[Federal Register Volume 64, Number 249 (Wednesday, December 29, 1999)]
[Notices]
[Pages 73066-73074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33410]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Alcoa Inc., ACX Technologies, Inc., 
and Golden Aluminum Company; 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. Alcoa Inc., ACX Technologies, 
Inc., and Golden Aluminum Company, Civil No. 99-2943 on November 5, 
1999. On December 6, 1999, the United States filed a Competitive Impact 
Statement. The Complaint alleged that the proposed acquisition by Alcoa 
Inc. (``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in 
Golden Aluminum Company (``Golden'') would violate Section 7 of the 
Clayton Act, as amended, 15 U.S.C. 18, in the market for aluminum food 
and beverage can lid stock (``lid stock''). The proposed Final 
Judgment, filed at the same time as the Complaint, requires Alcoa to 
sell Golden's Fort Lupton, Colorado aluminum business. The proposed 
Final Judgment requires that the purchaser of the divested assets 
continue to operate them in the manufacture and sale of lid stock. 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. These materials are also located on the 
Antitrust Division's web site (www.usdoj.gov/atr/cases.html).
    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 Roger W. Fones, Chief, Transportation, Energy & Agriculture Section, 
Antitrust Division, United States Department of Justice, 325 Seventh 
Street, NW., Suite 500, Washington, DC 20530 (telephone: 202-307-6351).
Constance K. Robinson,
Director of Operations and Merger Enforcement.

Stipulation and Order

    It is hereby Stipulated by and between the undersigned parties, by 
their respective attorneys, as follows:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto, and venue of this action is 
proper in the United States District Court for the District of 
Columbia.
    2. The parties stipulate that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion, at any time after compliance with 
the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. Sec. 16), and without further notice to any party or other 
proceedings, provided that plaintiff has not withdrawn its consent, 
which it may do at any time before the entry of the proposed Final 
Judgment by serving notice thereof on defendants and by filing that 
notice with the Court.
    3. 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 Stipulation by the parties, comply with all 
the terms and provisions of the proposed Final Judgment as though they 
were in full force and effect as an order of the Court.
    4. This Stipulation 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.
    5. In the event that plaintiff withdraws its consent, as provided 
in paragraph 2 above, or in the event that the proposed Final Judgment 
is not entered pursuant to this Stipulation, the time has expired for 
all appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court

[[Page 73067]]

has not otherwise ordered continued compliance with the terms and 
provisions of the proposed Final Judgment, then the parties are 
released from all further obligations under this Stipulation, and the 
making of this Stipulation shall be without prejudice to any party in 
this or any other proceeding.
    6. Defendants represent that the divestiture ordered in the 
proposed Final Judgment can and will be made, and that the defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
therein..
    7. Defendants agree not to consummate their transaction before the 
Court has signed this Stipulation and Order.

    Dated: November 5, 1999.
    Respectfully submitted,
    For Plaintiff
    United States of America: Nina B. Hale, Washington Bar #18776; 
Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of 
Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004, 
(202) 307-6351.
    For Defendant:
    Alcoa, Inc., W. Randolph Smith, DC Bar #________, Crowell & 
Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2595, 
(202) 624-2700.
    For Defendants:
    ACX Technologies, Inc., and Golden Aluminum Company: W. Todd 
Miller, DC Bar #414930, Baker & Miller, 915 15th Street, Suite 1000, 
Washington, DC 20005-2302.

Order

    It is so ordered, this ____ day of ________, 1999.

