[Federal Register Volume 72, Number 232 (Tuesday, December 4, 2007)]
[Notices]
[Pages 68180-68193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5902]


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DEPARTMENT OF JUSTICE ANTITRUST DIVISION


United States v. Vulcan Materials Co., et al. Proposed Final 
Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment and 
Competitive Impact Statement have been filed with the United States 
District Court for the District of Columbia in United States v. Vulcan 
Materials Co., et al., Civil Action No. 1:07-cv-2044. On November 13, 
2007, the United States filed a Complaint to obtain equitable and other 
relief against defendants Vulcan Materials Company (``Vulcan'') and 
Florida Rock Industries, Inc. (``Florida Rock'') to prevent Vulcan's 
proposed acquisition of Florida Rock. The Complaint alleges that 
Vulcan's acquisition of Florida Rock would substantially lessen 
competition in the production, distribution, and sale of coarse 
aggregate in and around Atlanta, Georgia; Columbus, Georgia; 
Chattanooga, Tennessee; and South Hampton Roads, Virginia, in violation 
of Section 7 of the Clayton Act, as amended, 15 U.S.C. 18. The proposed 
Final Judgment, filed on November 13, 2007, requires defendants to 
divest Florida Rock aggregate quarries in Northwest, West, and 
Southwest Atlanta, Georgia; Columbus, Georgia; Chattanooga, Tennessee; 
and Richmond, Virginia. In addition, defendants must divest a Florida 
Rock distribution yard located in Chesapeake, Virginia that receives 
coarse aggregate by barge from Florida Rock's Richmond quarry; a Vulcan 
aggregate quarry in South Atlanta, Georgia; and a Vulcan quarry under 
development in Southeast Atlanta, Georgia.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, 325 7th Street, 
NW., Room 215, Washington, DC 20530 (telephone: 202-514-2481), on the 
Department of Justice's Web site at http://www.usdoj.gov/atr, and at 
the Office of the Clerk of the United States District Court for the 
District of Columbia, Washington, DC. Copies of these materials may be 
obtained from the Antitrust Division upon request and payment of a 
copying fee set by Department of Justice regulations.
    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).

Patricia A. Brink,
Deputy Director of Operations, Antitrust Division.

United States District Court for the District of Columbia

    United States of America, Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 3000, Washington, DC 20530, 
Plaintiff, v. Vulcan Materials Company, 1200 Urban Center Drive, 
Birmingham, AL 35242, and Florida Rock Industries, Inc., 155 East 
21st Street, Jacksonville, FL 32206, Defendants.

Case: 1:07-cv-02044
Assigned To: Sullivan, Emmet G.
Assign. Date: 11/13/2007
Description: Antitrust
Deck Type: Antitrust
Date Stamp:

Complaint

    Plaintiff United States of America (``United States''), acting 
under the direction of the Acting Attorney General of the United 
States, brings this civil antitrust action to obtain equitable and 
other relief against defendants Vulcan Materials Company (``Vulcan'') 
and Florida Rock Industries, Inc. (``Florida Rock'') to prevent 
Vulcan's proposed acquisition of Florida Rock. Plaintiff complains and 
alleges as follows:

I. Nature of the Action

    1. On February 19, 2007, Vulcan and Florida Rock signed a 
definitive agreement for Vulcan to acquire Florida Rock in a cash-and-
stock transaction valued at approximately $4.6 billion. The total 
blended cash-and-stock consideration for this transaction is 
approximately $68 per share.
    2. Vulcan and Florida Rock both produce and distribute in the 
United States building materials, including, among other things, 
construction aggregates (which includes coarse aggregate) and ready mix 
concrete. Vulcan is the largest supplier of construction aggregates in 
the United States. Florida Rock is also a leading supplier of 
construction aggregates in the United States. Combined, Vulcan and 
Florida Rock will have construction aggregates reserves totaling 
approximately 13.9 billion tons.
    3. The United States brings this action to prevent the proposed 
acquisition of Florida Rock by Vulcan because it would substantially 
lessen competition in the production, distribution, and sale of coarse 
aggregate in and around Atlanta, Georgia; Columbus, Georgia; 
Chattanooga, Tennessee; and South Hampton Roads, Virginia, in violation 
of Section 7 of the Clayton Act, 15 U.S.C. 18.

II. Parties to the Proposed Transaction

    4. Defendant Vulcan is a New Jersey corporation with its principal 
place of business in Birmingham, Alabama. Vulcan produces, distributes, 
and sells, among other products, construction aggregates, ready mix 
concrete, hot mix asphalt, and asphalt coating to customers in 21 
states, the District of Columbia, and Mexico.
    5. Vulcan is the largest producer of construction aggregates in the 
United States. It has over 300 facilities for the

[[Page 68181]]

production and distribution of construction aggregates and other 
products. In 2006, Vulcan shipped approximately 255 million tons of 
construction aggregates, the majority of which was coarse aggregate. In 
2006, Vulcan reported total sales of approximately $3 billion.
    6. Defendant Florida Rock is a Florida corporation with its 
principal place of business in Jacksonville, Florida. Florida Rock 
produces, distributes, and sells in the Southeastern and mid-Atlantic 
states, among other products, construction aggregates, ready mix 
concrete, prestressed concrete, and cement.
    7. Florida Rock is one of the largest United States suppliers of 
construction aggregates. In 2006, Florida Rock shipped approximately 45 
million tons of construction aggregates, the majority of which was 
coarse aggregate. In 2006, Florida Rock reported total sales of 
approximately $1.4 billion.

III. Jurisdiction and Venue

    8. Plaintiff United States brings this action 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.
    9. Defendants produce, distribute, and sell coarse aggregate and 
other products in the flow of interstate commerce. Defendants' 
activities in producing, distributing, and seIling these products 
substantially affect interstate commerce. This Court has subject matter 
jurisdiction over 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.
    10. Defendants have consented to venue and personal jurisdiction in 
this judicial district.

IV. Trade and Commerce

A. The Relevant Product Market

    11. Construction aggregates consist primarily of crushed stone, 
gravel, and sand produced from natural deposits of various materials 
and removed from quarries, mines, or pits.
    12. Coarse aggregate is a type of construction aggregate. Coarse 
aggregate is crushed stone produced at quarries or mines and used for, 
among other things, road base and the production of ready mix concrete 
and asphalt. Coarse aggregate typically is mixed with other materials 
to produce ready mix concrete and asphalt. Different sizes of coarse 
aggregate are needed to meet different project specifications.
    13. There are no reliable substitutes for coarse aggregate because 
it differs from other products in its physical composition, functional 
characteristics, customary uses, consistent availability, and pricing. 
To the extent that any substitutes exist, customers already use these 
to the full extent possible in light of the limits on their 
availability and the amounts that can be used in a given product, and 
could not use more of them in place of coarse aggregate in response to 
an increase in the price of coarse aggregate.
    14. A small but significant post-acquisition increase in the price 
of coarse aggregate would not cause the purchasers of coarse aggregate 
to substitute another product or otherwise reduce their usage of coarse 
aggregate in sufficient quantities so as to make such a price increase 
unprofitable.
    15. Accordingly, the production, distribution, and sale of coarse 
aggregate is a line of commerce and a relevant product market within 
the meaning of Section 7 of the Clayton Act.

