[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Notices]
[Pages 67864-67869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28333]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Antitrust Division

[Civil Case No. 02-1768]


Proposed Final Judgment and Competitive Impact Statement; United 
States v. Archer-Daniels-Midland Company and Minnesota Corn Processors, 
LLC

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16(b)-(h), that a proposed Final 
Judgment, 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. Archer-Daniels-Midland Company and 
Minnesota Corn Processors, LLC, Civil Case No. 1:02 CV 01768 (JDB). The 
proposed Final Judgment is subject to approval by the Court after the 
expiration of the statutory 60-day public comment period and compliance 
with the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h).
    On September 6, 2002, the United States filed a Complaint alleging 
that the proposed acquisition by Archer-Daniels-Midland Company of 
Minnesota Corn Processors, LLC would violate section 7 of the Clayton 
Act, 15 U.S.C. 18, by substantially lessening competition in the 
manufacture and sale of corn syrup and high fructose corn syrup 
(``HFCS'') in the United States and Canada. ADM and MCP are two of the 
largest corn wet millers in the United States, competing against only 
four other firms in the manufacture and sale of corn syrup and HFCS. 
MCP sells these products through an exclusive sales joint venture that 
it formed in December 2000 with another corn wet miller, Corn Products 
International, Inc. To preserve competition, the proposed Final 
Judgment requires the defendants to dissolve the joint venture that MCP 
formed with CPI by December 31, 2002, thus allowing CPI to compete 
independently. A Competitive Impact Statement, filed by the United 
States, describes the Complaint, the proposed Final Judgment, and 
remedies available to private litigants. Copies of the Complaint, the 
proposed Final

[[Page 67865]]

Judgment, Stipulation and Order, and Competitive Impact Statement are 
available for inspection at the U.S. Department of Justice, Antitrust 
Division, Suite 215 North, 325 7th Street, NW., Washington, DC 20530 
(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 the notice. 
Such comments and responses thereto will be published in the Federal 
Register and filed with the Court. Comments may be filed with the 
Department of Justice in either paper or electronic form. Comments 
filed in paper form should be directed to Roger W. Fones, Chief, 
Transportation, Energy, and Agriculture Section, Antitrust Division, 
U.S. Department of Justice, 325 7th Street, NW., Suite 500, Washington, 
DC 20530 (facsimile 202/307-2784). Comments filed in electronic form 
should be submitted to the following e-mail address: [email protected].

Constance K. Robinson,
Director of Operations, Antitrust Division.

Stipulation and Order

    It is hereby stipulated by and between the undersigned parties, 
subject to approval and entry by the Court, that:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto, and venue of this action is 
proper in the United States District Court for the District of 
Columbia.
    2. The parties stipulate that a Final Judgment in the form hereto 
attached may be filed 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 Procedure 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.
    3. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment pending entry of the Final Judgment by the 
Court, or until expiration of time for all appeals of any Court ruling 
declining entry of the proposed Final Judgment, and shall, from the 
date of the signing of this Stipulation by the parties, comply with all 
the terms and provisions of the proposed Final Judgment as though they 
were in full force and effect as an order of the Court.
    4. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    5. If the United States has withdrawn its consent, as provided in 
paragraph 2 above, or if 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.
    6. Defendants represent that the required actions set forth in 
Sections IV and V of the proposed Final Judgment can and will be made, 
and that the defendants will later raise no claims of hardship, or 
difficulty of compliance as grounds for asking the Court to modify any 
of the provisions contained therein.

    Respectfully submitted,
    For Plaintiff, United States of America:

Michael P. Haronis,
Pennsylvania State Bar #17994, Attorney, Antitrust Division, U.S. 
Department of Justice, 325 Seventh St., NW., Suite 500, Washington, 
DC 20530. Telephone: (202) 307-6357. Facsimile: (202) 307-2784.
Dated: September 6, 2002.

    For Defendant,

Archer-Daniels-Midland Company:

David James Smith,
State of Illinois Bar No. 3128392, Vice President, Secretary & 
General Counsel, 4666 Faries Parkway, Decatur, IL 62526. Telephone: 
(217) 424-6183. Facsimile: (217) 424-6196.

