[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Notices]
[Pages 33406-33417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13343]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Alcan, Inc., Alcan Aluminum Corp., Pechiney, 
S.A., and Pechiney Rolled Products, LLC; Complaint, 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 Amended Final 
Judgment, Amended Hold Separate Stipulation and Order, and Revised 
Competitive Impact Statement have been filed with the United States 
District Court for the District of Columbia in United States v. Alcan, 
Inc., Alcan Aluminum Corp., Pechiney, S.A., and Pechiney Rolled 
Products, LLC, No. 1:03 CV 02012 (GK).
    On September 29, 2003, the United States filed a Complaint alleging 
that Alcan's proposed acquisition of Pechiney would violate section 7 
of the Clayton Act, 15 U.S.C. 18, by substantially lessening 
competition in development, production, and sale of brazing sheet in 
North America. Brazing sheet is an aluminum alloy used to make heat 
exchangers (e.g., radiators, heaters, and air conditioners) for motor 
vehicles. The initial proposed Final Judgment, filed along with the 
Complaint, required the defendants to divest Pechiney's brazing sheet 
business to a person acceptable to the United States within 120 days 
after Alcan received notice from the responsible French regulatory 
authority that its tender offer for Pechiney had been successful.
    On May 26, 2004, the parties filed a proposed Amended Final 
Judgment. The Amended Final Judgment requires the defendants to divest 
either Pechiney's or Alcan's brazing sheet business to a person 
acceptable to the United States within 180 days after the filing or 
five days after the Court's entry of the Amended Final Judgment, 
whichever is later. Copies of the Complaint, the proposed Amended Final 
Judgment, Amended Hold Separate Stipulation and Order, and Revised 
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 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 Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division, 
U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington, 
DC 20530 (telephone: (202) 307-0924).

J. Robert Kramer, II,
Director of Operations, Antitrust Division.

United States of America, U.S. Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 3000, Washington, DC 20530, 
Plaintiff, v. Alcan Inc., 1188 Sherbrooke Street West, Montreal, 
Quebec, Canada, H3A 3G2; Alcan Aluminum Corp., 6060 Parkland Boulevard, 
Cleveland, OH 44124-4185; Pechiney, S.A., 7, Place Du Chancelier 
Adenauer, CEDEX 16-75218-Paris, France; and Pechiney Rolled Products, 
LLC, Rural Route 2, Ravenswood, WV 26164-9802, Defendants

[Case No. 1:03CV02012]

Judge: Gladys Kessler
Deck Type: Antitrust
Date: September 29, 2003

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to obtain equitable relief against defendants, and alleges as 
follows:
    1. In early July 2003, Alcan Inc. (``Alcan'') launched a $4.6 
billion tender offer for Pechiney, S.A. (``Pechiney''), which was later 
endorsed by Pechiney's board of directors. The United States seeks to 
enjoin this proposed acquisition, which, if consummated, would result 
in consumers paying higher prices for brazing sheet, an alumimun alloy 
used in making heat exchangers for motor vehicles.
    2. Alcan, through its United States subsidiary (Alcan Aluminum 
Corp.), and Pechiney, through its United States subsidiary (Pechiney 
Rolled Products, LLC), are, respectively, the second and fourth largest 
producers of brazing sheet in North America. Brazing sheet consists of 
a class of layered aluminum alloys, each of which has a unique ability 
to form a uniform, durable, leak-proof bond with other aluminum 
surfaces. Brazing sheet is widely used in fabricating the major 
components of heat exchangers for motor vehicles, including engine 
cooling (e.g., radiators and oil coolers) and climate control (e.g., 
heaters and air conditioners) systems. A combination of Alcan and 
Pechiney would command over 40 percent of brazing sheet sales in North 
America. The combined firm and one other competitor would account for 
over 80 percent of all brazing sheet sold in North America.
    3. The proposed acquisition, if consummated, would combine Alcan, a 
low cost new entrant and price maverick, with Pechiney, a large 
industry incumbent, compromising Alcan's incentive to quickly expand 
its sales by reducing brazing sheet prices, and ending the intense 
competitive rivalry that currently exists between Alcan and Pechiney in 
developing, producing, and selling brazing sheet. This competition, 
which will intensify in the next few years as Alcan completes 
qualifying its brazing sheet with more customers, already has produced 
significant improvements in brazing sheet quality, durability, and 
reliability, and highly competitive prices and terms for this material. 
By reducing the number of major North American producers of brazing 
sheet from four to three, this acquisition would substantially increase 
the likelihood that the combined firm will unilaterally increase, or 
that it and the other major competitor will tacitly or explicitly 
cooperate to increase, prices of brazing sheet to the detriment of 
consumers.
    4. Unless this proposed acquisition is blocked, Alcan's acquisition 
of Pechiney will substantially lessen competition in

[[Page 33407]]

the development, production, and sale of brazing sheet and likely 
result in an increase in prices and a reduction in quality and 
innovation for brazing sheet in violation of section 7 of the Clayton 
Act, as amended, 15 U.S.C. 18.

I. Jurisdiction and Venue

    5. This Complaint is filed by the United States under section 15 of 
the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain 
defendants from violating section 7 of the Clayton Act, 15 U.S.C. 18.
    6. Alcan and Pechiney develop, produce, and sell brazing sheet in 
the flow of interstate commerce. Alcan's and Pechiney's activities in 
developing, producing, and selling brazing sheet substantially affect 
interstate commerce. This Court has jurisdiction over the subject 
matter of this action pursuant to section 12 of the Clayton Act, 15 
U.S.C. 22, and 28 U.S.C. 1331, 1337(a) and 1345.
    7. Alcan, Alcan Aluminum Corp., Pechiney, and Pechiney Rolled 
Products LLP have consented to personal jurisdiction and venue in this 
judicial district.

II. Defendants

    8. Alcan is a Canadian corporation with its headquarters in 
Montreal, Quebec. Alcan Aluminum, and Alcan Subsidiary, is a Delaware 
corporation with its principal place of business in Cleveland, OH. 
Alcan is one of the world's largest fully integrated aluminum 
producers. Alcan mines ore from which primary aluminum is produced, and 
produces a very wide range of rolled aluminum products, including 
brazing sheet. In 2002, Alcan reported sales of about $12.5 billion. 
Alcan projects that its sales of brazing sheet in North America was in 
excess of $30 million in 2003.
    9. Pechiney is a French corporation with its main office in Paris, 
France. A subsidiary, Pechiney Rolled Products, is a Delaware 
corporation with its principal place of business in Ravenswood, WV. 
Pechiney is also a leading integrated aluminum producer that makes a 
wide range of rolled aluminum products. In 2002, Pechiney reported 
total sales of about $11.3 billion. Its United States operations 
generate over $100 million in North American sales of brazing sheet.

