preserve competition in the markets for small square balers, large 
square balers, and self-propelled windrowers, Section IV.A of the 
proposed Final Judgment also orders defendants to divest Case's 
interest in HFI.
B. Short-Term Supply Agreements for Tractors
    New Holland produces in Genesis line of large 2WD tractors and 
Versatile line of 4WD tractors at its Winnipeg, Manitoba, Canada plant. 
Section IV.A of the proposed Final Judgment requires New Holland to 
offer the Winnipeg plant for sale. Should the divestiture of either the 
large 2WD or the 4WD lines be unaccompanied by the sale of the Winnipeg 
plant, under Section IV.1, the purchaser of the large 2WD or the 4WD 
line shall be offered a short-term transitional supply agreement, not 
to exceed two years in length, to manufacture and deliver the 
purchaser's requirements for Genesis to Versatile series tractors and 
parts on terms and conditions designed to enable the purchaser to 
compete effectively with defendants in the sale of 4WD and large 2WD 
tractors. The terms and conditions of this agreement must be acceptable 
to the United States in its sole direction.
    Section IV.J of the Final Judgment provides that, under each 
divestiture, defendants retain the right to negotiate a transitional 
supply agreement under which this purchaser of the divested assets 
would manufacture and deliver to defendants in a timely manner 
defendants' requirements for 4WD and large 2WD tractors and hay and 
forage equipment. Defendants have independent distributors whose 
viability may be affected, in the absence of such a supply agreement, 
by the unavailability of 4WD and large 2WD tractors and hay and forage 
equipment during a limited transition period. A purchaser may also find 
it in its best interest to enter into such a transitional supply 
agreement to achieve sufficient manufacturing volumes to realize scale 
economies. The Final Judgment is permissive on this point and does not 
obligate the purchaser of the 2WD line, the 4WD line, or the hay and 
forage equipment assets to enter into transitional supply agreements 
with the defendants.
    Any such supply agreements to the defendants shall not include the 
use of the Versatile or Genesis trade names and shall not last for a 
term longer than, for 2WD or 4WD tractors, 24 months from the filing of 
the Hold Separate Stipulation and Order in this case, and for hay tools 
and forage equipment, 18 months from the filing of the Hold Separate 
Stipulation and Order in this case. Transfer pricing shall be based on 
audible cost data and such agreements

[[Page 68385]]

