[Federal Register Volume 81, Number 27 (Wednesday, February 10, 2016)]
[Notices]
[Pages 7144-7155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02720]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. BBA Aviation plc, 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, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. BBA Aviation plc, et al., Civil Action No. 1:16-
cv-00174 (ABJ). On February 3, 2016, the United States filed a 
Complaint alleging that BBA Aviation plc's (``BBA'') proposed 
acquisition of the fixed-base operator (``FBO'') assets owned by 
Landmark U.S. Corp LLC and LM U.S. Member LLC (collectively, 
``Landmark'') at six U.S. airports would violate Section 7 of the 
Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed at the 
same time as the Complaint, requires BBA to divest the

[[Page 7145]]

FBO assets it is acquiring from Landmark at each of the six airports: 
Washington Dulles International Airport (IAD); Scottsdale Municipal 
Airport (SDL); Fresno Yosemite International Airport (FAT); Jacqueline 
Cochran Regional Airport (TRM); Westchester County Airport (HPN); and 
Ted Stevens Anchorage International Airport (ANC).
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's Web site at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the District of 
Columbia. Copies of these materials may be obtained from the Antitrust 
Division upon request and payment of the copying fee set by Department 
of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's Web site, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to James J. Tierney, 
Chief, Networks & Technology Enforcement Section, Antitrust Division, 
Department of Justice, 450 Fifth Street NW., Suite 7100, Washington, DC 
20530 (telephone: 202-307-6640).

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the District of Columbia

    United States of America, U.S. Department of Justice, Antitrust 
Division 450 Fifth Street, NW., Suite 7100, Washington, DC 20530,

Plaintiff,

v.

    BBA Aviation PLC, 105 Wigmore Street, London, UK, W1U 1QY 
England, Landmark U.S. Corp LLC, 1001 Pennsylvania Avenue, NW., 
Suite 220 South, Washington, DC 20004,

and

    LM U.S. Member LLC, 1001 Pennsylvania Avenue, NW., Suite 220 
South, Washington, DC 20004,

Defendants.

CASE NO.: 1:16-cv-00174
JUDGE: Amy Berman Jackson
FILED: 02/03/2016

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to enjoin the proposed acquisition by BBA Aviation plc 
(``BBA''), operating in the United States through its subsidiary 
Signature Flight Support Corporation (``Signature''), of Landmark U.S. 
Corp LLC and LM U.S. Member LLC, collectively doing business as 
Landmark Aviation (``Landmark''), and to obtain other equitable relief. 
The United States alleges as follows:

I. Nature of the Action

    1. On September 23, 2015, BBA and Landmark signed an agreement for 
BBA to acquire all of the equity interests in Landmark, including 
Landmark's fixed-base operator locations (``FBOs''), for approximately 
$2.065 billion. FBOs sell aviation fuel and provide flight support 
services to general aviation customers. BBA, through Signature, 
operates approximately 70 FBOs at airports across the United States. 
Landmark operates FBOs at approximately 60 airports in the United 
States. Both Signature and Landmark operate FBOs at Washington Dulles 
International Airport (``IAD'') located in Dulles, Virginia; Scottsdale 
Municipal Airport (``SDL'') located in Scottsdale, Arizona; Fresno 
Yosemite International Airport (``FAT'') located in Fresno, California; 
Jacqueline Cochran Regional Airport (``TRM'') located in Thermal, 
California; Westchester County Airport (``HPN'') located in White 
Plains, New York; and Ted Stevens Anchorage International Airport 
(``ANC'') located in Anchorage, Alaska.
    2. Signature and Landmark are the only two full-service FBOs 
operating at IAD, SDL, and FAT, and two of only three full-service FBOs 
operating at TRM, HPN, and ANC. At each of these six airports, 
Signature and Landmark compete directly on price and quality of FBO 
services. The proposed acquisition would eliminate this head-to-head 
competition, resulting in higher prices and lower quality of services 
for general aviation customers at each airport.
    3. Accordingly, BBA's proposed acquisition of Landmark is likely to 
lessen competition substantially in the markets for full-service FBO 
services at IAD, SDL, FAT, TRM, HPN, and ANC in violation of Section 7 
of the Clayton Act, 15 U.S.C. 18, and should be enjoined.