III. The Proposed Transaction

    10. In early July 2003, Alcan publicly announced a tender offer for 
shares of Pechiney, a transaction now valued at over $4.6 billion. The 
tender offer, recently endorsed by Pechiney's board of directors, is 
expected to be completed on November 30, 2003, and soon after, Alcan is 
expected to acquire a majority of the voting shares in Pechiney.

IV. Trade and Commerce

A. The Relevant Product Market
    11. Brazing sheet comprises a class of custom-engineered aluminum 
alloys, each of which is composed of a solid metal ``core'' clad on one 
or both sides with an alloy whose melting temperature is lower than 
that of the core material. When brazing sheet is baked at the 
appropriate temperature, the cladding alloy will melt and form a 
durable, uniform leak-proof bond between the core and any adjoining 
aluminum surface, effectively welding the two materials together.
    12. Brazing sheet is ideally suited for fabricating the major 
components of heat exchange systems used in motor vehicles. Heat 
exchangers include engine cooling systems such as radiators and oil 
coolers and climate control systems such as heater cores and air 
conditioning units (i.e., evaporator and condenser cores). By making 
the basic components of heat exchangers with brazing sheet, a parts 
maker can avoid the physically tedious and costly task of welding or 
soldering individual components, many of which have unusually intricate 
surfaces that form joints deep within the heat exchange unit. A parts 
maker instead can loosely assemble the brazed components and bake the 
assembly in a brazing oven. The surfaces of the components will melt, 
converting the entire loose assembly into a solid, leak-proof heat 
exchange unit.
    13. Today, the major components of all heat exchangers used in 
motor vehicles are made of brazing sheet. Less expensive, lighter, more 
durable and formable than materials it replaced, brazing sheet enables 
vehicle makers simultaneously to reduce vehicle cost, size, and weight; 
improve gas mileage; and extend engine, climate control system, and 
drive train life. In heat exchange applications, no other material 
matches the combination of strength, light weight, durability, 
formability, and corrosion resistance of brazing sheet. Because of its 
unique attributes, brazing sheet is the preferred material for making 
heat exchangers for motor vehicles.
    14. A small but significant and nontransitory increase in prices 
for brazing sheet would not cause parts makers to switch to other 
materials for heat exchanger components in volumes sufficient to make 
such a price increase unprofitable and unsustainable. Accordingly, the 
development, production, and sale of brazing sheet is a line of 
commerce and a relevant product market within the meaning of section 7 
of the Clayton Act.
B. The Relevant Geographic Market
    15. Alcan produces brazing sheet in an aluminum hot rolling mill in 
Oswego, NY, and ``slits'' or cuts finished roll stock at a cold rolling 
mill in Fairmont, WV. Pechiney makes brazing sheet in an aluminum hot 
rolling mill in Ravenswood, WV. The only other large competitor 
produces brazing sheet in a hot rolling mill in the United States. A 
much smaller rival produces brazing sheet in hot rolling mills in 
Canada and in Europe. Additional volumes of brazing sheet are exported 
to the United States from Europe. Brazing sheet exports to North 
America, however, account for less than eight percent of total sales. 
The Canadian and foreign firms, moreover, operate at or near their full 
production capacity.
    16. Domestic parts makers prefer to purchase brazing sheet from 
North American sources. Foreign brazing sheet typically costs much more 
than, but does not outperform, brazing sheet produced in North America. 
Reliance on overseas sources for brazing sheet can be especially risky 
for domestic parts makers since foreign brazing sheet is more prone to 
supply interruptions and delays than brazing sheet procured from local, 
North American sources. Typically, when overseas demand has surged, 
foreign producers of brazing sheet have cut shipments to North American 
customers, resulting in production bottlenecks that have jeopardized 
North American parts makers' relationships with their customers.
    17. For these reasons, North American parts makers generally 
restrict purchases of foreign brazing sheet imports to unique 
circumstances, e.g., as an interim measure until one or more domestic 
producers have been qualified to make brazing sheet for use in an auto 
maker's vehicle, or for low volume heat exchanger parts for which a 
foreign auto maker has designed a single foreign supplier as the only 
qualified source for that brazing sheet material.
    18. A small but significant and nontransitory increase in prices 
for brazing sheet in North America would cause parts makers to buy so 
much brazing sheet from sources outside North America that such a price 
increase would be unprofitable and unsustainable. Accordingly, North 
America is a relevant geographic market within the meaning of section 7 
of the Clayton Act.

[[Page 33408]]

C. Anticompetitive Effects
    19. There are only four significant competitors in the sale of 
brazing sheet in North America. Pechiney is the second largest producer 
with over 30 percent of sales; Alcan is the fourth largest with over 10 
percent of sales. After the proposed acquisition, the combined firm and 
the largest U.S. producer of brazing sheet would command over 80 
percent of all brazing sheet sales. Total North American sales of 
brazing sheet exceed $360 million annually.
    20. The brazing sheet market would become substantially more 
concentrated if Alcan acquires Pechiney. Using a measure of market 
concentration called the Herfindahl-Hirschman Index (``HHI'') (defined 
and explained in Appendix A), the post-acquisition HHI would increase 
by at least 600 points, resulting in a post-merger HHI of about 3600, 
well in excess of levels that ordinarily would raise significant 
antitrust concerns.
    21. The proposed transaction would combine Alcan with Pechiney, and 
remove a low cost, aggressive, and disruptive competitor in the North 
American brazing sheet market. Before the announced acquisition, Alcan 
recently had undertaken to significantly increase its sales of brazing 
sheet in North America. In 2001, Alcan moved its brazing sheet 
operations from England to Oswego, NY, then developed new, highly 
proprietary aluminum rolling technology that would make a low cost 
producer of brazing sheet in North America. Alcan also recently has 
completed qualifying to provide brazing sheet to several major domestic 
parts makers.
    22. The proposed transaction will make it more likely that the few 
remaining brazing sheet producers will engage in anticompetitive 
coordination to increase prices, reduce quality and innovation, and 
decrease production of brazing sheet. After the acquisition, the 
combined firm and its largest North American rival would share market 
leadership and a common incentive to pursue strategies that emphasize 
accommodation and do not risk provocation. The acquisition also would 
substantially increase the likelihood that the combined firm will 
unilaterally increase prices of brazing sheet to the detriment of 
customers for whom Pechiney and Alcan are the only firms now qualified 
to provide brazing sheet for those customers' requirements. The other 
competitors in brazing sheet sales in North America do not have the 
incentive or ability, individually or collectively, to effectively 
constrain a unilateral or cooperative exercise of market power after 
the acquisition.
    23. Purchasers of brazing sheet have benefited from competition 
between Alcan and Pechiney through lower prices and improved products. 
Alcan's acquisition of Pechiney would eliminate substantial competition 
and lead to an increase in prices and reduction in innovation and 
quality of brazing sheet.
    24. The proposed transaction, if consummated, would eliminate a 
significant competitor and facilitate unilateral or coordinated 
increases in prices, or a reduction in levels of quality and 
innovation, for brazing sheet.
D. Entry Unlikely To Deter a Post Acquisition Exercise of Market Power
    25. Successful entry into the brazing sheet market would not be 
timely, likely or sufficient to deter any unilateral or coordinated 
exercise of market power as a result of the transaction.
    26. Significant barriers prevent de novo or lateral entry into the 
development, production, and sale of brazing sheet in North America. To 
produce this material, not only must a firm possess an aluminum hot 
rolling mill (which costs at least $80 million to construct), but also 
the technology and expertise to create custom-engineered aluminum 
alloys that perform well in the demanding operating conditions 
prevalent in the small heat exchangers used in motor vehicles. Even 
firms with the physical and technological assets to produce brazing 
sheet must, in order to have a significant impact, ``qualify'' with 
customers, i.e., demonstrate that it would be a reliable producer of 
consistently high quality brazing sheet material. Qualification can be 
acquired only after the new firm has made a substantial investment in 
expensive alloy technology, successfully completed a series of time-
consuming tests of its materials and components, and acquired actual 
experience producing brazing sheet that meets the exacting 
specifications of risk-averse parts makers. It took Alcan over two 
years from when it moved its brazing sheet operations to Oswego, New 
York to qualify with enough customers to make a significant sales 
impact.

