[Federal Register Volume 65, Number 175 (Friday, September 8, 2000)]
[Notices]
[Pages 54547-54562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22137]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Allied Waste Industries, Inc. and Republic 
Services, Inc.; Proposed Final Judgment and Competitive Impact 
Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b) through (h), that a Complaint, Hold 
Separate Stipulation and Order, and proposed Final Judgment were filed 
with the United States District Court for the District of Columbia in 
United States v. Allied Waste Industrires, Inc., and Repulbic Services, 
Inc., Civil No. 1:00CV 01469 on June 21, 2000. A Competitive Impact 
Statement was filed on August 15, 2000. The Complaint sought to enjoin 
the defendants' proposed sales of waste collection assets in the areas 
of Albany, NY; Augusta, GA; Burlington and Camden Counties, NJ; 
Clarksville, TN; Columbus, OH; Escambia, Santa Rosa, and Okaloosa 
counties, Florida; Lakeland, FL; Louisville, KY/Sellersburg, IN; Macon, 
GA; Memphis, TN; Monmouth County, NJ; Nashville, TN and Norfolk, VA. 
The Complaint also sought to enjoin the defendants' proposed sales of 
municipal solid waste disposal assets in the areas of Anderson, IN and 
New York City, NY. The Complaint alleged that these transactions 
between Allied and Republic would lessen competition substantially in 
waste collection and municipal solid waste disposal services in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed 
Final Judgment, filed at the same time as the Complaint, requires, 
among other things, that (1) Allied divest commercial waste collection 
operations in the areas of Augusta, GA; Escambia, Santa Rosa, and 
Okaloosa counties, FL; Memphis, TN; Nashville, TN; and Norfolk, VA: (2) 
Republic divest commercial waste collection operations in the areas of 
Columbus, OH; Lakeland, FL; Louisville, KY/Sellersburg, IN; and Macon, 
GA; (3) Allied divest disposal assets in the area of New York City, New 
York; and (4) Republic divest disposal assets in the areas of Anderson, 
IN and Macon, GA. The proposed Final Judgment also requires the 
defendants to alter their existing contracts and offer new contracts 
meeting certain conditions for (1) commercial waste collection services 
in the areas of Albany, NY; Augusta, GA; Burlington and Camden 
Counties, NJ; Clarksville, TN; Columbus, OH; Escambia, Santa Rosa, and 
Okaloosa counties, FL; Lakeland, FL; Louisville, KY/Sellersburg, IN; 
Macon, GA; Monmouth County, NJ; and Nolfolk, VA; and (2) roll-off waste 
collection services in Macon, GA.
    A Competitive Impact Statement filed by the United States describes 
the Complaint, the proposed Final Judgment, the industry, and remedies 
to be implemented by Allied and Superior. Copies of the Complaint, Hold 
Separate Stipulation and Order, proposed Final Judgment, and the 
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 the statutory 60-day comment 
period. 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 II 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 and agreed by and between the undersigned 
parties, subject to approval and entry by the Court, that:

[[Page 54548]]

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest the Divestiture Assets.
    B. ``Allied'' means defendant Allied Waste Industries, Inc., a 
Delaware corporation with its headquarters in Scottsdale, Arizona, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    C. ``Republic'' means defendant Republic Services, Inc., a Delaware 
corporation with its headquarters in Ft. Lauderdale, Florida, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    D. ``Relevant Allied Assets'' means all Relevant Allied Disposal 
Assets and Relevant Allied Hauling Assets, as further defined below.
    E. ``Relevant Allied Disposal Assets'' means, unless otherwise 
noted, with respect to each transfer station listed and described 
herein, all of Allied's rights, titles and interests in any tangible 
assets, including all fee and leasehold and renewal rights in the 
listed transfer station; the garage and related facilities; offices; 
all related assets including capital equipment, trucks and other 
vehicles, scales, power supply equipment, interests, permits, and 
supplies; and all of Allied's rights, titles and interests in any 
intangible assets, including all customer lists, contracts, and 
accounts, or options to purchase any adjoining property.
    Relevant Allied Disposal Assets, as used herein, includes each of 
the following properties:
1. Transfer Stations
    a. Anderson, IN. Allied's BFI Anderson Transfer Station, located at 
201 North Delaware, Anderson, IN 46016.
    b. Macon, GA. Allied's S&S Byron Transfer Station, located at 750 
Dunbar Road, Byron, GA 31008.
    F. ``Relevant Allied Hauling Assets,'' unless otherwise noted, 
means with respect to each commercial waste collection route or other 
hauling asset described herein, all tangible assets, including capital 
equipment, trucks and other vehicles, containers, interests, permits, 
supplies; and real property and improvements to real property (i.e., 
buildings and garages). It also includes all intangible assets, 
including hauling-related customer lists, contracts, leasehold 
interests, and accounts.
    Relevant Allied Hauling Assets (to be held separate by Republic), 
as used herein, includes the assets in the following locations:
1. Columbus, OH
    Allied's front-end and rear-end loader truck small container routes 
(hereinafter, ``commercial routes'') 31, 51, 54, 91, 92, 96, and 97 
that serve the City of Columbus and Franklin and Delaware counties, 
Ohio;
2. Lakeland, FL
    Allied's commercial routes 901 and 904, that serve Polk County, FL; 
and
3. Macon, GA
    Allied's commercial routes 902 and 903 that serve the City of 
Macon; and Bibb and Jones counties, Georgia.
    For purposes of this Hold Separate Stipulation and Order, the 
Relevant Allied Hauling Assets to be held separate by Republic shall 
also include the following:
4. Louisville, KY/Sellersburg, IN
    Republic's commercial routes 4, 8, 17, 18 and 26 that serve the 
cities of Louisville, KY and Sellersburg, IN; Jefferson County, KY; and 
the parts of Floyd and Clark counties, IN abutting Jefferson County, 
KY.
    G. ``Relevant Republic Assets'' means all Relevant Republic 
Disposal Assets and Relevant Republic Hauling Assets, as further 
defined below.
    H. ``Relevant Republic Disposal Assets'' means Republic's All City 
Transfer Station, also known as Republic Services of New York II, LLC, 
located at 246-252 Plymouth Street, New York, New York. Relevant 
Republic Disposal Assets includes, with respect to the transfer station 
listed and described herein, all of Republic's rights, titles and 
interests in any tangible assets, including all fee and leasehold and 
renewal rights in the transfer station; the garage and related 
facilities; offices; all related assets including capital equipment, 
trucks and other vehicles, scales, power supply equipment, interests, 
permits, and supplies; and all of Republic's rights, titles and 
interests in any intangible assets, including all customer lists, 
contracts, and accounts, or options to purchase any adjoining property.
    I. ``Relevant Republic Hauling Assets,'' unless otherwise noted, 
means with respect to each commercial waste collection route or other 
hauling asset described herein, all tangible assets, including capital 
equipment, trucks and other vehicles, containers, interests, permits, 
supplies; and real property and improvements to real property (i.e., 
buildings and garages). It also includes all intangible assets, 
including hauling-related customer lists, contracts, leasehold 
interests, and accounts.
    Relevant Republic Hauling Assets (to be divested by Allied), as 
used herein, includes the assets in the following locations:
1. Augusta, GA
    Republic's commercial routes 204 and 238 that serve the City of 
Augusta, GA: Richmond and Columbia counties, GA; and Aiken County, SC;
2. Gulf Coast, FL
    Republic's commercial routes 1, 4 (a Saturday-only route) and 5 
that serve Escambia, Santa Rosa and Okaloosa counties, FL, except for 
those contracts with route 4 customers also being served on a Republic 
Gulf Coast route not being divested pursuant to this Final Judgment;
3. Memphis, TN
    Republic's commercial routes 51, 52 and 53 that serve Shelby 
County, TN; Desoto County, MS; and Crittendon County, AR;
4. Nashville, TN
    Republic's commercial routes 12, 16, 20, 24 and 30 that serve the 
City of Nashville, TN; and Davidson, Sumner, Williamson, Rutherford, 
Wilson, the southeastern part of Robertson, and the eastern part of 
Cheatham counties, TN; and
5. Norfolk, VA
    Republic's commercial routes 1, 2, 3 (except for the Virginia Beach 
municipal contract), 6, 7, 9, and 10, that serve the cities of 
Chesapeake, Suffolk, Virginia Beach, Norfolk, Poguoson, Newport News 
and Plymouth, VA; and York, Surry, James City, Southampton, and Isle of 
Wright counties, VA.

II. Objectives

    The Final Judgment filed in this case is meant to ensure 
defendants' prompt divestiture of the Relevant Allied Assets and 
Relevant Republic Assets for the purpose of establishing viable 
competitors in the municipal solid waste (``MSW'') disposal business 
and the small container commercial waste collection business, to remedy 
the effects that the United States alleges would otherwise result from 
the exchange of assets between Allied and Republic. This Hold Separate 
Stipulation and Order ensures, prior to such divestitures, that the 
Relevant Allied Assets and Relevant Republic

[[Page 54549]]

Assets remain independent, economically viable, and ongoing business 
concerns that will remain independent and uninfluenced by Allied or 
Republic, and that competition is maintained during the pendency of the 
ordered divestitures.