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

Hold Separate Stipulation and Order

    It is hereby Stipulated by and between the undersigned parties, 
subject to approval and entry by the Court, that:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Alcoa'' means defendant Alcoa Inc., a Pennsylvania corporation 
with its headquarters in Pittsburgh, Pennsylvania, and its successors, 
assigns, subsidiaries, divisions, groups, affiliates, partnerships and 
joint ventures, and directors, officers, managers, agents, and 
employees.
    B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation 
with its headquarters in Golden, Colorado, and its successors, assigns, 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and directors, officers, managers, agents, and employees.
    C. ``Golden'' means Golden Aluminum Company, a wholly owned 
subsidiary of ACX, with two principal aluminum sheet manufacturing 
facilities located in Fort Lupton, Colorado, and San Antonio, Texas, 
and its successors, assigns, subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and directors, officers, 
managers, agents, and employees.
    D. ``Fort Lupton Assets'' means all assets included within Golden's 
Fort Lupton, Colorado operation including:
    1. All tangible assets, including the Fort Lupton manufacturing 
facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-
0207 (``the Fort Lupton Facility'') and the real property on which the 
Fort Lupton Facility is situated; any facilities used for research and 
development activities, including Golden Engineering, AG, a Swiss 
company, and GAC Technology, a Colorado corporation, both of which 
provide engineering support to the Fort Lupton Facility (``the 
Engineering Facilities''), and any real property associated with those 
facilities, manufacturing assets relating to the Fort Lupton Facility 
and to the Engineering Facilities, including capital equipment, 
vehicles, supplies, personal property, inventory, office furniture, 
fixed assets and fixtures, materials, on-site warehouses or storage 
facilities, and other tangible property or improvements; all licenses, 
permits and authorizations issued by any governmental organization 
relating to the Fort Lupton Facility and to the Engineering Facilities; 
all contracts, agreements, leases, commitments and understandings 
pertaining to the operations of the Fort Lupton Facility and of the 
Engineering Facilities; supply agreements; all customer lists, 
accounts, and credit records; and other records maintained by Golden in 
connection with the operations of the Fort Lupton Facility and of the 
Engineering Facilities;
    2. All intangible assets, including but not limited to all patents, 
licenses and sublicenses, intellectual property, trademarks, trade 
names, service marks, service names, technical information, know-how, 
trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
safety procedures for the handling of materials and substances, quality 
assurance and control procedures, design tools and simulation 
capability, and all manuals and technical information Golden provides 
to its employees, customers, suppliers, agents or licensees in 
connection with the operations of the Fort Lupton Facility and of the 
Engineering Facilities; except that Alcoa may retain a non-exclusive, 
non-transferable, royalty-free license to use all patents, licenses, 
and sublicenses, intellectual property, technical information, know-
how, trade secrets, specifications for materials, and quality assurance 
and control procedures necessary to operate the block caster at 
Golden's San Antonio, Texas manufacturing facility (``the San Antonio 
block caster''), provided, however, that if Alcoa sells the San Antonio 
block caster to ACX Technologies, Inc. or an affiliate of ACX 
Technologies, Inc., it may provide ACX Technologies, Inc. or the ACX 
Technologies, Inc. affiliate with a non-exclusive, non-transferable, 
royalty-free license for use solely in connection with the operation of 
the San Antonio block caster; and
    3. All research data concerning historic and current research and 
development efforts relating to the operation of the Fort Lupton 
Facility and of the Engineering Facilities, including designs of 
experiments, and the results of unsuccessful designs and experiments.
    E. ``Lid stock'' means an aluminum sheet product from which the 
ends, tabs and pull-off lids of food and beverage cans are made.

II. Objectives

    The Final Judgment filed in this case is meant to ensure Alcoa's 
prompt divestiture of the Fort Lupton Assets for the purpose of 
maintaining a viable competitor in the manufacture and sale of lid 
stock to remedy the effects that the United States alleges would 
otherwise result from Alcoa's proposed acquisition of Golden.
    This Hold Separate Stipulation and Order ensures, prior to such 
divestiture, that the Fort Lupton Assets, which are being divested, be 
maintained as an independent, economically viable, ongoing business 
concern, and that competition is maintained during the pendency of the 
divestiture.

III. Hold Separate Provisions

    Until the divestiture required by the Final Judgment has been 
accomplished:
    A. Alcoa shall preserve, maintain, and operate the Fort Lupton 
Assets as an independent competitor with management, research, 
development, production, sales and operations held entirely separate, 
distinct and apart from those of Alcoa. Alcoa shall not coordinate the 
manufacture, marketing or sale of products from the Fort Lupton

[[Page 73068]]