II. Jurisdiction and Venue

    4. The 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. 
This Court has subject matter jurisdiction over this action and 
jurisdiction over the parties pursuant to 15 U.S.C. 25 and 28 U.S.C. 
1331, 1337(a), and 1345.
    5. Defendants are engaged in interstate commerce and in activities 
substantially affecting interstate commerce. Signature and Landmark 
market and sell their products and services, including their FBO 
services, throughout the United States and regularly transact business 
and transmit data in connection with these activities in the flow of 
interstate commerce.
    6. Defendants have consented to venue and personal jurisdiction in 
this District. This Court has personal jurisdiction over each Defendant 
and venue is proper under Section 12 of the Clayton Act, 15 U.S.C. 22, 
and 28 U.S.C. 1391(b) and (c).

III. Defendants and the Proposed Transaction

    7. BBA is a United Kingdom public limited company headquartered in 
London, England. BBA operates in the United States through its 
subsidiary, Signature, a Delaware corporation headquartered in Orlando, 
Florida. Signature has the largest FBO network in the United States and 
in the world. It owns or operates approximately 70 FBO facilities in 
the United States, including FBO operations at IAD, SDL, FAT, TRM, HPN, 
and ANC. BBA had worldwide revenues of approximately $2.3 billion in 
2014, of which over $900 million were derived from Signature's U.S. FBO 
business.
    8. Landmark U.S. Corp. and LM U.S. Member are Delaware limited 
liability companies with their headquarters in Houston, Texas and 
together comprise the companies doing business as Landmark. They are 
subsidiaries of CP V Landmark II, L.P. and CP V Landmark, L.P, 
respectively, which are both Delaware limited partnerships affiliated 
with the Carlyle Group. Landmark has the third-largest FBO network in 
the United States, where it owns and operates approximately 60 FBO 
facilities, including FBO operations at IAD, SDL, FAT, TRM, HPN, and 
ANC. Landmark had worldwide revenues of over $700 million in 2014, of 
which over $500 million were derived from its U.S. FBO business.
    9. On September 23, 2015, BBA and Landmark executed a Securities 
Purchase Agreement under which BBA agreed to acquire all of the equity 
interests in Landmark for approximately $2.065 billion.

IV. Trade and Commerce

A. The Relevant Market

    10. An FBO is a commercial business that is granted the right by a 
local airport authority to sell fuel and provide related support 
services to general aviation customers. General aviation

[[Page 7146]]

customers include charter, private, and corporate aircraft operators, 
as distinguished from scheduled commercial passenger and cargo airline 
operators. General aviation customers cannot obtain FBO services except 
through the FBOs authorized to sell such services by each local airport 
authority.
    11. Full-service FBOs sell aviation fuel, including at least jet 
aviation fuel (``Jet A'') and typically also aviation gasoline 
(``avgas''); provide fueling services, including pumping fuel into 
aircraft; and provide additional support services, including aircraft 
ground handling, aircraft parking and storage, and passenger and crew 
services such as baggage handling, ground transportation, catering, 
concierge, conference room, and lounge services.
    12. The largest source of revenue for an FBO is fuel sales. FBOs 
sell Jet A for turbine-powered aircraft, including turbojets and 
turboprops, and avgas for smaller, piston-powered aircraft. Jet A 
comprises the vast majority of U.S. fuel consumption by general 
aviation customers, with avgas making up a significantly smaller 
portion.
    13. Full-service FBOs do not typically charge separately for 
certain ancillary services such as conference rooms, pilot lounges, 
flight planning, and transportation, and instead recover the cost of 
these services in the price that they charge for fuel. Full-service 
FBOs do, however, often charge separately for hangar and office space 
rentals, aircraft parking and storage, aircraft handling, tie-down and 
ground services, deicing, and catering.
    14. Full-service FBOs are distinct from self-service FBOs, which 
require that the aircraft pilot or crew tow the aircraft and pump the 
fuel themselves and do not provide the full range of support services 
provided by full-service FBOs. Most self-service FBOs do not sell Jet 
A, and those that do lack the necessary equipment to service large jet 
aircraft. For the vast majority of general aviation customers, self-
service FBOs are not an alternative to a full-service FBO, and a 
hypothetical monopolist of full-service FBO services at an airport 
could profitably increase prices by a significant and non-transitory 
amount. Accordingly, full-service FBO services constitute a relevant 
product market and line of commerce under Section 7 of the Clayton Act, 
15 U.S.C. 18.
    15. General aviation customers typically select the airport they 
wish to fly into based on its proximity to their ultimate destination 
and other convenience factors and then select an FBO from those 
available at that airport. In most cases, the inconvenience and cost of 
flying an aircraft to another nearby airport to refuel outweighs any 
difference in the fuel prices between the airports. Thus, obtaining FBO 
services at another airport is not a meaningful alternative for most 
general aviation customers. As a result, a hypothetical monopolist of 
full-service FBO services at IAD, SDL, FAT, TRM, HPN, or ANC could 
profitably increase prices by a significant and non-transitory amount. 
Accordingly, these individual airports each constitute a relevant 
geographic market and section of the country under Section 7 of the 
Clayton Act, 15 U.S.C. 18.