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 as Exhibit A 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 the Judgment's entry 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 the same were 
in full force and effect as an order of the Court.
    C. Defendants shall not consummate the transactions sought to be 
enjoined by the Complaint herein before the Court has signed this Hold 
Separate Stipulation and Order.
    D. 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.
    E. In the event (1) the United States has withdrawn its consent, as 
provided in Section IV(A) above, or (2) 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 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.
    F. Defendants represent that the divestitures ordered in the 
proposed Final Judgment can and will be made, and that defendants will 
later raise no claim of mistake, hardship or difficulty of compliance 
as grounds for asking the Court to modify any of the provisions 
contained therein.

V. Hold Separate Provisions

    Until the divestitures required by the Final Judgment have been 
accomplished:
    A. Defendants shall preserve, maintain, and operate the Relevant 
Allied Assets and Relevant Republic Assets as independent, ongoing, 
economically viable competitive businesses, with management, sales and 
operations of such assets held entirely separate, distinct and apart 
from the other operations of Republic, in the case of the Relevant 
Allied Assets, and from Allied, in the case of the Relevant Republic 
Asserts. Republic shall not coordinate its service, marketing, 
negotiation of sales or other business operations with those of any 
Relevant Allied Asset. Allied shall not coordinate its service, 
marketing, negotiation of sales or other business operations with those 
of any Relevant Republic Asset. Within twenty (20) days after the 
filing of the Hold Separate Stipulation and Order, defendants will 
inform the United States of the steps defendants have taken to comply 
with this Hold Separate Stipulation and Order.
    B. Defendants shall take all steps necessary to ensure that (1) the 
Relevant Allied Assets and Relevant Republic Assets will be maintained 
and operated as independent, ongoing, economically viable and active 
competitors in the MSW disposal business and the small container 
commercial waste collection business; (2) the management of the 
Relevant Republic Assets will not be influenced by Allied, and the 
management of the Relevant Allied Assets will not be influenced by 
Republic; and (3) the books, records, competitively sensitive sales, 
marketing and pricing information, and decision-making concerning the 
Relevant Republic Asset will be kept separate and apart from Allied's 
other operations, and the books, records, competitively sensitive sales 
marketing, and pricing information, and decision-making concerning the 
Relevant Allied Assets will be kept separate and apart from Republic's 
other operations. Republic's influence over the Relevant Allied Assets 
and Allied's influence over the Relevant Republic Assets shall be 
limited to that necessary to carry out defendants' obligations under 
this Hold Separate Stipulation and Order and the proposed Final 
Judgment.
    C. Defendants shall use all reasonable efforts to maintain and 
increase the sales and revenues of the Relevant Allied Assets and 
Relevant Republic Assets, and shall maintain at 1999 or at previously 
approved levels for 2000, whichever are higher, all promotional, 
advertising, sales, technical assistance, marketing and merchandising 
support for the Relevant Allied Assets and Relevant Republic Assets.
    D. Defendants shall provide sufficient working capital and lines 
and sources of credit to continue to maintain the Relevant Allied 
Assets and Relevant Republic Assets as economically viable and 
competitive ongoing businesses consistent with the requirements of 
Sections V(A) and (B).
    E. Defendants shall take all steps necessary to ensure that the 
Relevant Allied Assets and Relevant Republic Assets are fully 
maintained in operable condition at no less than their current capacity 
and sales, and shall maintain and adhere to normal repair and 
maintenance schedules for the Relevant Allied Assets and Relevant 
Republic Assets.
    F. Defendants shall not, except as part of a divestiture approved 
by the United States in accordance with the terms of the proposed Final 
Judgment, remove, sell, lease, assign, transfer, pledge or otherwise 
dispose of any of the Relevant Allied Assets or Relevant Republic 
Assets.
    G. Defendants shall maintain, in accordance with sound accounting 
principles, separate, 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 past practices, the assets, 
liabilities, expenses, revenues and income of the Relevant Allied 
Assets and Relevant Republic Assets.
    H. Except in the ordinary course of business or as in otherwise 
consistent with this Hold Separate Stipulation and Order, defendants 
shall not hire, transfer, terminate, or otherwise alter the salary 
agreements for any Allied or Republic employee who, on the date of 
defendants' signing of this Hold Separate Stipulation and Order, 
either: (1) Works with a Relevant Allied Asset or a Relevant Republic 
Asset, or (2) is a member of management referenced in Section V(I) of 
this Hold Separate Stipulation and Order.
    I. Until such time as the Relevant Allied Assets and Relevant 
Republic

[[Page 54550]]

Assets are divested pursuant to the terms of the Final Judgment, the 
Relevant Republic Assets shall be managed by Richard J. Wojahn and the 
Relevant Allied Assets shall be managed by Raul Rodriguez, Jr. Messrs. 
Wojahn and Rodriguez shall have complete managerial responsibility for 
the Relevant Allied Assets and Relevant Republic Assets, subject to the 
provisions of this Order and the proposed Final Judgment. In the event 
that either Mr. Wojahn or Mr. Rodriquez is unable to perform this 
duties, defendants shall appoint, subject to the approval of the United 
States, a replacement within ten (10) working days. Should defendants 
fail to appoint a replacement acceptable to the United States within 
ten (10) working days, the United States shall appoint a replacement.
    J. Defendants shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the Final Judgment to 
complete the divestitures pursuant to the Final Judgment to an Acquirer 
or Acquirers acceptable to the United States.
    K. This Hold Separate Stipulation and Order shall remain in effect 
until consummation of the divestitures contemplated by the proposed 
Final Judgment or until further order of the Court.

For Plaintiff United States of America
David R. Bickel, DC Bar # 393409,

U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, NW, Suite 3000, Washington, DC 20530, (202) 
307-1168.

For Defendant Allied Waste Industries, Inc.

Tom D. Smith,

Jones, Day, Reavis & Pogue, 51 Louisiana Avenue, NW, Washington, DC 
20001-2113, (202) 879-3971.

For Defendant Republic Services, Inc.

Paul B. Hewitt,

Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1333 New Hampshire Ave., 
N.W., Suite 400, Washington, DC 20036, (202) 887-4000.

Dated: June 21, 2000.
Order
    It Is So Ordered On This 21st Day of June, 2000.
Richard M. Urbina,
United States District Judge.

Final Judgment

    WHEREAS, plaintiff, the United States of America, having filed its 
Complaint in this action on June, 2000, and plaintiff and defendants, 
Allied Waste Services, Inc. (``Allied'') and Republic Service, Inc. 
(``Republic''), by their respective attorneys, having consented to the 
entry of 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 Relevant Allied Assets and Relevant Republic 
Assets by the defendants to assure that competition is not 
substantially lessened;
    AND WHEREAS, the United States requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    AND WHEREAS, defendants have represented to the United States that 
the divestitures required below 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 other 
injunctive 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:

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. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest the Relevant Allied Assets or Relevant Republic 
Assets.
    B. ``Allied'' means defendant Allied Waste Industries, Inc., a 
Delaware corporation with its headquarters in Scottsdale, Arizona, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    C. ``Disposal'' means the business of disposing of waste into 
approved disposal sites.
    D. ``Hauling'' means the collection of waste from customers and the 
shipment of the collected waste to disposal sites. Hauling, as used 
herein, does not include collection of roll-off containers.
    E. ``Landfill'' means a waste management facility where waste is 
placed into the land.
    F. ``MSW'' means municipal solid waste, a term of art used to 
describe solid putrescible waste generated by households and commercial 
establishments such as retail stores, offices, restaurants, warehouses, 
and non-manufacturing activities in industrial facilities. MSW does not 
include special handling waste (e.g., waste from manufacturing 
processes, regulated medical waste, sewage, and sludge), hazardous 
waste, or waste generated by construction or demolition sites.
    G. ``Relevant Allied Assets'' means all Relevant Allied Disposal 
Assets and Relevant Allied Hauling Assets, as further defined below.
    H. ``Relevant Allied Disposal Assets'' means, with respect to each 
transfer station listed and described herein, all of Allied's rights, 
titles and interests in any tangible assets, including all fee and 
leasehold and renewal rights in the listed transfer station; the garage 
and related facilities; offices; all related assets including capital 
equipment, trucks and other vehicles, scales, power supply equipment, 
interests, permits, and supplies; and all of Allied's rights, titles 
and interests in any intangible assets, including all customer lists, 
contracts, and accounts, or options to purchase any adjoining property.
    Relevant Allied Disposal Assets, as used herein, includes each of 
the following properties:
1. Anderson, IN
    Allied's BFI Transfer Station, located at 201 North Delaware, 
Anderson, IN 46016; and
2. Macon, GA
    Allied's S&S Byron Transfer Station, located at 750 Dunbar Road, 
Byron, GA 31008.
    I. ``Relevant Allied Hauling Assets,'' means with respect to each 
commercial waste collection route or other hauling asset described 
herein, all tangible assets, including capital equipment, trucks and 
other vehicles, containers, interests, permits, supplies; and if 
requested by the purchaser, real property and improvements to real 
property (i.e., buildings and garages). It also includes all intangible 
assets, including hauling-related customer lists, contracts, leasehold 
interests, and accounts.
    Relevant Allied Hauling Assets, as used herein, includes the assets 
in the following locations:
1. Columbus, OH
    Allied's front-end and rear-end loader truck small container routes 
(hereinafter, ``commercial routes'') 31, 51, 54, 91, 92, 96 and 97 that 
serve the

[[Page 54551]]