Assets with its existing lid stock business. Within twenty (20) 
calendar days of the filing of the Complaint in this matter, Alcoa will 
inform plaintiff of the steps taken to comply with this provision.
    B. Alcoa shall take all steps necessary to ensure that the Fort 
Lupton Assets will be maintained and operated as an independent, 
ongoing, economically viable and active competitor in the manufacture 
and sale of lid stock; that the management of the Fort Lupton Assets 
will not be influenced by Alcoa, and that the books, records, 
competitively sensitive sales, marketing and pricing information, and 
decision-making associated with the Fort Lupton Assets will be kept 
separate and apart from the operations of Alcoa. Alcoa's influence over 
the Fort Lupton Assets shall be limited to that necessary to carry out 
Alcoa's obligations under this Order and the Final Judgment. Alcoa may 
receive historical aggregate financial information (excluding capacity 
or pricing information) relating to the Fort Lupton Assets to the 
extent necessary to allow Alcoa to prepare financial reports, tax 
returns, personnel reports, and other necessary or legally required 
reports.
    C. Alcoa shall use all reasonable efforts to maintain lid stock 
manufacturing and sales levels at the Fort Lupton Facility, and to 
maintain research and development activities and engineering support at 
the Engineering Facilities. Alcoa shall maintain at current or 
previously approved levels, whichever are higher, internal research and 
development funding, promotional, advertising, sales, technical 
assistance, marketing and merchandising support for the Fort Lupton 
Assets.
    D. Alcoa shall provide and maintain sufficient working capital to 
maintain the Fort Lupton Assets as an economically viable, on going 
business.
    E. Alcoa shall provide and maintain sufficient lines and sources of 
credit to maintain the Fort Lupton Assets as an economically viable, 
ongoing business.
    F. Alcoa shall take all steps necessary to ensure that the Fort 
Lupton Facility is fully maintained in operable condition at no lower 
than its current rated capacity, and shall maintain and adhere to 
normal repair and maintenance schedules for the Fort Lupton Facility.
    G. Alcoa shall not, except as part of a divestiture approved by 
plaintiff, remove, sell, lease, assign, transfer, pledge or otherwise 
dispose of or pledge as collateral for loans, any of the Fort Lupton 
Assets, including the intangible assets that are described in Section 
II of the Final Judgment.
    H. Alcoa shall maintain, in accordance with sound accounting 
principles, separate, true, accurate and complete financial ledgers, 
books and records that report, on a periodic basis, such as the last 
business day of every month, consistent with part practices, the 
assets, liabilities, expenses, revenues, income, profit and loss of the 
Fort Lupton Assets.
    1. Until such time as the Fort Lupton Assets are divested, except 
in the ordinary course of business or as is otherwise consistent with 
this Hold Separate Agreement, Alcoa shall not hire, transfer or 
terminate, or alter, to the detriment of any employee, any current 
employment or salary agreements for any Golden employees who on the 
date of the signing of this Agreement work for the Fort Lupton 
Facility, or for the Engineering Facilities, unless such individual has 
a written offer of employment from a third party for a like position.
    J. Alcoa shall take no action that would interfere with the ability 
of any trustee appointed pursuant to the Final Judgment to complete the 
divestiture pursuant to the Final Judgment to a suitable purchaser.
    K. The Hold Separate Stipulation and Order shall remain in effect 
until the divestiture required by the Final Judgment is complete, or 
until further Order of the Court. Respectfully submitted,

    For Plaintiff:
    United States of America: Nina B. Hale, Washington Bar #18776, 
Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of 
Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004, 
(202) 307-6351.
    Dated this 5th day of November 1999.
    For Defendant:
    Alcoa, Inc.: W. Randolph Smith, Crowell & Moring, 1001 
Pennsylvania Avenue, N.W., Washington DC 20004-2595, (202) 624-2700.
    For Defendants:
    ACX Technologies, Inc. and Golden Aluminum Company: W. Todd 
Miller, Baker & Miller, 915 15th Street, Suite 1000, Washington, DC 
20005-2302.

Order

    It is so ordered, this __________ day of ____________, 1999.
----------------------------------------------------------------------
United States District Court Judge

    Dated: November 5, 1999.
    Respectfully submitted,
    For Plaintiff United States of America Nina B. Hale Washington 
Bar #1877G, Laura M. Scott, Attorneys, Antitrust Division, U.S. 
Department of Justice, 325 Seventh St., NW, Suite 500, Washington, 
DC 20004, (202) 307-6351.
    For Defendant Alcoa, Inc.
W. Randolph Smith DC Bar #356402 Crowell & Moring, 1001 Pennsylvania 
Avenue, NW, Washington, DC 20004-2595, (202) 624-2700.
    For Defendants ACX Technologies, Inc. and Golden Aluminum 
Company
W. Todd Miller DC Bar #________ Baker & Miller, 915 15th Street, 
Suite 1000, Washington, DC 20005-2302.

Order

    It is so ordered, this ________ day of __________, 1999.
----------------------------------------------------------------------
United States District Court Judge

Final Judgment

    Whereas, plaintiff, the United States of America (``United 
States''), filed its complaint in this action on November 5, 1999, and 
plaintiff and defendants, Alcoa Inc. (``Alcoa''), ACX Technologies, 
Inc. (``ACX''), and Golden Aluminum Company (``Golden''), 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 Fort Lupton Assets of ACX's subsidiary, 
Golden Aluminum Company (``Golden''), to assure that competition is not 
substantially lessened;
    And Whereas, plaintiff requires defendant Alcoa to divest the Fort 
Lupton Assets for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And Whereas, defendants have represented to 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 or contract 
provisions contained below;
    Now, Therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
Decreed as follows:

I. Jurisdiction

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

[[Page 73069]]

