[Federal Register Volume 65, Number 178 (Wednesday, September 13, 2000)]
[Notices]
[Pages 55271-55282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20625]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Ingersoll-Dresser Pump Co., Et Al.; 
Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. section 16(b) through (h), that a proposed 
Final Judgment, Hold Separate Stipulation and Order, and Competitive 
Impact Statement have been filed with the United States District Court 
for the District of Columbia in United States v. Ingersoll-Dresser Pump 
Co., Ingersoll-Rand Co., and Flowserve Corp., Civil Action No. 00-1818. 
On July 28, 2000, the United States filed a Complaint alleging that the 
proposed acquisition by Flowserve of Ingersoll-Dresser Pump Company 
would violate section 7 of the Clayton Act, 15 U.S.C. 18. The proposed 
Final Judgment, filed at the same time as the Complaint, requires the 
defendants to divest certain pump lines and manufacturing and repair 
facilities. Copies of the Complaint, proposed Final Judgment, and 
Competitive Impact Statement are available for inspection at the 
Department of Justice in Washington, DC in Suite 2000, 325 Seventh 
Street, NW., and at the Office of the Clerk of the United States 
District Court for the District of Columbia.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to Gail Kursh, Chief, Health Care Task Force, 325 Seventh Street, NW., 
Room 404, Antitrust Division, Department of Justice, Washington, DC 
20530 (telephone: (202) 307-5799).

Constance K. Robinson,
Director of Operation and Merger Enforcement.

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
enjoin preliminarily and permanently the proposed acquisition by 
Flowserve Corporation (``Flowserve'') of Ingersoll-Dresser Pump Company 
(``IDP''), pursuant to a Purchase Agreement entered into by the 
defendants and dated February 9, 2000. The United States alleges as 
follows:
    1. Unless it is enjoined, Flowserve's proposed acquisition of IDP 
will reduce the already small number of firms that compete on bids to 
sell certain costly, specialized and highly engineered pumps used in 
oil refineries and electrical generating facilities in the United 
States, in violation of Section 7 of the Clayton Act, as amended, 15 
U.S.C. 18. Such a reduction in competition is likely to result in 
higher prices and reduced selection for those pumps.

I. Jurisdiction and Venue

    2. This complaint is filed and this action is instituted under 
Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and 
restrain defendants from violating Section 7 of the Clayton Act, as 
amended, 15 U.S.C. 18.
    3. Each of the defendants is engaged in interstate commerce and in 
activities substantially affecting interstate commerce. This Court has 
subject matter jurisdiction over this action, and jurisdiction over the 
parties, pursuant to Section 12 of the Clayton Act, 15 U.S.C. 22, and 
28 U.S.C. 1331, 1337(a) and 1345.
    4. Each of the defendants has consented to personal jurisdiction in 
the District of Columbia. Venue is proper in this District pursuant to 
15 U.S.C. 22, and 28 U.S.C. 1391(c).

II. The Defendants

    5. Flowserve is a New York corporation with its principal executive 
offices in Irving, Texas. Flowserve manufactures and sells a broad 
array of pumps, valves and seals used in a wide variety of 
manufacturing and processing industries, and provides parts and service 
for pumps, in the United States and abroad. Flowserve has total annual 
sales of over $1 billion and maintains offices and facilities at 
approximately 25 locations in the United States.
    6. Ingersoll-Rand is a New Jersey corporation with its principal 
executive offices in Woodcliff Lake, New Jersey. Ingersoll-Rand is a 
general partner in, and controls, IDP.
    7. ID is a Delaware general partnership, headquartered in Liberty 
Corner, New Jersey. IDP manufactures and sells a broad array of pumps, 
and provides service and parts for such pumps, in the United States and 
abroad. IDP is one of the world's largest pump manufacturers, with 
annual sales of over $875 million. IDP maintains offices and facilities 
at approximately 27 locations in the United States.

III. Background

    8. Flowserve and IDP each manufacture and sell for use in the 
United States two categories of specialized, highly engineered pumps 
known as ``API 610 pumps'' and ``power plant pumps.'' API 610 pumps are 
used in the oil and gas industry, including in oil refineries, and 
power plant pumps are used in electrical generating facilities or 
``power plants.''
    9. API 610 pumps are specialized, rugged, highly engineered pumps 
that generally perform critical functions in an oil refinery, including 
the movement of erosive, corrosive, hot and flammable petroleum-based 
liquids under high pressure. API 610 pumps are designed, built, tested 
and shipped in accordance with comprehensive standards of the American 
Petroleum Institute.
    10. Power plant pumps are specialized, highly engineered pumps that 
perform critical functions in the steam cycle of a power plant. (The 
steam cycle consists of a boiler or steam generator that feeds steam to 
a steam turbine that drives an electricity-producing generator.) The 
three basic categories of power plant pumps are: (1) ``Circulating 
water pumps,'' which deliver cooling water to condensers that condense 
the spent steam that has passed through a steam turbine; (2) 
``condensate pumps,'' which extract the

[[Page 55272]]

