[Federal Register Volume 69, Number 69 (Friday, April 9, 2004)]
[Notices]
[Pages 18930-18985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7264]


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DEPARTMENT OF JUSTICE

Antitrust Division


Responses to Public Comments on Proposed Final Judgment in United 
States v. Alcan Inc., et al.

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes the public comments 
received on the proposed final Judgment in United States v. Alcan Inc., 
Alcan Aluminum Corp., Pechiney, S.A., Pechiney Rolled Products, LLC, 
No. 1:030 CV 02012-GK, filed in the United States District Court for 
the District of Columbia, together with the government's responses to 
the comments.
    On September 29, 2003, the United States filed a Complaint that 
alleged that Alcan Inc.'s proposed acquisition of Pechiney, S.A., would 
violate Section 7 of the Clayton Act, 15 U.S.C. 18, by substantially 
lessening competition in the sale of brazing sheet in North America. 
The proposed final Judgment, also filed on September 29th, requires the 
defendants to divest Pechiney's brazing sheet business to a purchaser 
acceptable to the United States.
    Public comment was invited within the statutory 60-day comment 
period. The public comments and the United State's responses thereto 
are included within the United States's Certificate of Compliance with 
the Antitrust Procedures and Penalties Act, which appears immediately 
below. After publication of this Certificate of Compliance in the 
Federal Register, the United States may file a motion with the Court, 
urging it to conclude that the proposed Judgment is in the public 
interest and to enter the proposed Judgment. Copies of the Complaint, 
Hold Separate Stipulation and Order, proposed Final Judgment, the 
Competitive Impact Statement, and the United States's Certificate of 
Compliance with the Antitrust Procedures and Penalties Act are 
currently available for inspection in Room 200 of the Antitrust 
Division, Department of Justice, 325 7th Street, NW., Washington, DC 
20530 (telephone: (202) 514-2481) and at the Clerk's Office, United 
States District Court for the District of Columbia, 333 Constitution 
Avenue, NW., Washington, DC 20001. Copies of any of these materials may 
be obtained upon request and payment of a copying fee.

Dorothy B. Fountain,
Deputy Director of Operations, Antitrust Division.
United States of America, Plaintiff, v. Alcan Inc., Alcan Aluminum 
Corp., Pechiney, S.A., and Pechiney Rolled Products, LLC, Defendants.

[Case No. 1:030 CV 02012-GK]

Judge Gladys Kessler
Deck Type: Antitrust

Notice of Filing of the United States's Certificate of Compliance With 
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h)

    Please take notice that the United States has filed its Certificate 
of Compliance with the antitrust Procedures and Penalties Act, 15 
U.S.C. 16(b)-(h) (``Tunney Act''). Following publication in the Federal 
Register of the public comments and the government's responses, the 
United States will move the Court for entry of the pending Final 
Judgment. Dated: March 15, 2004.

 Respectfully submitted,

Anthony E. Harris,

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(IL Bar #1133713), U.S. Department of Justice, antitrust Division, 
1401 H Street, NW., Suite 3000. Washington, DC 20530, Telephone No.: 
(202) 307-6583.

Attorney for the United States

United States's Certificate of Compliance with the Antitrust Procedures 
and Penalties act

    The United States of America hereby certifies that it has complied 
with the provisions of the Antitrust Procedures and Penalties Act, 15 
U.S.C. 16(b)-(h) (``APPA''), and states:
    1. The Complaint, proposed Final Judgment (``Judgment''), and Hold 
Separate Stipulation and Order (``Hold Separate Order''), by which the 
parties have agreed to the Court's entry of the Final Judgment 
following compliance with the APPA, were filed on September 29, 2003. 
The United States filed its Competitive Impact Statement on November 
14, 2003.
    2. Pursuant to 15 U.S.C. 16(b), the proposed Judgment, Hold 
Separate Order, and Competitive Impact Statement were published in the 
Federal Register on December 17, 2003 (68 FR 70287). A copy of the 
Federal Register notice is attached hereto as Exhibit 1.
    3. Pursuant to 15 U.S.C. 16(b), the United States furnished copies 
of the Complaint, Hold Separate Order, proposed Judgment, and 
Competitive impact Statement to anyone requesting them.
    4. Pursuant to 15 U.S.C. 16(c), a summary of the terms of the 
proposed Judgment, Hold Separate Stipulation and Order, and Competitive 
Impact Statement was published in The Washington Post, a newspaper of 
general circulation in the District of Columbia, during a seven-day 
period in December 2003 (December 13th-December 19th). A copy of the 
Proof of Publication from The Washington Post is attached hereto as 
Exhibit 2.
    5. On March 15, 2004, defendants served on the United States, and 
attempted to file with this Court, declarations that describe their 
communications with employees of the United States concerning the 
proposed Judgment, as required by 15 U.S.C. 16(g). See Exhibit 16.
    6. The sixty-day public comment period specified in 15 U.S.C. 16(b) 
began on December 17, 2003, and ended on February 17, 2003. During that 
period, the United States received a total of eleven comments on the 
proposed settlement. The United States evaluated and responded to each 
comment, and has arranged to publish the comments and its responses in 
the Federal Register, pursuant to 15 U.S.C. 16(b) and (d). Copies of 
the comments and the United State's response are attached hereto as 
Exhibits 3 through 15; they are summarized below.