II. Definitions

    As used in this Final Judgment:
    A. ``Alcoa'' means defendant Alcoa, Inc., a Pennsylvania 
corporation with its headquarters in Pittsburgh, Pennsylvania, and its 
successors, assigns, subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and directors, officers, managers, 
agents, and employees.
    B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation 
with its headquarters in Golden, Colorado, and its successors, assigns, 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and directors, officers, managers, agents, and employees.
    C. ``Golden'' means Golden Aluminum Company, a wholly owned 
subsidiary of ACX, with two principal aluminum sheet manufacturing 
facilities located in Fort Lupton, Colorado, and San Antonio, Texas, 
and its successors, assigns, subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and directors, officers, 
managers, agents, and employees.
    D. ``Fort Lupton Assets'' means all assets included within Golden's 
Fort Lupton, Colorado operation including:
    1. All tangible assets, including the Fort Lupton manufacturing 
facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-
0207 (``the Fort Lupton Facility'') and the real property on which the 
Fort Lupton Facility is situated; any facilities used for research and 
development activities, including Golden Engineering, AG, a Swiss 
company, and GAC Technology, a Colorado corporation, both of which 
provide engineering support to the Fort Lupton Facility (``the 
Engineering Facilities''), and any real property associated with those 
facilities; manufacturing assets relating to the Fort Lupton Facility 
and to the Engineering Facilities, including capital equipment, 
vehicles, supplies, personal property, inventory, office furniture, 
fixed assets and fixtures, materials, on-site warehouses or storage 
facilities, and other tangible property or improvements; all licenses, 
permits and authorization issued by any governmental organization 
relating to the Fort Lupton Facility and to the Engineering Facilities; 
all contracts, agreements, leases, commitments and understandings 
pertaining to the operations of the Fort Lupton Facility and of the 
Engineering Facilities; supply agreements; all customers lists, 
accounts, and credit records; and other records maintained by Golden in 
connection with the operations of the Fort Lupton Facility and of the 
Engineering Facilities;
    2. All intangible assets, including but not limited to all parents, 
licenses and sublicenses, intellectual property, trademarks, trade 
names, service marks, service names, technical information, know-how, 
trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
safety procedures for the handling of materials and substances, quality 
assurance and control procedures, design tools and simulation 
capability, and all manuals and technical information Golden provides 
to its employees, customers, suppliers, agents or licensees in 
connection with the operations of the Fort Lupton Facility and of the 
Engineering Facilities, except that Alcoa may retain a non-exclusive, 
non-transferable, royalty-free license to use all patents, licenses, 
and sublicenses, intellectual property, technical information, know-
how, trade secrets, specifications for materials, and quality assurance 
and control procedures necessary to operate the block caster at 
Golden's San Antonio, Texas manufacturing facility (``the San Antonio 
block caster''), provided, however, that if Alcoa sells the San Antonio 
block caster to ACX Technologies, Inc. or an affiliate of ACX 
Technologies, Inc., it may provide ACX Technologies, Inc., or the ACX 
Technologies, Inc. affiliate with a non-exclusive, non-transferable, 
royalty-free license for use solely in connection with the operation of 
the San Antonio block caster; and
    3. All research data concerning historic and current research and 
development efforts relating to the operations of the Fort Lupton 
Facility and of the Engineering Facilities, including designs of 
experiments, and the results of unsuccessful designs and experiments.
    E. ``Lid stock'' means an aluminum sheet product from which the 
ends, tabs and pull-off lids of food and beverage cans are made.

III. Applicability

    A. The provisions of this Final Judgment apply to Alcoa and ACX, 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. Alcoa shall require, as a condition of the sale or other 
disposition of all or substantially all of the Fort Lupton Assets, that 
the acquiring party or parties agree to be bound by the provisions of 
this Final Judgment.

IV. Divestiture of Assets

    A. Alcoa is hereby ordered and directed in accordance with the 
terms of this Final Judgment, within sixty (60) calendar days after the 
filing of the Complaint in this matter, or five (5) days after notice 
of entry of this Final Judgment by the Court, whichever is later, to 
divest the Fort Lupton Assets as an ongong business to a purchaser 
acceptable to the United States in its sole discretion.
    B. Alcoa shall use its best efforts to accomplish the divestiture 
as expeditiously and timely as possible. The United States, in its sole 
discretion, may extend the time period for any divestiture by an 
additional period of time not to exceed thirty (30) calendar days.
    C. In accomplishing the divestiture ordered by this Final Judgment, 
Alcoa promptly shall make known, by usual and customary means, the 
availability of the Fort Lupton Assets described in this Final 
Judgment. Alcoa 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. 
Alcoa shall also offer to furnish to all prospective purchasers, 
subject to customary confidentiality assurances, all information 
regarding the Fort Lupton Assets customarily provided in a due 
diligence process except such information subject to attorney-client 
privilege or attorney work-product privilege. Alcoa shall make 
available such information to the plaintiff at the same time that such 
information is made available to any other person.
    D. Alcoa shall provide to any purchaser of the Fort Lupton Assets 
information relating to the personnel involved in the manufacture and 
sale of lid stock in connection with the Fort Lupton Assets to enable 
the purchaser to make offers of employment. Alcoa shall not interfere 
with any negotiations by any purchaser to employ any Golden employee 
who works for the Fort Lupton Facility or for the Engineering 
Facilities, or whose principal responsibility involves the manufacture 
and sale of lid stock associated with the Fort Lupton Assets.
    E. Alcoa shall permit prospective purchasers of the Fort Lupton 
Assets to have reasonable access to personnel and to make inspection of 
the Fort Lupton Assets; access to any and all environmental, zoning, 
and other permit documents and information customarily provided as part 
of a due diligence process.