B. The Relevant Geographic Markets

    16. Coarse aggregate is a bulky, heavy, and relatively low-value 
product. The cost of transporting coarse aggregate is high compared to 
the value of the product.
    17. Transportation costs limit the distance coarse aggregate can be 
economically transported from a quarry or mine to a job site or a ready 
mix concrete or asphalt plant. The geographic area within which a 
coarse aggregate supplier can compete most vigorously thus is limited 
by the cost of hauling the coarse aggregate. As a result, the 
competitiveness of a coarse aggregate supplier in a given area is 
limited by its distance from customer plants or project sites relative 
to other suppliers.
    18. Florida Rock owns and operates a coarse aggregate quarry 
located in Cedarton, Georgia, known as the Six Mile quarry. This quarry 
serves a geographic area that includes, among other areas, all or part 
of Floyd, Polk, Haralson, and Bartow Counties in Georgia (hereafter 
referred to as ``Northwest Atlanta''). Customers with plants or jobs 
within Northwest Atlanta may, depending on the location of their plant 
or job sites, also economically procure coarse aggregate from Vulcan's 
Adairsville, Bartow, and Rockmart quarries and from another 
competitor's quarry located in Cartersville, Georgia. Other quarries 
cannot on a regular basis compete successfully for customers with 
plants or jobs in Northwest Atlanta because they are too far away and 
the hauling costs are too great.
    19. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in Northwest 
Atlanta would not cause those customers to procure coarse aggregate 
from quarries farther away than those identified in paragraph 18 in 
sufficient quantities so as to make such a price increase unprofitable.
    20. Florida Rock owns and operates a coarse aggregate quarry 
located in Yorkville, Georgia, known as the Paulding quarry. This 
quarry serves a geographic area that includes, among other areas, all 
or part of Paulding, Douglas, Carroll, Haralson, Polk, and Cobb 
Counties in Georgia (hereafter referred to as ``West Atlanta''). 
Customers with plants or jobs within West Atlanta may, depending on the 
location of their plant or job sites, also economically procure coarse 
aggregate from Vulcan's Villa Rica, Kennesaw, and Lithia Springs 
quarries and from the quarries of other competitors located in Dallas, 
Georgia, and Douglasville, Georgia. Other quarries cannot on a regular 
basis compete successfully for customers with plants or jobs in West 
Atlanta because they are too far away and the hauling costs are too 
great.
    21. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in West Atlanta 
would not cause those customers to procure coarse aggregate from 
quarries farther away than those identified in paragraph 20 in 
sufficient quantities so as to make such a price increase unprofitable.
    22. Florida Rock owns and operates a coarse aggregate quarry 
located in Tyrone, Georgia, known as the Tyrone quarry. This quarry 
serves a geographic area that includes, among other areas, all or part 
of Fulton, Coweta, Fayette, and Clayton Counties in Georgia (hereafter 
referred to as ``Southwest Atlanta''). Customers with plants or jobs 
within Southwest Atlanta may, depending on the location of their plant 
or job sites, also economically procure coarse aggregate from Vulcan's 
Madras quarry and from another competitor's quarry located in Tyrone, 
Georgia. Other quarries cannot on a regular basis compete successfully 
for customers with plants or jobs in Southwest Atlanta because they are 
too far away and the hauling costs are too great.
    23. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in Southwest 
Atlanta would not cause those customers to procure coarse aggregate 
from quarries farther away than those identified in paragraph 22 in 
sufficient quantities so as to make such a price increase unprofitable.

[[Page 68182]]

    24. Florida Rock owns and operates a coarse aggregate quarry 
located in Riverdale, Georgia, known as the Forest Park quarry. This 
quarry serves a geographic area that includes, among other areas, all 
or part of Fulton, Clayton, Henry, DeKalb, and Fayette Counties in 
Georgia (hereafter referred to as ``South Atlanta''). Customers with 
plants or jobs within South Atlanta may, depending on the location of 
their plant or job sites, also economically procure coarse aggregate 
from Vulcan's Red Oak quarry and from another competitor's quarry 
located in College Park, Georgia. Other quarries cannot on a regular 
basis compete successfully for customers with plants or jobs in South 
Atlanta because they are too far away and the hauling costs are too 
great.
    25. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in South Atlanta 
would not cause those customers to procure coarse aggregate from 
quarries farther away than those identified in paragraph 24 in 
sufficient quantities so as to make such a price increase unprofitable.
    26. Florida Rock owns and operates a coarse aggregate quarry 
located in Zotella, Georgia, known as the Griffin quarry. This quarry 
serves a geographic area that includes, among other areas, all or part 
of Spalding and Henry Counties in Georgia (hereafter referred to as 
``Southeast Atlanta''). Customers with plants or jobs within Southeast 
Atlanta may, depending on the location of their plant or job sites, 
also economically procure coarse aggregate from Vulcan's Stockbridge 
quarry. In addition, Vulcan is in the process of opening a new quarry 
in Butts County, Georgia, expected to be operational in 2008, from 
which it plans to serve, among other areas, customers in all or part of 
Southeast Atlanta. Other quarries cannot on a regular basis compete 
successfully for customers with plants or jobs in Southeast Atlanta 
because they are too far away and the hauling costs are too great.
    27. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in Southeast 
Atlanta would not cause those customers to procure coarse aggregate 
from quarries farther away than those identified in paragraph 26 in 
sufficient quantities so as to make such a price increase unprofitable.
    28. Florida Rock owns a majority interest in a company that owns 
and operates a coarse aggregate quarry located in Columbus, Georgia, 
known as the Columbus quarry. This quarry serves a geographic area that 
includes, among other areas, all or part of Muscogee and Harris 
Counties in Georgia (hereafter referred to as ``Columbus''). Customers 
with plants or jobs within Columbus may, depending on the location of 
their plant or job sites, also economically procure coarse aggregate 
from Vulcan's Barin quarry and from another competitor's quarry located 
in Midland, Georgia. Other quarries cannot on a regular basis compete 
successfully for customers with plants or jobs in Columbus because they 
are too far away and the hauling costs are too great.
    29. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in Columbus would 
not cause those customers to procure coarse aggregate from quarries 
farther away than those identified in paragraph 28 in sufficient 
quantities so as to make such a price increase unprofitable.
    30. Florida Rock owns and operates a coarse aggregate quarry 
located in Chattanooga, Tennessee, known as the Jersey Pike quarry. 
This quarry serves a geographic area that includes, among other areas, 
all or part of Hamilton County in Tennessee (hereafter referred to as 
``Chattanooga''). Customers with plants or jobs within Chattanooga may, 
depending on the location of their plant or job sites, also 
economically procure coarse aggregate from Vulcan's Chattanooga quarry 
and from another competitor's quarries located in Chattanooga and 
Ringgold, Georgia. Other quarries cannot on a regular basis compete 
successfully for customers with plants or jobs in Chattanooga because 
they are too far away and the hauling costs are too great.
    31. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in Chattanooga 
would not cause those customers to procure coarse aggregate from 
quarries farther away than those identified in paragraph 30 in 
sufficient quantities so as to make such a price increase unprofitable.
    32. Florida Rock owns and operates a coarse aggregate quarry 
located in Richmond, Virginia, known as the Richmond quarry, a coarse 
aggregate quarry located in Havre de Grace, Maryland, known as the 
Havre de Grace quarry, and a barge-served distribution yard located in 
Chesapeake, Virginia, known as the Gilmerton yard. Florida Rock also 
operates a distribution yard owned by a third party located in 
Chesapeake, Virginia. Via these distribution yards, Florida Rock serves 
a geographic area that includes, among other areas, all or part of the 
cities of Norfolk, Suffolk, Portsmouth, Chesapeake, and Virginia Beach 
in Virginia (hereafter referred to as ``South Hampton Roads''). 
Customers with plants or jobs within South Hampton Roads may, depending 
on the location of their plant or job sites, also economically procure 
coarse aggregate from Vulcan rail and barge terminals supplied by 
Vulcan's Richmond, Lawrenceville, and Skippers quarries. Other quarries 
cannot on a regular basis compete successfully for customers with 
plants or jobs in South Hampton Roads because they do not have 
appropriate distribution facilities in the area and/or quarries 
similarly proximate to rail lines or navigable water sources.
    33. A small but significant post-acquisition increase in the price 
of coarse aggregate to customers with plants or jobs in South Hampton 
Roads would not cause those customers to procure coarse aggregate from 
quarries farther away than those identified in paragraph 32 in 
sufficient quantities so as to make such a price increase unprofitable.
    34. Accordingly, the relevant geographic markets, within the 
meaning of Section of the Clayton Act, are locations of coarse 
aggregate customers in: Northwest Atlanta, West Atlanta, Southwest 
Atlanta, South Atlanta, Southeast Atlanta, Columbus, Chattanooga, and 
South Hampton Roads.

C. Anticompetitive Effects

1. The Proposed Transaction Will Harm Competition in the Markets for 
Coarse Aggregate in the Relevant Geographic Markets
    35. Price competition between Vulcan and Florida Rock in the 
production, distribution, and sale of coarse aggregate has benefited 
customers.
    36. In Southeast Atlanta and South Hampton Roads, the proposed 
acquisition will eliminate the competition between Vulcan and Florida 
Rock and reduce the number of suppliers of many specifications of 
coarse aggregate from two to one. In Southeast Atlanta, the acquisition 
will also eliminate the competition between Florida Rock and Vulcan 
that would result from the opening of Vulcan's new quarry in Butts 
County.
    37. In Northwest Atlanta, Southwest Atlanta, South Atlanta, 
Columbus, and Chattanooga, the proposed acquisition will eliminate the 
competition between Vulcan and Florida Rock and reduce the number of 
coarse aggregate suppliers from three to two generally, and for some 
customers and projects from two to one.
    38. In West Atlanta, the proposed acquisition will eliminate the