shall include terms and conditions reasonably designed to enable the 
defendants to compete with the purchaser(s) in the sale of 4WD 
tractors, 2WD tractors, and hay tools and forage equipment. The terms 
and conditions of any such agreements must be acceptable to the United 
States in its sole discretion. Such agreements may be amended only with 
the prior approval of the United States in its sole discretion.
C. General Divestiture Provisions
    Under Section IV.A of the proposed Final Judgment, defendants must 
accomplish the required divestitures within one hundred and fifty (150) 
calendar days after the filing of the Complaint, or within five (5) 
days after notice of the entry of the proposed Final Judgment by the 
Court, whichever is later, to a purchaser acceptable to the United 
States. Section IV.B of the proposed Final Judgment requires that 
defendants shall use their best efforts to accomplish said divestiture 
as expeditiously as possible. The United States, in its sole 
discretion, may extend the time period for any divestiture for an 
additional period of time not to exceed thirty (30) calendar days. 
Section IV.H requires that the assets to be divested be used by the 
purchaser as part of a viable, ongoing business engaged in the 
manufacture and distribution of 2WD tractors, 4WD tractors, and/or hay 
and forage equipment.
    Until the required divestitures have been accomplished, under 
Section VIII, defendants must take certain steps to ensure that all 
assets to be divested will be maintained as separate, distinct and 
saleable assets. Until such divestitures, the defendants shall continue 
to operate the assets as independent, economically viable, ongoing 
business concerns in the manufacture and sale of tractors and hay and 
forage equipment until the required divestitures are complete.
    Under Section IV.C and IV.D of the proposed Final Judgment, 
defendants shall make known, by usual and customary means, the 
availability of the assets and provide any prospective purchasers with 
a copy of the Final Judgment. The defendants are required to offer to 
furnish any prospective purchaser, subject to customary confidentiality 
assurances, all information regarding the assets customarily provided 
in a due diligence process, except such information subject to 
attorney-client privilege or attorney work-product privilege. 
Defendants must also permit prospective purchasers to have reasonable 
access to personnel and to make inspection of physical facilities and 
financial, operational, or other documents and information customarily 
provided as part of a due diligence process.
    Sections IV.E provides that defendants shall not interfere with 
negotiations by any purchaser to employ any of defendants' employees 
who worked at the divested assets. Sections IV.F and IV.G require that 
defendants not impede the operation of any business connected with the 
assets to be divested or prevent any dealer from distributing the 
divested assets for two years after the divestiture.
D. Trustee Provisions
    If defendants fail to divest the assets within the specified 
period, Section V.A of the proposed Final Judgment provides that the 
Court shall appoint a trustee, selected by the United States, to 
accomplish the divestitures. If a trustee is appointed, Section V.C of 
the proposed Final Judgment requires the defendants to pay all costs 
and expenses of the trustee. After the trustee's appointment becomes 
effective, section V.E provides that the trustee will file monthly 
reports with the parties and the Court, setting forth the trustee's 
efforts to accomplish divestiture. Under Section V.F, at the end of six 
months after the trustee's appointment, if the divestitures have not 
been accomplished, the trustee must make recommendations to the Court, 
which shall enter such orders as appropriate in order to carry out the 
purpose of the trust, including extending the trust and the term of the 
trustee's appointment.
E. Notification Provisions
    Section VI of the proposed Final Judgment assures the United States 
an opportunity to review any proposed sale, whether by the defendants 
or the trustee, before it occurs. Under this provision, the United 
States is entitled to receive complete information regarding any 
proposed sale or any prospective purchaser prior to consummation of the 
sale. If there is more than one purchaser of New Holland's tractor 
lines, they must be simultaneously identified in order that the United 
States may jointly review the proposed tractor divestitures. Absent 
written notice from the United States that it does not object to a 
proposed sale of any of the divestiture assets by the defendants or the 
trustee, the proposed divestiture may not be completed. Should 
defendants object to a divestiture by the trustee on the basis of the 
trustee's malfeasance, that sale shall not be consummated unless 
approved by the Court.
    Section VII.A of the proposed Final Judgment provides that within 
twenty (20) calendar days of the filing of the Complaint and every 
thirty (30) calendar days thereafter until the divestitures have been 
completed pursuant to Section IV or V of the Final Judgment, defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of compliance with Section IV or V of this Final Judgment. 
Section VII.B of the proposed Final Judgment provides that within 
twenty (20) calendar days of the filing of the Complaint, defendants 
shall deliver to the United States an affidavit which describes in 
detail all actions defendants have taken and all steps defendants have 
implemented on an ongoing basis to preserve the divestiture assets.
F. Compliance Inspection, Retention of Jurisdiction, and Termination 
Provisions
    Section X requires defendants to make available, upon request, the 
business records and the personnel of its businesses. This provision 
allows the United States to inspect defendants' facilities and ensure 
that they are complying with the requirements of the proposed Final 
Judgment. Section XI provides for jurisdiction to be maintained by the 
Court. Section XII of the proposed Final Judgment provides that it will 
expire on the tenth anniversary of its entry by the Court.

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 parties have stipulated that the Court may enter the proposed 
Final Judgment 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

[[Page 68386]]

proposed Final Judgment is in the public interest.
    The APPA provides a period of at least sixty (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 give 
all comments due consideration and respond to each of them. The United 
States remains free to withdraw its consent to the proposed Final 
Judgment at any time prior to entry. The comments and responses will be 
filed with the Court and published in the Federal Register. Written 
comments should be submitted to; J. Robert Kramer II, Chief, Litigation 
II Section, Antitrust Division, United States Department of Justice, 
1401 H Street, N.W., Suite 3000, 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

    As an alternative to the proposed Final Judgment, the United States 
also considered a full trial on the merits against defendants. The 
United States is satisfied, however, that the divestitures required by 
the proposed Final Judgment will facilitate continued viable 
competition in the manufacture and sale of 4WD tractors, large 2WD 
tractors, small square balers, large square balers, and self-propelled 
windrowers, and will effectively prevent the anticompetitive effects 
that would result from the proposed acquisition.