[[Page 73070]]

    F. Alcoa shall warrant to the purchaser of the Fort Lupton Assets 
that all necessary environmental, zoning and other permits relating to 
the Fort Lupton assets are in order in all material respects. Alcoa 
will not undertake, directly or indirectly, following the divestiture 
of the Fort Lupton Assets, any challenges to the environmental, zoning, 
or other permits pertaining to the operation of the Fort Lupton Assets.
    G. Alcoa shall warrant to the purchaser of the Fort Lupton Assets 
that the Fort Lupton Assets will be operational on the date of the 
sale.
    H. Alcoa shall not take any action, direct or indirect, that will 
impede in any way the operation of the Fort Lupton Assets.
    1. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, or by trustee appointed pursuant to 
Section V of this final Judgment, shall include all of the Fort Lupton 
Assets, operated pursuant to the Hold Separate Stipulation and Order, 
and be accomplished by selling or otherwise conveying the Fort Lupton 
Assets to a purchaser in such a way as to satisfy the United States, in 
its sole discretion, that the Fort Lupton Assets can and will be used 
by the purchaser as part of a viable, ongoing business or businesses 
engaged in the manufacture and sale of lid stock. The divestiture, 
whether pursuant to Section IV or Section V of this Final Judgment, 
shall be made to a purchaser with respect to whom it is demonstrated to 
the United States' sole satisfaction that: (1) The purchaser has the 
capability and intent of competing effectively in the manufacture and 
sale of lid stock; (2) The purchaser has the managerial, operational, 
and financial capability to compete effectively in the manufacture and 
sale of lid stock; (3) None of the terms of any agreement between the 
purchaser and Alcoa gives Alcoa the ability unreasonably to raise the 
purchaser's costs, to lower the purchaser's efficiency, or otherwise to 
interfere in the ability of the purchaser to compete effectively; and 
(4) The divestiture will remedy the competitive harm alleged in the 
Complaint.

V. Appointment of Trustee

    A. In the event that Alcoa has not divested the Fort Lupton 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 effect the divestiture of the Fort 
Lupton Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Fort Lupton Assets. The 
trustee shall have the power and authority to accomplish the 
divestiture at the best price then obtainable upon a reasonable effort 
by the trustee, subject to the provisions of Sections IV, V, and VI 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 Alcoa any investment bankers, attorneys, or other agents 
reasonably necessary in the judgment of the trustee to assist in the 
divestiture, and such professionals and agents shall be accountable 
solely to the trustee. The trustee shall have the power and authority 
to accomplish the divestiture at the earliest possible time to a 
purchaser acceptable to the United States in its sole discretion. Alcoa 
shall not object to a sale by the trustee on any grounds other than the 
trustee's malfeasance. Any such objections by Alcoa must be conveyed in 
writing to plaintiff and the trustee within ten (10) 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 Alcoa, on 
such terms and conditions as the Court may prescribe, and shall account 
for all monies derived from the sale of the assets sold by the trustee 
and all costs and expenses so incurred. After approval by the Court of 
the trustee's accounting, including fees for its services and those of 
any professionals and agents retained by the trustee, all remaining 
money shall be paid to Alcoa and the trust shall then be terminated. 
The compensation of such trustee and of professionals and agents 
retained by the trustee shall be reasonable in light of the value of 
the divested business and based on a fee arrangement providing the 
trustee with an incentive based on the price and terms of the 
divestiture and the speed with which it is accomplished.
    D. Alcoa shall use its best efforts to assist the trustee in 
accomplishing the required divestiture, including its best efforts to 
effect all necessary regulatory 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 business to be divested, and Alcoa shall 
develop financial or other information relevant to the business to be 
divested customarily provided in a due diligence process as the trustee 
may reasonably request, subject to customary confidentiality 
assurances. Alcoa shall permit bona fide prospective acquirers of the 
Fort Lupton 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 the divestiture required by this Final Judgment. Alcoa shall take no 
action to interfere with or to impede the trustee's accomplishment of 
the divestiture.
    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 divestiture ordered under this 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 business to be divested, 
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 divest the business to be divested.
    F. If the trustee has not accomplished such divestiture 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 divestiture; (2) the reasons, in the 
trustee's judgment, why the required divestiture has not been 
accomplished; and (3) the trustee's recommendations; provided, however, 
that to the extent such report contains information that the trustee 
deems confidential, such report shall not be filed in the public docket 
of the Court. The trustee shall at the same time furnish such report to 
the plaintiff and to defendant Alcoa, 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 
Final Judgment, 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. Notification