[[Page 68183]]

competition between Vulcan and Florida Rock and reduce the number of 
coarse aggregate suppliers from four to three generally, and for some 
customers and projects from three to two.
    39. The proposed acquisition will substantially increase the 
likelihood that Vulcan will unilaterally increase the price of coarse 
aggregate to a significant number of customers in Northwest Atlanta, 
West Atlanta, Southwest Atlanta, South Atlanta, Southeast Atlanta, 
Columbus, Chattanooga, and South Hampton Roads.
    40. The response of other coarse aggregate suppliers in the 
relevant geographic markets would not be sufficient to constrain a 
unilateral exercise of market power by Vulcan after the acquisition 
because those suppliers likely would not have sufficient capacity and/
or incentives to increase production and sales enough to defeat an 
anticompetitive price increase by Vulcan. State permits and county 
zoning restrictions in many cases limit quarries' hours of operation 
and/or production levels, and many coarse aggregate suppliers face 
practical limitations on the amount of truck traffic their facilities 
can handle. Moreover, because coarse aggregate mined from quarries is a 
depletable natural resource and every quarry has finite reserves, every 
sale by a supplier today represents a tradeoff against future sales.
    41. In addition, and notwithstanding competitor responses, post-
merger Vulcan will be able to increase prices to those customers that 
have plants or job sites for which both a Vulcan quarry and a Florida 
Rock quarry are closer than any other quarries producing coarse 
aggregate meeting their specifications. Coarse aggregate suppliers know 
the locations of their competitors' quarries and the distance from 
their own quarries and their competitors' quarries to a customer's 
plant or job site. Generally, because of transportation costs, the 
farther a supplier's closest competitor is from a job site, the less 
price competition that supplier faces for that project. Post-
acquisition, in instances where Vulcan and Florida Rock quarries would 
be the closest quarries to a customer's plant or project and the next 
closest coarse aggregate supplier's plant is farther from the 
customer's plant or project, the combined firm, using the knowledge of 
its competitors' quarry locations, would be able to charge such 
customers higher prices.
    42. Without the constraint of competition between Vulcan and 
Florida Rock, the combined firm will have a greater ability to exercise 
market power by raising prices to customers for whom Vulcan or Florida 
Rock were sources of coarse aggregate.
    43. In addition, Vulcan's elimination of Florida Rock as an 
independent competitor in the production, distribution, and sale of 
coarse aggregate is likely to facilitate anticompetitive coordination 
among the remaining coarse aggregate suppliers in Northwest Atlanta, 
West Atlanta, Southwest Atlanta, South Atlanta, Columbus, and 
Chattanooga. Coarse aggregate is homogeneous and suppliers have access 
to information about competitors' output, capacity, and costs. Given 
these market conditions, eliminating one of the few coarse aggregate 
competitors is likely to further increase the ability of the remaining 
competitors to coordinate successfully.
    44. The transaction therefore will substantially lessen competition 
in the production, distribution, and sale of coarse aggregate in the 
relevant geographic markets. This is likely to lead to higher prices 
for the ultimate consumers of coarse aggregate, in violation of Section 
7 of the Clayton Act.
2. Entry Is Not Likely To Deter the Exercise of Market Power
    45. Timely and successful entry into the production, distribution, 
and sale of coarse aggregate is unlikely in the relevant geographic 
areas.
    46. Securing the proper site for a coarse aggregate quarry or mine 
is difficult, time-consuming, and costly. It requires the investigation 
and extensive testing of candidate sites, as well as negotiating 
necessary land transfers, leases, and/or easements. The location of a 
quarry, mine, or yard is important due to the high cost of transporting 
coarse aggregate, but there are few sites, especially in metropolitan 
areas, on which to locate coarse aggregate operations.
    47. Due to the geology in South Hampton Roads, coarse aggregate for 
most applications in South Hampton Roads is produced outside the area. 
For an entrant to compete effectively in South Hampton Roads with a 
combined Vulcan and Florida Rock, that entrant must pair a new or 
existing rail- or water-served quarry with a distribution yard in the 
South Hampton Roads area that is capable of receiving coarse aggregate 
from such a quarry. Rail- or water-served quarries situated to compete 
effectively in South Hampton Roads, and the proper sites for 
distribution yards to serve those quarries, are scarce.
    48. Obtaining necessary zoning variances and governmental permits 
for a coarse aggregate quarry or mine also can be difficult, time-
consuming, and costly. In metropolitan areas, land of the necessary 
size and geology often is already utilized or does not have the 
appropriate zoning, and obtaining zoning variances can be extremely 
difficult. Attempts to open a new coarse aggregate quarry or mine, 
especially in metropolitan areas (such as West Atlanta, Southwest 
Atlanta, South Atlanta, Columbus, Chattanooga, and South Hampton Roads) 
but also frequently in rural areas, often face fierce public 
opposition. This public opposition can prevent a coarse aggregate 
quarry or mine from opening or make opening it much more time-consuming 
and costly. In addition, state and federal water, air quality, and 
other permitting process requirements must be met.
    49. Even after a quarry or mine site is acquired and properly zoned 
and permitted, the owner must spend significant time and resources to 
prepare the land and install the equipment necessary to run the 
operation.
    50. Therefore, entry by any other firm into the coarse aggregate 
market in the relevant geographic areas will not be timely, likely, or 
sufficient to defeat an anticompetitive price increase.

V. Violations Alleged

    51. The proposed acquisition of Florida Rock by Vulcan would 
substantially lessen competition and tend to create a monopoly in 
interstate trade and commerce in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18.
    52. Unless restrained, the transaction will have the following 
anticompetitive effects, among others:
    a. Actual and potential competition between Vulcan and Florida Rock 
in the production, distribution, and sale of coarse aggregate in the 
relevant geographic markets will be eliminated;
    b. Competition generally in the production, distribution, and sale 
of coarse aggregate in the relevant geographic markets will be 
substantially lessened; and
    c. Prices for coarse aggregate in the relevant geographic markets 
likely will increase.

VI. Request for Relief

    53. Plaintiff requests that:
    a. Vulcan's proposed acquisition of Florida Rock be adjudged and 
decreed to be unlawful and in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18;

[[Page 68184]]

    b. Defendants and all persons acting on their behalf be permanently 
enjoined and restrained from consummating the proposed acquisition or 
from entering into or carrying out any contract, agreement, plan, or 
understanding, the effect of which would be to combine Vulcan with the 
operations of Florida Rock;
    c. Plaintiff be awarded its costs for this action; and
    d. Plaintiff receive such other and further relief as the Court 
deems just and proper.

Respectfully submitted,

For Plaintiff United States of America:

Thomas O. Barnett,

Assistant Attorney General D.C. Bar #426840

David L. Meyer,

Deputy Assistant Attorney General D.C. Bar #414420

Patricia A. Brink,

Deputy Director of Operations

Maribeth Petrizzi,

Chief, Litigation II Section D.C. Bar #435204

Dorothy B. Fountain,

Assistant Chief, Litigation II Section D.C. Bar #439469

Robert W. Wilder,
Helena Gardner,
Christine A. Hill (D.C. Bar 461048),
Leslie Peritz,
Lowell Stern (D.C. Bar 440487),
James S. Yoon (D.C. Bar 491309),

Attorneys, United States Department of Justice Antitrust Division, 
Litigation II Section, 1401 H Street, NW., Suite 3000, Washington, 
DC 20530, (202) 307-6336

Dated: November 13, 2007

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Vulcan Materials Company 
and Florida Rock Industries, Inc., Defendants.

Case No.:
Judge:
Deck Type: Antitrust
Date Stamp:

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on November 13, 2007, and plaintiff and defendants, Vulcan Materials 
Company (``Vulcan'') and Florida Rock Industries, Inc. (``Florida 
Rock''), by their respective attorneys, have consented to the entry of 
this Final Judgment without trial or adjudication of any issue of fact 
or law, and without this Final Judgment constituting any evidence 
against or admission by any party regarding any issue of fact or law;
    And whereas, defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by defendants to assure 
that competition is not substantially lessened;
    And whereas, the United States requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendants have represented to the United States that 
the divestitures required below can and will be made and that 
defendants will later raise no claim of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is ordered, adjudged and decreed:

I. Jurisdiction

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

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom defendants divest some or all of the Divestiture Assets.
    B. ``Coarse aggregate'' means crushed stone produced at quarries or 
mines and used for, among other things, road base and the production of 
ready mix concrete and asphalt.
    C. ``Divestiture Assets'' means:
    1. The following quarries and yard:
    a. The Florida Rock Six Mile quarry, located at 3785 Cave Springs 
Road, Cedarton, Georgia;
    b. The Florida Rock Paulding quarry, located at 112 Quarry Road, 
Yorkville, Georgia;
    c. The Florida Rock Tyrone quarry, located at 240 Rockwood Road, 
Tyrone, Georgia;
    d. The Vulcan Red Oak quarry, located at 5414 Buffington Road, Red 
Oak, Georgia;
    e. The Vulcan quarry under development in Butts County, located on 
Greer Dairy Road, Jackson, Georgia;
    f. The Florida Rock interest in Columbus Quarry LLC, which owns the 
Columbus quarry, located at 3001 Smith Road, Columbus, Georgia;
    g. The Florida Rock Jersey Pike quarry, located at 2 Pelican Drive, 
Chattanooga, Tennessee;
    h. The Florida Rock Richmond quarry, located at 2100 Deepwater 
Terminal Road, Richmond, Virginia (but excluding the Florida Rock ready 
mix concrete plant, the real property necessary for the operation of 
the plant (provided the conveyance of such property does not interfere 
with the operation of the Richmond quarry), and all other tangible and 
intangible assets exclusively used in the plant's operations) and, at 
the option of the Acquirer, use of the real property, parking lot, 
equipment shop, and office building equivalent to that which Florida 
Rock currently has for its quarry operations; and
    i. The Florida Rock Gilmerton yard, located at 4606 Bainbridge 
Boulevard, Chesapeake, Virginia (but excluding the Florida Rock ready 
mix concrete plant, the real property necessary for the operation of 
the plant (provided the conveyance of such property does not interfere 
with the operation of the Gilmerton yard), and all other tangible and 
intangible assets exclusively used in the plant's operations) and, at 
the option of the Acquirer, use of the real property, parking lot, 
equipment shop, fuel station, and office building equivalent to that 
which Florida Rock currently has for its operation of the yard;
    2. All tangible assets used in or for the quarries and yard listed 
in Paragraphs II(C)(1)(a) through (i), including but not limited to all 
research and development activities (except for any such research and 
development activities that are principally devoted to either 
defendant's operations as a whole and not specifically to the 
operations of the quarries and yard listed in Paragraphs II(C)(1)(a) 
through (i), and that are not necessary to the operation of the 
quarries and yard listed in Paragraphs II(C)(1)(a) through (i)), 
equipment, tooling and fixed assets, real property (leased or owned), 
personal property, inventory, coarse aggregate reserves, office 
furniture, materials, supplies, on- or off-site warehouses or storage 
facilities relating to the quarries and yard; all licenses, permits, 
and authorizations issued by any governmental organization relating to 
the quarries and yard; all contracts, teaming arrangements, agreements, 
leases (including renewal rights), commitments, certifications, and 
understandings relating to the quarries and yard, including sales 
agreements and supply agreements; all customer lists, contracts, 
accounts, and credit records relating to the quarries and yard; all 
repair and performance records and all other records relating to the 
quarries and yard; at the option of the Acquirer or Acquirers, a number 
of trucks, rail cars, and other vehicles usable at the

[[Page 68185]]

quarries and yard listed in Paragraphs II(C)(1)(a) through (i) equal 
to, for each separate type of truck, rail car, or other vehicle, the 
average number of trucks, rail cars, and other vehicles of that type, 
owned or controlled by defendants, used at each such quarry or yard per 
month during the months of operation of the quarry or yard between 
January 1, 2006 and December 31, 2006 (calculated by averaging the 
number of trucks, rail cars, and other vehicles of each type, owned or 
controlled by defendants, that were used at each quarry or yard at any 
time during each month that the quarry or yard was in operation); and 
at the option of the Acquirer or Acquirers, a number of barges usable 
at the quarry and yard listed in Paragraphs II(C)(1)(h) and (i) equal 
to, for each separate type of barge, the average number of barges of 
that type, owned or controlled by defendants, used at such quarry or 
yard per month during the months of operation of the quarry or yard 
between January 1, 2006 and December 31, 2006 (calculated by averaging 
the number of barges of that type, owned or controlled by defendants, 
that were used at such quarry or yard at any time during each month 
that the quarry or yard was in operation); and
    3. All intangible assets used in the development, production, 
servicing, distribution, and sale of products produced by or in the 
quarries or stored in the yard listed in Paragraphs II(C)(1)(a) through 
(i), including but not limited to all contractual rights (except for 
any such contractual rights that are principally devoted to either 
defendant's operations as a whole and not specifically to the 
operations of the quarries and yard listed in Paragraphs II(C)(1)(a) 
through (i), and that are not necessary to the operation of the 
quarries and yard listed in Paragraphs II(C)(1)(a) through (i)), 
patents, licenses and sub-licenses, intellectual property rights, 
copyrights, trademarks, trade names, service marks, service names, 
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, all manuals 
and technical information defendants provide to their own employees, 
customers, suppliers, agents, or licensees, and all research data 
(including coarse aggregate reserve testing information) concerning 
historic and current research and development efforts relating to the 
quarries and yard, including but not limited to designs of experiments 
and the results of successful and unsuccessful designs and experiments. 
Notwithstanding anything to the contrary in this Final Judgment, if 
requested by an Acquirer, and subject to approval by the United States 
in its sole discretion, defendants shall offer to enter into a 
transition services agreement with respect to computer software 
(including dispatch software and management information systems) and 
related documentation, and design tools and simulation capability.
    D. ``Florida Rock'' means defendant Florida Rock Industries, Inc., 
a Florida corporation with its headquarters in Jacksonville, Florida, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    E. ``Vulcan'' means defendant Vulcan Materials Company, a New 
Jersey corporation with its headquarters in Birmingham, Alabama, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.

III. Applicability

    A. This Final Judgment applies to Vulcan and Florida Rock, as 
defined above, and all other persons in active concert or participation 
with Vulcan or Florida Rock who receive actual notice of this Final 
Judgment by personal service or otherwise.
    B. If, prior to complying with Sections IV and V of this Final 
Judgment, defendants sell or otherwise dispose of all or substantially 
all of their assets or of lesser business units that include the 
Divestiture Assets, they shall require the purchaser to be bound by the 
provisions of this Final Judgment. Defendants need not obtain such an 
agreement from the acquirers of the assets divested pursuant to this 
Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within ninety (90) calendar 
days after the filing of the Complaint in this matter, or five (5) days 
after notice of the entry of this Final Judgment by the Court, 
whichever is later, to divest the Divestiture Assets in a manner 
consistent with this Final Judgment to an Acquirer or Acquirers 
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 the Divestiture Assets as 
expeditiously as possible.
    B. In accomplishing the divestitures ordered by this Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability of the Divestiture Assets. Defendants shall 
inform any person making inquiry regarding a possible purchase of the 
Divestiture Assets that they are being divested pursuant to this Final 
Judgment and provide that person with a copy of this Final Judgment. 
Unless the United States otherwise consents in writing, defendants 
shall offer to furnish to all prospective Acquirers, subject to 
customary confidentiality assurances, all information and documents 
relating to the Divestiture Assets customarily provided in a due 
diligence process except such information or documents subject to the 
attorney-client or work-product privileges. Defendants shall make 
available such information to the United States at the same time that 
such information is made available to any other person.
    C. Defendants shall not take any action that win impede in any way 
any person from competing for or obtaining the lease to the Branscome 
Chesapeake yard, located at 120 Dominion Boulevard, Chesapeake, 
Virginia.
    D. Unless the United States otherwise consents in writing, 
defendants shall provide the Acquirer or Acquirers and the United 
States information relating to personnel involved in production, 
operations, development, and sales at the Divestiture Assets to enable 
the Acquirer or Acquirers to make offers of employment. Defendants 
shall not interfere with any negotiations by the Acquirer or Acquirers 
to employ any employee of the Divestiture Assets whose primary 
responsibility is production, operations, development, or sales at the 
Divestiture Assets.
    E. Unless the United States otherwise consents in writing, 
defendants shall permit prospective Acquirers of the Divestiture Assets 
to have reasonable access to personnel and to make inspections of the 
physical facilities of the Divestiture Assets; access to any and all 
environmental, zoning, and other permit documents and information; and 
access to any and all financial, operational, or other documents and 
information customarily provided as part of a due diligence process.
    F. With the exception of the Butts County site listed in Paragraph 
II(C)(1)(e), defendants shall warrant to the Acquirer or Acquirers that 
each asset will be operational on the date of sale. Vulcan shall 
further warrant to the Acquirer that it has obtained all environmental, 
zoning, or other permits required to produce coarse aggregate at

[[Page 68186]]

the Vulcan quarry under development in Butts County, identified in 
Paragraph II(C)(1)(e), and that such permits are transferable to the 
Acquirer.
    G. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets.
    H. Defendants shall warrant to the Acquirer or Acquirers that there 
are no material defects in the environmental, zoning, or other permits 
pertaining to the operation of the Divestiture Assets. Defendants shall 
not undertake, directly or indirectly, any challenges to the 
environmental, zoning, or other permits relating to the operation of 
the Divestiture Assets.
    I. Unless the United States otherwise consents in writing, any 
divestiture pursuant to Section IV, or by trustee appointed pursuant to 
Section V, of this Final Judgment, shall include the entire Divestiture 
Assets, and shall be accomplished in such a way as to satisfy the 
United States, in its sole discretion, that the Divestiture Assets can 
and will be used by the Acquirer or Acquirers as viable, ongoing 
businesses engaged in producing and distributing coarse aggregate, that 
the Divestiture Assets will remain viable, and that the divestiture of 
such assets will remedy the competitive harm alleged in the Complaint. 
The sale of the Divestiture Assets may be made to one or more 
Acquirers, so long as the Florida Rock Richmond quarry, identified in 
Paragraph II(C)(1)(h) above, and the Florida Rock Gilmerton yard, 
identified in Paragraph II(C)(1)(i) above, are divested to a single 
Acquirer. The divestitures, whether pursuant to Section IV or Section V 
of this Final Judgment:

    1. Shall be made to an Acquirer or Acquirers that, in the United 
States's sole judgment, has the intent and capability (including the 
necessary managerial, operational, technical and financial 
capability) to compete effectively in the production, distribution, 
and sale of coarse aggregate; 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 or Acquirers and defendants gives defendants the ability 
to unreasonably raise the Acquirer's costs, to lower the Acquirer's 
efficiency, or otherwise to interfere in the ability of the Acquirer 
to compete effectively in the production, distribution, and sale of 
coarse aggregate.