City of Columbus; and Franklin and Delaware counties, Ohio.
2. Lakeland, FL
    Allied's commercial routes 901 and 904 that serve Polk County, FL.
3. Macon, GA
    Allied's commercial routes 902 and 903 that serve the City of 
Macon; and Bibb and Jones counties, Georgia.
    J. ``Relevant Republic Assets'' means all Relevant Republic 
Disposal Assets and Relevant Republic Hauling Assets, as further 
defined below.
    K. ``Relevant Republic Disposal Assets'' means Republic's All City 
Transfer Station, also known as Republic Services of New York II, LLC, 
located at 246-252 Plymouth Street, New York, New York. Relevant 
Republic Disposal Assets include all of Republic's rights, titles and 
interest in any tangible assets, including all fee and leasehold and 
renewal rights, in the transfer station; the garage and related 
facilities; offices, all related assets including capital equipment, 
trucks and other vehicles, scales, power supply equipment, interests, 
permits, and supplies; and all Republic's rights, titles and interests 
in any intangible assets, including all customer lists, contracts, and 
accounts, or options to purchase any adjoining property.
    L. ``Relevant Republic Hauling Assets'' means with respect to each 
commercial waste collection route or other hauling asset described 
herein, all tangible assets, including capital equipment, trucks and 
other vehicles, containers, interests, permits, supplies; and if 
requested by the purchaser, real property and improvements to real 
property (i.e., buildings and garages). It also includes all intangible 
assets, including hauling-related customer lists, contracts, leasehold 
interest, and accounts.
    Relevant Republic Hauling Assets, as used herein, includes the 
assets in the following locations:
1. Augusta, GA
    Republic's commercial routes 204 and 238 that serve the City of 
Augusta; GA; Richmond and Columbia counties, GA; and Aiken County, SC.
2. Gulf Coast, FL
    Republic's commercial routes 1, 4 (a Saturday-only route), and 5 
that serve Escambia, Santa Rosa and Okaloosa counties, FL, except for 
those contracts with route 4 customers also being served on a Republic 
Gulf Coast route not being divested pursuant to this Final Judgment;
3. Louisville, KY/Sellersburg, IN
    Republic's commercial routes 4, 8, 17, 18, and 26 (to be divested 
by Republic) that serve the cities of Louisville, KY and Sellersburg, 
IN; Jefferson County, KY; and the parts of Floyd and Clark counties, IN 
abutting Jefferson County, KY.
4. Memphis, TN
    Republic's comemrcial routes 51, 52 and 53 that serve Shelby 
County, TN; Desoto County, MS; and Crittenden County, AK.
5. Nashville, TN
    Republic's commercial routes 12, 16, 20, 24 and 30 that serve the 
City of Nashville, TN; and Davidson, Sumner, Williamson, Rutherford, 
Wilson, the southeastern part of Robertson, and the eastern part of 
Cheatham counties, TN; and
6. Norfolk, VA
    Republic's commercial routes 1, 2, 3 (except for the Virginia Beach 
municipal contract), 6, 7, 9, and 10 that serve the cities of 
Chesapeake, Suffolk, Virginia Beach, Norfolk, Poquoson, Newport News 
and Portsmouth, VA; and York, Surry, James City, Southampton, and Isle 
of Wright counties, VA subject to the following conditions of sale: the 
new purchaser of the specified hauling assets must obtain a disposal 
agreement satisfactory to the United States in advance of any 
divestiture approval from the United States. If the United States, in 
its sole discretion, deems it necessary for additional tonnages of 
processible waste to be divested by Allied in the Norfolk area, Allied 
agrees to supplement the assets already offered for sale with 
additional waste customers whose total tonnages of processible waste 
exceed 800 tons per month. Any supplemental asset divestiture by Allied 
will be limited to no more than one (1) additional front-end loader 
route, plus the accounts of other Allied waste customers whose total 
processible waste, in combination with the waste generated from any 
additional front-end loader route, shall equal 800 tons or more of 
processible waste per month. The supplemental waste customer accounts 
shall not be covered by any separate disposal agreement. The 
supplemental customer accounts need not relate to small container 
waste.
    M. ``Republic'' means defendant Republic Services, Inc., a Delaware 
corporation with its headquarters in Ft. Lauderdale, Florida, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    N. ``Small container commercial waste collection service'' means 
the business of collecting MSW from commercial and industrial accounts, 
usually in ``dumpsters'' (i.e., a small container with one to ten cubic 
yards of storage capacity), and transporting or ``hauling'' such waste 
to a disposal site by use of a front- or read-end loader truck. Typical 
commercial waste collection customers include office and apartment 
buildings and retail establishments (e.g., stores and restaurants).

III. Applicability

    A. This Final Judgment applies to Allied and Republic, as defined 
above, and all other persons in active concert or participation with 
any of them who receive actual notice of this Final Judgment by 
personal service or otherwise.
    B. Defendants shall require, as a condition of the sale or other 
disposition of all or substantially all of their assets, or of lesser 
business units that include defendants' Relevant Allied Assets or 
Relevant Republic Assets, that the Acquirer or Acquirers agree to be 
bound by the provisions of this Final Judgment.

IV. Divestitures

    A. Defendants are hereby ordered and directed, within one hundred 
and twenty (120) calendar days after the filing of the Complaint in 
this matter, or five (5) days after notice of the entry of this Final 
Judgment by the Court, whichever is later, to divest the Relevant 
Allied Assets and Relevant Republic Assets in a manner consistent with 
this Final Judgment to an Acquirer(s) acceptable to the United States 
in its sole discretion. The United States, in its sole discretion, may 
agree to an extension of this time period of up to sixty (60) calendar 
days, and shall notify the Court in such circumstances. Defendants 
agree to use their best efforts to divest the Relevant Allied Assets 
and the Relevant Republic Assets as expeditiously as possible.
    B. In accomplishing the divestitures ordered by this Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability of the Relevant Allied Assets and Relevant 
Republic Assets. Defendants shall inform any person making inquiry 
regarding a possible purchase of the Relevant Allied Assets or Relevant 
Republic Assets that they are being divested pursuant to this Final 
Judgment and provide that person with a copy of this Final Judgment.

[[Page 54552]]

Defendants shall offer to furnish to all prospective Acquirers, subject 
to customary confidentiality assurances, all information and documents 
relating to the Relevant Allied Assets and Relevant Republic Assets 
customarily provided in a due diligence process except such information 
or documents subject to the attorney-client or work-product privileges. 
Defendants shall make available such information to the United States 
at the same time that such information is made available to any other 
person.
    C. Defendants shall provide the Acquirers and the United States 
information relating to the personnel involved in the operation and 
management of the Relevant Allied Assets and Relevant Republic Assets 
to enable the Acquirer to make offers of employment. Defendants will 
not interfere with any negotiations by the Acquirer[s] to employ any 
defendant employee whose primary responsibility is the operation or 
management of the Relevant Allied Assets or the Relevant Republic 
Assets.
    D. Defendants shall permit prospective Acquirers of the Relevant 
Allied Assets and Relevant Republic Assets to have reasonable access to 
personnel and to make inspections of the physical facilities; access to 
any and all environmental, zoning, and other permit documents and 
information; and access to any and all financial, operational, or other 
documents and information customarily provided as part of a due 
diligence process.
    E. With the exception of the facilities described in Section II 
(K), defendants shall warrant to all Acquirers of the Relevant Allied 
Assets and Relevant Republic Assets that each asset will be operational 
on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Relevant Allied Assets 
and Relevant Republic Assets.
    G. Defendants shall warrant to the Acquirer[s] of the Relevant 
Allied Assets and Relevant Republic Assets that there are no material 
defects in the environmental, zoning or other permits pertaining to the 
operation of each asset, and that following the sale of the Relevant 
Allied Assets and Relevant Republic Assets, defendants will not 
undertake, directly or indirectly, any challenges to the environmental, 
zoning, or other permits relating to the operation of the Relevant 
Allied Assets and Relevant Republic Assets.
    H. 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 the entire Relevant 
Allied Assets and Relevant Republic Assets, and shall be accomplished 
in such a way as to satisfy the United States, in its sole discretion, 
that the Relevant Allied Assets and Relevant Republic Assets can and 
will be used by the Acquirer(s) as part of a viable, ongoing waste 
disposal or hauling business. Divestiture of the Relevant Allied Assets 
and Relevant Republic Assets may be made to one or more Acquirers, 
provided that in each instance it is demonstrated to the sole 
satisfaction of the United States that the Relevant Allied Assets and 
Relevant Republic Assets will remain viable and the divestiture of such 
assets will remedy the competitive harm alleged in the Complaint. The 
divestitures, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) shall be made to an Acquirer (or Acquirers), that, in the 
United States's sole judgment, has the intent and capability (including 
the necessary managerial, operational, technical and financial 
capability) of competing effectively in the waste disposal or hauling 
business; and
    (2) shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement between an 
Acquirer (or Acquirers) and Allied or Republic gives Allied or Republic 
the ability unreasonably to raise the Acquirer's costs, to lower the 
Acquirer's efficiency, or otherwise to interfere in the ability of the 
Acquirer to compete effectively.