    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

[[Page 73071]]

proposed divestiture pursuant to Sections IV and V of this Final 
Judgment, Alcoa or the trustee, whichever is then responsible for 
effecting the divestiture, shall notify plaintiff or the proposed 
divestiture. If the trustee is responsible, it shall similarly notify 
Alcoa. The notice shall set forth the details of the proposed 
transaction and list the name, address, and telephone number of each 
person not previously identified who offered to, or expressed an 
interest in or a desire to, acquire any ownership interest in the 
business 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 plaintiff of such notice, the United States, in its sole 
discretion, may request from Alcoa, the trustee, the proposed 
purchaser, or any other third party additional information concerning 
the proposed divestiture, the proposed purchaser, and any other 
potential purchaser. Alcoa 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 plaintiff has been provided the 
additional information requested from Alcoa, the trustee, the proposed 
purchaser, or any third party, whichever is later, the United States 
shall provide written notice to Alcoa 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 Alcoa and the trustee that it 
does not object, then the divestiture may be consummated, subject only 
to Alcoa's 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 Section V shall not 
be consummated. Upon objection by Alcoa under the provision in Section 
(V)(B), a divestiture proposed under Section V shall not be consummated 
unless approved by the Court.

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 
divestiture has been completed whether pursuant to Section IV or 
Section V of this Final Judgment, Alcoa shall deliver to plaintiff an 
affidavit as to the fact and manner of compliance with Section IV or 
Section 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 business to be divested, 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 Alcoa has taken to solicit a buyer for the Fort Lupton 
Assets and to provide required information to prospective purchasers.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, Alcoa shall deliver to plaintiff an affidavit which 
describes in detail all actions Alcoa has taken and all steps Alcoa has 
implemented on an on-going basis to preserve the Fort Lupton 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, Alcoa's efforts to maintain and 
operate the Fort Lupton Assets as an active competitor, maintain the 
management, staffing, research and development activities, sales, 
marketing, and pricing of the Fort Lupton Assets, and maintain the Fort 
Lupton Assets in operable condition at current capacity configurations. 
Alcoa shall deliver to plaintiff an affidavit describing any changes to 
the efforts and actions outlined in Alcoa's earlier affidavit(s) filed 
pursuant to Section VII(B) within fifteen (15) calendar days after the 
change is implemented.
    C. Until one year after such divestiture has been completed, Alcoa 
shall preserve all records of all efforts made to preserve the business 
to be divested and effect the divestiture.

VIII. Hold Separate Order

    Until the divestitures required by the Final Judgment have been 
accomplished, Alcoa shall take all steps necessary to comply with the 
Hold Separate Stipulation and Order entered by this Court and to 
preserve the Fort Lupton Assets. Defendants shall take no action that 
would jeopardize the divestiture of the Fort Lupton Assets.

IX. Financing

    Alcoa is ordered and directed not to finance all or any part of any 
purchase by an acquirer made pursuant to Section IV or V of this Final 
Judgment.

X. Compliance Inspection

    For the 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 matters 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 of the 
matters contained in this Final Judgment and the Hold Separate 
Stipulation and Order.
    C. No information nor any documents obtained by the means provided 
in Sections 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), or for the purpose of 
securing compliance with this Final Judgment, or as otherwise required 
by law.
    D. If at the time information or documents are furnished by 
defendants to plaintiff, defendants represent and identify in writing 
the material in any such information or documents for 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 plaintiff shall give ten (10) 
days notice to defendants prior to divulging such material in any legal 
proceeding (other

[[Page 73072]]

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 on the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------
Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec. 16
----------------------------------------------------------------------
United States District Judge

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    On November 5, 1999 the United States filed a civil antitrust 
Complaint alleging that the proposed acquisition by Alcoa Inc. 
(``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in Golden 
Aluminum Company (``Golden'') would violate Section 7 of the Clayton 
Act, 15 U.S.C. Sec. 18. The Complaint alleges that the transaction 
would result in Alcoa increasing its already dominant share of the 
aluminum food and beverage can lid stock (``lid stock'') production 
business in North America. Alcoa is the largest producer of lid stock 
in North America. Golden is a small, but low cost producer of lid 
stock. They compete to produce and sell the best quality lid stock at 
the lowest prices, and to provide the best technological, marketing, 
and customer support services. Alcoa and ACX have proposed a 
transaction that would eliminate this competition, further increase 
concentration in the already highly concentrated lid stock business, 
and further increase the market power of the dominant firm--Alcoa. The 
proposed transaction would make it more likely that the few remaining 
lid stock producers will engage in anticompetitive coordination to 
increase prices, reduce quality, and decrease production of lid stock.
    The prayer for relief in the Complaint seeks: (1) A judgment that 
the proposed acquisition would violate Section 7 of the Clayton Act; 
and (2) A permanent injunction preventing Alcoa from acquiring Golden 
from ACX.
    When the Complaint was filed, the United States also filed a 
proposed settlement that would permit Alcoa to complete its acquisition 
of Golden, but requires a divestiture that will preserve competition in 
the relevant market. This settlement consists of a Stipulation and 
Order, Hold Separate Stipulation and Order, and a proposed Final 
Judgment.
    The proposed Final Judgment orders Alcoa to divest, within sixty 
(60) calendar days after the filing of the Complaint in this matter, or 
five (5) days after notice of entry of this Final Judgment by the 
Court, whichever is later, Golden's Fort Lupton Assets (as defined in 
the Final Judgment) as an ongoing business to an acquirer acceptable to 
the Antitrust Division of the Department of Justice (``DOJ''). ``Fort 
Lupton Assets'' means all assets included within Golden's Fort Lupton, 
Colorado aluminum operation including all tangible and intangible 
assets, and all facilities which provide engineering support to the 
Fort Lupton, Colorado facility.
    Until such divestiture is completed, the terms of the Hold Separate 
Stipulation and Order entered into by the parties apply to ensure that 
the Fort Lupton Assets shall be maintained as an independent competitor 
from Alcoa.
    The plaintiff and defendants 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.