A. Comments From State and Local Government Officials and Labor Leaders 
\1\
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    \1\ The United States received Tunney Act comments from two 
members of the public (Exhibits 12 and 14), whose concerns generally 
echoed those voiced by state and local officials and labor leaders.
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    The United States received four comments from state and local 
government officials, viz., the governor of West Virginia (Exhibits 3 
and 15), the mayors of Ripley and Ravenswood, West Virginia (Exhibits 4 
and 6), and the president of the Jackson County (WV) Development 
Authority (Exhibit 5). The officials represent the interests of 
constituents who are current or retired employees of the Ravenswood 
facility, which comprises the bulk of Pechiney's ``brazing sheet 
business'' subject to divestiture under the terms of proposed Judgment 
(Sec. Sec.  II (E) and IV(A)). The United States also received comments 
from labor leaders, who represent the interests of current and retired 
hourly wage workers (Exhibit 7) and retired salaried employees at the 
Ravenwood facility (Exhibits 8 and 13).\2\
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    \2\ Two individuals sent comments not only to the Department of 
Justice, but also to their Congressional representatives. The United 
States promptly responded to those comments (Exhibits 15 and 13), 
and submitted more expansive replies (Exhibits 3 and 7) after it had 
received and reviewed all other public comments received during the 
sixty-day comment period. The United States also considered and 
responded to another public comment that had been sent to 
Congressional representatives (Exhibit 14), but which was never 
submitted directly to the Department of Justice.
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    These comments raise three broad concerns about the proposed 
Judgment and the scope of the ordered divestiture. First, these 
commenters assert that the proposed Judgment is unnecessary because, in 
their view, Alcan's acquisition of Pechiney would not substantially 
diminish competition. Second, they contend that even if the acquisition 
was unlawful, requiring the parties to sell the Ravenswood facility is 
excessive because brazing sheet accounts for only a fraction of the 
facility's production. And finally, they contended that, by requiring 
defendants to divest the Ravenswood facility, the proposed Judgment 
would jeopardize jobs and retirement benefits of the facility's current 
and retired workers. The commenters reasoned that a purchaser of the 
Ravenswood facility would not be a vigorous and viable competitor--and 
thus, would be significantly more likely to fail--if it does not have 
the technical expertise to develop, produce, and sell brazing sheet and 
other rolled aluminum products and begins its operations saddled with 
the ``legacy costs'' (i.e., retiree pension, life, health care 
insurance benefits) of its former owners, Alcan and Pechiney.
    In its responses, the United States generally explained that the 
appropriate legal standard for assessing the proposed Judgment is 
whether its entry would be in the ``public interest.'' To make that 
determination the Court, inter alia, must carefully review the 
relationship between the relief in the proposed Judgment and the 
allegations of the government's Complaint. A Tunney Act proceeding is 
not an open forum for commenters--or a court--to second-guess the 
United States's exercise of its broad discretion to file a civil 
complaint to enforce the nation's antitrust laws. ``The Tunney Act 
cannot be interpreted as an authorization for a district court to 
assume the role of Attorney General,'' United States v. Microsoft Inc., 
56 F.3d 1448, 1462 (D.C. Cir. 1995). ``[T]he court is only authorized 
to review the decree itself'' and has no authority to ``effectively 
redraft the complaint'' to inquire into matters that the government 
might have but did not pursue, Microsoft Corp., 56 F.3d at 1459-60. In 
the context of a Tunney Act proceeding, a court cannot, as several 
commenters urged, reject the proposed settlement simply because it 
provides relief that is ``not necessary'' or ``to which the government 
might not be strictly entitled,'' United States v. Bechtel Corp., 648 
F.2d 660, 666 (9th Cir. 1981). See United States v. Alex Brown & Sons, 
Inc., 169 F.R.D. 532, 541 (S.D.N.Y. 1996) (purpose of Tunney Act is to 
ascertain whether proposed relief is in public interest, ``not to 
evaluate the strength of the [g]overnment's case''). Thus, the United 
States is not required to prove the allegations of its antitrust 
complaint before the Court can evaluate the appropriateness of the 
parties' agreed-upon relief. Imposing such a requirement on the United 
States would effectively turn every government antitrust case into a 
full-blown trial on the merits of the parties' claims, and seriously 
undermine the effectiveness of antitrust enforcement by use of consent 
decrees. Microsoft Inc., 56 F.3d at 1459; Alex Brown & Sons, Inc., 169 
F.R.D. at 541.
    Applying those legal principles to this case, the Court's entry of 
the proposed Judgment surely would be ``within the reaches'' of the 
public interest (United States v. Bechtel Corp., Inc., 648 F.2d 660, 
666 (9th Cir.), cert. denied, 454 U.S. 1083 (1981)). The proposed

