[Federal Register Volume 67, Number 163 (Thursday, August 22, 2002)]
[Notices]
[Pages 54469-54479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21350]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Antitrust Division


United States v. The Manitowoc Co. Inc., Grove Investors Inc., 
and National Crane Corp.; Proposed Final Judgment and Competitive 
Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
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. The Manitowoc Co. Inc., Grove Investors 
Inc., and National Crane Corp., Civil No. 02 CV 01509 (RCL).
    On July 31, 2002, the United States filed a Complaint alleging that 
the proposed acquisition by Manitowoc of Grove would violate section 7 
of the Clayton Act, 15 U.S.C. 18, by substantially lessening 
competition in development, production, and sale of medium- and heavy-
lift boom trucks in North America. The proposed Final Judgment, filed 
the same time as the Complaint, requires that the defendants divest 
either Manitowoc's or Grove's boom truck business to a person 
acceptable to the United States within 150 days after July 31st. Copies 
of the Complaint, the proposed Final Judgment, Hold Separate 
Stipulation and Order, and Competitive Impacts

[[Page 54470]]

Statement are available for inspection at the U.S. Department of 
Justice, Antitrust Division, Suite 215 North, 325 7th Street, NW, 
Washington, DC 20004 (telephone: 202/514-2692), and at the Clerk's 
Office of the U.S. Court for the District of Columbia, 333 Constitution 
Avenue, NW., Washington, DC 20001 .
    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 J. Robert Kramer, II, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW., Suite 3000, 
Washington, DC 20530 (telephone: (202) 307-0924).

Dorothy B. Fountain,
Deputy 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:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Acquire'' means the entity or entities to whom defendants 
divest the National Crane or Manitowoc Boom Truck Business.
    B. ``Manitowoc'' means defendant The Manitowoc Company, Inc., a 
Wisconsin corporation with its headquarters in Manitowoc, WI, its 
successors and assigns, and its subsidiaries (including Manitowoc Boom 
Trucks, Inc.), divisions, groups, affiliates, partnerships, joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    C. ``Grove'' means Investors, Inc., a Delaware corporation with its 
headquarters in Shady Grove, PA, and its successors and assigns, it 
subsidiaries, divisions, groups, affiliates, partnerships, joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    D. ``National Crane'' means National Crane Corporation, a Delaware 
corporation with its headquarters in Waverly, NE, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, joint ventures, and their directors, officers, managers, 
agents, and employees.
    E. ``Boom truck'' means any stiff boom telescopic crane designed 
for mounting on a commercial truck chassis fitted with outriggers for 
load lift stability.
    F. ``Manitowoc Boom Truck Business'' means Manitowoc Boom Trucks, 
Inc. and its line of boom trucks, including:
    1. Any and all tangible assets used in Manitowoc's boom truck 
manufacturing business, including Manitowoc's boom truck production 
facility in Georgetown, Texas; manufacturing, assembling and testing 
equipment, tooling, and other fixed assets; personal property, 
inventory, office furniture, materials, supplies, and other tangible 
property and all other assets used exclusively in connection with the 
Manitowoc Boom Truck Business; all license, permits, and authorizations 
issued by any governmental entity or organization in connection with 
making or selling boom trucks; all contracts, supply or teaming 
arrangements, leases, commitments, and understandings relating to the 
Manitowoc Boom Truck Business; all customer lists, accounts, and credit 
records of boom truck distributors, dealers, or end users; and sales, 
performance, service and repair, warranty, or other records relating to 
the Manitowoc Boom Truck Business; and
    2. Any and all intangible assets used in developing, producing, 
selling, repairing or servicing Manitowoc, Manitex, USTC, JLG or 
Pioneer boom trucks, including but not limited to: (a) The Manitex, 
USTC, JLG and Pioneer brand names and all other intellectual property 
rights used exclusively in connection with the Manitowoc Boom Truck 
Business; (b) with respect to all other intellectual property rights 
(except the use of the Manitowoc brand name) used in connection with 
both the Manitowoc assets, a transferable, paid-up license, exclusive 
in the boom truck field use; (c) with respect to use of the Manitowoc 
brand name, at Acquirer's option, subject to approval of the United 
States, at its sole discretion, a transferable, paid-up license, not to 
exceed three years in length, exclusive in the boom truck field of use; 
(d) all existing licenses and sublicenses relating exclusively to the 
Manitowoc Boom Truck Business; and (e) a transferable, paid-up 
sublicense, exclusive in the boom truck field of use, to all other 
existing licenses and sublicenses relating to the Manitowoc Boom Truck 
Business. Intellectual property rights, as used herein, include, but 
are not limited to, patents, licenses and sublicenses, technical 
information, computer software and related documentation, know-how, 
trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, quality assurance and control procedures, 
design tools and stimulation capability, manuals, and all data 
concerning historic and current research and development relating to 
the Manitowoc Boom Truck Business.
    Manitowoc Boom Truck Business, as used herein, does not include the 
right to develop, produce or sell Model S282, a mobile self-erecting 
tower crane licensed by Manitowoc from a foreign subsidiary, Potain.
    G. ``National Crane Booth Truck Business'' means National Crane and 
its line of boom trucks, including:
    1. Any and all tangible assets used in National Crane's boom truck 
manufacturing business, including its boom truck production facility in 
Waverly, Nebraska; manufacturing, assembling and testing equipment, 
tooling and other fixed assets; personal property, inventory, office 
furniture, materials, supplies, and other tangible property and all 
other assets used exclusively in connection with the National Crane 
Boom Truck Business; all licenses, permits, and authorizations issued 
by any governmental entity or organization in connection with making or 
selling boom trucks; all contracts, supply or teaming arrangements, 
leases, commitments, and understandings relating to the National Crane 
Boom Truck Business; all customer lists, accounts, and credit records 
of boom truck distributors, dealers, or end users; and sales, 
performance, service and repair, warranty, or other records relating to 
the National Crane Boom Truck Business; and
    2. Any and all intangible assets used in developing, producing, 
selling, repairing, or servicing National or National Crane brand boom 
trucks, including but not limited to: (a) The National Crane and 
National brand names and all other intellectual property rights used 
exclusively in connection with the National Crane Boom Truck Business; 
(b) with respect to all other intellectual property rights used in 
connection with both the National Crane Boom Truck Business and other 
nondivested Grove assets, a transferable, paid-up license, exclusive in 
the boom truck field of use; (c) all existing licenses and sublicenses 
relating exclusively to the National Crane Boom Truck Business; and (d) 
a transferable, paid-up sublicense, exclusive in the boom truck field 
of use, to all other existing licenses and sublicenses relating to the 
National Crane Boom Truck Business. Intellectual property rights, as 
used herein, include, but are not limited to, patents, licenses and 
sublicenses, technical information, computer software and related 
documentation, know-how, trade secrets, drawings, blueprints, designs, 
design protocols, specifications for materials, quality assurance and 
control procedures, design tools and simulation capability,