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

A. The Defendants and the Proposed Transaction

    Alcoa is a Pennsylvania corporation, with its principal offices 
located in Pittsburgh, Pennsylvania. Alcoa is the world's largest 
integrated aluminum company, engaging in all phases of the aluminum 
business--from the mining and processing of bauxite to the production 
of primary aluminum and fabrication of products. In 1998, Alcoa had 
revenues of over $15 billion. Alcoa produces lid stock at its rolling 
mill located in Warrick, Indiana. Alcoa's 1998 sales of lid stock in 
North America were approximately $700 million.
    ACX is a Colorado corporation, headquartered in Golden, Colorado. 
ACX owns 100% of the stock of Golden, whose primary assets are two 
continuous cast facilities. At its facility located in Fort Lupton, 
Colorado, Golden produces lid stock. Golden produces a variety of 
aluminum sheet products (but not lid stock) at its facility located in 
San Antonio, Texas. In 1998, ACX reported total sales of about $988.4 
million.
    On August 17, 1999, Alcoa and ACX entered into an agreement under 
which Alcoa would acquire all of ACX's interest in Golden. This 
transaction, which would increase concentration in the already highly 
concentrated lid stock market, precipitated the government's suit.

B. Lid Stock Market

    Lid stock is a flat rolled aluminum product that is typically 
manufactured in a rolling mill. A typical rolling mill contains a hot 
mill, which performs the initial reduction of the thickness of the 
ingot, one or more cold mills, which finish the metal to the desired 
thickness and width, and a variety of ancillary equipment. Lid stock 
can also be produced in a continuous cast facility. In a continuous 
cast facility, a thin sheet of molten metal is poured onto a base and 
pressed between two blocks or belts to achieve the desired thickness 
and width.
    Lid stock differs from other aluminum sheet products. Lid stock is 
made from a harder alloy than other aluminum sheet products, such as 
the sheet product from which the bodies of beverage cans are made 
(``can body stock''). Consequently, lid stock requires more powerful 
mills and more mill time to produce than can body stock and other sheet 
products. Lid stock is therefore more expensive to produce per pound 
than many other sheet products.
    Lid stock is sold to can makers in large coils that are fed into 
lid making machines, which stamp out rings and scored circles to form 
the ends, tabs, and pull-off lids of food and beverage cans. Because of 
the metallurgical characteristics of lid stock, can makers cannot use 
their equipment to produce lids from can body stock or other materials, 
such as steel.
    Can makers sell lids to food and beverage companies which used them 
to seal their beer, soft drink, and food cans.

[[Page 73073]]

The food and beverage companies cannot use other types of lids to seal 
their cans.
    As a result, a small but significant increase in lid stock prices 
would not cause a significant number of customers to substitute other 
products for lid stock.

C. Harm to Competition as a Consequence of the Acquisition

    The proposed acquisition would likely lessen competition in the 
manufacture and sale of lid stock. Alcoa controls over 50 percent of 
the aluminum can lid stock market in North America. Golden is one of 
only five other companies that manufactures lid stock in North America. 
The proposed transaction will make it more likely that the few 
remaining lid stock producers will engage in anticompetitive 
coordination to increase prices, reduce quality, and decrease 
production of lid stock.
    The Complaint alleges that the transaction would likely have the 
following effects, among others: actual and potential competition 
between Alcoa and Golden in the lid stock market would be eliminated; 
competition generally in the sale and manufacture of lid stock would be 
lessened substantially; prices for lid stock would increase; and the 
quality and amount of lid stock produced would decrease.