B. Anticompetitive Effects

    16. The markets for full-service FBO services at IAD, SDL, and FAT 
are highly concentrated, with Signature and Landmark serving as the 
only two providers of full-service FBO services at each airport.
    17. The markets for full-service FBO services at TRM, HPN, and ANC 
are also highly concentrated, with Signature, Landmark, and a single 
smaller competitor serving as the only three providers of full-service 
FBO services at each airport. At TRM, the third competitor is a new 
full-service FBO that has obtained a lease with the airport authority 
and begun construction of a facility, but is not expected to be fully 
operational until later this year. At HPN, the other competitor is 
precluded by the terms of its lease with the airport authority from 
serving larger aircraft--which represent a significant portion of HPN's 
general aviation customers--and serves less than 20% of the market. At 
ANC, the other competitor has not been operating as long as either 
Signature or Landmark and also has a market share below 20%.
    18. Market concentration often is a useful indicator of the level 
of competitive vigor in a market and the likely competitive effects of 
a merger. The more concentrated a market, and the more a transaction 
would increase that concentration, the more likely it is that the 
transaction would result in reduced competition and harm to consumers. 
Market concentration commonly is measured by the Herfindahl-Hirschman 
Index (``HHI''), as explained in Appendix A. Markets in which the HHI 
exceeds 2,500 points are considered highly concentrated, and 
transactions that increase the HHI by more than 200 points in highly 
concentrated markets are presumed likely to enhance market power. Here, 
the proposed acquisition would substantially increase market 
concentration at IAD, SDL, FAT, TRM, HPN, and ANC, each of which 
already is highly concentrated, raising the HHI by more than 3,100 
points in each market. At IAD, SDL, and FAT, the proposed acquisition 
would result in an HHI of 10,000--a total monopoly--and at TRM, HPN, 
and ANC, the post-acquisition HHI would exceed 6,700 points in each 
market.
    19. Competition between the Signature and Landmark FBO facilities 
at IAD, SDL, FAT, TRM, HPN, and ANC currently limits the ability of 
each company to raise prices for FBO services. This head-to-head 
competition also forces each company to offer better service to 
customers. The proposed acquisition would eliminate the competitive 
constraint each firm imposes on the other at each airport.
    20. Consequently, the proposed acquisition would lead to a monopoly 
at IAD, SDL, and FAT and establish Signature as the dominant provider 
of full-service FBO services at TRM, HPN, and ANC, with a market share 
of at least 80% and the ability to exercise substantial market power. 
The proposed acquisition would therefore likely result in higher prices 
for full-service FBO services and a lower quality of service for 
general aviation customers at IAD, SDL, FAT, TRM, HPN, and ANC in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18.

C. Entry

    21. Successful entry into the provision of full-service FBO 
services at IAD, SDL, FAT, TRM, HPN, or ANC would not be timely, 
likely, or sufficient to deter the anticompetitive effects resulting 
from the proposed acquisition for several reasons. First, FBO entry or 
expansion requires extensive lead time and capital investment to 
complete and there is no guarantee that the FBO provider would be able 
to obtain the necessary approvals and permits. Second, it often takes 
several years for a new FBO provider to build a significant customer 
base. Third, an FBO provider that wanted to enter or expand at an 
airport would need to secure land to build FBO facilities, obtain the 
approval of the airport authority and necessary permits, and construct 
FBO facilities prior to beginning operations. At airports where there 
is insufficient existing land or infrastructure to support additional 
FBO facilities--which is the case at least at IAD, SDL, FAT, and HPN--
an FBO provider would also need to develop adjacent land and expand the 
airport infrastructure. Thus, successful entry or expansion at any of 
the individual airports at issue likely would not occur in a timely 
manner or be sufficient to

[[Page 7147]]

prevent or remedy the proposed acquisition's anticompetitive effects.