[[Page 54471]]

manuals, and all data concerning historic and current research and 
development relating to the National Crane Boom Truck Business.

II. Objectives

    The Final Judgment filed in this case is meant to ensure 
defendants' prompt divestiture of either the National Crane or 
Manitowoc Boom Truck Business for the purpose of ensuring the 
establishment of a viable competitor in the boom truck industry capable 
of competing effectively to supply boom trucks in North America and to 
remedy the anticompetitive effects that the United States alleges would 
otherwise result from Manitowoc's acquisition of Grove. This Hold 
Separate Stipulation and Order ensures, prior to such divestiture, that 
the National Crane and Manitowoc Boom Truck Businesses are operated as 
competitively independent, economically viable, and ongoing business 
concerns that will remain independent and uninfluenced by the 
consummation of Manitowoc's acquisition of Grove, and that competition 
is maintained during the pendency of the ordered divestiture.

III. Jurisdiction and Venue

    This 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 entry of the Final Judgment by the 
Court, or until expiration of time for all appeals of any Court ruling 
declining entry of the proposed Final Judgment, and shall, from the 
date of the signing of this Stipulation by the parties, comply with all 
the terms and provisions of the proposed Final Judgment as though 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 (1) the Court has signed this 
Hold Separate Stipulation and Order and (2) defendants have obtained 
from their lenders a written unconditional commitment to release any 
security interest(s) in the assets of the National Crane or Manitowoc 
Boom Truck Business pursuant to a divestiture under the terms of the 
Final Judgment.
    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 divestiture 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 divestiture required by the Final Judgment has been 
accomplished:
    A. Defendants shall preserve, maintain, and continue to operate, 
respectively, the National Crane and Manitowoc Boom Truck Businesses as 
competitively independent, economically viable parts of ongoing 
competitive businesses, with management, research, design, development, 
promotions, marketing, sales, and operations of such assets held 
entirely separate, distinct, and apart from each other's operations and 
from those of defendants' other operations. Within twenty (20) days 
after the entry of this 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 
National Crane and Manitowoc Boom Truck Businesses will be maintained 
and operated as independent, ongoing, economically viable and active 
competitors in the boom truck industry; (2) management of the National 
Crane and Manitowoc Boom Truck Businesses (designated in Section V(J)) 
will not be influenced by defendants, except to the extent necessary to 
carry out defendants' obligations under this Hold Separate Stipulation 
and Order and the proposed Final Judgment; and (3) the books, records, 
competitively sensitive sales, marketing and pricing information, and 
decision-making concerning research, development, marketing, 
production, distribution, or sales of products by or under any of the 
National Crane and Manitowoc Boom Truck Businesses will be kept 
separate and apart from each other's operations.
    C. Defendants shall use all reasonable efforts to maintain and 
increase the research, development, sales, and revenues of the products 
produced by or sold under the National Crane and Manitowoc Boom Truck 
Businesses, and shall maintain at 2001 levels or previously approved 
levels for 2002, whichever are higher, all research, development, 
product improvement, promotional, advertising, sales, technical 
assistance, marketing and merchandising support for the National Crane 
and Manitowoc Boom Truck Businesses.
    D. Defendants shall provide sufficient working capital and lines 
and sources of credit to continue to maintain the National Crane and 
Manitowoc Boom Truck Businesses as economically viable and competitive, 
ongoing businesses, consistent with the requirements of Sections V(A) 
and V(B).
    E. Defendants shall take all steps necessary to ensure that all the 
assets of the National Crane and Manitowoc Boom Truck Businesses are 
fully maintained in operable condition at no less than current capacity 
and sales, and shall maintain and adhere to normal product improvement 
and upgrade and repair and maintenance schedules for those 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 assets of the National Crane or Manitowoc Boom Truck 
Businesses; provided, however, that nothing in this provision prohibits 
defendants from selling inventory in the ordinary course of business 
or, subject to the terms of Section IV(C)(2), offering a lender a 
security interest in assets