V. Violations Alleged

    27. The effect of Alcan's proposed acquisition of Pechiney may be 
to substantially lessen competition and tend to create a monopoly in 
interstate trade and commerce in violation of Section 7 of the Clayton 
Act.
    28. The transaction will likely have the following anticompetitive 
effects, among others:
    a. Competition generally in the development, production, and sale 
of brazing sheet in North America would be substantially lessened;
    b. Actual and potential competition between Alcan and Pechiney in 
the development, production, and sale of brazing sheet in North America 
would be eliminated; and
    c. Prices for brazing sheet sold in North America would likely 
increase and the levels of quality and innovation would likely decline.
    29. Unless prevented, the acquisition of Pechiney by Alcan would 
violate section 7 of the Clayton Act, as amended, 15 U.S.C. 18.

VI. Requested Relief

    30. Plaintiff requests:
    a. That the proposed acquisition of Pechiney by Alcan be adjudged 
and decreed to be unlawful and in violation of section 7 of the Clayton 
Act, as amended, 15 U.S.C. 18;
    b. That defendants and all persons acting on their behalf be 
permanently enjoined and restrained from carrying out any contract, 
agreement, understanding or plan, the effect of which would be to 
combine Pechiney with the operations of Alcan;
    c. That plaintiff recover the costs of this action; and
    d. That plaintiff received such other and further relief as the 
case requires and this Court may deem proper.

    Dated: September 29, 2003.

     Respectfully submitted,

For Plaintiff United States of America
R. Hewitt Pate, Assistant Attorney General, DC Bar 473598.
Deborah P. Majoras, Deputy Assistant Attorney General, DC Bar 
474239.
J. Robert Kramer II, Director of Operations & Civil Enforcement, PA 
Bar 23963.
Maribeth Petrizzi, Chief, Litigation II Section, DC Bar 
435204.
Anthony E. Harris, IL Bar 1133713.
Joseph M. Miller, DC Bar  439965.
Carolyn L. Davis.
John B. Arnett, Sr., DC Bar 439122.

Trial Attorneys, U.S. Department of Justice, Antitrust Division, 
Litigation II Section, 1401 H Street, NW., Suite 3000, Washington, 
DC 20530, Telephone: (202) 307-6583.

Appendix A-- Herfindahl-Hirschman Index Calculations

    ``HHI'' means the Herfindahl-Hirschman Index, a commonly 
accepted measure of market concentration. It is calculated by 
squaring the market share of each firm competing in the market and 
then summing the resulting numbers. For example, for a market 
consisting of four firms with shares of thirty, thirty, twenty, and 
twenty percent, the HHI is 2600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 
2600). The HHI takes into account the relative size and distribution 
of the firms in a market and

[[Page 33409]]

approaches zero when a market consists of a large number of firms of 
relatively equal size. The HHI increases both as the number of firms 
in the market decreases and as the disparity in size between those 
firms increases.
    Markets in which the HHI is between 1000 and 1800 points are 
considered to be moderately concentrated, and those in which the HHI 
is in excess of 1800 points are considered to be highly 
concentrated. Transactions that increase the HHI by more than 100 
points in highly concentrated markets presumptively raise antitrust 
concerns under the Horizontal Merger Guidelines issued by the U.S. 
Department of Justice and the Federal Trade Commission. See Merger 
Guidelines Sec.  1.51.

Amended Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on September 29, 2003, and plaintiff and defendants, Alcan Inc., Alcan 
Aluminum Corp., Pechiney, S.A., and Pechiney Rolled Products, LLC, by 
their respective attorney, have consented to the entry of this Amended 
Final Judgment without trial or adjudication of any issue of fact or 
law, and without this Amended 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 
Amended Final Judgment pending its approval by the Court;
    And whereas, the essence of this Amended 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 or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is Ordered, Adjudged and Decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against defendants under Section 7 of the Clayton 
Act, as amended, 15 U.S.C. 18.