V. Appointment of Trustee

    A. If defendants have not divested the Relevant Allied Assets and 
Relevant Republic Assets within the time period specified in Section 
IV(A), defendants shall notify the United States of that fact in 
writing. Upon application of the United States, the Court shall appoint 
a trustee selected by the United States and approved by the Court to 
effect the divestiture of the Relevant Allied Assets and Relevant 
Republic Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Relevant Allied Assets and 
Relevant Republic Assets. The trustee shall have the power and 
authority to accomplish the divestiture to an Acquirer[s] acceptable to 
the United States at such price and on such terms as are then 
obtainable upon 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 this Court deems appropriate. Subject to 
Section V(D) of this Final Judgment, the trustee may hire at the cost 
and expense of defendants any investment bankers, attorneys, or other 
agents, who shall be solely accountable to the trustee, reasonably 
necessary in the trustee's judgment to assist in the divestiture.
    C. 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.
    D. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the plaintiff approves, 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 defendants and the trust shall then be 
terminated. The compensation of the trustee and any professionals and 
agents retained by the trustee shall be reasonable in light of the 
value of the Relevant Allied Assets and Relevant Republic Assets 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, but timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information. Defendants shall take no action to interfere 
with or to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent that 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

[[Page 54553]]

acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or was contacted or made an inquiry about acquiring, any 
interest in the Relevant Allied Assets and Relevant Republic Assets, 
and shall describe in detail each contact with any such person. The 
trustee shall maintain full records of all efforts made to divest the 
Relevant Allied Assets and Relevant Republic Assets.
    G. If the trustee has not accomplished such divestiture within six 
months after its appointment, the trustee shall promptly file with the 
Court a report setting forth (1) the trustee's efforts to accomplish 
the required divestiture, (2) the reasons, in the trustee's Judgment, 
why the required divestiture has not been accomplished, and (3) the 
trustee's recommendations. To the extent that such reports contain 
information that the trustee deems 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 plaintiff who shall have the right 
to make additional recommendations consistent with the purpose of the 
trust. The Court thereafter shall enter such orders as it shall deem 
appropriate 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. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by Section IV or 
V of this Final Judgment. If the trustee is responsible, it shall 
similarly notify defendants. The notice shall set forth the details of 
the proposed divestiture and list the name, address, and telephone 
number of each person not previously identified who offered or 
expressed an interest in or desire to acquire any ownership interest in 
the Relevant Allied Assets and Relevant Republic Assets, together with 
full details of the same.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from defendants, 
the proposed Acquirer or Acquirers, any other third party, or the 
trustee if applicable additional information concerning the proposed 
divestiture, the proposed Acquirer or Acquirers, and any other 
potential Acquirer. Defendants and the trustee shall furnish any 
additional information requested within fifteen (15) calendar days of 
the receipt of the request, unless the parties shall otherwise agree.
    C. 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 Acquirer or Acquirers, any third party, and the trustee, 
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 that it does not object, the divestiture may be 
consummated, subject only to defendants' limited right to object to the 
sale under Section V(C) of this Final Judgment. Absent written notice 
that the United States does not object to the proposed Acquirer or upon 
objection by the United States, a divestiture proposed under Section IV 
or Section V shall not be consummated. Upon objection by defendants 
under Section V(C), a divestiture proposed under Section V shall not be 
consummated unless approved by the court.

VII. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to Section IV or V of this Final Judgment.

VIII. Hold Separate

    Until the divestitures required by this 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 divestitures 
ordered by this Court.

IX. 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[s] has been completed under Section IV or V, defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of its compliance with Section IV or V of this Final Judgment. 
Each such affidavit shall include the name, address, and telephone 
number of each person who, during the preceding thirty days, 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 Relevant Allied Assets and Relevant 
Republic 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 defendants have taken to solicit buyers 
for the Relevant Allied Assets and Relevant Republic 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 
limitation 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 that describes in reasonable detail all actions defendants 
have taken and all steps defendants have implemented on an ongoing 
basis to comply with Section VIII of this Final Judgment. Defendants 
shall deliver to the United States an affidavit describing any changes 
to the efforts and actions outlined in defendants' earlier affidavits 
filed pursuant to this section within fifteen (15) calendar days after 
the change is implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Relevant Allied Assets and Relevant Republic 
Assets until one year after such divestiture has been completed.

X. Compliance Inspection

    A. 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 duly authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of a duly authorized 
representative of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to defendants, be 
permitted:
    (1) access during defendants' office hours to inspect and copy, or 
at plaintiff's option demand defendants provide copies of, all books, 
ledgers, accounts, records and documents in the possession or control 
of defendants, who may have counsel present, relating to any matters 
contained in this Final Judgment; and
    (2) to interview, either informally or on the record, defendants' 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
interviewees' reasonable convenience and without restraint or 
interference by defendants.

[[Page 54554]]

    B. Upon the written request of the Assistant Attorney General in 
charge of the Antitrust division, defendants shall submit such written 
reports, under oath if requested, relating to any of the matters 
contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an 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 the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and 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 defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendants may not reacquire any part of the Relevant Allied Assets 
or Relevant Republic Assets during the term of this Final Judgment.

XII. Revisions to Contracts

    A. Allied and Republic shall alter the contracts each uses with its 
small container solid waste commercial customers in each of the markets 
specified below to the form contained in paragraph XII (B) below.
    B. In each of the markets specified below and for the defendant 
acquiring the assets as indicated, Allied or Republic shall offer 
contracts to all new small container solid waste commercial customers 
as well as to existing customers that sign new contracts for small 
container solid waste commercial service effective on or after the date 
that one defendant acquires the other's assets in accordance with the 
following conditions. No contract shall:
    (1) have an initial term longer than two (2) years;
    (2) have any renewal term longer than one (1) year;
    (3) require that the Customer give Defendants notice of termination 
more than thirty (30) days prior to the end of any initial term or 
renewal term;
    (4) require that the Customer pay liquidated damages in excess of 
three times its average monthly charge during the first year the 
Customer has had service with the Defendant; and
    (5) require that the Customer pay liquidated damages in excess of 
two times its average monthly charge after the first year the Customer 
has had service with the Defendant.
    The contract attached as Exhibit A would satisfy the above 
conditions. The applicable defendant shall offer such contracts to all 
other current small container solid waste commercial customers in the 
respective markets detailed below on or before December 1, 2000:

------------------------------------------------------------------------
           Defendant                  Cities         Counties or areas
------------------------------------------------------------------------
Allied........................  Albany, NY.......  Albany, Schenectady,
                                                    Saratoga, and
                                                    Rensselaer counties,
                                                    NY.
Allied........................  Augusta, GA......  Richmond and Columbia
                                                    counties, GA; and
                                                    Aiken County, SC.
Allied........................  Clarksville, TN..  Montgomery, Dickson,
                                                    Cheatham, and
                                                    Robertson counties,
                                                    TN.
Republic......................  Columbus, OH.....  Franklin and Delaware
                                                    counties, OH.
Allied........................  Gulf Coast, FL...  Escambia, Santa Rosa,
                                                    and Okaloosa
                                                    counties, FL.
Republic......................  Lakeland, FL.....  Polk County, FL.
Republic......................  Louisville, KY/    Jefferson County, KY;
                                 Sellersberg, IN.   and Floyd and Clark
                                                    counties, IN.
Republic......................  Macon, GA........  Bibb, Houston, Peach,
                                                    Jones and Monroe
                                                    counties, GA.
Republic......................  Marlboro, NJ.....  Monmouth County, NJ.
Republic......................  Mt. Laurel, NJ...  Burlington and Camden
                                                    counties, NJ.
Allied........................  Norfolk, VA......  Chesapeake, Suffolk,
                                                    Virginia Beach,
                                                    Norfolk, Poquoson,
                                                    Newport News, and
                                                    Portsmouth, and
                                                    York, Surry, James
                                                    City, Southampton,
                                                    and Isle of Wight
                                                    counties, VA.
------------------------------------------------------------------------

    The defendant acquiring small container assets in each specified 
area agrees that it will not attempt to enforce any contract term 
affecting small container customers in the specified area that 
conflicts with or is inconsistent with the above terms, even if those 
customers choose not to sign a contract with the new terms.
    C. In accordance with paragraph XII (D) below, Republic shall alter 
the contracts it uses with the roll-off customers in Bibb, Houston, 
Peach, Jones and Monroe counties, Georgia, except those customers that 
regularly rent or lease compactors from Republic for their roll-off 
containers.
    D. The revised roll-off contracts shall comply with the following 
conditions:
    (1) No contract shall contain an initial term of greater than three 
(3) years.
    (2) During the first year that the company is a customer of 
Republic, the customer may be forced to pay liquidated damages of no 
more than six (6) times its prior average monthly charges if the 
contract is terminated by the customer in manner inconsistent with the 
termination provisions contained in the agreement. During the second 
year that the company is a customer of Republic, the customer may be 
forced to pay liquidated damages of no more than four (4) times its 
prior average monthly charges if the contract is terminated by the 
customer in a manner inconsistent with the termination provisions 
contained in the agreement. After the company is a customer of Republic 
for two years, the customer may be forced to pay liquidated damages of 
no more than two (2) times its prior average monthly charges if the 
contract is terminated by the customer in a manner inconsistent with 
the termination provisions contained in the agreement.
    (3) No roll-off contract may have automatic renewals for terms of 
more than one (1) year.
    E. Republic shall offer roll-off contracts in compliance with these 
requirements to all new roll-off customers, except those customers that 
regularly rent or lease one or more compactors from Republic for their 
roll-off containers (hereinafter referred to as ``compactor 
customers''), as well as to existing roll-off customers, except for 
compactor customers, that sign new contracts for non-compactor service 
effective on or after the date that Republic acquires Allied's Macon, 
Georgia assets in accordance with the terms of this Final Judgment. 
Defendant

[[Page 54555]]

shall further offer such revised contracts to all of their other non-
compactor roll-off customers in Bibb, Houston, Peach, Jones and Monroe 
counties, Georgia on or before December 1, 2000. Republic agrees that 
it will not attempt to enforce any term of its current contracts with 
roll-off contract customers, except for compactor customers, in the 
Macon area that is inconsistent with the conditions specified above, 
even if its customers, except for compactor customers, choose not to 
sign a contract with the new terms.