[[Page 18932]]

Judgment would alleviate the serious competitive concerns regarding 
defendants' proposals to combine two of North America's three major 
producers of brazing sheet by requiring defendants promptly to divest 
Pechiney's Ravenswood rolling mill, which produces all of the brazing 
sheet made and sold by Pechiney in North America. The sale of the 
Raveneswood facility to a viable purchaser would create a new 
competitor in brazing sheet, and thus leave competition in the North 
American brazing sheet market no worse off after Alcan's acquisition of 
Pechiney than before it.
    Responding to the argument that the divestiture relief in the 
proposed Judgment is too broad, the United States noted that the 
competitive problems created by Alcan's acquisition of Pechiney could 
not be cured simply by requiring a piecemeal sale or ``partial 
divestiture'' of only those portions of the Ravenswood facility devoted 
to developing, producing, and selling brazing sheets. The commenters 
acknowledged that brazing sheets is produced on the same production 
lines that make many other important rolled aluminum alloy products 
(e.g., common alloy coil, aerospace sheet) at Ravenswood. The United 
States is unaware of any evidence that would warrant a conclusion that 
dismantling the Ravenswood facility to sell off a few parts exclusively 
committed to the production of brazing sheet would produce a viable new 
firm capable of replacing the competition lost by Alcan's acquisition 
of Pechiney. In these circumstances, the proposed Judgment's mandated 
complete divestiture of the Ravenswood facility as an ongoing business 
enterprise is an appropriate means of ensuring the new purchaser's 
long-term competitive in the brazing sheet business. See Federal Trade 
Commission, A Study of the Commission's Divestiture Process 12 (1999) 
(``[D]ivestiture of an ongoing business is more likely to result in a 
viable operation than divestiture of a more narrowly defined package of 
assets and provides support for the common sense conclusion that 
[antitrust enforcement agencies] should prefer the divestiture of an 
ongoing business.'')
    Finally, the United States shares the commenters' keen interest in 
ensuring that the purchaser of the Ravenswood facility is a viable 
competitor capable of long-term survival. Indeed, a lynchpin of the 
proposed decree is its requirement that Pechiney's brazing sheet 
business (including the Ravenswood facility) be divested to a person 
who, in the United States' judgment, is able to successfully operate it 
as an ongoing business enterprise in competition with Alcan and others. 
(See Judgment Sec.  IV(J).) But it is far too early to assume that 
defendants' legacy costs will automatically doom or scare off any 
potential purchaser of the Ravenswood facility, especially since 
defendants' are still negotiating with prospective buyers.\3\ Even if 
defendants are unable to find an acceptable purchaser through their own 
efforts, the proposed Judgment permits the Department of Justice to 
nominate, and the Court to appoint, a trustee to conduct an independent 
search for an acceptable purchaser and sell Pechiney's brazing sheet 
business ``at such price and on such terms as are then obtainable upon 
reasonable effort'' (Judgment Sec. Sec.  V(A) and (B)). In short, there 
is no reason for the Court to conclude, as some commenters have urged, 
that Alcan must retain Pechiney's brazing sheet business (and the 
Ravenswood facility) because defendants'--and if necessary, the 
trustee's--efforts to sell Pechiney's brazing sheet business will not 
produce an acceptable, viable purchaser capable of vigorously competing 
in the development, production, and sale of brazing sheet in North 
America.\4\
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    \3\ In fact, defendants recently notified the United States that 
they soon will request, pursuant to the terms of the Judgment (Sec.  
IV(A)), an extension of the ordered deadline for their efforts to 
find an acceptable purchaser.
    \4\ Obviously, an ``acceptable purchaser'' of Pechiney's brazing 
sheet business would not be a firm so burdened by its former owners' 
legacy costs that it is unviable. See Judgment, Sec.  IV(J): 
divestiture terms must not give defendants ``the ability 
unreasonably to raise the [new firm's] costs, to lower [its] * * * 
efficiency, or otherwise to interfere in * * * [its] ability * * * 
to compete effectively.''
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B. Comments From Customers and Suppliers of the Ravenswood Facility