[[Page 54472]]

pursuant to Manitowoc's preexisting revolving lines of credit.
    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 National Crane and 
Manitowoc Boom Truck Businesses.
    H. Defendants shall take no action that would jeopardize, delay, or 
impede the sale of the National Crane and Manitowoc Boom Truck 
Businesses.
    I. Defendants' employees with primary responsibility for the 
research, design, development, promotion, distribution, sale, and 
operation of the National Crane and Manitowoc Boom Truck Businesses 
shall not be transferred or reassigned to other areas within the 
company except for transfer bids initiated by employees pursuant to 
defendants' regular, established job posting policy. Defendants shall 
provide the United States with ten (10) calendar days notice of such 
transfer.
    J. Prior to consummation of their transaction, defendants Grove and 
National Crane shall appoint Dan Wolf to oversee the National Crane 
Boom Truck Business and defendant Manitowoc shall appoint Brad Rogers 
to oversee the Manitowoc Boom Truck Business, and to be responsible for 
defendants' compliance with this section. Dan Wolf shall have complete 
managerial responsibility for the National Crane Boom Truck Business, 
and Brad Rogers shall have complete managerial responsibility for the 
Manitowoc Boom Truck Business, subject to the provisions of this Final 
Judgment. In the event either person 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.
    K. Defendants shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the Final Judgment to 
complete the divestiture pursuant to the Final Judgment to an Acquirer 
acceptable to the United States.
    L. This Hold Separate Stipulation and order shall remain in effect 
until consummation of the divestiture required by the proposed Final 
Judgment or until further order of the Court.

Dated: July 30, 2002.

Respectfully submitted,

    for Plaintiff, United States of America: Anthony E. Harris, 
Esquire, Illinois Bar No.: 1133713, United States Department of 
Justice, Antitrust Division, Litigation II Section, 1401 H Street, 
NW, Suite 3000, Washington, DC 20530, Telephone No.: (202) 307-6583.
    For Defendant, the Manitowoc Company, Inc.: Darryl S. Bell, 
Esquire, Quarles & Brady LLP, 411 East Wisconsin Avenue, Suite 2040, 
Milwaukee, WI 53202-4497, Telephone No.: (414) 277-5123.
    For Defendants, Grove Investors, Inc. and National Crane 
Corporation: Michael L. Weiner, Esquire, Skadden Arps Slate Meagher 
& Flom LLP, Four Times Square, New York, NY 10036, Telephone No.: 
(212) 735-3000.

Order

    It is so ordered by the Court, this ______day of July 2002.
----------------------------------------------------------------------
United States District Judge

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on July 29, 2002, plaintiff and defendants, The Manitowoc Company, Inc. 
(``Maintiowoc''), Grove Investors, Inc. (``Grove''), and National 
Crane, Inc. (``National Crane''), by their respective attorneys, have 
consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law, and without 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 essence 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 divestiture required below can and will be made and that defendants 
will later raise no claim of hardship of 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'' means the entity or entities to whom defendants 
divest the National Crane or Manitowoc Boom Truck Business.
    B. ``Manitowoc'' means defendant The Manitowoc Company, Inc.; a 
Wisconsin corporation with its headquarters in Manitowoc, WI, its 
successors and assigns, and its subsidiaries (including Manitowoc Boom 
Truck, Inc.), divisions, groups, affiliates, partnerships, joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    C. ``Grove'' means Grove Investors, Inc., a Delaware corporation 
with its headquarters in Shady Grove, PA, and its successors and 
assigns, its subsidiaries, divisions, groups, affiliates, 
partnerships,joint ventures,and their directors, officers, managers 
agents, and employees.
    D. ``National Crane'' means National crane Corp., a Delaware 
corporation with its headquarters in Waverly, NE, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, joint ventures, and their directors, officers, managers, 
agents, and employees.
    E. ``Boom truck'' means any stiff boom telescopic crane designed 
for mounting on a commercial truck chassis fitted with outriggers for 
load lift stability.
    F. ``Manitowoc Boom Truck Business'' means Manitowoc Boom Trucks, 
Inc. and its line of boom trucks, including:
    1. Any and all tangible assets used in Manitowoc's boom truck 
manufacturing business, including Manitowoc's boom truck production 
facility in Georgetown, Texas; manufacturing, assembling and testing 
equipment, tooling, and other fixed assets; personal property, 
inventory, office furniture, materials, supplies, and other tangible 
property, and all other assets used exclusively in connection with the 
Manitowoc Boom Truck Business; all licenses, permits, and 
authorizations issued by any governmental entity or organization in 
connection with making or selling boom trucks; all contracts, supply or 
teaming arrangements, leases, commitments, and understandings relating 
to the Manitowoc Boom Truck Business; all