V. Appointment of Trustee To Effect Divestitures

    A. If defendants have not divested the Divestiture Assets within 
the time period specified in Paragraph 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 the 
Divestiture Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. The 
trustee shall have the power and authority to accomplish the 
divestiture to an Acquirer acceptable to the United States at such 
price and on such terms as are then obtainable upon reasonable effort 
by the trustee, subject to the provisions of Sections IV, V, and VI of 
this Final Judgment, and shall have such other powers as this Court 
deems appropriate. Subject to Paragraph V(D) of this Final Judgment, 
the trustee may hire at the cost and expense of defendants any 
investment bankers, attorneys, or other agents, who shall be solely 
accountable to the trustee, reasonably necessary in the trustee's 
judgment to assist in the divestiture.
    C. Defendants shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance. Any such objection 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 the United States approves, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting, including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendants and the trust shall then be 
terminated. The compensation of the trustee and any professionals and 
agents retained by the trustee shall be reasonable in light of the 
value of the Divestiture Assets and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestiture and the speed with which it is accomplished, but 
timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secrets or other confidential research, development, or 
commercial information. Defendants shall take no action to interfere 
with or to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring any interest in the Divestiture Assets, and 
shall describe in detail each contact with any such person. The trustee 
shall maintain full records of all efforts made to divest the 
Divestiture Assets.
    G. If the trustee has not accomplished the divestitures ordered 
under this Final Judgment 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 report contains information that the trustee deems 
confidential, such report shall not be filed in the public docket of 
the Court. The trustee shall at the same time furnish such report to 
the United States, which shall have the right to make additional 
recommendations consistent with the purpose of the trust. The Court 
thereafter shall enter such orders as it shall deem appropriate to 
carry out the purpose of the Final Judgment, which may, if necessary, 
include extending the trust and the term of the trustee's appointment 
by a period requested by the United States.

VI. Notice of Proposed Divestitures

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by Section IV or 
V of this Final Judgment. If the trustee is responsible, it shall 
similarly notify defendants. The notice shall set forth the details of 
the

[[Page 68187]]

proposed divestiture and list the name, address, and telephone number 
of each person not previously identified who offered or expressed an 
interest in or desire to acquire any ownership interest in the 
Divestiture Assets, 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 defendant, 
the proposed Acquirer or Acquirers, any other third party, or the 
trustee, if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer or Acquirers, and any other 
potential Acquirer. Defendants and the trustee shall furnish any 
additional information requested within fifteen (15) calendar days of 
the receipt of the request, unless the parties shall otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice, or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from defendant, the 
proposed Acquirer or Acquirers, any third party, or 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 defendant's limited right to object to the 
sale under Paragraph V(C) of this Final Judgment. Absent written notice 
that the United States does not object to the proposed Acquirer or upon 
objection by the United States, a divestiture proposed under Section IV 
or Section V shall not be consummated. Upon objection by defendants 
under Paragraph V(C), a divestiture proposed under Section V shall not 
be consummated unless approved by the Court.

VII. Financing

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

VIII. Hold Separate

    Until the divestitures required by this Final Judgment have been 
accomplished, defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestiture 
ordered by this Court.

IX. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, and every thirty (30) calendar days thereafter until 
the divestitures have been completed under Section IV or V, defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of their compliance with Section IV or V of this Final Judgment. 
Each such affidavit shall include the name, address, and telephone 
number of each person who, during the preceding thirty (30) calendar 
days, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the Divestiture Assets, and 
shall describe in detail each contact with any such person during that 
period. Each such affidavit shall also include a description of the 
efforts defendants have taken to solicit buyers for the Divestiture 
Assets, and to provide required information to 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) calendar days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to the United States an 
affidavit that describes in reasonable detail all actions defendants 
have taken and all steps defendants have implemented on an ongoing 
basis to comply with Section VIII of this Final Judgment. Defendants 
shall deliver to the United States an affidavit describing any changes 
to the efforts and actions outlined in defendants' earlier affidavits 
filed pursuant to this section within fifteen (15) calendar days after 
the change is implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Assets until one year after such 
divestitures have been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of an 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 the option of the United States, to require defendants to 
provide hard or electronic copies of, all books, ledgers, accounts, 
records, data and documents in the possession, custody, or control 
of defendants, relating to any matters contained in this Final 
Judgment; and
    2. To interview, either informally or on the record, defendants' 
officers, employees, or agents, who may have their individual 
counsel present, regarding such matters. The interviews shall be 
subject to the reasonable convenience of the interviewee and without 
restraint or interference by defendant.

    B. Upon the written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports or responses to written 
interrogatories, under oath if requested, relating to any of the 
matters contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If, at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and defendants mark each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. No Reacquisition

    Defendants may not reacquire any part of the Divestiture Assets 
during the term of this Final Judgment.

XII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce

[[Page 68188]]

compliance, and to punish violations of its provisions.

XIII. Expiration of Final Judgment

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

XIV. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16, including making copies available to the 
public of this Final Judgment, the Competitive Impact Statement, and 
any comments thereon and the United States's responses to comments. 
Based upon the record before the Court, which includes the Competitive 
Impact Statement and any comments and response to comments filed with 
the Court, entry of this Final Judgment is in the public interest.

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

    Court approval subject to procedures of the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16.
-----------------------------------------------------------------------
United States District Judge

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Vulcan Materials Company 
and Florida Rock Industries, Inc., Defendants.

Case: 1:07-cv-02044
Assigned To: Sullivan, Emmet G.
Assign. Date: 11/13/2007
Description: Antitrust
Deck Type: Antitrust
Date Stamp:

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    The United States filed a civil antitrust Complaint on November 13, 
2007, seeking to enjoin the proposed acquisition by Vulcan Materials 
Company (``Vulcan'') of Florida Rock Industries, Inc. (``Florida 
Rock''). The Complaint alleges that the likely effect of this 
acquisition would be to lessen competition substantially in the 
production, distribution, and sale of coarse aggregate in certain areas 
of Georgia, Tennessee and Virginia, in violation of Section 7 of the 
Clayton Act, 15 U.S.C. 18. This loss of competition likely would result 
in higher prices for coarse aggregate in the affected areas.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order and a proposed Final 
Judgment, which were designed to eliminate the anticompetitive effects 
of the acquisition. Under the proposed Final Judgment, which is 
explained more fully below, Vulcan and Florida Rock are required to 
divest single coarse aggregate quarries in Chattanooga, Tennessee, 
Columbus, Georgia, and Richmond, Virginia; four quarries and one site 
that is being developed for use as a quarry in the western and southern 
parts of the Atlanta area; and a distribution yard in Chesapeake, 
Virginia. Until the divestitures required by the Final Judgment have 
been accomplished, the Hold Separate Stipulation and Order requires 
Vulcan and Florida Rock to preserve, maintain, and continue to operate 
the plants discussed above (hereafter ``Divestiture Assets'') as 
independent, ongoing, economically viable competitive businesses held 
entirely separate, distinct, and apart from those of defendants' other 
operations.
    The United States, Vulcan, and Florida Rock have stipulated that 
the proposed Final Judgment may be entered after compliance with the 
APPA. Entry of the proposed Final Judgment would terminate this action, 
except that the Court would retain jurisdiction to construe, modify, or 
enforce the provisions of the proposed Final Judgment and to punish 
violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

    Vulcan is a New Jersey corporation with its principal place of 
business in Birmingham, Alabama. It is the nation's largest producer of 
construction aggregates, and is also a major provider of other 
construction materials and related services. In 2006, Vulcan shipped 
approximately 255 million tons of construction aggregates--the majority 
of which were coarse aggregate--to customers in 21 states, the District 
of Columbia, and Mexico. Its 2006 sales were over $3 billion.
    Florida Rock is a Florida corporation with its principal place of 
business in Jacksonville, Florida. It produces, distributes, and sells, 
among other products, construction aggregates, ready mix concrete, 
prestressed concrete, and cement. Its sales are concentrated in the 
southeastern and mid-Atlantic states. In 2006, Florida Rock shipped 
approximately 45 million tons of construction aggregates, a majority of 
which were coarse aggregate, and reported total sales of approximately 
$1.4 billion.
    On February 19, 2007, Vulcan and Florida Rock entered into an 
agreement for Vulcan to acquire Florida Rock in a cash-and-stock 
transaction valued at approximately $4.6 billion.