    The United States also received comments from customers and 
suppliers of the Ravenswood facility (Exhibits 9 through 11). The 
comments emphasized that the Ravenswood facility must be sold to a 
purchaser with the financial, technical, and marketing resources to 
continue operating Pechiney's brazing sheet business (and the 
Ravenswood facility) as part of a competitively vigorous, viable, 
ongoing enterprise. Like the state and government officials, these 
commenters doubted whether a new purchaser could manage that 
responsibility if it is burdened with the legacy costs of the 
Ravenswood facility's former owners, Alcan and Pechiney.
    In response, the United States noted that the ordered divestiture 
should provide the new purchaser with the means to continue 
successfully competing against Alcan and others in the development, 
production, and sale of brazing sheet and other rolled aluminum 
products. For instance, the proposed Judgment requires defendants to 
sell any tangible and intangible assets used in the production and sale 
of brazing sheet, including the entire Ravenswood facility and any 
research, development, or engineering facilities, wherever located, 
used to develop and produce any product--not just brazing sheet--
currently rolled at the Ravenswood facility, including R&D for aluminum 
plate used in military and aerospace applications. (See Judgment 
Sec. Sec.  II(E), IV(J).) As to their contention that there may not be 
an acceptable purchaser, the United States reiterated its view that it 
would be premature to rule out the existence of such a purchaser, since 
neither defendants--nor for that matter, the trustee--have exhausted 
all efforts to find one.
    7. The public comments did not persuade the United States to 
withdraw its consent to entry of the proposed Judgment. At this state, 
with the United States having published its proposed settlement and its 
responses to public comments, and defendants having certified their 
pre-settlement contacts with government officials, the parties have 
fulfilled their obligations under the APPA. Pursuant to the Hold 
Separate Stipulation and Order the Court entered on September 30, 2003, 
and 15 U.S.C. 16(e), this Court may now enter the Final Judgment, if it 
determines that the entry of the Final Judgment is in the public 
interest.
    8. For the reasons set forth in the Competitive Impact Statement 
and its Motion for Entry of Final Judgment, the United States strongly 
believes that the Final Judgment is in the public interest and urges 
the Court to enter the Final Judgment without further proceeding.

Dated: March 15, 2004.

 Respectfully submitted,

Anthony E. Harris (IL Bar 1133713),
Joseph M. Miler (DC Bar 439965),
U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530, (202) 
305-8462.

Attorneys for Plaintiff

Certificate of Service

    I, Anthony E. Harris, hereby certify that on March 15, 2004, I 
caused copies of the foregoing Notice of Filing and United States' 
Certificate of Compliance with the Antitrust Procedures and Penalties 
Act to be served by mail by sending them first-class, postage prepaid, 
to duly authorized legal representatives of those parties, as follows:


[[Page 18933]]



Counsel for Defendants Alcan Inc. and Alcan Aluminum Corp.

D. Stuart Meiklejohn, Esquire, Michael B. Miller, Esquire, Sullivan 
& Cromwell, 125 Broad Street, New York, NY 10004-2498
Peter B. Gronvall, Esquire, Sullivan & Cromwell, 1701 Pennsylvania 
Avenue, NW., Suite 800, Washington, DC 20006

Counsel for Defendants Pechiney, S.A., and Pechiney Rolled Products, 
LLC

W. Dale Collins, Esquire, Shearman & Sterling LLP, 599 Lexington 
Avenue, New York, NY 10022-6069.

Anthony E. Harris,
Esquire, U.S. Department of Justice, Antitrust Division, 1401 H 
Street, NW., Suite 3000, Washington, DC 20530, Telephone No.: (202) 
307-6583.