    For Defendant, Minnesota Corn Processors, LLC:

Joseph Bennett,
State of Minnesota Bar No. 0289991, Secretary and General Counsel, 
Minnesota Corn Processors, LLC, 901 North Highway 59, Marshall, MN 
52658. Telephone: (507) 537-2674. Facsimile: (507) 537-2641.

Order

    It is so ordered, this -- day of ------, 2002.
--------------

United States District Court Judge.

Final Judgment

    Whereas plaintiff, United States of America, having filed its 
Complaint herein, plaintiff and defendants, Archer-Daniels-Midland 
Company (``ADM'') and Minnesota Corn Processors, LLC (``MCP''), 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 of law;
    And whereas, the defendants agree to be bound by the provisions of 
this Final Judgment pending its approval by the Court;
    And whereas, prompt and certain dissolution of CornProductsMCP 
Sweeteners LLC (``CPMCP'') is the essence of this agreement;
    And whereas, the United States requires defendants to effect the 
dissolution of CPMCP for the purpose of remedying the loss of 
competition alleged in the Complaint;
    And whereas, defendants have represented to the United States that 
they will effect the dissolution of CPMCP as provided in this Final 
Judgment and that defedants will later raise no claim of hardship or 
difficulty as grounds for asking the Court to modify any of the 
provisions on dissolution 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. ``ADM'' means defendant Archer-Daniels-Midland Company, a 
corporation organized and existing under the laws of the state of 
Delaware, with its principal offices in Decatur, Illinois, its 
successors and assigns, and its parents, subsidiaries, divisions, 
groups, and their officers, managers, agents, and employees.
    B. ``CPI'' means Corn Products International, Inc., a corporation 
organized and existing under the laws of the state of Delaware, with 
its principal offices in Bedford Park, Illinois, its successors and 
assigns, and its parents, subsidiaries, divisions, groups, and their 
officers, managers, agents, and employees.
    C. ``CPMCP'' means CornProductsMCP Sweeteners LLC, a joint venture 
between CPI and MCP, which serves as the exclusive sales and 
distribution outlet in the United States, Canada, and Mexico for CPI 
and MCP in designated product categories, including

[[Page 67866]]

corn syrup and high fructose corn syrup.
    D. ``MCP'' means defendant Minnesota Corn Processors, LLC, a 
limited liability company organized and existing under the laws of the 
state of Colorado, with its principal offices in Marshall, Minnesota, 
its successors and assigns, and it parents, subsidiaries, divisions, 
groups, and their officers, managers, agent, and employees.
    E. ``Transaction'' means ADM's proposed acquisition of MCP.

III. Applicability

    This Final Judgment applies to ADM and MCP, 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.

IV. Dissolution of CPMCP

    A. The defendants are hereby ordered and directed to effect the 
dissolution of CPMCP on or prior to December 31, 2002. Defendants are 
further ordered and directed to provide to the General Counsel of CPI 
in its Westchester, Illinois offices written notice of their election 
to dissolve CPMCP prior to or simultaneously with the closing of the 
Transaction.
    B. On the same day that the defendants provide written notice to 
CPI's General Counsel, as required pursuant to Section IV(A) of this 
Final Judgment, the defendants shall in writing relieve CPI, effective 
immediately, of any and all obligations to defendants or CPMCP to the 
full extent necessary to permit CPI to conduct independent operations 
in competition with defendants and CPMCP.

V. Participation by the Defendants in the Operation of CPMCP Prior to 
the Effective Date of Dissolution

    From the date the defendants provide CPI's General Counsel written 
notice of their election to dissolve CPMCP until the effective date of 
the dissolution of CPMCP, defendants shall refrain from selling, 
marketing, or pricing any products in cooperation or coordination with 
CPMCP or CPI and shall compete independently of CPMCP and CPI. Nothing 
in this Final Judgment affects or alters any obligations of defendants 
to facilitate or ensure that CPMCP completes the performance of any 
existing contracts or commitments to its customers.