XIII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

XIV. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten years from the date of its entry.

XV. Public Interest Determination

    Entry of this Final Judgment is in the public interest.

Date:____________________

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

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

EXHIBIT A

Contract for Solid Waste Services
Date:____________________
    Service location (which Business Name shall be deem to include all 
locations to which the identified location is relocated or 
reestablished.)

----------------------------------------------------------------------
----------------------------------------------------------------------
Business Name

----------------------------------------------------------------------
Street No. & Name 
----------------------------------------------------------------------
City Zip 
----------------------------------------------------------------------
Telephone 
----------------------------------------------------------------------
Fax 

Dear____________________

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

Our Mission

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

Our Guaranty

    We guarantee the quality of our waste services. If our services 
do not measure up to the standards described in this contract, and 
we do not correct the problem within 48 hours (excluding Sundays) 
after we receive written notice from you (unless the problem is 
caused by circumstances outside our reasonable control), you may 
terminate our services and this contract with penalty.

Our Responsibilities

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

Your Responsibilities

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

Certificate of Service

    I hereby certify that a copy of the foregoing has been served 
upon Allied Waste Industries, Inc. and Republic Services, Inc. by 
placing a copy of this Hold Separate Stipulation and Order and 
proposed Final Judgment in the U.S. Mail, postage prepaid directed 
to each of the parties in this matter, on this 21st day of June, 
2000.
Counsel for Defendant Allied Waste Industries, Inc.
Tom D. Smith, Esq.,
Jones Day Reavis & Pogue, 51 Louisiana Avenue, NW, Washington, DC 
20001-2113
Counsel for Defendant Republic Services, Inc.
Paul B. Hewitt, Esq.,
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1333 New Hampshire 
Avenue, NW, Suite 400, Washington, DC 20036

David R. Bickel,
DC Bar #393409, U.S. Department of Justice, Antitrust Division, 
Litigation II Section, 1401 H Street, NW, Suite 3000, Washington, DC 
20530, 202-307-1168.

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

    The United States filed a civil antitrust Complaint on June 21, 
2000, seeking to enjoin an exchange of certain waste-hauling and 
disposal assets by

[[Page 54556]]

Allied Waste Industries, Inc. (``Allied'') and Republic Services, Inc. 
(``Republic''). Allied and Republic had entered into purchase 
agreements pursuant to which the companies would exchange assets in a 
number of market areas in the United States. The Complaint alleges that 
the likely effects of these asset exchanges would be to substantially 
lessen competition for waste collection and disposal services in 
several markets in violation of Section 7 of the Clayton Act. This loss 
of competition would result in consumers paying higher prices and 
receiving fewer services for the collection and disposal of waste.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order and proposed Final Judgment 
which are designed to eliminate the anticompetitive effects of the 
acquisitions. Under the proposed Final Judgment, which is explained 
more fully below, the defendants are required within 120 days after the 
filing of the Complaint, or five (5) days after notice of the entry of 
the Final Judgment by the Court, whichever is later, to divest, as 
viable business operations, certain waste-hauling and disposal assets. 
Under the terms of the Hold Separate Stipulation and Order, the 
defendants are required to take certain steps to ensure that the assets 
to be divested will be preserved and held separate from the defendants' 
other assets and businesses. In addition to these asset divestitures, 
the proposed Final Judgment also requires the defendants to comply with 
certain conditions in their customer contracts in several identified 
areas.
    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA. 
Entry of the proposed Final Judgment would terminate this 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 Transactions

    Allied, with revenues in 1999 of approximately $6 billion, is the 
nation's second largest waste collection and disposal company, 
operating throughout the United States. Republic, with 1998 revenues of 
approximately $1.8 billion, is the nation's third largest waste 
collection and disposal company. On July 28 and October 7, 1999, Allied 
and Republic entered into separate asset purchase agreements in which 
they agreed to exchange certain waste-hauling and disposal assets. The 
proposed transactions, identified below, would lessen competition 
substantially in waste collection and/or disposal services: (1) 
Allied's acquisition of hauling assets in Albany, New York; (2) 
Allied's acquisition of hauling assets in Augusta, Georgia; (3) 
Allied's acquisition of disposal assets in New York, New York; (5) 
Allied's acquisition of hauling assets in Norfolk, Virginia; (6) 
Allied's acquisition of hauling assets in Okaloosa, Escambia and Santa 
Rosa counties, Florida (``Gulf Coast, Florida''); (7) Republic's 
acquisition of disposal assets in Anderson, Indiana; (8) Republic's 
acquisition of hauling assets in Columbus, Ohio; (9) Republic's 
acquisition of hauling assets in Lakeland, Florida; (10) Republic's 
acquisition of hauling assets in Louisville, Kentucky and Sellersburg, 
Indiana; (11) Republic's acquisition of hauling and disposal assets in 
Macon, Georgia; and (12) Republic's acquisition of hauling assets in 
Monmouth, Burlington and Camden counties, New Jersey. These 
acquisitions are the subject of the Complaint and proposed Final 
Judgment filed by the United States on June 21, 2000.

B. The Competitive Effects of the Transactions

    Waste collection firms, or ``haulers,'' contract to collect 
municipal solid waste (``MSW'') from residential and commercial 
customers; they transport the waste to private and public disposal 
facilities (e.g., transfer stations, incinerators and landfills), 
which, for a fee, process and legally dispose of waste. Allied and 
Superior compete in operating waste collection routes and waste 
disposal facilities.

1. The Effects of the Transactions on Competition in Small Container 
Commercial Waste Collection Service

a. Small Container Commercial Waste Collection
    Small container commercial waste collection service is the 
collection of MSW from commercial businesses such as office and 
apartment buildings and retail establishments (e.g., stores and 
restaurants) for shipment to, and disposal at, an approved disposal 
facility. Because of the type and volume of waste generated by 
commercial accounts and the frequency of service required, haulers 
organize commercial accounts into special routes, and generally use 
specialized equipment to store, collect and transport waste from these 
accounts to approved disposal sites. This equipment--one to ten cubic 
yard containers for waste storage and front-end loader vehicles 
commonly used for collection and transportation--is uniquely well 
suited for the provision of small container commercial waste collection 
service. Providers of other types of waste collection services (e.g., 
residential and roll-off services) are not good substitutes for small 
container commercial waste collection firms. In their waste collection 
efforts, these firms use different waste storage equipment (e.g., 
garbage cans or semi-stationary roll-off containers) and different 
vehicles (e.g., rear-load, side-load or roll-off trucks), which, for a 
variety of reasons, cannot be conveniently or efficiently used to 
store, collect or transport waste generated by commercial accounts, and 
hence, are rarely used on small container commercial waste collection 
routes. Thus, the Complaint alleges that the provision of small 
container commercial waste collection routes. Thus, the Complaint 
alleges that the provision of small container commercial waste 
collection services constitutes a line of commerce, or relevant 
service, for purposes of analyzing the effects of the acquisitions.
    The Complaint alleges that the provision of small container 
commercial waste collection services takes place in compact, highly 
localized geographic markets. It is expensive to ship waste long 
distances in either collection or disposal operations. To minimize 
transportation costs and maximize the scale, density, and efficiency of 
their waste collection operations, small container commercial waste 
collection firms concentrate their customers and collection routes in 
small areas. Firms with operations concentrated in a distant area 
cannot easily compete against firms whose routes and customers are 
locally based. Distance may significantly limit a distant firm's 
ability to provide commercial waste collection service as frequently or 
conveniently as that offered by local firms with nearby routes. Also, 
local commercial waste collection firms have significant cost 
advantages over other firms, and can profitably increase their charges 
to local commercial customers without losing significant sales to firms 
outside the area.
    Applying this analysis, the Complaint alleges that the areas of 
Albany, New York; Augusta, Georgia; Burlington and Camden counties, New 
Jersey; Clarksville, Tennessee; Columbus, Ohio; Gulf Coast, Florida; 
Lakeland, Florida; Louisville, Kentucky and Sellersburg, Indiana; 
Macon, Georgia; Memphis,

[[Page 54557]]