condensed steam; and (3) ``boiler feed pumps,'' which move the 
condensed steam (now very hot water) back into the boiler or steam 
generator to make new steam.
    11. Each manufacturer of API 610 and power plant pump lines offers 
its lines in an array of different models and sizes. The pumps within a 
line differ with respect to capacity and capabilities, including, for 
example, the number of stages, speed, efficiency, bearing type, suction 
and discharge pressure, head, temperature range, vapor pressure, rated 
gallons per minute, impeller diameter, suction nozzle size, discharge 
nozzle size, metallurgical properties, and motor type and size.
    12. API 610 pumps and power plant pumps are sold pursuant to bids, 
which are based on extensive specifications from the customer. For each 
pump application in a given oil refinery or power plant project, the 
manufacturer selects a model and size pump and accessories to bid, and 
makes additional modifications to try to meet the customer's 
specifications.
    13. The match between the requirements of a particular pump 
application, and the optimum operating range of the pump a manufacturer 
proposes to use for that application, is referred to as the ``fit'' of 
the proposed pump. A manufacturer's ability to provide an economically 
priced API 610 or power plant pump with a good fit is largely a 
function of the breadth of that manufacturer's lines of pumps and 
accessories.
    14. Customers evaluate the competing bids, in part, on the basis of 
their compliance with the technical specifications that the customer 
had provided. For example, in addition to a manufacturer's proposed 
price for the required pumps, a customer may also consider how the fit 
of the pumps that that manufacturer proposes to use will affect the 
long-term operating costs of the oil refinery or power plant.
    15. Customers also evaluate the commercial terms of the competing 
proposals, including each manufacturer's proposed price and proposed 
delivery dates. Delivery dates are an important aspect of the 
competition among API 610 and power plant pump manufacturers because 
the amount of time a manufacturer will require to deliver the pumps 
(which can vary from several months to over a year) may significantly 
affect the construction schedule for the project.
    16. A customer that is undertaking an oil refinery or power plant 
construction project can avoid costly construction delays, or costly 
down-time in the operation of the refinery or power plant, by selecting 
a manufacturer that will be able to respond quickly to requests for 
technical information or design changes during the design phase of the 
project; to requests for technical assistance, modifications or repairs 
during the construction or commissioning phases of the project; and to 
requests for service or repairs during the operating life of the pumps.
    17. For those reasons, customers that are planning oil refinery or 
power plant construction projects in the United States seek to obtain 
the API 610 or power plant pumps from a manufacturer that has a 
substantial presence in the United States, including engineering 
expertise, reputation and practical operating experience with the 
pump's application in similar facilities in the United States; parts 
availability in the United States; and a substantial network of service 
and repair facilities in the United States.

IV. Trade and Commerce

A. Relevant Product Markets
    18. The combined technical and commercial needs of the customer 
differ markedly for each API 610 pump or power plant pump bid. A small 
but significant increase in the price of a product that meets the bid 
specifications would not cause a significant number of customers in the 
United States to substitute other products that do not meet those bid 
specifications.
    19. Each bid for API 610 pumps and power plant pumps for 
installation in oil refineries and power generation plants in the 
United States is a line of commerce and relevant product market under 
Section 7 of the Clayton Act.
B. Relevant Geographic Market
    20. Those competitors that could constrain Flowserve and IDP from 
raising prices on bids for API 610 pumps and power plant pumps for 
installation in oil refineries and power generation plants, 
respectively, in the United States are API 610 and power plant pump 
manufacturers with a substantial physical presence in the United 
States.
    21. Customers installing these pumps in the United States prefer 
domestic pump suppliers because reputation is important, as is the 
ability to provide quick and reliable servicing with parts availability 
and to avoid shipping costs and delays. In addition, with minor 
exceptions, only domestic manufacturers have an installed base of pumps 
in the United States, thus allowing customers to more readily observe 
and evaluate the operation and reliability of the pump in comparable 
applications. Moreover, pumps manufactured abroad may cost more than 
comparable pumps manufactured in the United States.
    22. The relevant geographic market for analyzing the proposed 
acquisition under Section 7 of the Clayton Act is the United States.

V. Market Structure and Anticompetitive Effects

    23. Based on capabilities and bidding history, there are only four 
credible competitors, including Flowserve and IDP, that might bid on a 
large majority of bids for API 610 pumps for oil refinery projects in 
the United States.
    24. Based on capabilities and bidding history, there are only four 
credible competitors, including Flowserve and IDP, that might bid on a 
large majority of bids for circulating water pumps for power plant 
construction projects in the United States.
    25. Based on capabilities and bidding history, there are only three 
credible competitors, including Flowserve and IDP, that might bid on a 
large majority of bids for condensate pumps for power plant 
construction projects in the United States.
    26. Based on capabilities and bidding history, there are only four 
credible competitors, including Flowserve and IDP, that might bid on a 
large majority of bids for boiler feed pumps for power plant 
construction projects in the United States.
    27. Although each bidder for API 610 pumps and power plant pumps 
may be familiar with its competitors, it does not know with any degree 
of certainty the commercial or technical terms of its competitors' bids 
prior to submitting its own bid. That uncertainty restrains bidders' 
pricing. By eliminating IDP, one of Flowserve's few, significant 
competitors. Flowserve would be able to increase its bid without 
increasing the probability it would lose the bid. Similarly, the few 
remaining bidders could also increase their bids without increasing 
their risk losing. Thus, the acquisition of IDP by Flowserve creates an 
incentive for each bidder to bid a higher amount than it would have 
were IDP still a competitor.
    28. Due to the broad range of pumps IDP and Flowserve offer, their 
overall expertise in meeting the API 610 and power plan pump needs of 
customers, the fit offered by their pumps, their ability to meet 
delivery time frames, their aftermarket parts and service availability, 
and other technical and commercial factors, IDP and Flowserve are 
frequently perceived by each other,

[[Page 55273]]

by other bidders, and by customers as being close or strong competitors 
and having a significant probability of winning a given bid.
    29. The magnitude of the anticompetitive effect from the proposed 
acquisition will be greater the more that IDP and Flowserve view each 
other as close or strong competitors, and other rivals view IDP as a 
major competitive factor.
    30. United States' oil refineries and power generators have 
benefitted from this competition through lower prices and greater 
choice. The combination of IDP and Flowserve will eliminate this 
competition, and the customers' benefits from this competition.

VI. The Likely Anticompetitive Effects of the Proposed Acquisition Will 
Not Be Eliminated by Entry

    31. Substantial, timely entry of additional competitors is unlikely 
and, therefore, will not restrain any price increases caused by the 
elimination of IDP as a bidder.
    32. Entry by a firm that does not currently manufacture API 610 
pumps or power plant pumps would be extraordinarily difficult, costly, 
time consuming and financially risky; hence, such entry is highly 
unlikely.
    33. To compete effectively, a new firm would need to offer an array 
of API 610 or power plant pump models. The design, production and 
testing of a single model of such a pump can take several years, and 
would require the expenditure of substantial sunk costs, as would the 
establishment of an engineering, parts and service network. To develop 
an array of pumps would further increase that time and cost.
    34. Timely, substantial entry by an existing manufacturer of API 
610 or power plant pumps that does not currently sell those pumps for 
installation in United States' oil refineries or power plants is 
unlikely. Such a firm could not effectively compete for sales of API 
610 or power plant pumps unless it first established, in the United 
States, a substantial contingent of engineering personnel; a local 
availability of spare parts; and a substantial network of service and 
repair facilities. Moreover, many oil refineries and power plants will 
not purchase pumps from a supplier that has not demonstrated, in the 
United States, the reliability and efficiency of its pumps and the 
expertise of its engineers in the particular use for which the pump is 
being sought. This process can take years and the expenditure of 
substantial sunk costs.