[[Page 54473]]

customers lists, accounts, and credit records of boom truck 
distributors, dealers or end users; and sales, performance, service and 
repair, warranty or other records relating to the Manitowoc Boom Truck 
Business; and
    2. Any and all intangible assets used in developing, producing, 
selling, repairing or servicing Manitowoc, Manitex, USTC, JLG or 
Pioneer boom trucks, including but not limited to: (a) The Manitex, 
USTC, JLG and Pioneer brand names and all other intellectual property 
rights used exclusively in connection with the Manitowoc Boom Truck 
Business; (b) with respect to all other intellectual property rights 
(except the use of the Manitowoc brand name) used in connection with 
both the Manitowoc Boom Truck Business and other nondivested Manitowoc 
assets, a transferable, paid-up license, exclusive in the boom truck 
field of use; (c) with respect to use of the Manitowoc brand name, at 
Acquirer's option, subject to approval of the United States, at its 
sole discretion, a transferable, paid-up license, not to exceed three 
years in length, exclusive in the boom truck field of use; (d) all 
existing licenses and sublicenses relating exclusively to the Manitowoc 
Boom Truck Business; and (e) a transferable paid-up sublicense, 
exclusive in the boom truck field of sue, to all other existing 
licenses and sublicenses relating to the Manitowoc Boom Truck Business. 
Intellectual property rights, as used herein, include, but are not 
limited to, patents, license and sublicenses, technical information, 
computer software and related documentation, known-how, trade secrets, 
drawings, blueprints, designs, design protocols, specifications for 
materials, quality assurance and control procedures, design tools and 
simulation capability, manuals, and all data concerning historic and 
current research and development relating to the Manitowoc Boom Truck 
Business.
    Manitowoc Boom Truck Business, as used herein, does not include the 
right to develop, produce or sell Model S282, mobile self-erecting 
tower crane licensed by Manitowoc from a foreign subsidiary, Potain.
    G. ``National cranes Boom Truck Business'' means National Crane and 
its line of boom trucks, including:
    1. Any and all tangible assets used in national Crane's boom truck 
manufacturing business, including its boom truck production facility in 
Waverly, Nebraska; manufacturing, assembling and testing equipment, 
tooling and other fixed assets; personal property, inventory, office 
furniture, materials, supplies, and other tangible property and all 
other assets used exclusively in connection with the National Crane 
Boom Truck Business; and licenses, permits and authorizations issue by 
any governmental entity or organization in connection with making or 
selling boom trucks; all contracts, supply or teaming arrangements, 
leases, commitments and understandings relating to the National Crane 
Boom Truck Businesses; all customer lists, accounts, and credit records 
of boom truck distributors, dealers or end users; and sales, 
performance, service and repair, warranty or other records relating to 
the National crane Boom Truck Business; and
    2. Any and all intangible assets used in developing, producing, 
selling, repairing or servicing National or National Crane brand boom 
trucks, including but not limited to: (a) The National Crane and 
National brand names and all other intellectual property rights used 
exclusively in connection with the National Crane Boom Truck Business; 
(b) with respect to all other intellectual property rights used in 
connection with both the national crane Boom Truck Business and other 
nondivested Grove asses, a transferable, paid-up license, exclusive in 
the boom truck field of use; (c) all existing licenses and sublicenses 
relating exclusively to the National Crane Boom Truck Business; and (d) 
a transferable, paid-up sublicense, exclusive in the boom truck field 
of use, to all other existing licenses and sublicenses relating to the 
National Crane Boom Truck Business. Intellectual property rights, as 
used herein, include, but are not limited to, patents, licenses and 
sublicenses, technical information, computer software and related 
documentation, known-how, trade secrets, drawing, blueprints, designs, 
design protocols, specifications for materials, quality assurance and 
control procedures, design tools and simulation capability, manuals, 
and all data concerning historic and current research and development 
relating to the National Crane Boom Truck Business.