Tennessee; Monmouth County, New Jersey; Nashville, Tennessee; and 
Norfolk, Virginia constitute sections of the country, or relevant 
geographic markets, for the purpose of assessing the competitive 
effects of a combination of Allied and Republic in the provision of 
small container commercial waste collection services.
    There are significant entry barriers into small container 
commercial waste collection. An efficient route usually handles 80 or 
more containers/customers each day. As most customers have collections 
once or twice a week, a new entrant must have several hundred customers 
in close proximity to construct an efficient route. However, the common 
use of long-term self-renewing ``evergreen'' contracts by existing 
commercial waste collection firms can leave too few customers available 
to the entrant in a sufficiently confined geographic area to create an 
efficient route. These contracts often run for several years and 
frequently have high liquidated damage terms which make it costly to a 
customer who wishes to change its collection service without giving 
proper notice. When giving proper notice, the customer must often 
inform the firm in writing 60 days before the contract renews. This 
time period allows the incumbent firm an opportunity to react to a 
prospective entrant's solicitation to that customer. The incumbent firm 
can inquire why the customer wishes to change its service, and if a 
prospective entrant has offered a lower price, the incumbent can lower 
its price to retain the customer. This can result in price 
discrimination; i.e., an incumbent firm can selectively (and 
temporarily) charge unbeatably low prices to some customers targeted by 
entrants, a tactic that would strongly inhibit a would-be entrant from 
competing for such accounts, which, if won, may be unprofitable to 
serve, and would limit its ability to build an efficient route. Because 
of these factors, a new entrant may find it difficult to compete by 
offering its services at pre-entry price levels comparable to the 
incumbent.
    The need for route density, the use of long-term evergreen 
contracts with restrictive terms, and the ability of existing firms to 
price discriminate raise significant to entry to new firms, which will 
likely be forced to compete a lower than pre-entry price levels. Such 
barriers in the market for commercial small container waste collection 
have allowed incumbent firms to raise prices successfully.
b. Anticompetitive Effects in Small Container Collection Service 
Markets
    (1) Memphis and Nashville Areas. In the Memphis and Nashville, 
Tennessee market areas, Allied is the acquiring party. Total market 
revenues for commercial small container waste collection are over 425 
million in Memphis and about $31 million in Nashville. Currently, 
Allied already has a substantial share of the commercial small 
container collection market in both Memphis and Nashville. In Memphis, 
the proposed acquisition would reduce from four to three the number of 
significant firms that compete in small container commercial waste 
collection service, and in Nashville, it would reduce the number of 
significant competitors from three to two. After the acquisition, 
Allied would control roughly 69% of the commercial waste collection 
market in Memphis, and over 50% of the market in Nashville. In both 
cities, after the acquisition, two firms would control over 90% of the 
market.
    (2) Lakeland, Macon, Augusta, Norfolk, Columbus, Gulf Coast, and 
Louisville/Sellersburg Areas. In Lakeland, Florida and Macon, Georgia, 
the acquisition would reduce from two to one the number of significant 
firms that compete in the collection of small container commercial 
waste. After the acquisition, Allied would control about 98% of the 
market in Lakeland, and Republic would control over 85% of the small 
container commercial market in Macon. In each market, the annual 
revenues derived from commercial waste collection are about $5 million.
    In Augusta, Georgia and Norfolk, Virginia, the acquisition would 
reduce from three to two the number of significant firms that compete 
in the collection of small container commercial waste. After the 
acquisition, Allied would control over 40% of the market in Augusta, 
and over 55% of the market in Norfolk. The annual revenues from 
commercial waste collection are about $8 million in Augusta and about 
$28 million in Norfolk.
    In the Columbus, Ohio; Gulf Coast, Florida; and Louisville, 
Kentucky/Sellersburg, Indiana areas, the acquisition would reduce from 
four to three the number of significant firms that compete in the 
collection of small container commercial waste. After the acquisition, 
Republic would control over 50%, and two firms over 80%, of the small 
container commercial waste hauling market in Columbus, which has annual 
revenues of about $29 million. In Gulf Coast, Florida, after the 
acquisition, Allied would control over 50%, and two firms more than 
90%, of the commercial market, which has annual revenues of about $10 
million. In Louisville/Sellersburg, Republic would control over 50%, 
and two firms would control about 90%, of the market after the 
acquisition, in a market which has annual revenues exceeding $22 
million.
    (3) Clarksville, Albany and New Jersey Areas. The acquisition would 
reduce the number of significant competitors in small container 
commercial waste collection service from five to four in Clarksville, 
Tennessee; four to three in Albany, New York and Monmouth County, New 
Jersey, and from three to two in Burlington, and Camden counties, New 
Jersey. In Clarksville, Tennessee, Allied would control over 40%, and 
two firms over 65%, of the market, which has annual revenues of about 
$5 million. In Albany, Allied would control over 35%, and two firms 
over 80%, of the market, which has annual revenues of about $17 
million. In Monmouth County, New Jersey, Republic would control about 
40%, and three firms over 75% of the market, which has annual revenues 
of about $18 million. In Burlington and Camden counties, New Jersey, 
Republic would control about 31%, and two firms over 80%, of the 
market, which has annual revenues exceeding $24 million.
    The Complaint alleges that a combination of Allied and Republic in 
these markets would likely lead to an increase in prices charged to 
consumers of small container commercial waste collection services. The 
acquisitions would diminish competition by enabling the few remaining 
competitors to engage more easily, frequently, and effectively in 
coordinated pricing interaction that harms consumers. New entry into 
these markets would be difficult, time-consuming, and is unlikely to be 
sufficient to constrain any post-merger price increase.

2. The Effects of the Transactions on Competition in Roll-Off Waste 
Collection Service

a. Roll-Off Waste Collection Service
    Roll-off waste collection service is the collection of large 
volumes and/or bulkier items of waste from sources such as construction 
sites or industrial plants. Because of its characteristics (e.g. 
construction debris) and volume, roll-off waste is deposited by the 
customer/generator into a disposal container (usually 20 to 40 cubic 
yards in size) which is larger than those routinely used in small 
container commercial collection (usually one to 10 cubic yards in 
size). When filled, the roll-off container is picked up by roll-off

[[Page 54558]]

trucks, which are specifically designed for roll-off waste collection, 
and driven to a nearby disposal site, where the container's contents 
are disposed.
    Unlike most small container commercial service vehicles, which 
routinely employ compaction systems on the truck to increase storage 
capacity and can empty numerous small containers located on a schedule 
route before being driven to a disposal site, roll-off vehicles have no 
compaction system on board and are designed to carry only one large 
container at a time to a disposal site. As a result, roll-off waste 
collection is often performed on an ``on call'' basis, rather than as 
part of any route, and pricing is primarily influenced by the distance 
between the customer's location, the hauler's location, and the 
disposal site.
    The differences in size, type, and volumes of roll-off waste and in 
the equipment used to collect it distinguish roll-off waste collection 
from all other waste collection services. These differences mean that 
roll-off waste collection firms can profitably increase their charges 
for roll-off waste collection services without losing significant sales 
or revenues to firms engaged in the provision of other types of waste 
collection services. Thus, the Complaint alleges that the provision of 
roll-off waste collection service is a line of commerce, or relevant 
service, for purposes of analyzing the effects of the acquisitions.
    Roll-off waste collection services are generally provided in 
localized areas because a roll-off truck cannot be efficiently or 
profitably driven significantly longer distances than those driven by a 
competitor to collect and dispose of the waste. It is economically 
impractical for a roll-off waste collection firm to serve metropolitan 
areas from a distant base. Roll-off waste haulers, therefore, generally 
establish garages and related facilities within each major local area 
served.
    The Complaint alleges that the Macon, Georgia area is a section of 
the country, or relevant geographic market, for purposes of analyzing 
the effects of the acquisitions in the provision of roll-off waste 
collection service. In this area, local roll-off waste collection firms 
can profitably increase charges to local customers without losing 
significant sales to more distant competitors.
    A barrier to entry with roll-off waste collection is the nature of 
the contracts with customers used by some market participants. They are 
often long-term evergreen contracts which renew automatically unless 
canceled during a short window, with liquidated damages clauses. These 
contracts restrict the ability of a new or an existing firm to compete 
for customers. Entry into roll-off waste collection is also difficult 
where the major competitors in roll-off collection control the local 
disposal facilities because new entrants will be at a disadvantage in 
obtaining access to competitive disposal sites.
b. Anticompetitive Effects in the Macon, GA Area for Roll-Off 
Collection Service
    In the Macon, Georgia area, the acquisition by Republic would 
combine the two largest firms that compete in roll-off waste collection 
service. After the acquisition, Republic would control over 60% of the 
roll-off hauling market, which has annual revenues of about $8 million. 
In addition, Republic already controls the most accessible landfill in 
the area. Its acquisition of Allied's transfer station would likely put 
its roll-off collection competitors at an even greater competitive 
disadvantage because it would have the ability to raise prices 
selectively to its roll-off collection competitors at two of the area's 
best disposal facilities.
    The Complaint alleges that a combination of Allied and Republic 
would likely lead to an increase in prices charged to roll-off waste 
collection customers in the Macon, Georgia area. The acquisition would 
diminish competition by the loss of competition between the two largest 
firms engaging in roll-off waste collection service. Because of the 
limited disposal options and use of long-term evergreen contracts with 
a large number of customers, new entry in the area would be difficult 
and unlikely to be sufficient to constrain any post-merger price 
increase.