VII. Violation Alleged

    35. Flowserve's acquisition of IDP may substantially lessen 
competition on a significant number of bids for the sale of API 610 
pumps used in oil refineries in the United States and power plant pumps 
used in power plants in the United States, in violation of Section 7 of 
the Clayton Act, 15 U.S.C. 18.
    36. The acquisition will have the following effects, among others:
    (a) Actual and potential competition between IDP and Flowserve will 
be eliminated;
    (b) Competition generally in the manufacture, marketing and sale of 
API 610 pumps and power plant pumps will be lessened substantially; and
    (c) Prices of API 610 pumps and power plant pumps will increase, 
and innovation in the development of these pumps will decrease.

VIII. Requested Relief

    Wherefore, plaintiff, the United States of America, requests a 
judgment:
    (a) That the proposed acquisition of IDP by Flowserve be adjudged 
and decreed to be unlawful and in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18;
    (b) That defendants and all persons acting on their behalf be 
preliminarily and permanently restrained and enjoined from implementing 
the February 9, 2000 Purchase Agreement or any other agreement of like 
intent or effect;
    (c) That plaintiff be awarded its costs of this action; and
    (d) That plaintiff be granted such other and further relief as the 
Court may deem proper.

    Respectfully submitted,

Joel I. Klein,
Assistant Attorney General.

Donna E. Patterson,
Deputy Assistant Attorney General.

Constance K. Robinson,
Director of Operations and Merger Enforcement.

Gail Kursh,
Chief, Health Care Task Force.

David C. Jordan,
Assistant Chief, Health Care Task Force.

Arnold C. Celnicker,
Georgia Bar No. 118050.

Steven Brodsky,
D.C. Bar No. 91470.

Justin M. Dempsey,
D.C. Bar No. 425976.

Trial Attorneys, U.S. Department of Justice, Antitrust Division, 325 
7th Street, N.W., Suite 400, Washington, DC 20530, (202) 305-7498.

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:

I. Definitions

    As used in this Hold Separate Stipulation and Order.
    A. ``Acquirer(s)'' means the entity or entities to whom defendants 
divest the Divestiture Assets.
    B. ``Divestiture Assets'' means the ``Divestiture Plant,'' 
``Divestiture Pump Lines,'' and ``Divestiture Repair Facilities,'' as 
defined below.
    C. ``Divestiture Plant'' means Flowserve's pump plant in Tulsa, 
Oklahoma, including manufacturing equipment, tooling and fixed assets, 
personal property, inventory, office furniture, materials, supplies, 
and other tangible property used in connection with the manufacturer of 
the SCE, VLT, VMT and HQ pump lines; manufacturing equipment and 
tooling dedicated to the production of the J and CGT pump lines and 
located in IDP's pump plant in Phillipsburg, New Jersey, all contracts, 
agreements, leases, commitments, certifications, and understandings, 
relating to the Divestiture Plant, including supply agreements; and all 
licenses, permits and authorizations issued by any governmental 
organization relating to the Divestiture Plant.
    D. ``Divestiture Pump Lines'' means Flowserve's SCE, VLT, VMT, HQ, 
HX and WX (excluding the 93 inch size of the WX) pump lines, including 
parts for said lines, and IDP's and J and CGT pump lines, including 
parts for said lines, and also including all customer lists, contracts, 
accounts, credit records, repair and performance records and all other 
records relating to said pump lines; and all intangible assets used in 
the development, production, servicing and sale of Divestiture Pump 
Lines, including, but not limited to all patents, licenses and 
sublicenses, intellectual property, copyrights, trademarks, trade 
names, service marks, service names (excluding names and marks that 
relate to the corporate owner of said pump lines such as ``Flowserve'' 
and ``IDP,'' and predecessor acquired companies), technical 
information, computer software and related documentation, know-how, 
trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
safety procedures for the handling of materials and substances, quality 
assurance and control procedures, molds, patterns and design tools, 
manuals and technical information defendants provide to their own 
employees, customers, suppliers, agents or licensees, and research and

[[Page 55274]]

development activities and data concerning historic and current 
research and development efforts including, but not limited to, designs 
of possible modifications or improvements, relating to said pump lines.
    E. ``Divestiture Repair Facilities'' means the IDP service centers 
in Batavia, Illinois and La Mirada, California, including production, 
repair and service equipment at said facilities.
    F. ``Flowserve'' means defendant FLOWSERVE CORPORATION, a New York 
corporation with its headquarters in Irving, Texas, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    G. ``IDP'' means defendant INGERSOLL-DRESSER PUMP COMPANY, a 
Delaware general partnership with its headquarters in Liberty Corner, 
New Jersey, its successors and assigns, subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    H. ``Tulsa Plant'' means Flowserve's pump plant in Tulsa, Oklahoma, 
including manufacturing equipment, tooling and fixed assets, personal 
property, inventory, office furniture, materials, supplies, and other 
tangible property used in connection with the manufacture of the SCE, 
VLT, VMT and HQ pump lines; and excluding dedicated manufacturing 
equipment and tooling inventory, materials and supplies not used in 
connection with the manufacture of the SCE, VLT, VMT and HQ pump lines.