III. Applicability

    A. This Final Judgment applies to Manitowoc, Grove and National 
Crane, 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 asserts or of lesser 
business units that include the National Crane or Manitowoc Boom Truck 
Business, that the purchaser agrees to be bound by the provisions of 
this Final Judgment, provided, however, that defendants need not obtain 
such an agreement from the Acquirer.

IV. Divestiture

    A. Defendants are ordered and directed, within one hundred and 
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, to divest the National Crane 
or Manitowoc Boom Truck Business in a manner consistent with this Final 
Judgment to an Acquirer 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 thirty (30) calendar days, and 
shall notify the Court in such circumstances. Defendants agree to use 
their best efforts to divest the National Crane or Manitowoc Boom Truck 
Business as expeditiously as possible.
    B. In accomplishing the divestiture ordered by this Final Judgment, 
defendants promptly shall make known, by usual and customary means, the 
availability of the National Crane or Manitowoc Boom Truck Business, 
whichever is then available for sale. Defendants shall inform any 
person making inquiry regarding a possible purchase of the National 
Crane or Manitowoc Boom Truck Business that either will be 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 National Crane or 
Manitowoc Boom Truck Business, whichever, is then available for sale, 
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.
    C. Defendants shall provide prospective Acquirers of the National 
Crane or Manitowoc Boom Truck Business and the United States 
information relating to the personnel involved in the production, 
operation, development and sale of the National Crane or Manitowoc Boom 
Truck Business (whichever is then available for sale) to enable the 
Acquirer to make offers of employment. Defendants will not interfere 
with any negotiations by the Acquirer to employ any defendants employee 
whose primary responsibility

[[Page 54474]]

is the production, operation, development and sale of the boom truck 
products of the National Crane or Manitowoc Boom Truck Business.
    D. Defendants shall permit prospective Acquirers of the National 
Crane or Manitowoc Boom Truck Business to have reasonable access to 
personnel and to make inspections of the physical facilities of the 
National or Manitowoc Boom Truck Business (whichever is then available 
for sale); 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. Defendants shall warrant to the Acquirer of the National Crane 
or Manitowoc Boom Truck Business 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 National Crane and 
Manitowoc Boom Truck Businesses.
    G. Defendants shall not take any action, direct or indirect, that 
would prevent or discourage in any way any dealer from distributing the 
boom truck products of the National Crane or Manitowoc Boom Truck 
Business, whichever is actually divested, for a period of two years 
after such divestiture. Nothing in this provision, however, shall 
prevent defendants from promoting and selling in the ordinary course of 
business products that compete with the National Crane or Manitowoc 
Boom Truck Business.
    H. Defendants shall warrant to the Acquirer of the National Crane 
or Manitowoc Boom Truck Business that there are no material defects in 
the environmental, zoning or other permits pertaining to the operation 
of each asset, and the following the sale of the National Crane or 
Manitowoc Boom Truck Business, defendants will not undertake, directly 
or indirectly, any challenges to the environmental, zoning, or other 
permits relating to the operation of the National Crane or Manitowoc 
Boom Truck Business.
    I. 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 National 
Crane or Manitowoc Boom Truck Business, and shall be accomplished in 
such a way as to satisfy the United States, in its sole discretion, 
that the National Crane or Manitowoc Boom Truck Business can and will 
be used by the Acquirer as part of a viable, ongoing business, engaged 
in developing, manufacturing and selling boom trucks in North America. 
Divestiture of the National Crane or Manitowoc Boom Truck Business may 
be made to an Acquirer, provided that it is demonstrated to the sole 
satisfaction of the United States that the National Crane or Manitowoc 
Boom Truck Business will remain viable and the divestiture of such 
assets will remedy the competitive harm alleged in the Complaint. The 
divestitures, which pursuant to Section IV or Section V of this Final 
Judgment,
    1. Shall be made to an Acquirer that, in the United State's sole 
judgment, has the managerial, operational, and financial capability to 
compete effectively in the manufacturer and sale of boom trucks in 
North America; 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 and defendants give defendants 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 National Crane or Manitowoc 
Boom Truck Business 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 either the National Crane or Manitowoc Boom Truck 
Business.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the National Crane or Manitowoc 
Boom Truck Business. The trustee shall have the power and authority to 
accomplish the divestiture to an Acquirer 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 plaintiff approves, and shall account 
for all monies derived from the sale of the National Crane or Manitowoc 
Boom Truck Business 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 National Crane or Manitowoc Boom Truck 
Business and based on a fee arrangement providing the trustee with an 
incentive based on the price and terms of the divestiture and the speed 
with which it is accomplished, 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 customary 
confidentiality 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 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 National Crane and 
Manitowoc Boom Truck Businesses and shall describe in detail each 
contact with any such person. The trustee shall maintain full records 
of all

[[Page 54475]]

efforts made to divest the National Crane and Manitowoc Boom Truck 
Business.
    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 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 National or Manitowoc Boom Truck Business, 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, any other third party, or the trustee if 
applicable additional information concerning the proposed divestiture, 
the proposed Acquirer, 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, 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(D) 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(D), 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 divestiture 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 divestiture 
order 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 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 National Crane or Manitowoc Boom Truck 
Business, 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 National Crane and Manitowoc Boom Truck Businesses, and to provide 
required information to any prospective Acquirer, including the 
limitations, if any, on such information. Assuming the information set 
forth in the affidavit is true and complete, any objection by the 
United States to information provided by defendants, including 
limitations on the 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 the National Crane and Manitowac Boom Truck Businesses and to 
divest the National Crane or Manitowoc Boom Truck Business until one 
year after such divestiture has been completed.