II. Definitions

    As used in this Amended Final Judgment:
    A. ``Acquirer'' means the entity or entities to whom defendants 
divest Alcan's or Pechiney's Brazing Sheet Business.
    B. ``Alcan'' means defendant Alcan Inc., a Canadian corporation 
with its headquarters in Montreal, Canada, its successors and assigns, 
and its subsidiaries (including defendant Alcan Aluminum Corp.), 
divisions, groups, affiliates, partnerships, joint ventures, and their 
directors, officers, managers, agents, and employees.
    C. ``Pechiney'' means Pechiney, S.A., a French corporation with its 
headquarters in Paris, France, and its successors and assigns, its 
subsidiaries, divisions (including Pechiney Rolled Products, LLC), 
groups, affiliates, partnerships, joint ventures, and their directors, 
officers, managers, agents, and employees.
    D. ``Brazing sheet'' means a layered aluminum alloy that consists 
of a core clad on one or both sides with an aluminum alloy whose 
melting temperature is lower than that of the core material. Brazing 
sheet is used primarily in making components of heat exchange systems 
(e.g., radiators, oil coolers, and air conditioning units) for motor 
vehicles.
    E. ``Pechiney's Brazing Sheet Business'' means all assets, 
interests, and rights in Pechiney Rolled Products, LLC's aluminum 
products rolling mill located in or near Ravenswood, West Virginia 
26164 (``Ravenswood Facility''), including:
    1. All tangible assets of the Ravenswood Facility and the real 
property on which the Ravenswood Facility is situated; any facilities, 
wherever located, used for research, development, and engineering 
support for the Ravenswood Facility (``the Ravenswood Engineering 
Facilities''), and any real property associated with those facilities; 
manufacturing and sales assets relating to the Ravenswood Facility and 
to the Ravenswood Engineering Facilities, including capital equipment, 
vehicles, supplies, personal property, inventory, office furniture, 
fixed assets and fixtures, materials, on- or off-site warehouses or 
storage facilities, and other tangible property or improvements; all 
licenses, permits and authorizations issued by any governmental 
organization relating to the Ravenswood Facility and to the Ravenswood 
Engineering Facilities; all contracts, agreements, leases, commitments, 
and understandings pertaining to the operations of the Ravenswood 
Facility and to the Ravenswood Engineering Facilities; supply 
agreements; all customer lists, accounts, and credit records; and other 
records maintained by Pechiney Rolled Products, LLC in connection with 
the operations of the Ranvenswood Facility and of the Ravenswood 
Engineering Facilities;
    2. All intangible assets, including but not limited to all patents, 
licenses and sublicenses, intellectual property, trademarks, trade 
names, service marks, service names (except to the extent such 
trademarks, trade names, service marks, or service names contain the 
trademark or names ``Pechiney'' or any variation thereof), technical 
information, know-how, trade secrets, drawings, blueprints, designs, 
design protocols, specifications for materials, specifications for 
parts and devices, safety procedures for the handling of materials and 
substances, quality assurance and control procedures, design tools and 
simulation capability, and all manuals and technical information 
Pechiney Rolled Products, LLC provides to its employees, customers, 
suppliers, agents or licensees in connection with the operations of the 
Ravenswood Facility; provided, however, that defendants may, if 
approved by the United States in its sole discretion, require the 
Acquirer to license defendants to make, have made, use, or sell outside 
of North America any Pechiney product or process made by or used in 
connection with the Ravenswood Facility; and
    3. All research data concerning historic and current research and 
development efforts relating to the operations of the Ravenswood 
Facility and of the Ravenswood Engineering Facilities, including 
designs of experiments, and the results of unsuccessful designs and 
experiments.
    F. ``Alcan's Brazing Sheet Business'' means all assets, interest, 
and rights in Alcan Aluminum Corp.'s aluminum smelting facility and 
rolling mill located in or near Oswego, New York 13126 (``Oswego 
Facility''), including:
    1. All tangible assets of the Oswego Facility and the real property 
on which the Oswego Facility is situated; any facilities, wherever 
located, used for research, development, and engineering support for 
the Oswego Facility (``the Oswego Engineering Facilities''), and any 
real property associated with those facilities; manufacturing and sales 
assets relating to the Oswego Facility and to the Oswego Engineering 
Facilities (such as Alcan's aluminum cold rolling, cutting, and 
slitting facility in Fairmont, West Virginia 26554), including capital 
equipment, vehicles, supplies, personal property, inventory, office 
furniture,

[[Page 33410]]

fixed assets and fixtures, materials, on- or off-site warehouses or 
storage facilities, and other tangible property or improvements; all 
licenses, permits and authorizations issued by any governmental 
organization relating to the Oswego Facility and to the Oswego 
Engineering Facilities; all contracts, agreements, leases, commitments, 
and understandings pertaining to the operations of the Oswego Facility 
and to the Oswego Engineering Facilities; supply agreements; all 
customer lists, accounts, and credit records; and other records 
maintained by Alcan in connection with the operations of the Oswego 
Facility and of the Oswego Engineering Facilities;
    2. All intangible assets, including but not limited to all patents, 
licenses and sublicenses, intellectual property, trademaks, trade 
names, service marks, service names (except to the extent such 
trademarks, trade names, service marks, or service names contain the 
trademark or names ``Alcan'' or any variation thereof), technical 
information, know-how, trade secrets, drawings, blueprints, designs, 
design protocols, specifications for materials, specifications for 
parts and devices, safety procedures for the handling of materials and 
substances, quality assurance and control procedures, design tools and 
simulation capability, and all manuals and technical information Alcan 
provides to its employees, customers, suppliers, agents or licensees in 
connection with the operations of the Oswego Facility; provided, 
however, that defendants may, if approved by the United States in its 
sole discretion, require the Acquirer to license defendants to make, 
have made, use, or sell outside of North America any Alcan product or 
process made by or used in connection with the Oswego Facility; and
    3. All research data concerning historic and current research and 
development efforts relating to the operations of the Oswego Facility 
and of the Oswego Engineering Facilities, including designs of 
experiments, and the results of unsuccessful designs and experiments.

III Applicability

    A. This Amended Final Judgment applies to Alcan and Pechiney, as 
defined above, and all other persons in active concert or participation 
with any of them who receive actual notice of this Amended Final 
Judgment by personal service or otherwise.
    B. Defendants shall require, as a condition of the sale or other 
disposition of all or substantially all of their assets or of lesser 
business units that include Alcan's or Pechiney's Brazing Sheet 
Business, that the purchaser agrees to be bound by the provisions of 
this Amended 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 eighty 
(180) calendar days after the date of filing of this Amended Final 
Judgment, or five (5) days after notice of the entry of this Amended 
Final Judgment by the Court, whichever is later, to divest Alcan's or 
Pechiney's Brazing Sheet Business in a manner consistent with this 
Amended Final Judgment to an Acquirer acceptable to the United States 
in its sole discretion. The United States, in its sole discretion, may 
agree to one or more extensions of this time period, not to exceed in 
total sixty (60) calendar days, and shall notify the Court in each such 
circumstance. Defendants agree to use their best efforts to divest 
Alcan's or Pechiney's Brazing Sheet Business as expeditiously as 
possible.
    B. In accomplishing the divestiture ordered by this Amended Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability of Alcan's or Pechiney's Brazing Sheet 
Business, whichever is then available for sale. Defendants shall inform 
any person making inquiry regarding a possible purchase of Alcan's 
Pechiney's Brazing Sheet Business that either will be divested pursuant 
to this Amended Final Judgment and provide that person with a copy of 
this Amended Final Judgment. Defendants shall offer to furnish to all 
prospective Acquires, subject to customary confidentiality assurances, 
all information and documents relating to Alcan's or Pechiney's Brazing 
Sheet 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 such information is made available to any other 
person.
    C. Defendants shall provide prospective Acquirers of Alcan's or 
Pechiney's Brazing Sheet Business and the United States information 
relating to the personnel involved in the production, operation, 
development, and sale of Alcan's or Pechiney's Brazing Sheet 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 of the defendants' employees 
whose responsibilities includes the production, operation, development, 
or sale of the products of Alcan's or Pechiney's Brazing Sheet 
Business.
    D. Defendants shall permit prospective Acquirers of Alcan's or 
Pechiney's Brazing Sheet Business to have reasonable access to 
personnel and to make inspections of the physical facilities of Alcan's 
or Pechiney's Brazing Sheet Business (whichever is then available for 
sale); access to any and all environmental, zoning, and other permit 
document 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 Alcan's or 
Pechiney's Brazing Sheet Business that each asset that was operational 
as of the date of filing of the Complaint in this matter will be 
operational on the date of divestiture.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of Alcan's or Pechiney's 
Brazing Sheet Business.
    G. Defendants shall not take any action, direct or indirect, that 
would prevent or discourage in any way any dealer from distributing the 
products of Alcan's or Pechiney's Brazing Sheet Business 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 those of Alcan's 
or Pechiney's Brazing Sheet Business.
    H. Defendants shall warrant to the Acquirer of Alcan's or 
Pechiney's Brazing Sheet Business that there are not material defects 
in the environmental, zoning, or other permits pertaining to the 
operation of Alcan's or Pechiney's Brazing Sheet Business, and that 
following the sale of Alcan's or Pechiney's Brazing Sheet Business, 
defendants will not undertake, directly or indirectly, any challenges 
to the environmental, zoning, or other permits relating to the 
operation of Alcan's or Pechiney's Brazing Sheet Business.
    I. Nothing in this Amended Final Judgment shall be construed to 
require the Acquirer as a condition of any license granted by or to 
defendants pursuant Sections II(E) and IV (or Sections II(F) and IV) to 
extend to defendants the right to use the Acquirer's improvements to 
any of Alcan's or Pechiney's Brazing Sheet Business.