B. The Competitive Effects of the Transaction on the Market for Coarse 
Aggregate.

1. Relevant Product Market
    The Complaint alleges that the production, distribution, and sale 
of coarse aggregate is a relevant product market within the meaning of 
Section 7 of the Clayton Act. Coarse aggregate is a type of 
construction aggregate, and includes crushed stone of varying sizes 
produced at quarries or mines.\1\ Among other things, it is used as 
base material for roads and other construction sites and for the 
production of ready mix concrete and asphalt. Different sizes of coarse 
aggregate are needed to meet different project specifications.
---------------------------------------------------------------------------

    \1\ Construction aggregates include crushed stone, grave, sand, 
recycled asphalt, and recycled concrete.
---------------------------------------------------------------------------

    There are no reliable substitutes for coarse aggregate because it 
differs from other products in its physical composition, functional 
characteristics, customary uses, consistent availability, and pricing. 
To the extent that any substitutes exist, most customers already use 
these to the full extent possible in light of the limits on their 
availability and the amounts that can be used in a given product, and 
cannot use more of them in place of coarse aggregate in response to an 
increase in the price of coarse aggregate. The Complaint alleges that a 
small but significant post-acquisition increase in the price of coarse 
aggregate would not cause its purchasers to substitute another product 
in sufficient quantities so as to make such a price increase 
unprofitable. Accordingly, the production, distribution, and sale of 
coarse aggregate is a relevant product market.
2. Relevant Geographic Markets
    Coarse aggregate is a bulky, heavy, and relatively low-value 
product. In some markets, coarse aggregate is delivered to customers 
exclusively by truck. In other markets, the lack of native coarse 
aggregate sources and the availability of rail and/or navigable 
waterways makes it economical to rail

[[Page 68189]]

barge, and/or ship coarse aggregate directly to customer plants or job 
sites, or, much more frequently, to a distribution yard from which it 
is picked up by truck and delivered to the end customer. The cost of 
transporting coarse aggregate is high compared to its value, which 
limits the distance it can be economically transported from a quarry or 
distribution yard to a ready mix concrete or asphalt plant or job site. 
Transportation costs, as well as the location of competitors relative 
to a customer's plant or job site, thus limit the geographic area 
within which a coarse aggregate supplier can effectively compete.
    The Complaint alleges that there are a number of geographic areas 
that constitute geographic markets in which the proposed acquisition by 
Vulcan of Florida Rock will harm competition in the production, 
distribution, and sale of coarse aggregate. As discussed below, in each 
of these geographic markets, Vulcan and Florida Rock quarries face 
limited competition from other suppliers in the delivery of coarse 
aggregate to customers in the market and, because of transportation 
costs, a small but significant post-acquisition increase in the price 
of coarse aggregate would not cause customers to procure coarse 
aggregate from quarries farther away.

a. Northwest Atlanta

    Florida Rock owns and operates a coarse aggregate quarry located in 
Cedarton, Georgia, known as the Six Mile quarry. This quarry serves a 
geographic area that includes, among other areas, all or part of Floyd, 
Polk, Haralson, and Bartow Counties in Georgia (hereafter referred to 
as ``Northwest Atlanta''). Customers with plants or jobs within 
Northwest Atlanta may, depending on the location of their plant or job 
sites, also economically procure coarse aggregate from Vulcan's 
Adairsville, Bartow, and Rockmart quarries and from another 
competitor's quarry located in Cartersville, Georgia.

b. West Atlanta

    Florida Rock owns and operates a coarse aggregate quarry located in 
Yorkville, Georgia, known as the Paulding quarry. This quarry serves a 
geographic area that includes, among other areas, all or part of 
Paulding, Douglas, Carroll, Haralson, Polk, and Cobb Counties in 
Georgia (hereafter referred to as ``West Atlanta''). Customers with 
plants or jobs within West Atlanta may, depending on the location of 
their plant or job sites, also economically procure coarse aggregate 
from Vulcan's Villa Rica, Kennesaw, and Lithia Springs quarries and 
from the quarries of other competitors located in Dallas, Georgia, and 
Douglasville, Georgia.

c. Southwest Atlanta

    Florida Rock owns and operates a coarse aggregate quarry located in 
Tyrone, Georgia, known as the Tyrone quarry. This quarry serves a 
geographic area that includes, among other areas, all or part of 
Fulton, Coweta, Fayette, and Clayton Counties in Georgia (hereafter 
referred to as ``Southwest Atlanta''). Customers with plants or jobs 
within Southwest Atlanta may, depending on the location of their plant 
or job sites, also economically procure coarse aggregate from Vulcan's 
Madras quarry and from another competitor's quarry located in Tyrone, 
Georgia.

d. South Atlanta

    Florida Rock owns and operates a coarse aggregate quarry located in 
Riverdale, Georgia, known as the Forest Park quarry. This quarry serves 
a geographic area that includes, among other areas, all or part of 
Fulton, Clayton, Henry, DeKalb, and Fayette Counties in Georgia 
(hereafter referred to as ``South Atlanta''). Customers with plants or 
jobs within South Atlanta may, depending on the location of their plant 
or job sites, also economically procure coarse aggregate from Vulcan's 
Red Oak quarry and from another competitor's quarry located in College 
Park, Georgia.

e. Southeast Atlanta

    Florida Rock owns and operates a coarse aggregate quarry located in 
Zotella, Georgia, known as the Griffin quarry. This quarry serves a 
geographic area that includes, among other areas, all or part of 
Spalding and Henry Counties in Georgia (hereafter referred to as 
``Southeast Atlanta''). Customers with plants or jobs within Southeast 
Atlanta may, depending on the location of their plant or job sites, 
also economically procure coarse aggregate from Vulcan's Stockbridge 
quarry. In addition, Vulcan is in the process of opening a new quarry 
in Butts County, Georgia, expected to be operational in 2008, from 
which it plans to serve, among other areas, customers in all or part of 
Southeast Atlanta.

f. Columbus

    Florida Rock owns a majority interest in a company that owns and 
operates a coarse aggregate quarry located in Columbus, Georgia, known 
as the Columbus quarry. This quarry serves a geographic area that 
includes, among other areas, all or part of Muscogee and Harris 
Counties in Georgia (hereafter referred to as ``Columbus''). Customers 
with plants or jobs within Columbus may, depending on the location of 
their plant or job sites, also economically procure coarse aggregate 
from Vulcan's Barin quarry and from another competitor's quarry located 
in Midland, Georgia.

g. Chattanooga

    Florida Rock owns and operates a coarse aggregate quarry located in 
Chattanooga, Tennessee, known as the Jersey Pike quarry. This quarry 
serves a geographic area that includes, among other areas, all or part 
of Hamilton County in Tennessee (hereafter referred to as 
``Chattanooga''). Customers with plants or jobs within Chattanooga may, 
depending on the location of their plant or job sites, also 
economically procure coarse aggregate from Vulcan's Chattanooga quarry 
and from another competitor's quarries located in Chattanooga, 
Tennessee, and Ringgold, Georgia.

h. South Hampton Roads

    Florida Rock owns and operates a coarse aggregate quarry located in 
Richmond, Virginia, known as the Richmond quarry, a coarse aggregate 
quarry located in Havre de Grace, Maryland, known as the Havre de Grace 
quarry, and a barge-served distribution yard located in Chesapeake, 
Virginia, known as the Gilmerton yard. Florida Rock also operates a 
distribution yard owned by a third party located in Chesapeake, 
Virginia. Via these distribution yards, Florida Rock serves a 
geographic area that includes, among other areas, all or part of the 
cities of Norfolk, Suffolk, Portsmouth, Chesapeake, and Virginia Beach 
in Virginia (hereafter referred to as ``South Hampton Roads''). 
Customers with plants or jobs within South Hampton Roads may, depending 
on the location of their plant or job sites, also economically procure 
coarse aggregate from Vulcan rail and barge terminals supplied by 
Vulcan's Richmond, LawrenceviIle, and Skippers quarries. Other quarries 
cannot on a regular basis compete successfully for customers with 
plants or jobs in South Hampton Roads because they do not have 
appropriate distribution facilities in the area and/or quarries 
similarly proximate to rail lines or navigable water sources.