X. Compliance Inspection

    A. For purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time 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, to require defendants to provide copies of, all 
books, ledgers, accounts, records and documents in the possession, 
custody, or control of defendants, 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 
reasonable convenience of the interviewee and without restraint or 
interference by defendants.
    B. Upon the written request of a duly authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports, under oath if

[[Page 54476]]

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 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 National Crane or 
Manitowoc Boom Truck Assets, whichever is divested, 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, an to punish violations of its provisions.

XIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten 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 the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16.

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

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    On July 30, 2002, the United States filed a civil antitrust suit 
alleging that the proposed acquisition by The Manitowoc Company, Inc. 
(``Manitowoc'') of Grove Investors, Inc. (``Grove'') would violate 
Section 7 of the Clayton Act, as amended, 15 U.S.C. 18. The Complaint 
alleges that a combination of Manitowoc and Grove would substantially 
lessen competition in the development, production, and sale of medium- 
and heavy-lift boom trucks in North America. Combining Grove and 
Manitowoc, the largest and third largest producers of medium- and 
heavy-lift boom trucks, would result in a single firm--Manitowoc--with 
a market share of over 60 percent, and two firms with a combined share 
of over 90 percent, of North American sales of medium- and heavy-lift 
boom trucks. This reduction in competition would lead to higher prices 
and reduced product quality and innovation for medium- and heavy-lift 
boom trucks to the detriment of consumers. Accordingly, the prayer for 
relief in the Complaint seeks: (1) A judgment that the proposed 
acquisition would violate Section 7 of the Clayton Act, and (2) a 
permanent injunction that would prevent Manitowoc from acquiring 
control of or otherwise combining its assets with Grove and its boom 
truck subsidiary, National Crane Corp.
    At the same time the Complaint was filed, the United States filed a 
proposed settlement that would permit Manitowoc to complete its 
acquisition of Grove, but require defendants to divest either 
Manitowoc's or Grove's boom truck business in such a way as to preserve 
competition in North America. The settlement consists of a Hold 
Separate Stipulation and Order and a proposed Final Judgment.
    According to the terms of the settlement, defendants must divest 
either Manitowoc's or Grove's boom truck business to a person 
acceptable to the United States, in its sole discretion, within one 
hundred and fifty (150) calendar days after the filing of the Complaint 
in this matter, or within five (5) days after notice of entry of the 
Final Judgment, whichever is later. The United States, in its sole 
discretion, may extend the time period for divestiture by an additional 
period of time, not to exceed 30 days. If defendants do not complete 
the divestiture within the prescribed time period, then the United 
States may nominate, and the Court will appoint, a trustee who will 
have sole authority to divest either the National Crane or the 
Manitowoc boom truck business.
    The parties have stipulated that the proposed Final Judgment may be 
entered by the Court after compliance with the APPA. Entry of the 
proposed 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 Violations 
of the Antitrust Laws

A. The Defendants and the Proposed Transaction

    Manitowoc, based in Manitowoc, WI, is a publicly held conglomerate 
with three principal lines of business: Production and sale of 
commercial refrigeration equipment, construction and repair of lake-
going freighters, and production and sale of various types of 
stationary and mobile cranes. In 2001, Manitowoc reported approximately 
$1.2 billion in total revenues.
    Grove makes and sells all types of mobile cranes, including 
hydraulic truck-mounted, all-terrain, and rough-terrain cranes. A Grove 
subsidiary, National Crane, makes boom trucks and knuckleboom cranes. 
In 2001, Grove reported revenues in excess of $713 million.
    On March 19, 2002, Manitowoc and Grove announced an agreement 
pursuant to which Manitowo would acquire Grove and assume its 
liabilities in a transaction valued at approximately $270 million. This 
transaction would combine the nation's largest and third largest 
producers of medium- and heavy-lift boom trucks, and in the process, 
substantially lessen competition in the already highly concentrated 
North American market for medium- and heavy-lift boom trucks.