II. Objectives

    The proposed Final Judgment filed in this case is meant to ensure 
defendants' prompt divestitures Assets for the purpose of establishing 
one or more viable competitors in the production and sale of certain 
types of centrifugal pumps used in oil refineries (hereinafter ``API 
pumps'') and certain power plant pumps used in combined cycle, co-
generation and solid fuel power plants (hereinafter ``power plant 
pumps'') in order to remedy the effects that the United States alleges 
would otherwise result from Flowserve's acquisition of IDP. This Hold 
Separate Stipulation and Order ensures, prior to such divestitures, 
that the Divestiture Assets remain independent, economically viable, 
and ongoing business assets that will remain independent and 
uninfluenced by defendants except as stated herein, 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 Hold Separate Stipulation and Order by the parties, 
comply with all the terms and provisions of the proposed Final Judgment 
as though the same were in full force and effect as an order of the 
Court.
    C. Defendants shall not consummate the transaction sought to be 
enjoined by the Complaint herein before the Court has signed this Hold 
Separate Stipulation and Order.
    D. This Hold Separate Stipulation and Order shall apply with equal 
force and effect to any amended proposed Final Judgment agreed upon in 
writing by the parties and submitted to the Court.
    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 Hold Separate Stipulation and Order, 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, or (3) Flowserve fails to acquire IDP and certifies to 
the United States in writing that Flowserve will not seek to acquire 
IDP without first filing a new pre-merger notification under the Hart-
Scott-Rodino Act, then the parties are released from all further 
obligations under this Hold Separate Stipulation and Order, and the 
making of this Hold Separate Stipulation and Order shall be without 
prejudice to any party in this or any other proceeding.
    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 proposed Final Judgment have 
been accomplished:
    A. Defendants shall preserve, maintain, and continue to operate the 
Tulsa Plant as an independent, ongoing, economically viable competitive 
business unit, with management and operations of the Tulsa Plant held 
entirely separate, distinct and apart from those of defendants' other 
operations. Defendants shall not coordinate its production, marketing, 
or terms of sale of any products with those produced by the Tulsa Plant 
except as necessary to effectuate the terms of the Hold Separate 
Stipulation and Order and the proposed Final Judgment. Within twenty 
(20) days after the entry 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 
Tulsa Plant will be maintained and operated as an independent, ongoing, 
economically viable and active competitive buisness unit in the API 
pumps and power plant pumps businesses; (2) management of the Tulsa 
Plant will not be influenced by defendants except to the extent 
required herein; and (3) the books, records, competitively sensitive 
sales, marketing and pricing information, and decision-making 
concerning production, distribution or sales of products from the Tulsa 
Plant will be kept separate and apart from defendant Flowserve's other 
operations.
    C. Defendants shall use all reasonable efforts to maintain the 
increase the sales and revenues of the Divestiture Pump Lines. 
Defendants shall not alter the commissions, incentives or compensation 
of sales personnel in any way that might negatively impact sales of the 
Divestiture Pump Lines.
    D. Defendants shall provide sufficient working capital and lines 
and sources of credit to continue to maintain the Tulsa

[[Page 55275]]

Plant as an economically viable and competitive, ongoing business unit, 
consistent with the requirements of Sections V (A) and (B).
    E. Defendants shall take all steps necessary to ensure that the 
Tulsa Plant is fully maintained in operable condition at no less than 
its current capacity and sales, and shall maintain and adhere to normal 
repair and maintenance schedules for the Tulsa Plant.
    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 Divestiture 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 Divestiture Assets.
    H. Defendants' employees with primary responsibility for the 
production and sale of the Divestiture Pump Lines at the Tulsa Plant 
shall not be transferred or reassigned to other areas within the 
company except for transfers initiated by employees. Defendant shall 
provide the United States with ten (10) calendar days notice of such 
transfer.
    I. Defendants shall appoint persons to oversee the Divestiture 
Assets, subject to the approval of the United States, and who will be 
responsible for defendants' compliance with this section. These persons 
shall have complete managerial responsibility for the Divestiture 
Assets, subject to the provisions of this proposed Final Judgment. In 
the event such a person(s) is unable to perform his 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 this time 
period, the United States shall appoint a replacement at the expense of 
the defendants.
    J. Defendants shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the proposed Final 
Judgment to complete the divestiture pursuant to the Final Judgment to 
Acquirer(s) acceptable to the United States.
    K. This Hold Separate Stipulation and Order shall remain in effect 
until consummation of the divestitures required by the proposed Final 
Judgment or until further order of the Court.

    Dated: July 28, 2000

    Respectifully submitted,

For Plaintiff, United States of America:
Arnold C. Celnicker,
Georgia Bar No. 118050, U.S. Department of Justice, Antitrust 
Division, 325 7th Street, N.W., Suite 400, Washington, DC 20530, 
(202) 305-7498.

For Defendant, Ingersoll-Dresser Pump Company:
David I. Gelfand,
D.C. Bar No. 416596,
Mark W. Nelson,
D.C. Bar No. 442461, Cleary, Gottlieb, Steen & Hamilton, 2000 
Pennsylvania Ave., N.W., Washington, D.C. 20006-1801, (202) 974-
1500.

For Defendant, Flowserve Corporation:
Stephen J. Marzen,
D.C. Bar No. 413164, Shearman & Sterling, 801 Pennsylvania Ave., 
N.W., Suite 900, Washington, D.C. 20004-2604, (202) 508-8174.

For Defendant, Ingersoll-Rand Company:
David I. Gelfand,
D.C. Bar No. 416596, Mark W. Nelson,
D.C. Bar No. 442461, Cleary Gottlieb, Steen & Hamilton, 2000 
Pennsylvania Ave., N.W., Washington, D.C. 20006-1801, (202) 974-
1500.

Order

    It Is So Ordered by the Court, this 28th day of July, 2000.

Judge Ellen S. Huvelle, for
Judge Jackson, United States District Judge.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Compliant 
on July 28, 2000, plaintiff and defendants by their respective 
attorneys, have consented to the entity of this Final Judgment without 
trial or adjudication of any issue of fact or law, and within this 
Final Judgment constituting any evidence against or admission by any 
party regarding any issue of fact or law
    And Whereas, defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And Whereas, the essense of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by the defendants to 
assure that competition is not substantially lessened.
    And Whereas, plaintiff 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 claim of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    Now Therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is Ordered, Adjudged and Decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of, and each of 
the parties to, 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(s)'' means the entity or entities to whom defendants 
divest the Divestiture Assets.
    B. ``Flowserve'' means defendant Flowserve Corporation, a New York 
corporation with its headquarters in Irving, Texas, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``IDP'' means defendant Ingersoll-Dresser Pump Company, a 
Delaware general partnership with its headquarters in Liberty Corner, 
New Jersey, its successors and assigns, subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures, and their 
directors, officers, managers, agents, and employees.
    D. ``I-R'' means defendant Ingersoll-Rand Company, a New Jersey 
corporation with its principal executive offices in Woodcliff Lake, New 
Jersey, its successors and assigns, subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    E. ``Divestiture Assets'' means the ``Divestiture Plant,'' 
``Divestiture Pump Lines,'' and ``Divestiture Repair Facilities,'' as 
defined below.
    F. ``Divestiture Plant'' means Flowserve's pump plant in Tulsa, 
Oklahoma, including manufacturing equipment, tooling and fixed assets, 
personal property, inventory, office furniture, materials, supplies, 
and other tangible property used in connection with the manufacture of 
the SCE, VLT, VMT and HQ pump lines; manufacturing equipment and 
tooling dedicated to the production of the J and CGT pump liens and 
located in IDP's pump plant in Phillipsburg, New Jersey; all contracts, 
agreements, leases, commitments, certifications, and understandings, 
relating to the Divestiture Plant, including supply