VI. Affidavits

    Twenty (20) calendar days from the date of the filing of this Final 
Judgment, and every thirty (30) calendar days thereafter until the 
final accounting after dissolution of CPMCP has been completed under 
this Final Judgment, the defendants shall deliver to the United States 
an affidavit as to the fact and manner of compliance with Sections IV 
and V of this Final Judgment. Assuming that the information set forth 
in the affidavit is true and complete, any objection by the United 
States to the information provided by the defendants, including 
limitations on the information, shall be made within fourteen (14) 
calendar days of receipt of such affidavit. Unit one year after the 
defendants have completed the final accounting, the defendants shall 
maintain full records of the dissolution of CPMCP.

VII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time duly authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of a duly authorized 
representative of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to defendants, be 
permitted:
    (1) Access during defendants' office hours to inspect and copy, or 
at plaintiff's option, 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 requested, 
relating to any of the matters contained in this Final Judgment as may 
be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and defendants mark each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

VIII. 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.

IX. Public Interest Determination

    Entry of this Final Judgment is in the public interest.

X. Expiration of Final Judgment

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

Date:----------

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

United States District Court Judge
    Case Number: 1:02CV02768.
    Judge: John D. Bates.
    Deck Type: Antitrust.

Competitive Impact Statement

    Pursuant to Section 5(b) of the Clayton Act, as amended by Section 
2 of the Antitrust Procedures and Penalties Act (codified at 15 U.S.C. 
16(b)-(h) (``Tunney Act'')), the United States files this Competitive 
Impact Statement relating to the Proposed Judgment submitted for entry 
in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    On September 6, 2002, the United States of American filed a civil 
antitrust Complaint alleging that the proposed acquisition by Archer-
Daniels-Midland Company (``ADM'') of Minnesota Corn Processors, LLC 
(``MCP'') would violate Section 7 of the Clayton Act. 15 U.S.C.

[[Page 67867]]

18. The Complaint alleges that ADM and MCP are two of the largest corn 
wet millers in the United States and compete in the manufacture and 
sale of corn syrup and high fructose corn syrup (``HFCS'') in the 
United States and Canada. The Complaint further alleges that through 
its acquisition of MCP, ADM will eliminate this competition and 
increase concentration in the already highly concentrated corn syrup 
and HFCS markets, making anticompetitive coordination among the few 
remaining competitors more likely. The request for relief in the 
Complaint seeks: (1) A judgment that the proposed acquisition would 
violate Section 7 of the Clayton Act; (2) a permanent injunction 
preventing consummation of the merger agreement; (3) an award of costs 
to the plaintiff; and (4) such other relief as the Court may deem just 
and proper.
    When the Complaint was filed, the United States also filed a 
proposed Final Judgment that would permit ADM's acquisition of MCP, but 
would preserve competition by requiring, inter alia, the defendants to 
dissolve the marketing and sales joint venture that MCP formed with 
another corn wet miller, Corn Products International (``CPI'').\1\ The 
defendants are required to provide written notice to CPI of their 
election to dissolve the joint venture no later than consummation of 
ADM's acquisition of MCP and to complete the dissolution of the joint 
venture no later than December 31, 2002. On the same day the defendants 
give written notice to CPI, the proposed Final Judgment also provides 
that the defendants are prohibited from selling, marketing, or pricing 
any products in cooperation or coordination with the joint venture or 
CPI, and they must notify CPI that it is relieved of all obligations 
under the joint venture that would prevent it from competing fully with 
the defendants. The proposed Final Judgment does not affect or alter 
any obligations of ADM and MCP to perform existing contracts or 
commitments to its customers.
---------------------------------------------------------------------------

    \1\ The defendants entered into a Stipulation (filed 
contemporaneously with the Final Judgment) in which they agreed to 
be bound by the proposed Final Judgment pending final determination 
of this matter by the Court.
---------------------------------------------------------------------------

    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the Tunney 
Act. Entry of the proposed Final Judgment would terminate the action, 
except that the Court would retain jurisdiction to construe, modify, or 
enforce 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