VII. Standard of Review Under the APPA for the 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. Sec. 16(e). As the Court of Appeals for the District of 
Columbia Circuit held, the APPA 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, 1458-62 (D.C. Cir. 1995). 
The courts have recognized that the term ```public interest' take[s] 
meaning from the purposes of the regulatory legislation.'' NAACP v. 
Federal Power Comm'n, 425 U.S. 662, 669 (1976). Since the purposes of 
the antitrust laws is to preserve ``free and unfettered competition as 
the rule of trade,'' Northern Pacific Railway Co. v. United States, 456 
U.S. 1, 4 (1958), the focus of the ``public interest'' inquiry under 
the APPA is whether the proposed Final Judgment would serve the public 
interest in free and unfettered competition. United States v. American 
Cyanamid Co., 719 F.2d 558, 565 (2d Cir. 1983); United States v. Waste 
Management, Inc, 1985-2 Trade Cas. para. 66,651, at 63,046 (D.D.C. 
1985). In conducting this inquiry, ``the Court is nowhere compelled to 
go to trial or to engage in extended proceedings which might have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.''\1\ Rather,
---------------------------------------------------------------------------

    \1\ 119 Cong. Rec. 24598 (1973), See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D.Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. 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. 93-1463, 93rd Cong. 2d 
Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535, 
6538.

[a]bsent 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).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc. 
858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir. 1981)). See also Microsoft, 56 F.3d 
1448. Precedent requires that:

the balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the discretion of the Attorney General. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\2\

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

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

United States v. Armour & Co., 402 U.S. 673, 681 (1971).
    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate ever 
anticompetitive effect of a particular practice or whether it mandates 
certainty of free competition in the future. Court approval of a 
proposed final judgment requires a standard more flexible and less 
strict than the standard required for a finding of liability. ``[A] 
proposed decree must be approved even if it falls short of the remedy 
the court would impose on its own, as long as it falls within the range 
or acceptability or is `within the reaches of public interest.'' \13\
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    \3\ United States v. American Tel. and Tel. Co., 552 F. Supp. 
131, 150 (D.D.C. 1982), affd sub nom. Maryland v. United States, 460 
U.S. 1001 (1983), quoting Gillette Co., 406 F. Supp. at 716; United 
States v. Alcan Aluminum, Ltd, 605 F. Supp. 619, 622 (WD. Ky. 1985).

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[[Page 68387]]

VIII. Determinative Documents

    There were 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: November 19, 1999.
    Respectfully submitted,
Joan Farragher,
U.S. Department of Justice, Antitrust Division, 1401 H Street, N.W., 
Suite 3000, Washington, DC 20530, Telephone: (202) 307-6355.

Certificate of Service

    I hereby certify under penalty of perjury that on this 19th day of 
November, 1999, I caused a copy of the Competitive Impact statement to 
be served by first class mail, postage prepaid, upon the following:

Steven C. Sunshine, Esq,
Shearman & Sterling, 801 Pennsylvania Avenue, NW., Washington, DC 
20004-2604; Counsel for Fiat S.p.A., New Holland N.V., New Holland 
North America, Inc., and Fiat Acquisition Corp.
Roy Engler, Esq.,
Mayer, Brown & Platt, 2000 Pennsylvania Avenue, NW, Washington, DC 
20006; Counsel for Case Corporation.
Joan Farragher,
Trial Counsel, U.S. Department of Justice, Antitrust Division, 1401 H 
Street, NW, Washington, DC 20530; Telephone: (202) 307-6355; Facsimile: 
(202) 307-5802.
[FR Doc. 99-31626 Filed 12-6-99; 8:45 am]
BILLING CODE 4410-11-M