III. Explanation of the Proposed Final Judgment

    The provisions of the proposed Final Judgment are designed to 
eliminate the anticompetitive effects of the acquisition of Golden by 
Alcoa.
    The proposed Final Judgment provides that Alcoa must divest, within 
sixty (60) calendar days after the filing of the Complaint in this 
matter, or five (5) days after notice of entry of this Final Judgment 
by the Court, whichever is later, Golden's Fort Lupton Assets as an 
ongoing business to an acquirer acceptable to DOJ. If defendants fail 
to divest the Fort Lupton Assets, a trustee (selected by DOJ) will be 
appointed.
    The Final Judgment provides that Alcoa will pay all costs and 
expenses of the trustee. After his or her other appointment becomes 
effective, the trustee will file monthly reports with the parties and 
the Court, setting forth the trustee's efforts to accomplish 
divestiture. At the end of six (6) months, if the divestiture has not 
been accomplished, the trustee and the parties will have the 
opportunity to make recommendations to the Court, which shall enter 
such orders as appropriate in order to carry out the purpose of the 
Final Judgment, including extending the trust or the term of the 
trustee's appointment.
    Divestiture of the Fort Lupton Assets preserves competition because 
it will restore the lid stock market to a structure that existed prior 
to the acquisition and will preserve the existence of an independent 
competitor. Thus, the divestiture will preserve and encourage ongoing 
competition in the production and sale of lid stock.

IV. Remedies Available to Potential Private Litigants

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

V. Procedures Available for Modification of the Proposed Final 
Judgment

    The United States and defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty 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 days of the date of publication of this Competitive Impact 
Statement in the Federal Register. The United States will evaluate and 
respond to the comments. All comments will be given due consideration 
by the Department of Justice, which remains free to withdraw its 
consent to the proposed Judgment at any time prior to entry. The 
comments and the response of the United States will be filed with the 
Court and published in the Federal Register. Written comments should be 
submitted to: Roger W. Fones, Chief, Transportation, Energy & 
Agriculture Section, Antitrust Division, United States Department of 
Justice, 325 Seventh Street, NW., Suite 500, Washington, DC. 20004.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against defendants Alcoa, 
ACX and Golden.
    The United States is satisfied that the divestiture of the 
described assets specified in the proposed Final Judgment will 
encourage viable competition in the production and sale of lid stock. 
The United States is satisfied that the proposed relief will prevent 
the acquisition from having anticompetitive effects in the market, The 
divestiture of the Fort Lupton Assets will restore the lid stock market 
to a structure that existed prior to the acquisition and will preserve 
the existence of an independent competitor.

VII. Standard of Review Under the APPA for Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to sixty-day comment 
period, after which the court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' In making the 
determination, the court may consider.

    (1) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) The impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e). As the Court of Appeals for the District of Columbia 
Circuit recently 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

[[Page 73074]]

United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995).
    In conducting this inquiry, ``the Court is nowhere compelled to go 
to trial or to engage in extending proceedings which with have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.'' \1\ Rather,

    \1\ 119 Cong. Rec. 244598 (1973). See also United States v. 
Gillette Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public 
interest'' determination can be made properly on the basis of the 
Competitive Impact Statement and Response to Comments filed pursuant 
to the APPA. Although the APPA authorizes the use of additional 
procedures, 15 U.S.C. Sec. 16(f), those procedures are 
discretionary. A court need not invoke any of them unless it 
believes that the comments have raised significant issues and that 
further proceedings would aid the court in resolving those issues. 
See H.R. 93-1463, 93rd Cong. 2d Sess. 8-9, reprinted in (1974) U.S. 
Code Cong. & Ad. News 6535, 6538.
---------------------------------------------------------------------------

absent a showing to 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 statements 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, 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 (D.C. Cir. 1995). Precedent requires that

[t]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\ United States v. Bechtel, 648 F.2d at 666 (internal 
citations omitted) (emphasis added); see United States v. BNS, Inc., 
858 F.2d at 463; United States v. National Broadcasting Co., 449 F. 
Supp. 1127, 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716. 
See also United States. v. American Cyanamid Co., 719 F.2d 558, 565 
(2d Cir. 1983).
---------------------------------------------------------------------------

    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive competitive effect of a particular practice or whether 
it mandates certainty of the free competition in the future. Court 
approval of a final judgment requires a standard more flexible and less 
strict than the standard required for a finding of liability. ``[A] 
proposed decree must be approved on even if it falls short of the 
remedy the court impose on its own, as long as it falls within the 
range of acceptability or is `within the reaches of public interest' 
(citations omitted).''\3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel & Tel., Co., 552 F. Supp. 131, 
150 (D.C.C. 1982), aff'd sub nom. Maryland v. United States, 460 
U.S. 1001 (1983), quoting Gillette, 406 F. Supp. at 716; United 
States v. Alcan Aluminum, Ltd.,  605 F. Supp. 619 (W.D. Ky. 1985).
---------------------------------------------------------------------------

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.

    Dated: December 6, 1999.
    For Plaintiff United States of America:
    Respectfully submitted,
Nina B. Hale,
Washington Bar #18776.
Laura M. Scott,
Virginia Bar #36587.
Trial Attorneys, U.S. Department of Justice, Antitrust Division, 325 
Seventh Street, NW, Suite 500, Washington, DC 20004, 202-307-0892 202-
307-2441 (Facsimile).

[FR Doc. 99-33410 Filed 12-28-99; 8:45 am]
BILLING CODE 4410-11-M