    ADM is a Delaware corporation, with its principal offices located 
in Decatur, Illinois. ADM is engaged in the processing and sale of 
agricultural products, including corn syrup and HFCS, which are among 
the products it produces from corn through the wet milling process at 
domestic plants in Cedar Rapids Iowa, Clinton, Iowa, and Decatur, 
Illinois. Its net sales in 2001 were approximately $20 billion. Its 
sales of corn wet milled products in the United States in 2001 exceeded 
$1 billion, including HFCS sales of approximately $480 million and corn 
syrup sales of approximately $66 million.
    MCP is a Colorado limited liability company, with its principal 
offices in Marshall, Minnesota. MCP is an agricultural processing and 
marketing business that operates corn wet milling facilities in 
Marshall, Minnesota and Columbus, Nebraska. MCP's net sales in 2001 
were approximately $620 million. MCP's 2001 sales of corn wet milled 
products in the United States totaled approximately $402 million, with 
HFCS sales of approximately $153 million and corn syrup sales of 
approximately $56 million.
    MCP sells its corn wet milled products through a joint venture that 
it formed in December 2000 with CPI. The joint venture, known as 
CornProductsMCP Sweeteners LLC (``CPMCP''), is the exclusive outlet for 
MCP's and CPI's corn syrup and HFCS products.
    On July 11, 2002, ADM and MCP entered into an agreement under which 
ADM would acquire MCP. This transaction, which would increase 
concentration in the already highly concentrated corn syrup and HFCS 
markets precipitated the government's suit.

B. Corn Syrup and High Fructose Corn Syrup Markets

    Corn syrup and HFCS are manufactured by wet mill processing of 
corn. In the wet milling process, corn kernels are first soaked in 
water, then ground and separated from other components of the kernel, 
producing a starch slurry. To manufacture corn syrup and HFCS, the corn 
wet millers add enzymes and/or acid that convert the starch slurry to 
sugars, such as dextrose and fructose.
    Corn syrup is used as a sweetener in the preparation of assorted 
food products, including confectionery, baker, and dairy products, 
salad dressing, condiments, jams, and jellies, lunch meats, canned 
food, and vegetables. Specific applications require different grades of 
corn syrup with different sweetening effect. The corn wet millers that 
manufacture corn syrup can and do make most or all the various grades 
of corn syrup.
    There are two grades of HFCS--HFCS 42 and HFCS 55--with the numbers 
referring to the percentage of fructose in the product. HFCS 42 is used 
as a sweetener in jam, jellies, baked goods, canned food, diary 
products, and some beverages. HFCS 55 is used mainly in the soft-drink 
industry as a substitute for sugar.
    There are no realistic substitutes for corn syrup or HFCS to which 
customers could switch in the event of a small, but significant and 
non-transitory price increase. Corn syrup in its various grades. HFCS 
42, and HFCS 55 are each distinct products without practical 
substitutes, differing from all other sweeteners and one another in 
their physical characteristics, means of production, many uses, and 
pricing. Although sugar is functionally interchangeable with corn 
syrup, HFCS 42 and HFCS 55 in many applications, it is significantly 
more expensive.

C. Harm to Competition as a Consequence of the Acquisition

    The markets in the United States and Canada for corn syrup, HFCS 42 
and HFCS 55 are already highly concentrated. ADM competes against only 
four other firms in the manufacture and sale of corn syrup, HFCS 42 and 
HFSCS 55 in the United States or Canada. In these markets, ADM accounts 
for about 10% of all corn syrup manufacturing capacity, 33% of all HFCS 
42 manufacturing capacity, and 25% of all HFCS 55 manufacturing 
capacity. MCP, in its joint venture with CPI, accounts for more than 
20% of all corn syrup manufacturing capacity, more than 15% of all HFCS 
42 manufacturing capacity, and more than 15% of all HFCS 55 
manufacturing capacity.
    If ADM acquires MCP and succeeds to MCP's position in its joint 
venture with CPI, the markets in the United States and Canada for corn 
syrup, HFCS 42 and HFCS 55 will become substantially more concentrated. 
The number of independent competitors will be reduced from five to 
four, increasing the likelihood of anticompetitive coordination among 
the few remaining corn wet millers that manufacture and sell corn syrup 
and HFCS 42 and HFCS 55.