[[Page 55276]]

agreements; and all licenses, permits and authorizations issued by any 
governmental organization relating to the Divestiture Plant.
    G. ``Divestiture Pump Lines'' means Flowserve's SCE, VLT, VMT, HQ, 
HX and WX (excluding the 93 inch size of the WX) pump lines, including 
parts for said lines, and IDP's J and CGT pump lines, including parts 
for said lines; and also including all customer lists, contracts, 
accounts, credit records, repair and performance records and all other 
records relating to said pump lines; and all intangible assets used in 
the development, production, servicing and sale of Divestiture Pump 
Lines, including, but not limited to all patents, licenses, and 
sublicenses, intellectual property, copyrights, trademarks, trade 
names, service marks, service names (excluding names and marks that 
relate to the corporate owner of said pump lines such as ``Flowserve,'' 
``I-R'' and ``IDP,'' and predecessor acquired companies), technical 
information, computer software and related documentation, know-how, 
trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
safety procedures for the handling of materials and substances, quality 
assurance and control procedures, molds, patterns and design tools, 
manuals and technical information defendants provide to their own 
employees, customers, suppliers, agents or licensees, and research and 
development activities and data concerning historic and current 
research and development efforts, including, but not limited to, 
designs of possible modifications or improvements, relating to said 
pump lines.
    H. ``Divestiture Repair Facilities'' means the IDP service centers 
in Batavia, Illinois and La Mirada, California, including production, 
repair and service equipment at said facilities.

III. Applicability

    A. This Final Judgment applies to IDP, I-R and Flowserve, 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 the Divestiture Assets, that the 
Acquirer(s) agrees to be bound by the provisions of this Final 
Judgment.

IV. Divestitures

    A. Defendants are ordered and directed to divest, in a manner 
consistent with this Final Judgment, to an Acquirer(s) acceptable to 
the United States in its sole discretion:
    1. A perpetual, royalty-free, assignable, transferable license(s) 
to manufacture the Divestiture Pump Lines, including the exclusive 
right to sell the Divestiture Pump Lines for installation within the 
United States and a nonexclusive right to sell the Divestiture Pump 
Lines for installation in the rest of the world; provided, however, 
that Flowserve may continue to sell the SCE pump line and parts to its 
alliance customers Shell and Mobil for a period up to ten (10) years 
from entry of this Final Judgment for installation within the United 
States, and Flowserve may continue to sell parts for the J and VLT pump 
lines to its alliance customers Shell and Mobil for a period up to five 
(5) years from entry of this Final Judgment for installation within the 
United States; and
    2. The Divestiture Plant and the Divestiture Repair Facilities.
    B. Defendants must make the above divestitures within one hundred 
fifty (150) 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. The United States, in its 
sole discretion, may agree to an extension of this period of up to 
thirty (30) days, and shall notify the Court in such circumstance. 
Defendants agree to use their best efforts to divest the Divestiture 
Assets as expeditiously as possible.
    C. In accomplishing the divestitures ordered by this Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability of the Divestiture Assets. Defendants shall 
inform any person making inquiry regarding a possible purchase of the 
Divestiture Assets that they are being divested pursuant to this Final 
Judgment and provide that person with a copy of this Final Judgment. 
Defendants shall offer to furnish to all prospective Acquirers, subject 
to customary confidentiality assurances, all information and documents 
relating to the Divestiture Assets customarily provided in a due 
diligence process except such information or documents subject to the 
attorney-client or work-product privilege. Defendants shall make 
available such information to the United States at the same time that 
such information is made available to any other person.
    D. Defendants shall provide the Acquirer(s) and the United States 
information relating to the personnel whose primary responsibilities 
include the production, development and sale of the Divestiture Pump 
Lines to enable the Acquirer(s) 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 
production, development and sale of the Divestiture Pump Lines.
    E. Defendants shall permit prospective Acquirer(s) of the 
Divestiture Assets to have reasonable access to personnel and to make 
inspections of the physical facilities of the Divestiture Plant; to 
have access to any and all environmental, zoning, and other permit 
documents and information; and to have access to any and all financial, 
operational, or other documents and information customarily provided as 
part of a due diligence process.
    F. Defendants shall warrant to all Acquirer(s) of the Divestiture 
Assets that each asset will be operational on the date of sale.
    G. Defendants shall take no action that will impede in any way the 
permitting, operation, or divestiture of the Divestiture Assets.
    H. Defendants shall warrant to the Acquirer(s) of the Divestiture 
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 Divestiture Assets, defendants will not 
undertake, directly or indirectly, any challenges to the environmental, 
zoning, or other permits relating to the operation of the Divestiture 
Assets.
    I. Unless the United States otherwise consents in writing, the 
divestitures pursuant to Section IV, or by trustee appointed pursuant 
to Section V, of this Final Judgment, shall include the entire 
Divestiture Assets, and shall be accomplished in such a way as to 
satisfy the United States, in its sole discretion, that the Divestiture 
Assets can and will be used by the Acquirer(s) as part of a viable, 
ongoing business of manufacturing and selling the Divestiture Pump 
Lines to customers, including those in the petroleum and power 
generation industries in the United States. Divestiture of the 
Divestiture 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 Divestiture Assets will remain viable and the 
divestiture of such assets will remedy the competitive harm alleged in 
the Complaint. The

[[Page 55277]]

divestitures, whether pursuant to Section IV or Section V of this Final 
Judgment.
    1. Shall be made to an Acquirer(s) 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 business of manufacturing and selling the 
Divestiture Pump Lines to customers, including those in the petroleum 
and power generation industries in the United States; 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(s) and IDP or Flowserve give IDP or Flowserve 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(s) 
to compete effectively.