[[Page 33411]]

    J. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, or by trustee appointed pursuant to 
Section V, of this Amended Final Judgment, shall include the entire 
Alcan's or Pechiney's Brazing Sheet Business, and shall be accomplished 
in such a way as to satisfy the United States, in its sole discretion, 
that Alcan's or Pechiney's Brazing Sheet Business can and will be used 
by the Acquirer as part of a viable, ongoing business, engaged in 
developing, manufacturing, and selling brazing sheet in North America. 
Divestiture of Alcan's or Pechiney's Brazing Sheet Business may be made 
to an Acquirer, provided that it is demonstrated to the sole 
satisfaction of the United States that the divested brazing sheet 
business will remain viable and that divestiture of such assets will 
remedy the competitive harm alleged in the Complaint. The divestiture, 
whether pursuant to Section IV or Section V of this Amended 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 development, manufacture, and sale of 
brazing sheet 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 To Effect Divestiture

    A. If defendants have not divested Alcan's or Pechiney's Brazing 
Sheet 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 Pechiney's Brazing Sheet Business.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell Pechiney's Brazing Sheet 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 Amended Final Judgment, and shall have such other powers as this 
Court deems appropriate. Subject to Section V(D) of this Amended 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 Pechiney's Brazing Sheet 
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 Pechiney's Brazing Sheet 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. Defendant shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accounts, 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 for the the trustee's 
efforts to accomplish the divestiture ordered under this Amended 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 Pechiney's Brazing Sheet 
Business and shall describe in detail each contact with any such 
person. The trustee shall maintain full records of all efforts made to 
divest Pechiney's Brazing Sheet 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 Amended Final Judgment, 
which may, if necessary, include, without limitation, 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 Amended 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 Alcan's or Pechiney's Brazing Sheet 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

[[Page 33412]]

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(C) of 
this Amended Final Judgment. Absent written notice that the United 
States does not object to the proposed Acquirer or upon objection by 
the United States, a divestiture proposed under Section IV or Section V 
shall not be consummated. Upon objection by defendants under Section 
V(C), a divestiture proposed under Section V shall not be consummated 
unless approved by the Court.

VII. Financing

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

VIII. Hold Separate

    Until the divestiture required by this Amended Final Judgment has 
been accomplished defendants shall take all steps necessary to comply 
with the Amended 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 Amended 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 Alcan's or Pechiney's Brazing Sheet 
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 
Alcan's or Pechiney's Brazing Sheet Business, 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 IX of this Amended 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 Alcan's or Pechiney's Brazing Sheet Business and to divest 
Alcan's or Pechiney's Brazing Sheet Business until one year after such 
divestiture has been completed.

X. Compliance Inspection

    A. For purposes of determining or securing compliance with this 
Amended Final Judgment, or of determining whether the Amended 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 plaintiffs 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 Amended 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 Amended 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 Amended Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and defendants mark each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendants may not reacquire any part of Alcan's or Pechiney's 
Brazing Sheet Business, whichever is divested, during the term of this 
Amended Final Judgment.

XII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Amended 
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 Amended Final Judgment, to modify any of its provisions, 
to enforce compliance, and to punish violations of its provision.

XIII. Expiration of Amended Final Judgment

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

[[Page 33413]]

XIV. Public Interest Determination

    Entry of this Amended 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

Revised Competitive Impact Statement

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

I. Nature and Purpose of This Proceeding

A. The Compliant and the Initial Proposed Final Judgment
    In early July 2003, Alcan Inc. (``Alcan'') publicly announced that 
it would soon begin a tender offer for shares of Pechiney, S.A. 
(``Pechiney''), a transaction formally endorsed by Pechiney's board of 
directors on August 30, 2003. On September 29, 2003, the United States 
filed a civil antitrust suit alleging that Alcan's proposed acquisition 
of Pechiney would violate section 7 of the Clayton Act, 15 U.S.C. 18. 
The Compliant alleged that a combination of Alcan and Pechiney would 
substantially lessen competition in the development, production, and 
sale of brazing sheet in North America. Pechiney and Alcan are, 
respectively, the second and fourth largest competitors in the sale of 
brazing sheet in North America. The acquisition would result in a 
single firm--Alcan--with a market share of over 40 percent, and the 
industry's two largest firms having a combined share of over 80 
percent, of North American sales of brazing sheet. The Compliant 
alleged that the attendant reduction in competition in that highly 
concentrated market would lead to an increase in brazing sheet prices 
and a reduction in product quality and innovation to the detriment of 
North American consumers. Accordingly, the prayer for relief in the 
Compliant sought: (1) A judgment that the proposed acquisition would 
violate section 7 of the Clayton Act, and (2) a permanent injunction 
that would prevent Alcan from acquiring control of, or otherwise 
combining its assets with, Pechiney.
    At the same time the Compliant was filed, the United States filed a 
proposed settlement that would allow Alcan to acquire Pechiney, but 
require defendants to divest Pechiney's entire North American brazing 
sheet business in such a way as to preserve competition in North 
America. According to the terms of the settlement, defendants were 
required to divest Pechiney's brazing sheet business\1\ to a person 
acceptable to the United States, in its sole discretion, within 120 
calendar days after Alcan receives preliminary notification from the 
responsible French stock market regulatory agency that Alcan's tender 
offer for shares of Pechiney has been successful, or within five (5) 
days after notice of entry of the Final Judgment, whichever was later. 
The United States, in its sole discretion, could extend the time period 
for the divesture one or more times, not to exceed a total of 60 days 
past the initial divestiture deadline. If defendants did not complete 
the ordered divestiture within the prescribed time period, then the 
United States could nominate, and the Court would appoint, a trustee 
with sole authority to divest Pechiney's brazing sheet business.
---------------------------------------------------------------------------

    \1\ Pechiney's brazing sheet business, as defined in section 
II(E) of the proposed Final Judgment (and Amended Final Judgment), 
includes all tangible and intangible assets of Pechiney's 
Ravenswood, West Virginia, aluminum rolling mill and the engineering 
facilities, wherever located, that provide research and development 
support for any product produced at the Ravenswood plant.
---------------------------------------------------------------------------