[[Page 67868]]

    Entry by a new competitor would not be timely or likely to prevent 
this harm to competition. Successful entry into the manufacture and 
sale of corn syrup, HFCS 42 and HFCS 55 is difficult time consuming, 
and costly. Construction of an efficient corn wet milling facility 
likely would take more than two years from the time of site selection 
to production of commercial quantities of corn wet milled products.
    As the Complaint alleges, the transaction would likely have the 
following effects, among others: actual competition between the 
defendants in the corn syrup and HFCS markets will be eliminated; 
competition generally in the manufacture and sale of corn syrup and 
HFCS throughout the United States and Canada will lessen substantially; 
the prices for corn syrup and HFCS will increase; and the amounts of 
corn syrup and HFCS produced will decrease.

III. Explanation of the Proposed Final Judgment

    The provisions of the proposed Final Judgment are designed to 
eliminate the anticompetitive effects resulting from ADM's acquisition 
of MCP and succession to MCP's interest in the joint venture with CPI 
and to preserve competition in the manufacture and sale of corn syrup 
and HFCS. The proposed Final Judgment contains three principal forms of 
relief. First, it requires the defendants to dissolve the joint venture 
by December 31, 2002. This relief is intended to ensure that the 
acquisition does not reduce the number of independent competitors in 
the corn syrup and HFCS markets in the United States and Canada. Prior 
to the acquisition, there were five competitors and with the 
dissolution of CPMCP, there will still be five. Second, the proposed 
Final Judgment also requires that, prior to or simultaneously with the 
closing of ADM's acquisition of MCP, the defendants must provide CPI 
written notice of their election to dissolve CPMCP. Upon written notice 
of their election to dissolve CPMCP, the defendants are additionally 
required to provide CPI written notice that CPI is permitted to conduct 
independent operations in competition with the defendants and CPMCP. 
This relief is intended to ensure that, prior to accomplishment of the 
dissolution of CPMCP, CPI is permitted to independently market and sell 
corn syrup and HFCS. Third, the proposed Final Judgment further 
requires the defendants to complete independently of CPMCP and CPI. The 
proposed final Judgment does not affect or alter any obligations of ADM 
and MCP to facilitate or ensure that CPMCP completes the performance of 
any existing contracts or commitments to its customers.
    Thus, the decree will ensure that there are at least five 
independent competitors in the corn syrup and HFCS markets, and will 
preserve and encourage ongoing competition between ADM and CPI.

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 a federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorney's fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), 
the proposed Final Judgment has no prima facie effect in any subsequent 
private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered by the Court after compliance 
with the provisions of the Tunney Act, provided that the United States 
has not withdrawn its consent. The Tunney Act conditions entry upon the 
Court's determination that the proposed Final Judgment is in the public 
interest.
    The Tunney Act provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register. The United States will evaluate and respond to 
the comments. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time prior to entry. The comments 
and the response of the United States will be filed with the Court and 
published in the Federal Register. Written comments should be submitted 
to: Roger W. Fones, Chief, Transportation, Energy & Agriculture 
Section, Antitrust Division, United States Department of Justice, 325 
Seventh Street, NW., Suite 500, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against the defendants. The 
United States is satisfied, however, that the dissolution of the joint 
venture and other relief contained in the proposed Final Judgment will 
preserve competition in the production and sale of corn syrup and HFCS 
and that the proposed Final Judgment would achieve all of the relief 
that the government would have obtained through litigation, but avoids 
the time and expense of trial. The United States is satisfied that the 
proposed relief will prevent the acquisition from having 
anticompetitive effects in this market. The dissolution of the joint 
venture will preserve the existence of five independent competitors, 
thus eliminating the likelihood that the acquisition would have 
facilitated industry coordination.

VII. Standard of Review Under the Tunney Act for Proposed Final 
Judgment

    The Tunney Act requires that proposed consent judgments in 
antitrust cases brought by the United States be subject to a 60-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). As the Court of Appeals for the District of Columbia 
Circuit has held, the Tunney Act permits the 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

[[Page 67869]]

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.'' \2\ Rather,
---------------------------------------------------------------------------

    \2\ 119 Cong. Rec. 24598 (1973); see also United States v. 
Gillette Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public 
interest'' determination can be made properly on the basis of the 
Competitive Impact Statement and Response to Comments filed pursuant 
to the Tunney Act. Although the Tunney Act 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 and 
that further proceedings would aid the court in resolving those 
issues. See H.R. 93-1463, 93d Cong. 2d Sess. 8-9, reprinted i (1974) 
U.S.C.C.A.N. 6535, 6538.