B. The Effects of the Transaction on Competition in the Sale of Medium- 
and Heavy-Lift Boom Trucks

1. Relevant Market: North American Production and Sale of Medium- and 
Heavy-Lift Boom Trucks
    The Complaint alleges that the development, production, and sale of 
medium- and heavy-lift boom trucks is a relevant product market within 
the meaning of Section 7 of the Clayton Act, A ``boom truck'' is a 
stiff boom telescopic crane mounted on a standard flat-bed commercial 
truck chassis. This general-purpose mobile crane has a

[[Page 54477]]

broad range of applications in the construction, petroleum, and utility 
industries. Although boom trucks are produced in many models and sizes, 
their nominal load lift ratings generally distinguish them as either 
light-, medium-, or heavy-lift cranes. A combination of highly 
desirable features sets medium- and heavy-lift boom trucks apart from 
all other types of cranes or lifting devices. These features include an 
ability safely to haul loads and travel at highway speeds from site to 
site, exceptional load lift (from 15 tons to 40 tons) and reach (40 
feet to over 100 feet) capability, overall versatility, and general 
ease of use.
    Medium- and heavy-lift boom trucks offer an appealing package of 
versatility and performance at attractive prices--a combination 
unmatched by any other type of crane (e.g., knuckleboom, hydraulic 
truck, all-terrain, rough-terrain, tower, and lattice boom cranes; 
service vehicles; or boom trucks with lower nominal lift rating 
capability) or lifting device (e.g., fork-lift trucks, aerial manlift 
vehicles). For that reason, prospective customers would be willing to 
pay a significant premium over current prices before seriously 
considering any other type of crane or lifting device. Medium- and 
heavy-lift boom trucks are a relevant product market in which to assess 
the competitive effects of a combination of Manitowoc and Grove.\1\
---------------------------------------------------------------------------

    \1\ The basic competitive analysis (i.e., three to two reduction 
in major competitors in an already highly concentrated market) would 
not change appreciably if one were to examine individual models by 
load lift capability (concluding perhaps that models within a 
certain range of load lift capability comprise a relevant product, 
e.g., 15-17 ton boom trucks), rather than, as in this case, 
considering larger boom trucks collectively as a single market for 
``medium and heavy lift boom trucks.''
---------------------------------------------------------------------------

    The Complaint alleges that the sale of medium- and heavy-lift boom 
trucks in North America is a relevant geographic market within the 
meaning of Section 7 of the Clayton Act. Over 99 percent of medium- and 
heavy-lift boom trucks sold in North America are produced by firms 
located in either the United States or Canada. Although a very few 
medium-lift boom trucks have been imported from a single firm in Japan, 
historically, foreign producers have not developed and produced a 
sufficiently wide range of different models of boom trucks, and have 
not established a reputation for quality, safety, and reliability or 
the extensive distribution networks that would enable them to attract 
significant sales of medium- and heavy-lift boom trucks away from North 
American firms. A small but significant and nontransitory increase in 
prices of North American medium- or heavy-lift boom trucks would not 
precipitate a significant loss of sales to imported products. North 
America this is a relevant geographic market in which to assess the 
competitive effects of Manitowoc's proposed acquisition of Grove.
2. Anticompetitive Effects of the Acquisition
    The Complaint alleges that in this highly concentrated market for 
medium- and heavy-lift boom trucks, a combination of Manitowoc and 
Grove likely would; (i) Substantially lessen competition in 
development, production, and sale of medium- and heavy-lift boom trucks 
in North America, (ii) eliminate actual and potential competition 
between Manitowoc's and Grove's medium- and heavy-lift boom truck 
businesses; and (iii) increase prices and reduce current levels of 
quality and innovation for medium- and heavy-lift boom trucks.
    Specifically, the Complaint alleges that Grove (via National Crane) 
and Manitowoc are, respectively, the nation's largest and third largest 
producers of medium- and heavy-lift boom trucks. There is only one 
other major producer of medium- and heavy-lift boom trucks. Combined, 
the three largest competitors command over 90 percent of all sales of 
medium- and heavy-lift boom trucks in North America. Three small firms 
(two North American and one Asian) produce somewhat specialized 
products that account for less than ten percent of unit sales of 
medium- and heavy-lift boom trucks in North America. Individually and 
collectively, however, these small firms do not have the production 
capacity, strong reputation for safety and reliability, or extensive 
distribution networks necessary to attract sufficient sales away from 
the much larger market incumbents, and hence effectively constrain any 
post-merger exercise of market power.\2\
---------------------------------------------------------------------------

    \2\ These small rivals would be unable to quickly and easily 
expand their sales of medium- and heavy-lift boom trucks for many of 
the same reasons why significant new entry would be difficult, time-
consuming and unlikely, post-merger. See p. 7, below.
---------------------------------------------------------------------------