V. Appointment of Trustee

    A. If defendants have not divested the Divestiture Assets within 
the time specified in Section IV(B), 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 divestitures of the Divestiture 
Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. The 
trustee shall have the power and authority to accomplish the 
divestitures 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 Section 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, and other agents, who shall be solely accountable 
to the trustee, and reasonably necessary in the trustee's judgment to 
assist in the divestitures.
    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 expenses of defendants, 
on such terms and conditions as the plaintiff approved, 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 Divestiture Assets and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestitures and the speed with which they are accomplished, but 
timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestitures. 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 secrets 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 divestitures.
    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 divestitures ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the Divestiture 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 
Divestiture Assets.
    G. If the trustee has not accomplished such divestitures 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 divestitures, (2) the reasons, in the trustee's judgment, 
why the required divestitures have not been accomplished, and (3) the 
trustee's recommendations. To the extent such reports contain 
information that the trustee deems confidential, such reports shall not 
be filed in the public docket of the Court. 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 deems 
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 divestitures required herein, shall 
notify the United States of any proposed divestitures 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 divestitures 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 Divestiture Assets, together with full details of 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(s), any other third party, or the trustee, if 
applicable, additional information concerning the proposed divestiture, 
the proposed Acquirer(s), and any other potential Acquirer(s). 
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(s), 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 it objects to the 
proposed divestitures. If the United States provides written notice 
that it does not object, the divestitures 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(s) or upon objection by 
the United States, a divestiture

[[Page 55278]]

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 have 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 divestitures have 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 Divestiture 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 Divestiture 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 Divestiture Assets until one year after such 
divestitures have 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 Assistance 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 plantiff'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.
    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.
    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 Divestiture Assets 
during the term of this Final Judgment.

XII. 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.

XIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry.

XIV. 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

Certificate of Service

    I hereby certify that on this day of July 28, 2000, I caused a copy 
of the Complaint, the Hold Separate Stipulation and Order and the 
proposed Final Judgment to be served by U.S. First Class Mail or 
overnight delivery upon:

Stephen J. Marzen, Shearman & Sterling, 801 Pennsylvania Ave., N.W., 
Suite 900, Washington, D.C. 20004-2604, (202) 508-8174, Attorney for 
Flowserve Corporation
David I. Gelfand, Mark W. Nelson, Cleary, Gottlieb, Steen & Hamilton, 
2000 Pennsylvania Ave., N.W., Washington, D.C. 20006-1801, (202) 974-
1500, Attorneys for Ingersoll-Dresser Pump Company and Ingersoll-Rand 
Company

Arnold C. Celnicker,
Trial Attorney, Georgia Bar No. 118050, U.S. Department of Justice, 
Antitrust Division, 325 7th Street, N.W., Suite 400, Washington, DC 
20530, (202) 305-7498.

[[Page 55279]]

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    On July 28, 2000, the United States filed a civil antitrust suit 
alleging that an acquisition by Flowserve Corporation (``Flowserve'') 
of Ingersoll-Dresser Pump Company (``IDP'') would violate Section 7 of 
the Clayton Act, 15 U.S.C. 18. The Complaint alleges that Flowserve's 
proposed acquisition of IDP would reduce the already small number of 
firms that compete on bids to sell certain costly, specialized and 
highly engineered pumps used in oil refineries and electrical 
generating facilities in the United States. According to the Complaint, 
such a reduction in competition would likely result in higher prices 
and reduced selection for those pumps. The prayer for relief in the 
Complaint seeks a judgment that the proposed acquisition would violate 
Section 7 of the Clayton Act, a permanent injunction that would prevent 
Flowserve from acquiring IDP, that the United States be awarded costs, 
and other relief that the Court deems just and proper.
    At the same time the Complaint was filed, the United States also 
filed a proposed settlement that would permit Flowserve to complete its 
acquisition of IDP, yet preserve competition in the markets in which 
the transaction would otherwise raise significant competitive concerns. 
The settlement consists of a proposed Final Judgment and a Hold 
Separate Stipulation and Order. In essence, the Hold Separate 
Stipulation and Order would require Flowserve to maintain certain pump 
lines, and associated production assets, as economically viable, 
ongoing concerns, operated independently of Flowserve's other 
businesses until the divestitures mandated by the Final Judgment have 
been accomplished.
    The proposed Final Judgment orders defendants to divest to one or 
more acquirers a perpetual, royalty-free, assignable, transferable 
license to manufacture and sell Flowserve's SCE, VLT, VMT, HQ, HX and 
WX pump lines, and IDP's J and CGT pump lines; Flowserve's pump plant 
in Tulsa, Oklahoma; and the IDP service centers in Batavia, Illinois 
and La Mirada, California. Defendants must complete these divestitures 
within 150 days after filing of the Complaint, or five days after entry 
of the Final Judgment, whichever is later. If they do not complete the 
divestitures within the prescribed time, the Court will appoint a 
trustee to sell the assets.
    The United States and defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the Antitrust 
Procedures and Penalties Act, 15 U.S.C. 16 (``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 Transaction
    Flowserve is a New York corporation with its principal executive 
offices in Irving, Texas. Flowserve manufactures and sells a broad 
array of pumps, valves and seals used in a wide variety of 
manufacturing and processing industries, and provides parts and service 
for pumps, in the United States and abroad. Flowserve has total annual 
sales of over $1 billion and maintains offices and facilities at 
approximately 25 locations in the United States.
    Ingersoll-Rand Company (``I-R'') is a New Jersey corporation with 
its principal executive offices in Woodcliff Lake, New Jersey. I-R is a 
general partner in, and controls IDP. IDP is a Delaware general 
partnership, headquartered in Liberty Corner, New Jersey. IDP 
manufactures and sells a broad array of pumps, and provides service and 
parts for such pumps, in the United States and abroad. IDP is one of 
the world's largest pump manufacturers, with annual sales of over $875 
million. IDP maintains offices and facilities at approximately 27 
locations in the United States.
    On February 9, 2000, Flowserve agreed to acquire IDP for about $775 
million. This proposed transaction, which would combine Flowserve and 
IDP and substantially lessen competition in the sale of certain types 
of pumps, precipitated the government's antitrust suit.
B. The Competitive Effects of the Transaction
    1. API 610 Pumps and Power Plant Pumps. The petroleum industry is a 
major purchaser of pumps for hundreds of applications. The American 
Petroleum Institute (``API''), the petroleum industry trade 
organization, sets voluntary standards for pumps used in petroleum 
applications. The standards for centrifugal pumps are API Standard 610. 
A large refinery will have over a thousand pumps, and most meet API 610 
standards. The standards detail not only the design of the pumps, but 
also the accessories used with the pump (e.g., drivers, couplings, 
mounting plates), the inspection, testing and shipment of the pumps, 
and the information that must be included in bids and contracts. API 
610 pumps are designed to withstand extreme conditions without leaking 
because they are used to move fluids under high pressure that are 
erosive, corrosive, hot and flammable. Thus, API 610 pumps are heavier 
and more rugged than most other types of pumps.
    Power plant pumps are specialized, highly engineered pumps that 
perform critical functions in the steam cycle of a power plant. The 
steam cycle consists of a boiler or steam generator that feeds steam to 
a steam turbine that drives an electricity-producing generator. The 
three basic categories of power plant pumps are: (1) ``circulating 
water pumps,'' which deliver cooling water to condensers that condense 
the spent steam that has passed through a steam turbine; (2) 
``condensate pumps,'' which extract the condensed steam; and (3) 
``boiler feed pumps,'' which move the condensed steam (now very hot 
water) back into the boiler or steam generator to make new steam.
    2. Product and Geographic Markets. Competition in the sale of API 
610 and power plant pumps takes the form of bids that are submitted in 
response to extensive specifications that take specialized engineers 
many months to formulate, respond to, and evaluate. The specifications 
for each bid differ from other bids in terms of technical product 
attributes and commercial terms. The result of the bidding process 
generally is a customized pump that can satisfy the most demanding of 
applications, accompanied by a package of technical engineering 
services and commercial terms. Because the technical and commercial 
needs of the customer differ markedly for each API 610 pump or power 
plant pump bid, a small but significant increase in the price of a pump 
that meets the bid specifications would not cause a significant number 
of customers in the United States to substitute other pumps that do not 
meet those bid specifications. Therefore, each bid for API 610 pumps 
and power plant pumps for installation in oil refineries and power 
generation plants in the United States is a relevant product market.
    Those competitors that could constrain Flowserve and IDP from