3. Anticompetitive Effects of the Acquisition

    In each relevant geographic area, the proposed acquisition will 
eliminate the competition between Vulcan and Florida Rock and 
substantially increase market concentration. In Southeast

[[Page 68190]]

 Atlanta and South Hampton Roads, it will reduce the number of 
suppliers of most specifications of coarse aggregate from two to one. 
In Northwest Atlanta, Southwest Atlanta, South Atlanta, Columbus, and 
Chattanooga, the proposed acquisition will reduce the number of coarse 
aggregate suppliers from three to two generally, and for some customers 
and projects, will reduce the number from two to one. In West Atlanta, 
the proposed acquisition will reduce the number of coarse aggregate 
suppliers from four to three generally, and for some customers and 
projects, will reduce the number from three to two.
    The proposed acquisition will substantially increase the likelihood 
that Vulcan will unilaterally increase the price of coarse aggregate to 
a significant number of customers in all of the relevant geographic 
areas. The response of other coarse aggregate suppliers in the relevant 
geographic markets would not be sufficient to constrain a unilateral 
exercise of market power by Vulcan after the acquisition because those 
suppliers likely would not have sufficient capacity and/or incentives 
to increase production and sales enough to defeat an anticompetitive 
price increase by Vulcan. State permits and county zoning restrictions 
in many cases limit quarries' hours of operation and/or production 
levels, and many coarse aggregate suppliers face practical limitations 
on the amount of truck traffic their facilities can handle. Moreover, 
because coarse aggregate mined trom quarries is a depletable natural 
resource and every quarry has finite reserves, every sale by a supplier 
today represents a tradeoff against future sales.
    Likewise, the response of customers would be insufficient to 
constrain a unilateral exercise of market power by Vulcan. To the 
extent that cost-effective substitutes exist, these already are being 
used to the full extent possible, and customers would not increase 
their use of these substitutes in response to an increase in the price 
of coarse aggregate. Thus, customers would not be able to prevent 
Vulcan's exercise of market power.
    In addition, and notwithstanding competitor responses, post-
acquisition Vulcan will be able to increase prices to those customers 
that have plants or job sites for which both a Vulcan quarry and a 
Florida Rock quarry are closer than any other quarries producing coarse 
aggregate meeting their specifications. Coarse aggregate suppliers know 
the locations of their competitors' quarries and the distance from 
their own quarries and their competitors' quarries to a customer's 
plant or job site. Generally, because of transportation costs, the 
farther a supplier's closest competitor is from a job site, the less 
price competition that supplier faces for that project. Post-
acquisition, in instances where Vulcan and Florida Rock quarries would 
be the closest quarries to a customer's plant or project and the next 
closest coarse aggregate supplier's plant is farther from the 
customer's plant or project, the combined firm, using the knowledge of 
its competitors' quarry locations, would be able to charge such 
customers higher prices.
    Further, the proposed acquisition is likely to facilitate 
anticompetitive coordination among the remaining coarse aggregate 
suppliers in Northwest Atlanta, West Atlanta, Southwest Atlanta, South 
Atlanta, Columbus, and Chattanooga. Coarse aggregate is homogeneous and 
suppliers have access to information about competitors' output, 
capacity, and costs. Given these market conditions, eliminating Florida 
Rock as one of the few coarse aggregate competitors is likely to 
further increase the ability of the remaining competitors to coordinate 
successfully.
    Finally, timely and successful entry into the production, 
distribution, and sale of coarse aggregate is unlikely in any of the 
geographic areas and thus will not defeat anticompetitive unilateral or 
coordinated price increases resulting from the proposed acquisition. 
Securing the proper site for a coarse aggregate quarry or mine is 
difficult, time-consuming, and costly; it requires the investigation 
and extensive testing of candidate sites to find ones with adequate 
reserves of sufficient quality, and can require negotiations with 
multiple landowners as well as with government officials. Additional 
difficulties face a new entrant seeking to provide coarse aggregate to 
South Hampton Roads. In South Hampton Roads, the area's geology is such 
that coarse aggregate for most applications must be imported from 
outside the area. For an entrant to compete effectively in South 
Hampton Roads with Vulcan post-acquisition, that entrant must pair a 
new or existing rail-or water-served quarry with a distribution yard in 
South Hampton Roads that is capable of receiving coarse aggregate from 
such a quarry. Rail-or water-served quarries situated to compete 
effectively in South Hampton Roads, and the proper sites for 
distribution yards to serve such quarries, are scarce. In all of the 
relevant geographic markets the location of a quarry or yard is 
important due to the high cost of transporting coarse aggregate, but 
there are very few sites, especially in metropolitan areas, on which to 
locate coarse aggregate operations.
    Obtaining necessary zoning variances and government permits for a 
coarse aggregate quarry can also be difficult, time-consuming, and 
costly. In metropolitan areas, land of the necessary size and geology 
is often already utilized or does not have the appropriate zoning, and 
obtaining zoning variances can be extremely difficult. Attempts to open 
a new coarse aggregate quarry or mine, especially in metropolitan areas 
(such as West Atlanta, Southwest Atlanta, South Atlanta, Columbus, 
Chattanooga, and South Hampton Roads) but also frequently in rural 
areas, often face fierce public opposition, which delays and raises the 
expense of opening such operations or prevents such projects 
altogether. In addition, state and federal water, air quality, and 
other permitting process requirements must be met, which can take from 
months to years.
    Finally, even after a quarry or mine site is selected, acquired, 
and properly zoned and permitted, the owner must spend significant time 
and resources to prepare the land and install the equipment necessary 
to run the operation. As a result of all of these costly and time-
consuming barriers to entry, entry by any other firm. into the coarse 
aggregate market in the relevant geographic areas will not be timely, 
likely, or sufficient to defeat an anti competitive price mcrease.

III. Explanation of the Proposed Final Judgment

A. The Divestiture Assets

    The divestitures provided for in the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in the markets 
for the production, distribution, and sale of coarse aggregate in all 
of the relevant geographic markets. In each market, the divestitures 
will establish a new, independent, and economically viable competitor.
    The Divestiture Assets include the following quarries and yard:
    a. The Florida Rock Six Mile quarry, located at 3785 Cave Springs 
Road, Cedarton, Georgia, divestiture of which will remedy the 
competitive concerns in Northwest Atlanta;
    b. The Florida Rock Paulding quarry, located at 112 Quarry Road, 
Yorkville, Georgia, divestiture of which will remedy the competitive 
concerns in West Atlanta;
    c. The Florida Rock Tyrone quarry, located at 240 Rockwood Road, 
Tyrone,

[[Page 68191]]

Georgia, divestiture of which will remedy the competitive concerns in 
Southwest Atlanta;
    d. The Vulcan Red Oak quarry, located at 5414 Buffington Road, Red 
Oak, Georgia, divestiture of which will remedy the competitive concerns 
in South Atlanta;
    e. The Vulcan quarry under development in Butts County, located on 
Greer Dairy Road, Jackson, Georgia, divestiture of which will remedy 
the competitive concerns in Southeast Atlanta;
    f. The Florida Rock interest in Columbus Quarry LLC, which owns the 
Columbus quarry, located at 3001 Smith Road, Columbus, Georgia, 
divestiture of which will remedy the competitive concerns in Columbus;
    g. The Florida Rock Jersey Pike quarry, located at 2 Pelican Drive, 
Chattanooga, Tennessee, divestiture of which will remedy the 
competitive concerns in Chattanooga;
    h. The Florida Rock Richmond quarry located at 2100 Deepwater 
Terminal Road, Richmond, Virginia (but excluding the Florida Rock ready 
mix concrete plant, the real property necessary for the operation of 
the plant (provided the conveyance of such property does not interfere 
with the operation of the Richmond quarry), and all other tangible and 
intangible assets exclusively used in the plant's operations) and, at 
the option of the Acquirer, use of the real property, parking lot, 
equipment shop, and office building equivalent to that which Florida 
Rock currently has for its quarry operations, divestiture of which (in 
addition to the yard listed in Paragraph (i)) will remedy the 
competitive concerns in South Hampton Roads; and
    i. in South Hampton Roads, the Florida Rock Gilmerton yard, located 
at 4606 Bainbridge Boulevard, Chesapeake, Virginia (but excluding the 
Florida Rock ready mix concrete plant, the real property necessary for 
the operation of the plant (provided the conveyance of such property 
does not interfere with the operation of the Gilmerton yard), and all 
other tangible and intangible assets exclusively used in the plant's 
operations) and, at the option of the Acquirer, use of the real 
property, parking lot, equipment shop, fuel station, and office 
building equivalent to that which Florida Rock currently has for its 
operation of the yard, divestiture of which (in addition to the quarry 
listed in Paragraph (h)) will remedy the competitive concerns in South 
Hampton Roads.
    The proposed merger does not raise competitive concerns with 
respect to the sale of ready mix concrete in either Richmond or South 
Hampton Roads. Thus, parts (h) and (i) of the Divestiture Assets 
definition above excludes property related to Florida Rock's ready mix 
concrete operations located at the Richmond quarry and Gilmerton yard 
properties that is not necessary to the operation of the quarry and 
coarse aggregate yard, and specifically grant back to the Acquirer the 
right to use real property and facilities that are currently used by 
both the coarse aggregate and the ready mix operations.
    The Divestiture Assets also include all tangible assets used in or 
for the above-listed quarries and yard as well as all intangible assets 
used in the development, production, servicing, distribution, and sale 
of products produced by or in the quarries or stored in the yard.
    The sale of the Divestiture Assets according to the terms of the 
proposed Final Judgment will ensure that Vulcan's acquisition of 
Florida Rock does not harm competition in any of the affected 
geographic areas.