    In accordance with the Tunney Act, the United States published the 
proposed settlement, the public comments, and the government's 
responses in the Federal Register. See 68 FR 70287 (Dec. 17, 2003) and 
69 FR 18930 (April 6, 2004).
B. The Amended Final Judgment
    In early March 2004, defendants indicated that, for many reasons, 
their divestiture of Pechiney's brazing sheet business would take 
significantly more time than they had initially anticipated. They also 
disclosed that they were seriously considering a major corporate 
reorganization, which would likely result in a sale or spin off of many 
of defendants' aluminum rolling operations--including Alcan's own 
brazing sheet business \2\--to a separate, independent, and viable new 
entity.\3\ Defendants asked, and the United States later agreed, to 
amend the pending Final Judgment in such a way as to accommodate this 
business development, without compromising its paramount objective of 
vigorous competition in the sale of brazing sheet in North America.\4\
---------------------------------------------------------------------------

    \2\ Alcan's brazing sheet business consists of two aluminum 
rolling mills, which are located in Oswego, New York, and Fairmount, 
West Virginia. See Amended Final Judgment, Sec.  II (F).
    \3\ The government understands that the reorganization was 
driven by business reasons unrelated to the ordered divestiture of 
Pechiney's brazing sheet business. To alleviate the European 
Community's competitive concerns about Alcan's acquisition of 
Pechiney, defendants previously had agreed, inter alia, to divest 
their interests in a massive aluminum smelter and aluminum hot 
rolling mill complex in Europe. Also, before acquiring Pechiney, 
Alcan had considered selling or otherwise disposing of its aluminum 
manufacturing facilities that make relatively low margin products 
(e.g., can stock), and focusing instead on production of higher 
margin products such as packaging materials and specialty metals. 
The United States understands that defendants believe they can meet 
both objectives by combining the European assets that the EC had 
ordered divested with Alcan's own Aluminum Rolled Products Division 
to create a new stand-alone firm, which would then be sold to an 
interested purchaser or spun off to defendants' own stockholders, in 
a transaction that would satisfy the divestiture requirements of the 
Amended Final Judgment.
    \4\ On April 22, the parties notified the Court that they were 
seriously considering amending the initial settlement, and they 
asked the Court to refrain hearing or ruling on the proposed 
Judgment and a pending motion to intervene until after June 1, 2004. 
The Court subsequently entered a stipulated order to that effect on 
April 26, 2004.
---------------------------------------------------------------------------

    The new settlement consists of an Amended Final Judgment and an 
Amended Hold Separate Stipulation and Order. The Amended Final Judgment 
would preserve competition in the sale of brazing sheet in North 
America by requiring defendants to divest either Alcan's or Penchiney's 
brazing sheet business to a person acceptable to the United States, in 
its sole discretion, within 180 calendar days after filing of the 
proposed Amended Final Judgment, or the Court's entry of the Amended 
Final Judgment, which is later. Because the Amended Final Judgment 
permits a divestiture option that the parties did not mention or 
contemplate in the initial settlement, interested persons should be 
provided notice of, and an opportunity to comment upon, the Amended 
Final Judgment. Accordingly, the parties have stipulated that the 
proposed Amended Final Judgment may be entered by the Court after 
compliance with the Tunney Act. Entry of the proposed Amended Final 
Judgment would terminate this action, except that the Court would 
retain jurisdiction to construe, modify, or enforce the provisions of 
the proposed Amended 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
    Alcan is a Canadian corporation based in Montreal, Quebec. One of 
the world's largest fully integrated aluminum

[[Page 33414]]

producers, Alcan produces primary aluminum ingot and a wide range of 
rolled aluminum products, including brazing sheet. Its annual revenues 
exceed $12.5 billion, including over $30 million in North American 
sales of brazing sheet. This business operation is managed by a 
domestic subsidiary of Alcan, Alcan Aluminum Corporation.
    Pechiney is a French corporation based in Paris, France. Pechiney 
is also a major fully integrated aluminum producer, with annual 
revenues exceeding $11.3 billion. Its U.S. subsidiary, Pechiney Rolled 
Products, LLC, produces a wide variety of rolled aluminum products 
(including brazing sheet) in an aluminum rolling mill in Ravenswood, 
West Virginia. Pechiney's total North American sales of brazing sheet 
exceed $100 million annually.
    Alcan launched a tender offer for shares of Pechiney, a transaction 
valued at over $4.6 billion. The tender offer, publicly announced in 
early July 2003 and approved in August by Pechiney's board of 
directors, was expected to be completed in early December 2003. At the 
time of the tender offer, Alcan's acquisition of Pechiney would have 
combined, respectively, the fourth and second largest competitors in 
the sale of brazing sheet in North America, and substantially lessened 
competition in this already highly concentrated market.
    The acquisition would have combined Alcan, a low-cost new entrant 
and pricing maverick, with Pechiney, a large industry incumbent. The 
deal would have eliminated Alcan's incentive to expand its sales 
quickly by reducing its brazing sheet prices and increase its sales at 
the expense of larger rivals such as Pechiney, and end the current 
intense competitive rivalry in developing, producing, and selling 
brazing sheet in North America. This competition, which promised to 
intensify in the next few years as Alcan completed qualifying its 
brazing sheet for more applications with other North American 
customers, had already produced significant improvements in brazing 
sheet quality, durability, and reliability, and highly competitive 
prices and contractual terms for this material. The transaction would 
have reduced the number of significant competitors in the sale of 
brazing sheet in North America from four to three, and substantially 
increased the prospect of future tacit or explicit post-merger 
coordination between these firms to increase prices of brazing sheet to 
the detriment of consumers. Other North American competitors in the 
sale of brazing sheet had neither the production capacity nor 
competitive incentive, individually or collectively, to discipline a 
small but significant post-merger unilateral or cooperative price 
increase in brazing sheet.
B. The Effects of the Transaction on Competition in the Sale of Brazing 
Sheet
    1. Relevant market: the sale of brazing sheet in North America.
    The Complaint alleges that development, production, and sale of 
brazing sheet is a relevant product market within the meaning of 
section 7 of the Clayton Act. Brazing sheet describes a class of 
custom-engineered aluminum alloys made of a solid metal core clad on 
one or both sides with an alloy whose melting temperature is lower than 
that of the core material. When heated to the appropriate temperature, 
the cladding alloy melts and forms a durable, uniform leak-proof bond 
between the core and any adjoining aluminum surface, effectively 
welding the two materials together. Brazing sheet is ideally suited, 
and virtually all of it is used, for fabricating the major components 
of heat exchange systems for motor vehicles. These heat exchangers 
include engine cooling systems, such as radiators and oil coolers, and 
climate control systems, such as heater cores and air conditioning 
units (i.e., evaporator and condenser cores).
    By constructing the basic components of motor vehicle heat 
exchangers with brazing sheet, a parts maker can avoid the tedious and 
costly task of welding and soldering individual components, many of 
which have unusually intricate surfaces that form joints deep within 
the heat exchange unit. A parts maker can instead loosely assemble 
brazed components and bake the entire assembly in a brazing oven. The 
surfaces of the components will melt, converting the assembly into a 
solid, leak-proof heat exchange unit.
    The major components of all heat exchangers used in motor vehicles 
are made of brazing sheet, a material that enables vehicle makers 
simultaneously to reduce vehicle cost, size, and weight; improve gas 
mileage; and extend engine, climate control system, and drive train 
life. In heat exchange applications, no other material can match the 
combination of low cost, strength, light weight, durability, 
formability, and corrosion resistance provided by brazing sheet.
    A small but significant and nontransitory increase in prices for 
brazing sheet would be profitable and sustainable because it would not 
cause parts makers to begin using significant amounts of other 
materials to make heat exchangers for motor vehicles. The development, 
production, and sale of brazing sheet is a line of commerce and a 
relevant product market within the meaning of section 7 of the Clayton 
Act.\5\
---------------------------------------------------------------------------