3. The Effects of the Transactions on Competition in the Disposal of 
Municipal Solid Waste

a. Municipal Solid Waste
    Municipal solid waste (MSW) is solid putrescible waste generated by 
households and commercial establishments. A number of federal, state 
and local safety, environmental, zoning and permit laws and regulations 
dictate critical aspects of storage, handling, transportation, 
processing and disposal of MSW. MSW can be sent for disposal only to a 
transfer station, sanitary landfill, or incinerator permitted to accept 
MSW. Anyone who attempts to dispose of MSW in a facility that has not 
been approved for disposal of such waste risks severe civil and 
criminal penalties. In many cases, landfills or incinerators may not be 
located close to where the waste is generated. In such instances, the 
waste is brought to a nearby transfer station by collection trucks 
where it is compacted and combined with other waste and transported to 
the more distant disposal site.
    There are no good substitutes for MSW disposal. Firms that compete 
in the disposal of MSW can profitably increase their charges to haulers 
of MSW without losing significant sales to any other firms. Thus, for 
purposes of antitrust analysis, the disposal of MSW constitutes a line 
of commerce, or relevant service, for purposes of analyzing the 
acquisitions.
    The disposal of MSW generally occurs in localized markets. The 
Complaint alleges that the Anderson, Indiana and New York City, New 
York (defined as the Borough of Brooklyn in the Complaint) areas each 
constitute sections of the country, or relevant geographic markets, for 
purposes of assessing the competitive effects of the transaction. 
Virtually all of the MSW generated in each of these areas is disposed 
of in local transfer stations. Firms that compete in the disposal of 
MSW generated in the Anderson or New York City areas can profitably 
increase their charges for MSW disposal without losing significant 
sales to more distant disposal sites.
    There are significant barriers to entry in MSW disposal. Obtaining 
a permit to construct a new disposal facility or expand an existing one 
is a costly and time consuming process, which typically takes many 
years to conclude. Local public opposition often makes it more 
difficult and costly, and increases the time and uncertainty of 
successfully permitting a facility. In the Anderson, Indiana and New 
York City, New York areas, entry by any new MSW disposal facility would 
be an extremely costly and time-consuming process, and unlikely to 
prevent market incumbents from significantly raising prices for the 
disposal of MSW following the acquisition.
b. Anticompetitive Effects in Anderson, Indiana and New York City, New 
York areas for Disposal of Municipal Solid Waste
    In the Anderson, Indiana area, almost all of the MSW generated is 
disposed of in one of three transfer stations. These three transfer 
stations are currently owned by Allied, Republic and another 
competitor. The proposed acquisition would reduce from three to two the 
number of significant competitors for the disposal of MSW. After the 
acquisition, Republic would own two of the three transfer stations, 
which together would control in excess of 65 percent of the MSW 
disposal market,

[[Page 54559]]

which has annual revenues in excess of $3 million.
    In the New York City area, the acquisition would reduce from five 
to four the number of significant firms competing to dispose of MSW. 
After the acquisition, Allied would control roughly 30 percent--and two 
firms about 66 percent--of the New York City area MSW disposal market, 
which has annual revenues of about $40 million.
    The Complaint alleges that a combination of Allied and Republic in 
Anderson, Indiana and New York City, New York would likely lead to an 
increase in prices for disposal of MSW. The acquisitions would diminish 
competition in MSW disposal by eliminating actual and potential 
competition between Allied and Republic in disposal of MSW in these 
areas and enabling the remaining firms to engage more easily in 
coordinated pricing. New entry into these markets would be difficult, 
time consuming and unlikely to be sufficient to constrain any post 
merger price increases.

III. Explanation of the Proposed Final Judgment

A. Small Container Commercial and Roll-Off Waste Collection Service

    The divestiture and contract provisions of the proposed Final 
Judgment will eliminate the anticompetitive effects of the acquisition 
in small container commercial waste collection services in the market 
areas identified in the Complaint by establishing a new, independent 
and economically viable competitor in each of those markets and/or 
reducing the barriers to entry and expansion that the evergreen 
contracts currently in use raise. The proposed Final Judgment requires 
defendants, within 120 days after the filing of the Complaint, or five 
(5) days after notice of the entry of the Final Judgment by the Court, 
whichever is later, to divest, as a viable ongoing business or 
businesses, small container commercial waste collections assets (e.g., 
routes, trucks, containers, and customer lists) in the market areas of 
Augusta, GA; Columbus; OH; Gulf Coast, FL; Lakeland, FL; Louisville, 
KY/Sellersburg, IN; Macon, GA; Memphis, TN; Nashville, TN; and Norfolk, 
VA. On or before December 1, 2000, the proposed Final Judgment also 
requires the defendants to alter the contracts each uses with its 
existing and new small container solid waste commercial customers in 
the market areas of Albany, NY; Augusta, GA; Clarksville, TN; Columbus, 
OH; Gulf Coast, FL; Lakeland, FL; Louisville, KY/Sellersburg, IN; 
Macon, GA; Norfolk, VA; Burlington and Camden counties, NJ; and 
Monmouth County, NJ. On or before that same date, defendant Republic is 
required to alter the contracts it uses with roll-off customers in the 
five counties in the Macon, Georgia area. The assets to be divested 
must be divested in such a way as to satisfy the United States that the 
operations can and will be operated by the purchaser or purchasers as a 
viable, ongoing business or businesses that can compete effectively in 
each relevant market. Defendants must take all reasonable steps 
necessary to accomplish the divestitures quickly and shall cooperate 
with prospective purchasers.
    In the event that defendants do not accomplish the divestitures 
within the above-described period, the proposed Final Judgment provides 
that the Court will appoint a trustee selected by the United States to 
effect the divestitures. If a trustee is appointed, the proposed Final 
Judgment provides that the defendant affected will pay all costs and 
expenses of the trustee. The trustee's commission will be structured so 
as to provide an incentive for the trustee based on the price obtained 
and the speed with which divestiture is accomplished. After his or her 
appointment becomes effective, the trustee will file monthly reports 
with the parties and the Court, setting forth its efforts to accomplish 
divestitures. At the end of six months, if the divestiture has not been 
accomplished, the trustee and the parties will make recommendations to 
the Court, which shall enter such orders as appropriate in order to 
carry out the purpose of the trust, including extending the trust or 
the term of the trustee's appointment.

1. Memphis and Nashville Areas

    The divestiture provisions of the proposed Final Judgment will 
fully eliminate the anticompetitive effects of the acquisition in small 
container commercial waste collection services in the Memphis and 
Nashville, Tennessee areas by divesting all of the assets being 
acquired to a new, independent and economically viable competitor in 
each of those markets. The relief sought in the Memphis and Nashville 
areas will maintain the pre-acquisition structure of each market with 
no increase in concentration and thereby ensure that consumers of small 
container commercial waste collection services will continue to receive 
the benefits of competition--lower prices and better service.

2. Lakeland, Macon, Augusta, Gulf Coast, Norfolk, Columbus, and 
Louisville/Sellersburg Areas

    In these market areas, the Department of Justice determined that 
competition would be best maintained by obtaining a combination of 
divestiture and contract relief. The Department's experience after many 
years of investigating this industry is that contract relief is 
significant because it lowers entry barriers and is effective at 
enabling smaller competitors to grow and new competitors to enter. The 
divestiture relief requires certain small container commercial routes 
to be divested in each market. In Macon, Georgia, the transfer station 
is also being divested as attendant to the small container routes and 
to facilitate disposal of the waste by the purchaser of the divested 
routes.
    In each case the divestiture that has been agreed to is of a size 
that will create a substantial competitor capable of competing 
immediately in the market. The divestitures are augmented by decree 
provisions that obligate the acquiring company to alter all of its 
contracts with its commercial small container customers to provide 
terms that are less restrictive in terms of the length of the 
contracts, the renewal provisions, and the liquidated damages for a 
customer who wishes to change its service. This contract relief will 
make it easier for customers to consider competitive alternatives, 
easier for existing small firms to compete and expand in the future, 
and will make it more difficult for incumbent firms to price 
discriminate successfully. The contract provisions also make it easier 
for new firms to enter a market and raise the prospect that the markets 
will become less concentrated and more competitive than they were pre-
acquisition. In Macon, Georgia, similar contract relief is also 
required for roll-off waste collection. This relief will make it easier 
for smaller firms to compete for customers under contract with 
incumbent collection firms.
a. Norfolk, Columbus and Louisville/Sellersburg Areas
    In these market areas (Norfolk, VA; Columbus, OH; and Louisville, 
KY/Sellersburg, IN), the market shares of the acquiring firm before the 
acquisition were not as great as in Memphis and Nashville, or there 
were more market participants. The divestitures required in each market 
enable a new competitor to restore the competition that otherwise would 
have been lost. The purchasers of the assets to be divested in each 
market will have routes producing over two