B. Selected Provisions of the Proposed Final Judgment

    In antitrust cases involving mergers in which the United States 
seeks a divestiture remedy, it requires completion of the divestiture 
within the shortest time period reasonable under the circumstances. A 
quick divestiture has the benefits of restoring competition lost in the 
acquisition and reducing the possibility of dissipation of the value of 
the assets. Paragraph IV(A) of the proposed Final Judgment requires 
Defendants to divest the Divestiture Assets as viable ongoing 
businesses within 90 days after the filing of the Complaint in this 
matter or five days after notice of the entry of the Final Judgment by 
the Court, whichever is later.\2\
---------------------------------------------------------------------------

    \2\ The Final Judgment also provides that this 90-day time 
period may be extended by the United States in its sole discretion 
for a total period not exceeding 60 calendar days, and that the 
Court will receive prior notice of any such extension.
---------------------------------------------------------------------------

    Paragraph IV (D) provides that Defendants shall not impede in any 
way any person from competing for or obtaining the lease to the 
Branscome Chesapeake yard. This yard is owned by a contractor who 
leases it to other companies. Currently, the lessee is Florida Rock, 
which barges coarse aggregate to the yard to supply the owner's 
operations. The lease with Florida Rock expires on December 31, 2007. 
Paragraph IV(D) is designed to ensure that the buyer of the Florida 
Rock Richmond quarry and Florida Rock Gilmerton yard divestiture 
assets, or any other interested party, has the opportunity to compete 
for the lease upon its expiration.
    The Vulcan quarry under development in Butts County is not yet 
operational, but Paragraph IV(F) requires Defendants to warrant to the 
Acquirer that they have obtained all environmental, zoning, or other 
permits required to begin production of coarse aggregate at the Butts 
site.
    Paragraph IV(J) of the proposed Final Judgment provides that the 
sale of the Divestiture Assets may be made to one or more Acquirers, 
except that the Richmond quarry and Gilmerton yard must be divested to 
a single acquirer. This provision ensures that the owner of the barge-
served quarry also owns a barge-served distribution facility in South 
Hampton Roads so that it can compete effectively in South Hampton 
Roads.
    Paragraph IV(J) of the proposed Final Judgment also provides that 
the assets must be divested in such a way as to satisfy the United 
States in its sole discretion that the operations can and will be 
operated by the purchaser as a viable, ongoing business that can 
compete effectively in the relevant markets. The provisions of 
Paragraph IV are designed to ensure that Defendants take all reasonable 
steps necessary to accomplish the divestitures quickly and cooperate 
with prospective purchasers.
    Finally, Paragraph V of the proposed Final Judgment provides that 
in the event that Defendants do not accomplish the divestitures within 
the periods prescribed in the proposed Final Judgment, the Court will 
appoint a trustee selected by the United States to effect the 
divestitures. If a trustee is appointed, the proposed Final Judgment 
provides that 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 divestitures are accomplished. After his or her 
appointment becomes effective, the trustee will file monthly reports 
with the Court and the United States setting forth his or her efforts 
to accomplish the divestitures. If the divestitures have not been 
accomplished at the end of six months, the trustee and the United 
States will make recommendations to the Court, which shall enter such 
orders as appropriate in order to carry out the purpose of the trust, 
including extending the trust or 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

[[Page 68192]]

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

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment at 
any time prior to the Court's entry of judgment. 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, Chief, 
Litigation II Section, Antitrust Division, United States Department of 
Justice, 1401 H St. NW., Suite 3000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against Defendants. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions against Vulcan's acquisition of 
Florida Rock. The United States is satisfied, however, that the 
divestiture of assets described in the proposed Final Judgment will 
preserve competition in the production, distribution, and sale of 
coarse aggregate in the relevant geographic markets identified by the 
United States. Thus, the proposed Final Judgment would achieve all or 
substantially all of the relief the United States would have obtained 
through litigation, but avoids the time, expense, and uncertainty of a 
full trial on the merits of the Complaint.

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

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-day comment period, after which the Court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In making that determination, 
the court, in accordance with the statute as amended in 2004, is 
required to consider:

    (A) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) The impact of entry of such judgment upon competition in the 
relevant market or markets, 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)(1)(A)-(B); see generally United States v. SBC Commc'ns, 
Inc., 489 F. Supp. 2d 1, 11 (D.D.C. 2007) (concluding that the 2004 
amendments ``effected minimal changes'' to scope of review under Tunney 
Act, leaving review ``sharply proscribed by precedent and the nature of 
Tunney Act proceedings'').\3\
---------------------------------------------------------------------------

    \3\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for the court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006).
---------------------------------------------------------------------------

    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA a court considers, among other things, 
the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See United 
States v. Microsoft Corp., 56 F.3d 1448, 1458-62 (DC Cir. 1995). With 
respect to the adequacy of the relief secured by the decree, a court 
may not ``engage in an unrestricted evaluation of what relief would 
best serve the public.'' United States v. BNS, Inc., 858 F.2d 456, 462 
(9th Cir. 1988) (citing United States v. Bechtel Corp., 648 F.2d 660, 
666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62. Courts 
have held 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). \4\ In 
making its public interest determination, a district court ``must 
accord deference to the government's predictions about the efficacy of 
its remedies, and may not require that the remedies perfectly match the 
alleged violations because this may only reflect underlying weakness in 
the government's case or concessions made during negotiation.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 
(noting the need for courts to be ``deferential to the government's 
predictions as to the effect of the proposed remedies''); United States 
v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) 
(noting that the court should grant due respect to the United States' 
prediction as to the effect of proposed remedies, its perception of

[[Page 68193]]

the market structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \4\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (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' '').
---------------------------------------------------------------------------

    Court approval of a consent decree requires a standard more 
flexible and less strict than that appropriate to court adoption of a 
litigated decree following a finding of liability. ``[A] proposed 
decree must be approved even if it falls short of the remedy the court 
would impose on its own, as long as it falls within the range of 
acceptability or is `within the reaches of public interest.' '' United 
States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) 
(citations omitted) (quoting United States v. Gillette Co., 406 F. 
Supp. 713, 716 (D. Mass. 1975)), 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). To 
meet this standard, the United States ``need only provide a factual 
basis for concluding that the settlements are reasonably adequate 
remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    Moreover, the Court's role under the APPA 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 did not pursue. Id. 
at 1459-60. As this court recently confirmed in SBC Communications, 
courts ``cannot look beyond the complaint in making the public interest 
determination unless the complaint is drafted so narrowly as to make a 
mockery of judicial power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction ``[n]othing in this 
section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2). This instruction explicitly writes 
into the statute the standard intended by the Congress that enacted the 
Tunney Act in 1974, as Senator Tunney then explained: ``[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). Rather, the procedure 
for the public interest determination is left to the discretion of the 
court, with the recognition that the court's ``scope of review remains 
sharply proscribed by precedent and the nature of Tunney Act 
proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11. \5\
---------------------------------------------------------------------------

    \5\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); S. 
Rep. No. 93-298, 93d Cong., 1st Sess., at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.''); United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade 
Cas. (CCH) ] 61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing 
of corrupt failure of the government to discharge its duty, the 
Court, in making its public interest finding, should* * * carefully 
consider the explanations of the government in the competitive 
impact statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.'').
---------------------------------------------------------------------------

VIII. Determinative Documents

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

    Dated: November 13, 2007.

Respectfully submitted,

Robert W. Wilder, Esquire,
United States Department of Justice, Antitrust Division, Litigation 
II Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530 
(202) 307-6336

[FR Doc. 07-5902 Filed 12-3-07; 8:45 am]
BILLING CODE 4410-11-M