    \5\ Brazing sheet is designed for and sold to motor vehicle 
parts makers (and others) on an application-specific basis. Thus, it 
may be possible to delineate relevant markets smaller than the ``all 
brazing sheet'' market alleged in the Complaint. A producer of 
brazing sheet for use in one type of heat exchange component, 
however, generally has the ability to make and market brazing sheet 
suitable for use in producing the other types of components for heat 
exchange units. According to the Merger Guidelines, if such 
production substitutability is ``nearly universal'' among the firms 
that make and sell brazing sheet, then it is appropriate, as a 
matter of convenience, to describe the relevant product markets as 
``all brazing sheet.'' See Horizontal Merger Guidelines, n. 14 (1997 
rev.)
---------------------------------------------------------------------------

    The Complaint alleges that the sale of brazing sheet in North 
America is a relevant geographic market within the meaning of section 7 
of the Clayton Act. Over ninety percent of brazing sheet sold in North 
America is produced by firms located in either the United States or 
Canada. Some customers import brazing sheet into North America from 
overseas sources. Foreign brazing sheet, however, is significantly more 
expensive and more prone to unpredictable and costly delivery delays 
than brazing sheet produced in North America. North American customers 
are reluctant to rely on it for general production requirements. A 
small but significant and nontransitory increase in prices of brazing 
sheet sold in North America would be profitable and sustainable because 
it would not be undermined by increased customer imports of brazing 
sheet from overseas sources. North America is a relevant geographic 
market in which to assess the competitive effects of Alcan's proposed 
acquisition of Pechiney on sales of brazing sheet.
    2. Anticompetitive effects of the acquisition.
    The Complaint alleges that in this highly concentrated market for 
brazing sheet, a combination of Alcan and Pechiney likely would: (i) 
Substantially lessen competition in the development, production, and 
sale of brazing sheet in North America; (ii) eliminate actual and 
potential competition between Alcan's and Pechiney's brazing sheet 
businesses; and (iii) increase prices and reduce current levels of 
quality and innovation for brazing sheet in North America.
    Specifically, the Complaint alleges that Pechiney and Alcan are, 
respectively, the second and fourth largest producers of brazing sheet 
in North America. The combined firm and one other producer command over 
80 percent of brazing sheet sales in North America. Two smaller firms 
also sell

[[Page 33415]]

brazing sheet in North America. However, these small firms do not have 
sufficient excess production capacity or capability to attract 
significant sales away from the larger market incumbents, and thereby 
effectively constrain a post-merger exercise of market power by those 
firms.
    Alcan's acquisition of Pechiney is likely to diminish competition 
substantially. First, the remaining competitors would be more likely to 
successfully engage in tacit or explicit coordinated pricing to the 
detriment of consumers, because they would not need to worry about the 
loss of sales to Alcan, currently a small, ``hungry,'' low-cost new 
entrant. Second, Alcan could unilaterally increase its prices for 
brazing sheet for which it and Pechiney are the only qualified 
suppliers.
    New entry into the development, production, and sale of brazing 
sheet in North America is difficult. To produce brazing sheet, a firm 
must have an aluminum hot rolling mill (which costs at least $80 
million and takes at least three years to construct). Even after 
acquiring an aluminum hot rolling mill, a new firm can begin selling 
brazing sheet to customers only after it had made an additional 
substantial investment in developing and mastering alloy-making 
technology, successfully ``qualified'' its products with prospective 
customers by completing a series of time-consuming tests of brazing 
sheet materials and sample heat exchange components, and finally, 
acquired some actual experience producing brazing sheet that meets the 
exacting specifications of risk-averse parts makers.\6\ Those so-called 
``sunk'' entry costs \7\ are very large relative to the size of the 
North American market for brazing sheet, and there is a very high risk 
that a new entrant may not receive any profits from its entry. In these 
circumstances, it is unlikely that, after a combination of Alcan and 
Pechiney, new entry into the brazing sheet market in North America 
would occur so rapidly and be of such magnitude that it would 
effectively constrain a cooperative or unilateral post-merger exercise 
of market power by incumbent products of brazing sheet.
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    \6 \ It took Alcan over two years from when it moved its brazing 
sheet operations to Oswego, New York, to qualify with enough 
customers to make a significant sales impact.
    \7\ 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 that were uniquely incurred to enter 
the production and sale of brazing sheet in North America and cannot 
be recovered upon exit from that industry.
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III. Explanation of the Proposed Amended Final Judgment

    The proposed Amended Final Judgment will preserve competition in 
the sale of brazing sheet in North America by requiring defendants to 
sell either Alcan's or Pechiney's brazing sheet business to an acquirer 
acceptable to the United States within 180 calendar days after the 
filing of the Amended Final Judgment or within five (5) days after 
notice of entry of the Amended Final Judgment, whichever is later. The 
United States may extend this time period for divestiture one or more 
times, for a total time not to exceed 60 days. Defendants must use 
their best efforts to divest either Alcan's or Pechiney's brazing sheet 
business as expeditiously as possible, and until the ordered 
divestiture takes place, defendants must cooperate with any prospective 
purchasers of whichever business is then available for sale.
    If defendants do not accomplish the ordered divestiture within the 
prescribed time period, the United States will nominate, and the Court 
will appoint, a trustee to assume sole power and authority to divest 
Pechiney's brazing sheet business. Defendants must cooperate fully with 
the trustee's efforts to divest Pechiney's brazing sheet business to an 
acquirer acceptable to the United States and periodically report to the 
United States on their divestiture efforts.
    If a trustee is appointed, 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, without 
limitation, 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 Amended Final Judgment will 
neither impair nor assist the bringing of any private antitrust damage 
action. Under the provisions of section 5(a) of the Clayton Act, 15 
U.S.C. 16(a), the proposed Amended 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 Amended Final 
Judgment

    The parties have stipulated that the proposed Amended 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 of the decree 
upon the Court's determination that the proposed Amended 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 Amended Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Amended 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 Amended 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: Maribeth Petrizzi, Esquire, Chief, 
Litigation II Section, Antitrust Division, United States Department of 
Justice, 1401 H Street, NW., Suite 3000, Washington, DC 20530.
    The proposed Amended 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 Amended Final Judgment.