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

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. ] 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

[t]he 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 pubioc 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 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.

Bechtel, 648 F.2d at 666 (citations omitted) (emphasis added).\3\
---------------------------------------------------------------------------

    \3\ See also United States v. BNS, Inc., 858 F.2d at 463; United 
States v. National Broadcasting Co., 449 F. Supp. 1127, 1143 (C.D. 
Cal. 1978); Gillette, 406 F. Supp. at 716; United States v. American 
Cyanamid Co., 719 F.2d 558, 565 (2d Cir. 1983).
---------------------------------------------------------------------------

    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive 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.''' United 
States v. American Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) 
(citations omitted), aff'd sub nom. Maryland v. United States. 460 U.S. 
1001 (1983), quoting Gillette, 406 F. Supp. at 716 \4\
---------------------------------------------------------------------------

    \4\ See also United States v. Alcan Aluminum Ltd., 605 F. Supp. 
619, 622 (w.D. Ky. 1985).
---------------------------------------------------------------------------

    Moreover, the Court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its complaint, and the Act does not authorize the 
Court to ``construct [its] own hypothetical case and then evaluate the 
decree against that case.'' Microsoft, 56 F.3d at 1459. Since ``[t]he 
court's authroity to review the decree depends entirely on the 
government's exercising its prosecurtorial 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. at 1459-60.

VIII. Determinative Documents

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

    Dated: September 13, 2002.

    Respectfully submitted,

    For Plaintiff United States of America:
Michael P. Harmonis,
Pennsylvania Bar No. 17994, Antitrust Division, U.S. Department of 
Justice, 325 7th Street, NW., Suite 500, Washington, DC 20530, 
Telephone: (202) 307-6357. Facsimile: (202) 307-2784.

Certificate of Service

    I hereby certify that on this 13th day of September, 2002. I have 
caused a copy of the foregoing United State's Competitive Impact 
Statement to be served by first class mail, postage prepaid, and by 
facsimile on counsel for defendants in this matter:

David James Smith,
Vice President, Secretary & General Counsel, Archer-Daniels-Midland 
Company, 4666 Faries Parkway, Decatur, IL 62526. Telephone: (217) 424-
6183. Facsimile: (217) 424-6196. Counsel for Defendant Archer-Danbiels-
Midland.

Joseph Bennett,
Secretary and General Counsel, Minnesota Corn Processors, LLC, 901 
North Highway 59, Marshall, MN 56258. Telephone: (507) 537-2674. 
Facsimile: (507) 537-2641. Counsel for Defendant Minnesota Corn 
Processors, LLC.

Michael P. Harmonis,
Pennsylvania State Bar No. 17994, Attorney, Antitrust Division, U.S. 
Department of Justice, 325 Seventh St., NW., Suite 500, Washington, DC 
20530. Telephone: (202) 307-6357. Facsimile: (202) 307-2784.

Certificate of Service

    I hereby certify that on this 13th day of September, 2002, I have 
caused a copy of the foregoing United State's Competitive Impact 
Statement to be served by first class mail, postage prepaid, and by 
facsimile on counsel for defendants in this matter:

David James Smith,
Vice President, Secretary & General Counsel, Archer-Daniels-Midland 
Company, 4666 Faries Parkway, Decatur, IL 62526. Telephone: (217) 424-
6183. Facsimile: (217) 424-6196. Counsel for Defendant Archer-Daniels-
Midland.

Joseph Bennett,
Secretary and General Counsel, Minnesota Corn Processors, LLC, 901 
North Highway 59, Marshall, MN 56258. Telephone: (507) 537-2674. 
Facsimile: (507) 537-2641. Counsel for Defendant Minnesota Corn 
Processors, LLC.

Michael P. Harmonis,
Pennsylvania State Bar No. 17994, Attorney, Antitrust Division, U.S. 
Department of Justice, 325 Seventh St., NW., Suite 500, Washington, DC 
20530. Telephone: (202) 307-6357. Facsimile: (202) 307-2784.
[FR Doc. 02-28333 Filed 11-6-02; 8:45 am]
BILLING CODE 4410-11-M