    Note: Exhibits 1 and 2 are available for inspection in Room 200 
of the Antitrust Division, Department of Justice, 325 7th Street, 
NW., Washington, DC 20530 (telephone: 202-514-2481) and at the 
Clerk's Office, United States District Court for the District of 
Columbia, 333 Constitution Avenue, NW., Washington, DC 20001. Copies 
of these materials may be obtained upon request and payment of a 
copying fee. Exhibit 1 is also available in the December 17, 2003, 
issue of the Federal Register, 68 FR 70287 (2003).

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    Note: Exhibit 3 is available for inspection in Room 200 of the 
Antitrust Division, Department of Justice, 325 7th Street, NW., 
Washington, DC 20530, (telephone: 202-514-2481) and at the Clerk's 
Office, United States District Court for the District of Columbia, 
333 Constitution Avenue, NW., Washington, DC 20001. Copies of these 
materials may be obtained upon request and payment of a copying fee. 
Exhibit 3 is also available on the Antitrust Division's Web site at 
http://

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    Note: Exhibit 15 is available for inspection in Room 200 of the 
Antitrust Division, Department of Justice, 325 7th Street, NW., 
Washington, DC 20530 (telephone: 202-514-2481) and at the Clerk's 
Office, United States District Court for the District of Columbia, 
333 Constitution Avenue, NW., Washington, DC 20001. Copies of these 
materials may be obtained upon request and payment of a copying fee. 
Exhibit 15 is also available on the Antitrust Division's website at 
<http://www.usdoj.gov/atr.cases/f202800/202847.htm htm.

Defendants' Description and Certification of Written or Oral 
Communications Concerning the Proposed Final Judgment in This Action

    Pursuant to Section 2(g) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. 16(g), defendants Alcan, Inc., Alcan Aluminum Corp., 
Pechiney, S.A., and Pechiney Rolled Products, LLC, (``Defendants'') by 
their attorneys, submit the following description and certification of 
all written or oral communications by or on behalf of any of the 
Defendants with any officer or employee of the United States concerning 
or relevant to the proposed Final Judgment filed in this action on 
September 29, 2003. In accordance with Section 2(g), the description 
excludes any communications ``made by counsel of record alone with the 
Attorney General or the employees of the Department of Justice alone.''

Description

    From September 2, 2003 to October 1, 2003, Defendants had numerous 
meetings and telephone conferences with employees of the United States 
concerning a possible settlement; from October 1, 2003 to the present 
date, Defendants have had additional conversations relating to the 
settlement. All of those contacts related to negotiation of a 
settlement in the general form contained in the proposed Final 
Judgment. Listed below are the individuals who participated in one or 
more of the meetings or telephone conferences.

Defendants

David McAusland, Alcan Inc.
Mac Tracy, Alcan Inc.
Martha Brooks, Alcan Inc.
D. Stuart Meiklejohn, Sullivan & Cromwell LLP
Steven Holley, Sullivan & Cromwell LLP
Michael Miller, Sullivan & Cromwell LLP

United States Department of Justice

Deborah Majoras, Antitrust Division
J. Robert Kramer II, Antitrust Division
Maribeth Petrizzi, Antitrust Division
Anthony Harris, Antitrust Division
Joseph Miller, Antitrust Division
Ronald Drennan, Antitrust Division

II. Certification

    Defendants certify that they have complied with the requirements of 
Section 2(g) and that the descirption above of communications by or on 
behalf of Defendants, known to Defendants, of which Defendants 
reasonably should have known, or otherwise required to be reported 
under Section 2(g), is true and complete.
    Dated: March 15, 2004.

 Respectfully submitted,

Sullivan & Cromwell LLP
Peter Gronvall (Bar 475630)
Counsel for Alcan, Inc., Alcan Aluminum Corp., Pechiney, S.A., and 
Pechiney Rolled Products, LLC.

Certificate of Service

    I hereby certify that on this 15 day of March, 2004, I caused a 
true copy of the foregoing Defendants' Description and Certification 
of Written or Oral Communications Concerning the Proposed Final 
Judgement in this Action to be served via messenger to: Anthony E. 
Harris, U.S. Department of Justice, Antitrust Division, Litigation 
II Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530. 
(202) 307-6583.

Attorney for Plaintiff United States of America

    Dated: March 15, 2004.

Peter B. Gronvall (Bar No. 475630),
Sullivan & Cromwell, LLP,
1701 Pennsylvania Avenue NW., Washington, DC 20006-5805, Tel: (202) 
956-7500.

[FR Doc. 04-7264 Filed 4-8-04; 8:45 am]
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