VI. Alternatives to the Proposed Settlement

A. Alternatives to the Initial Proposed Final Judgment
    Before filing its Complaint, the United States considered, as an 
alternative to the initial proposed Final Judgment, pursuing a full 
trial on the merits, seeking preliminary and permanent injunctions 
against Alcan's acquisition

[[Page 33416]]

of Pechiney. However, the United States was satisfied that the 
divestiture of Pechiney's brazing sheet business, as proposed in the 
initial Final Judgment, would preserve and ensure continued competition 
in the relevant market, and hence, prevent Alcan's acquisition of 
Pechiney from having any adverse competitive effects.
B. Alternatives to the Amended Final Judgment
    The Amended Final Judgment, which would permit defendants to divest 
either Alcan's or Pechiney's brazing sheet business, provides a remedy 
that is more flexible, but no less protective of continued competition, 
than the relief proposed in the initial Final Judgment. However, in 
addition to permitting defendants to sell the Alcan brazing sheet 
business, the Amended Final Judgment may permit defendants a few more 
months to accomplish the ordered divestiture.\8\ Before agreeing to 
file an amended settlement, the United States seriously considered 
whether defendants--or for that matter, a Court-appointed trustee--
could complete a divestiture of Pechiney's brazing sheet business more 
quickly than the divestiture deadline established in the Amended Final 
Judgment. The government concluded that there was a high probability 
that defendants would divest Alcan's brazing sheet business, as part of 
their overall corporate reorganization, before they (or a Court-
appointed trustee) could sell Pechiney's brazing sheet business. For 
that reason, the government was willing to amend the original 
settlement to allow defendants the option to divest Alcan's brazing 
sheet business. The United States, however, is firmly committed to 
seeking the appointment of a trustee to divest Pechiney's brazing sheet 
business if defendants fail to complete the ordered divestiture by the 
deadline set forth in the Amended Final Judgment. See Amended Final 
Judgment Sec.  IV.
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    \8\ As noted above, the initial Final Judgment required 
defendants to divest Pechiney's brazing sheet business within 120 
days after Alcan receives notice that its tender offer for Pechiney 
was successful, or five days after entry of the Final Judgment, 
whichever is later. If the Court had entered that decree in late 
April or early May, defendants would have been required to complete 
their divestiture of Pechiney's brazing sheet business no later than 
early July 2004, assuming the government would have granted 
defendants a full 60-day extension of time to complete the ordered 
divestiture, as permitted under the initial Final Judgment. (The 
United States had already notified the Court that it had extended 
the divestiture deadline by an additional 30 days under that 
decree.)
    In contrast, the Amended Final Judgment would require defendants 
to divest either Alcan's or Pechiney's brazing sheet business within 
180 days after May 18th, or five days after entry of the decree, 
presumably in late October or early November 2004, a deadline that 
the United States may also, in its discretion, extend by an 
additional 60 days. At the earliest, the ordered divestiture under 
the Amended Final Judgment would occur several months later than the 
divestiture that had been ordered in the initial Final Judgment. The 
government concluded that, under the circumstances, such an 
extension of time for defendants to complete their divestiture under 
the Amended Final Judgment would not unreasonably delay the 
introduction of a viable new competitor into the North American 
market for sale of brazing sheet.
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VII. Standard of Review Under the Tunney Act for the Proposed Amended 
Final Judgment

    The Tunney Act 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 Amended 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 United States Court of Appeals for the District 
of Columbia Circuit held, the Tunney Act 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, 1458-62 (D.C. Cir. 1995).
    In conducting this inquiry, ``[t]he 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.'' 119 Cong. Rec. 24,598 (1973) 
(statement of Senator Tunney).\9\ Rather:
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    \9\ See United States v. Gillette Co., 406 F. Supp. 713, 715-16 
(D. Mass. 1975) (recognizing it was not the court's duty to settle; 
rather, the court must only answer ``whether the settlement achieved 
[was] within the reaches of the public interest''). 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. Sec.  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. Rep. No. 93-1463, 93rd Cong., 2d Sess. 8-9 (1974), 
reprinted in 1974 U.S.C.C.N. 6535, 6538.

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

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. (CCH) 
]61,508, at 71,980 (W.D. Mo. May 17, 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in a unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988) (citing United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d 
at 1460-62. Case law 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 public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\10\
---------------------------------------------------------------------------

    \10\ Cf. BNS, 858 F.2d at 463 (holding that the court's 
``ultimate authority under the [Tunney Act] is limited to approving 
or disapproving the consent decree''); Gillette, 406 F. Supp. at 716 
(noting that, in this way, the court is constrained to ``look at the 
overall picture not hypercritically, nor with a microscope, but with 
an artist's reducing glass''). See generally Microsoft, 56 F.3d at 
1461 (discussing whether ``the remedies [obtained in the decree are] 
so inconsonant with the allegations charged as to fall outside of 
the `reaches of the public interest' '').
---------------------------------------------------------------------------

    The proposed Amended 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

[[Page 33417]]

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. Am. Telephone & Telegraph Co., 552 F. Supp. 131, 151 (D.D.C. 
1982) (citations omitted) (quoting Gillette, 406 F. Supp. at 716), 
aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see 
also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. 
Ky. 1985) (approving the consent decree even though the court would 
have imposed a greater remedy).
    Moreover, the Court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its Complaint, and does not authorize the Court 
to ``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459. Because 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. at 1459-60.

III. 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 Amended Final Judgment.

    Dated: May 26, 2004.

 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, 
Telephone: (202) 307-6583.

Attorney for the United States

Certificate of Service

    I, Anthony E. Harris, hereby certify that on May 26, 2004, I caused 
the foregoing notice of Filing of Amended Final Judgment and Amended 
Hold Separate Stipulation and Order, Amended Final Judgment, Amended 
Hold Separate Stipulation and Order, and Revised Competitive Impact 
Statement to be served on defendants by sending a facsimile and by 
mailing a copy first-class, postage prepaid, to duly authorized legal 
representatives of those parties, as follows:

Counsel for Defendants Alcan Inc., Alcan Aluminum Corp., Pechiney, 
S.A., and Pechiney Rolled Products, LLC

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.
Anthony E. Harris, Esquire, Illinois Bar 1133713, U.S. 
Department of Justice, Antitrust Division, 1401 H Street, NW., Suite 
3000, Washington, DC 20530, Telephone: (202) 307-6583.

[FR Doc. 04-13343 Filed 6-14-04; 8:45 am]
BILLING CODE 4410-11-M