[[Page 54560]]

million dollars in annual sales and at least a 10% market share from 
those assets.
    In Louisville and Columbus, where Republic is the acquiring 
company, there are two other significant competitors, one large and one 
small, and several disposal options. With Republic implementing the 
contract relief specified in the proposed Final Judgment, the purchaser 
of the divested assets, and other competitors, should be able to gain 
customers more easily if Republic seeks to raise prices in these 
markets. In Norfolk, where Allied is the acquiring company, there is 
only one other significant competitor, but the divestiture creates a 
substantial competitor and represents over 70% of the open commercial 
work being acquired from Republic (in addition to certain municipal 
work). One reason why the Norfolk market has few significant 
competitors is because the major disposal option in the area has a high 
volume threshold for a meaningful discount. Only the defendants and the 
other large competitor have been able to qualify for this discount. The 
amount of assets required to be divested will make it easer for the 
purchasing firm to apply for this or a similar disposal discount. The 
proposed Final Judgment provides that Allied will divest additional 
customers with acceptable waste if necessary for the purchaser to 
qualify for this discount. Contract relief should make it easier for 
the divested firm and other competitors to maintain efficient routes 
and gain new customers should Allied raise prices.
b. Augusta and Gulf Coast Areas
    In these two markets (Augusta, GA and Gulf Cost, FL), the market is 
small, the acquired firm is significantly smaller than the acquiring 
firm, and there is another significant competitor. Divestitures with 
contract relief are desirable in these markets as they will both create 
a new competitor and help it and other competitors to compete in the 
market.
    In Augusta, where Allied is acquiring assets from Republic, 
disposal is provided by municipally owned facilities. With the 
divestiture and contract relief, the existing competitors will be 
better able to compete because it will be easier for them to expand and 
gain new customers.
    In the Gulf Coast, where Allied is also the acquiring company, 
disposal is provided by municipally owned facilities. There is also a 
public company that competes in the market which is constrained in its 
ability to compete by restrictive long-term contracts used by the 
defendants. The contract relief provisions in the proposed Final 
Judgment should help it--and the owner of the divested assets--to 
compete by making it easier for customers to change collection 
companies.
c. Lakeland and Macon Areas
    In these two areas (Lakeland, FL and Macon, GA), the acquisitions 
result in market shares greater than those in Memphis and Nashville, 
but other factors make the partial divestiture obtained and contract 
relief a better remedy than full divestiture. In both markets, the 
purchaser of the divested assets will become a significant competitor 
with over 20% of the open commercial work in the market.
    In the Lakeland area, most of the cities are franchised. Haulers in 
nearby counties and the cities indicated that the merger was unlikely 
to effect prices for these franchises because haulers in adjacent 
counties could compete for that work. Administrators of Polk County 
expect the County will be franchising the remaining areas in the 
county. Under franchising, the municipality or other franchising 
authority solicits bids for all of the commercial work in an area so 
that setting up a route is not difficult and a newcomer can compete 
with an incumbent company in the bidding process. The divestiture 
involved requires Republic to divest two of the three routes being 
acquired from Allied that currently do non-franchised work. The 
purchaser of the divested asset will have over 20% of the open market 
and the contract relief should make it easier for it to expand or for 
firms in neighboring counties to enter if prices are raised by 
Republic. The major disposal site in the county is controlled by the 
county, so that no firm has a disposal advantage.
    In the Macon, Georgia area, Republic is being required to divest a 
transfer station and two of the four small container commercial routes 
being acquired from Allied. Republic and Allied control the two best 
disposal options in the market. Divesting the transfer station will 
assist competition by providing a disposal option not controlled by the 
major competitor. Republic agreed to provide contract relief in Macon 
for roll-off service as well as commercial service. Small firms often 
enter an area by starting to provide roll-off service. These firms are 
in a position to enter the commercial market. by making it easier for 
roll-off companies to succeed and providing a good disposal option, 
contract relief should make it easier for the divested firm to expand 
or new entrants to create an efficient small container route if 
Republic raises prices.

3. Albany; Clarksville; and the New Jersey Area

    In Albany, New York; Clarksville, Tennessee; and the two New Jersey 
areas (Burlington/Camden counties and Monmouth County) the market share 
after the transaction created a competitive problem but not one which 
was as substantial as the market areas above. In all of these markets, 
the post-acquisition market concentration or change in concentration 
from the acquisition was lower than the other market areas. In each 
market, except Clarksville (which has the lowest market concentration), 
one of the two merging firms had less than a 10% market share. There 
was more than one other firm as big or bigger than the acquired firm 
and/or there were a number of other significant competitors in the 
surrounding area. In these market areas, the acquiring party is 
required to modify its contracts with customers to make them less 
restrictive, which will have the effect of lowering entry barriers and 
making it easier for competing firms to expand if attempts to increase 
prices occur.
    In the Albany market, after the merger, Allied will be only the 
second largest firm. There is a third firm about the same size as 
Republic along with a number of small competitors. Disposal is 
primarily municipally owned. In the Clarksville market, the post-
acquisition levels of concentration are lower than in the other markets 
above, and in addition to the presence of a large competitor, there are 
three additional competitors about the same size as the acquired firm. 
As with Albany, disposal is primarily municipally owned. In the 
Burlington/Camden market the post-acquisition change in concentration 
is lower than in the other markets described above and the acquired 
firm has a low (approximately a 6%) market share. In the Monmouth area, 
the post-acquisition market concentration is lower than the other 
markets and there are at least two firms with market shares bigger than 
the acquired firm.

B. Disposal of Municipal Solid Waste in Anderson, Indiana, and New 
York City Areas

    The divestiture provisions of the proposed Final Judgment will 
fully eliminate the anticompetitive effects of the acquisition in 
disposal services in the Anderson, Indiana and New York city, New York 
(defined as the Borough of Brooklyn in the Complaint) areas. The 
proposed Final Judgment requires divestiture of all the disposal assets

[[Page 54561]]

being acquired to a new independent and economically viable competitor 
in each of those markets. The relief sought will maintain the pre-
acquisition structure of each market with no increase in concentration 
and thereby ensure that users of disposal services in these areas will 
continue to receive the benefits of competition--lower prices and 
better services.

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 the defendants.

V. Procedures Available for Modification of the Proposed Final 
Judgment

    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered by the Court after compliance 
with the provisions of the APPA, provided that the United States has 
not withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register. The United States will evaluate and respond to 
the comments. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final 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: J. Robert Kramer II, 
Chief, Litigation II Section, Antitrust Division, United States 
Department of Justice, 1401 H Street, NW., 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

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against defendants Allied 
and Republic. The United States could have continued the litigation and 
sought preliminary and permanent injunctions against Allied's 
acquisition of the Republic assets and Republic's acquisition of the 
Allied assets. The United States is satisfied, however, that the 
divestiture of assets and the contract relief described in the proposed 
Final Judgment will preserve competition for small container commercial 
waste collection services, roll-off waste collection services, and MSW 
disposal in the relevant markets identified by the United States.

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. 16(e) (emphasis added). As the Court of Appeals for the 
District of Columbia Circuit has 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 Corp., 56 
F.3d 1448, 1458-62 (D.C. Cir. 1995).

    In conducting this inquiry, ``the Court is nowhere compelled to go 
to trial or to engage in extended proceedings which might have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.''\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.

absent a showing of corrupt failure of the government to discharge 
its duty, the Court, in making its public interest finding, should * 
* * carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
---------------------------------------------------------------------------
circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. (CCH) 
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.), cert. denied, 454 U.S. 1083 
(1981)); see also Microsoft, 56 F.3d at 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 best will 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 Corp., 648 F.2d at 666 (citations 
omitted) (emphasis added); see also, United Statesv. BNS, Inc., 858 
F.2d at 463; United Statesv. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F. 
Supp. at 716; see also United States v. American Cyanamid Co., 719 
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984).
---------------------------------------------------------------------------

    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive effect of

[[Page 54562]]

a particular practice or whether it mandates certainty of free 
competition in the future. Court approval of a final judgment requires 
a standard more flexible and less strict than the standard required for 
a finding of liability. ``[A] proposed decree must be approved even if 
it fall short of the remedy the court would impose on its own, as long 
as it falls within the range of acceptability or is `within the reaches 
of public interest.' '' \3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel. and Tel. Co., 552 F. Supp. 
131, 150 (D.D.C. 1982) (citations omitted), quoting United States v. 
Gillette Co., supra, 406 F. Supp. at 716 aff'd sub nom. Maryland v. 
United States, 460 U.S. 1001 (1983); United States v. Alcan 
Aluminum, Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------

    Moreover, the court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its complaint, and does not authorize the Court 
to ``construct [its] own hypothetical case and then evaluate the decree 
against that case,'' Microsoft, 56 F.3d at 1459. Since ``[t]he court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place,'' it follows that the court ``is only authorized to review the 
decree itself,'' and not to ``effectively redraft the complaint'' to 
inquire into other matters that the United States might have but did 
not pursue. Id.

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: August 15, 2000.

Respectfully submitted,

David R. Bickel,
DC Bar #393409.

Arthur A. Feiveson,
IL Bar #3125793.

U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, NW, Suite 3000, Washington, DC 20530, (202) 
307-0924.

Certificate of Service

    I hereby certify that a copy of the foregoing has been served upon 
Allied Waste Industries, Inc. and Republic Services, Inc. by placing a 
copy of this Competitive Impact Statement in the U.S. mail, postage 
prepaid directed to each of the above-named parties at the addresses 
given below, this 15 day of August, 2000.

Counsel for Defendant Allied Waste Industries, Inc.

Tom D. Smith,

Jones Day Reavis & Pogue, 51 Louisiana Avenue, NW, Washington, DC 
20001-2113

Counsel for Defendant Republic Services, Inc.

Paul B. Hewitt,

Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1333 New Hampshire 
Avenue, NW, Suite 400, Washington, DC 20036

David R. Bickel,
DC Bar #393409, U.S. Department of Justice, Antitrust Division, Suite 
3000, 1401 H Street, NW, Washington, DC 20530.
[FR Doc. 00-22137 Filed 9-7-00; 8:45 am]
BILLING CODE 4410-11-M