    Manitowoc's acquisition of Grove is likely to diminish competition 
substantially by creating conditions conducive to: (a) The two 
remaining major competitors engaging in tacit or explicit coordinated 
pricing to the detriment of consumers since neither would have to worry 
about competition from Grove; and (b) Manitowoc unilaterally increasing 
its prices for medium- and heavy-lift boom trucks.
    Significant new entry into development, production and sales of 
medium- and heavy-lift boom trucks would be difficult, time consuming, 
and hence unlikely to deter (or constrain) an exercise of market power 
after the acquisition by Manitowoc of Grove. To be successful in this 
industry, a new competitor \3\ must not only construct a production 
facility and establish a large network of dealers to provide sales, 
service, and customer support for its products, it must also develop a 
strong reputation for producing high quality, safe, and reliable boom 
trucks. Successful new entry would require a substantial capital 
investment in the form of sunk costs,\4\ which would be large relative 
to the size of the North American boom truck industry and the risk of 
any expected profits. Considering the time required, expense, 
investment risks, and expected returns, it is highly unlikely that 
following a combination of Manitowoc and Grove, new market entry would 
occur on such a magnitude and scale as to displace sufficient sales 
from the two remaining major incumbent producers of medium- and heavy-
lift boom trucks to constrain a post-merger exercise of market power.
---------------------------------------------------------------------------

    \3\ Entry into the production and sale of medium- and heavy-lift 
boom trucks may be de novo (i.e., by a new producer) or lateral 
(e.g., by an established maker of other types of cranes or lifting 
devices).
    \4\ The term ``sunk costs'' as used in this context includes the 
costs of acquiring tangible and intangible assets that cannot be 
recovered through the redeployment of these assets outside the 
relevant market, i.e., costs uniquely incurred to enter the 
production and sale of medium- and heavy-lift boom trucks in North 
America and that cannot be recovered upon exit from that industry.
---------------------------------------------------------------------------

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment will preserve competition in the sale 
of medium- and heavy-lift boom trucks in North America. The Judgment 
requires that within one hundred and fifty (150) calendar days after 
the filing of the Complaint in this matter, or within five (5) days 
after notice of entry of the Final Judgment, whichever is later, 
Manitowoc must sell its own or Grove's boom truck business to an 
acquirer acceptable to the United States. The United States may extend 
this time period for divestiture for one additional period, not to 
exceed 30 days. Defendants must use their best efforts to divest either 
the Manitowoc or Grove boom truck business as expeditiously as 
possible, and until the ordered divestiture takes place, the defendants 
must cooperate with any prospective purchasers.
    If Manitowoc does not accomplish the ordered divestiture within the

[[Page 54478]]

prescribed time period, the United States will nominate, and the Court 
will appoint, a trustee to assume sole power and authority to complete 
the divestiture. Defendants must cooperate fully with the trustee's 
efforts to divest either boom truck business to an acquirer acceptable 
to the United States and periodically report to the United States on 
their divestiture efforts.
    If the trustee is appointed, the defendants 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 the divestiture is completed. After his or her 
appointment becomes effective, the trustee will file monthly reports 
with the parties and the Court, setting forth the trustee's efforts to 
accomplish the divestiture. 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 to carry out the purpose of the trust, including extending 
the trust and the term of the trustee's appointment.

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 brining 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 defendant.

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. 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 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 Manitowoc 
and Grove. The United States could have continued the litigation to 
seek preliminary and permanent injunctions against Manitowoc's 
acquisition of Grove. The United States is satisfied, however, that the 
divestiture of the assets as proposed in the Final Judgment will 
establish, preserve, and ensure competition in the relevant market. To 
this end, the United States is convinced that the proposed relief, once 
implemented by the Court, will prevent Manitowoc's acquisition of Grove 
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 United States 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, 56 F.3d 
1448 (D.C. Cir. 1995).
    In conducting this inquiry, ``the Court is nowhere compelled to go 
to trial or to engage in extended proceedings which might have the 
effect of vitiating the benefits of prompt and less costly settlement 
through the consent decree process.'' \5\ Rather,
---------------------------------------------------------------------------

    \5\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). As ``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 CCH Trade Cas. 
para. 61,508, at 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988), quoting United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir.), 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

[[Page 54479]]

of the public interest.'' More elaborate requirements might 
undermine the effectiveness of antitrust enforcement by consent 
decree.\6\
---------------------------------------------------------------------------

    \6\ United States v. Bechetel, 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 at 565.
---------------------------------------------------------------------------

    The proposed Final Judgment, 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 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.' '' \7\
---------------------------------------------------------------------------

    \7\ United States v. American Tel. and Tel. Co., 552 F. Supp. 
131, 150 (D.D.C. 1982) (citations omitted),  aff'd sub nom. Maryland 
v. United States, 460 U.S. 1001 (1983) quoting United States 
Gillette Co., supra. 406 F. Supp. at 716; United States v. Alcan 
Aluminum, Ltd., 605 F. Supp. 619, 622 (W.D. Ky 1985).

    Moreover, the Court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States 
alleges 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 the ``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 30, 2002.

Respectfully submitted,

Anthony E. Harris,
Illinois Bar No. 1133713, U.S. Department of Justice, Antitrust 
Division, Litigation II Section, 1401 H Street, NW., Suite 3000, 
Washington, DC 20530, (202) 307-6583.

[FR Doc. 02-21350 Filed 8-21-02; 8:45 am]
BILLING CODE 4410-11-M