[[Page 55280]]

raising prices on bids for API 610 pumps and power plant pumps for 
installation in oil refineries and power generation plants in the 
United States are API 610 and power plant pump manufacturers with a 
substantial physical presence in the United States. Customers 
installing these pumps in the United States prefer domestic pump 
suppliers because reputation is important, as is the ability to provide 
quick and reliable servicing with parts availability and to avoid 
shipping costs and delays. In addition, with minor exceptions, only 
domestic manufacturers have an installed base of pumps in the United 
States, thus allowing customers to more readily observe and evaluate 
the operation and reliability of the pump in comparable applications. 
Moreover, pumps manufactured abroad may cost more than comparable pumps 
manufactured in the United States. The relevant geographic market for 
analyzing the proposed acquisition is the United States.
    3. Anticompetitive Consequences of the Acquisition. Based on 
capabilities and bidding history, there are only four credible 
competitors, including Flowserve and IDP, that might bid on a large 
majority of bids for API 610 pumps for oil refinery projects in the 
United States, and there are only three or four credible competitors, 
including Flowserve and IDP, that might bid on a large majority of bids 
for power plant pumps for electrical generating facilities located in 
the United States. Although each bidder may be familiar with its 
competitors, it does not know with any degree of certainty the 
commercial or technical terms of its competitors' bids prior to 
submitting its own bid. That uncertainty restrains each bidder's 
pricing, so it will have a reasonable probability of winning the bid. 
By eliminating IDP, one of Flowserve's few significant competitors, 
Flowserve would be able to increase its bid without increasing the 
probability that it would lose the bid. Similarly, the few remaining 
bidders could also increase their bids without increasing their risk of 
losing. Thus, the acquisition of IDP by Flowserve would create an 
incentive for each bidder to bid a higher amount than it would have 
were IDP still a competitor.\1\
---------------------------------------------------------------------------

    \1\ Each bidder, in deciding how high to bid while facing the 
uncertainty as to what its rivals will bid, balances the benefit of 
receiving a higher price when it wins against the cost of a 
decreased probability of winning when its bid price is raised. When 
a bidder is eliminated, a given increase in a bid price by a 
remaining bidder leads to a smaller decrease in the probability of 
losing. This shift in the balance between the benefit and the cost 
of raising the bid price makes a price increase by each remaining 
bidder profitable.
---------------------------------------------------------------------------

    The Complaint alleges that substantial entry by other pump 
manufacturers into the sale of API 610 and power plant pumps for 
installation in the United States is time-consuming, expensive and 
difficult, and hence, unlikely to counteract these anticompetitive 
effects.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment would preserve competition in the sale 
of API 610 and power plant pumps for installation in the United States. 
Within 150 days after the date the Complaint was filed, or five days 
after entry of the proposed Final Judgment, whichever is later, 
defendants must divest to an economically viable and effective 
acquirer(s) perpetual, royalty-free, assignable, transferable licenses 
to manufacture and sell Flowserve's SCE, VLT, VMT, HQ, HX and WX pump 
lines; and IDP's J and CGT pump lines; Flowserve's pump plant in Tulsa, 
Oklahoma; and the IDP service centers in Batavia, Illinois and La 
Mirada, California. Defendants must use their best efforts to 
accomplish the divestitures as expeditiously as possible. The proposed 
Final Judgment requires that these assets must be divested in such a 
way as to satisfy the United States, in its sole discretion, that the 
assets can and will be used by the acquirer(s) to compete effectively 
in the business of manufacturing and selling the divested pump lines to 
customers, including those in the petroleum and power generation 
industries in the United States,
    Until the ordered divestitures take place, defendants must take all 
reasonable steps necessary to accomplish the divestitures and cooperate 
with any prospective acquirer(s). If defendants do not accomplish the 
ordered divestitures within the prescribed time period, the proposed 
Final Judgment provides that the Court will appoint a trustee to 
complete the divestitures. If a trustee is appointed, the proposed 
Final Judgment provides that defendants must pay all costs and expenses 
of the trustee. The trustee's commission will be structured to provide 
an incentive for the trustee based on the price obtained and the speed 
with which divestitures are accomplished. After his or her appointment 
becomes effective, the trustee shall serve under such other conditions 
as the Court may prescribe. The trustee will file monthly reports with 
the parties and the Court, setting forth the trustee's efforts to 
accomplish the required divestitures. At the end of 150 days, if the 
divestitures have not been accomplished, the trustee and the parties 
will make recommendations to the Court, which shall enter such orders 
as appropriate to accomplish the divestitures.
    The relief in the proposed Final Judgment has been tailored to 
ensure that the ordered divestitures maintain competition that would 
have been eliminated as a result of the acquisition and to prevent the 
exercise of market power after the acquisition in the markets alleged 
in the Complaint.

IV. Remedies Available to Potential Private Litigants

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

V. Procedures Available for Modification of the Proposed Final Judgment

    The parties have stipulated that the 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 of the decree upon the Court's determination that the 
proposed Final Judgment is in the public interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 
sixty (60) days of the date of publication of this Competitive Impact 
Statement in the Federal Register. The United States will evaluate and 
respond to the comments. All comments will be given due consideration 
by the Department of Justice, which remains free to withdraw its 
consent to the proposed 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.

[[Page 55281]]

    Written comments should be submitted to: Gail Kursh, Chief, Health 
Care Task Force, Antitrust Division, United States Department of 
Justice, 325 7th Street, NW, Suite 400, Washington, D.C. 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 
Flowserve, I-R and IDP. The United States could have continued such 
litigation to seek preliminary and permanent injunctions against 
Flowserve's acquisition of IDP. The United States is satisfied, 
however, that defendants' divestiture of the assets described in the 
proposed Final Judgment will establish, preserve and ensure a viable 
competitor in the relevant markets identified by the United States. To 
this end, the United States is convinced that the proposed relief, once 
implemented by the Court, will prevent Flowserve's acquisition of IDP 
from having adverse competitive effects.

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

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

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

15 U.S.C. 16(e) (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).
    Courts have recognized that the term `` `public interest' take[s] 
meaning from the purposes of the regulatory legislation.'' NAACP v. 
Federal Power Comm'n, 425 U.S. 662, 669 (1976). Since the purpose of 
the antitrust laws is to preserve ``free and unfettered competition as 
the rule of trade,'' Northern Pacific Railway Co. v. United States, 356 
U.S. 1, 4 (1958), the focus of the ``public interest'' inquiry under 
the APPA is whether the proposed Final Judgment would serve the public 
interest in free and unfettered competition. United States v. American 
Cyanamid Co., 719 F.2d 558, 565 (2d Cir. 1983), cert denied, 465 U.S. 
1101 (1984); United States v. Waste Management, Inc., 1985-2 Trade Cas. 
para. 66,651, at 63,046 (D.D.C. 1985).
    In conducting this inquiry, ``the Court is nowhere compelled to go 
to trial or to engage in extended proceedings which might have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.'' \2\ Rather,

    \2\ 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.C.C.A.N. 6535, 6538.
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absent a showing or 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-American 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 1448 (D.C. Cir. 1995). Precedent requires 
that

the balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the discretion of the Attorney General. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\3\

    \3\ United States v. Bechtel Corp., 648 F. 2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F. 2d 
at 463; United States v. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C. D. Cal. 1978); 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).
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    A proposed consent decree is an agreement between the parties which 
is reached after exhaustive negotiations and discussions. Parties do 
not hastily and thoughtlessly stipulate to a decree because, in doing 
so, they

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

United States v. Armour & Co., 402 U.S. 673, 681 (1971).
    The proposed decree, therefore, should not be reviewed under a 
standard of whether it is certain to eliminate every anticompetitive 
effect of a particular practice or whether it mandates certainty of 
free competition in the future. Court approval of a proposed final 
judgment requires a standard more flexible and less strict than the 
standard required for a finding of liability. ``[A] proposed decree 
must be approved even if it falls short of the remedy the court would 
impose on its own, as long as it falls within the range of 
acceptability or is `within the reaches of public interest' (citations 
omitted).\4\
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    \4\ United States v. American Tel. and Tel. Co., 552 F. Supp. 
131, 150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 
460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra, 
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985).
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    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

[[Page 55282]]

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: July 31, 2000.

    Respectfully submitted,

Arnold C. Celnicker,
Georgia Bar No. 118050, U.S. Department of Justice, 325 7th Street, 
NW, Suite 400, Washington, D.C. 20530, (202) 514-2474.

Certificate of Service

    I hereby certify that on this day of July 31, 2000, I caused a copy 
of the Competitive Impact Statement to be served by U.S. First Class 
Mail or overnight delivery upon:

Stephen J. Marzen, Shearman & Sterling, 801 Pennsylvania Ave., N.W., 
Suite 900, Washington, D.C. 20004-2604, (202) 508-8174, Attorney for 
Flowserve Corporation
David I. Gelfand, Mark W. Nelson, Cleary, Gottlieb, Steen & Hamilton, 
2000 Pennsylvania Ave., N.W., Washington, D.C. 20006-1801, (202) 974-
1500, Attorneys for Ingersoll-Dresser Pump Company and Ingersoll-Rand 
Company

Arnold C. Celnicker,
Trial Attorney, Georgia Bar No. 118050, U.S. Department of Justice, 
Antitrust Division, 325 7th Street, N.W., Suite 400, Washington, DC 
20530, (202) 305-7498.
[FR Doc. 00-20625 Filed 9-12-00; 8:45 am]
BILLING CODE 4410-11-M