V. Violation Alleged

    22. The United States hereby incorporates paragraphs 1 through 21 
above.
    23. Unless enjoined, BBA's proposed acquisition of Landmark is 
likely to substantially lessen competition for full-service FBO 
services at IAD, SDL, FAT, TRM, HPN, and ANC in violation of Section 7 
of the Clayton Act, 15 U.S.C. 18, in the following ways:
    (a) All competition for full-service FBO services at IAD, SDL, and 
FAT will be eliminated;
    (b) actual and potential competition between Signature and Landmark 
for full-service FBO services at IAD, SDL, FAT, TRM, HPN, and ANC will 
be eliminated; and
    (c) prices for full-service FBO services for general aviation 
customers at IAD, SDL, FAT, TRM, HPN, and ANC will likely increase and 
the quality of services will likely decrease.

VI. Request for Relief

    24. The United States requests that this Court:
    (a) Adjudge and decree that BBA's proposed acquisition of Landmark 
would be unlawful and would violate Section 7 of the Clayton Act, 15 
U.S.C. 18;
    (b) permanently enjoin and restrain Defendants and all persons 
acting on their behalf from consummating the proposed transaction or 
from entering into or carrying out any contract, agreement, plan, or 
understanding the effect of which would be to combine Signature's and 
Landmark's FBO facilities and assets at IAD, SDL, FAT, TRM, HPN, and 
ANC;
    (c) award the United States its costs for this action; and
    (d) award the United States such other and further relief as this 
Court deems just and proper.

    Dated: February 3, 2016.

    Respectfully submitted,

For Plaintiff United States of America:

/s/________
William J. Baer (DC Bar #324723),
Assistant Attorney General for Antitrust.

/s/________
Sonia K. Pfaffenroth,
Deputy Assistant Attorney General.

/s/________
Patricia A. Brink,
Director of Civil Enforcement.

/s/________
James J. Tierney (DC Bar #434610),
Chief, Networks & Technology.

/s/________
Aaron D. Hoag,
 Matthew C. Hammond,
Assistant Chiefs, Networks & Technology Enforcement Section.

/s/________
Patricia L. Sindel * (DC Bar #997505),
Elizabeth Jensen,
Ryan Struve (DC Bar #495406),
Jeffrey Negrette,
Trial Attorneys, Networks & Technology Enforcement Section.

Antitrust Division, U.S. Department of Justice, 450 Fifth Street 
NW., Suite 7100, Washington, DC 20530, Phone: (202) 598-8300, 
Facsimile: (202) 616-8544, Email: [email protected].

* Attorney of Record

Appendix A

Herfindahl-Hirschman Index

    The term ``HHI'' means the Herfindahl-Hirschman Index, a 
commonly accepted measure of market concentration. The HHI is 
calculated by squaring the market share of each firm competing in 
the relevant market and then summing the resulting numbers. For 
example, for a market consisting of four firms with shares of 30, 
30, 20, and 20 percent, the HHI is 2,600 (30\2\ + 30\2\ + 20\2\ + 
20\2\ = 2,600). The HHI takes into account the relative size 
distribution of the firms in a market. It approaches zero when a 
market is occupied by a large number of firms of relatively equal 
size, and reaches its maximum of 10,000 points when a market is 
controlled by a single firm. The HHI increases both as the number of 
firms in the market decreases and as the disparity in size between 
those firms increases.
    Markets in which the HHI is between 1,500 and 2,500 points are 
considered to be moderately concentrated, and markets in which the 
HHI is in excess of 2,500 points are considered to be highly 
concentrated. See U.S. Department of Justice & Federal Trade 
Commission, Horizontal Merger Guidelines Sec.  5.3 (2010) 
(``Guidelines''). Transactions that increase the HHI by more than 
200 points in highly concentrated markets presumptively raise 
antitrust concerns under the Guidelines. Id.

United States District Court for the District of Columbia

    United States of America,

Plaintiff,

v.
    BBA Aviation PLC, Landmark U.S. Corp LLC,

and
    LM U.S. Member LLC,

Defendants.

CASE NO.: 1:16-cv-00174
JUDGE: Amy Berman Jackson
FILED: 02/03/2016

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

    Defendant BBA Aviation plc (``BBA'') and Defendants Landmark U.S. 
Corp LLC and LM U.S. Member LLC (``Landmark'') entered into a 
Securities Purchase Agreement, dated September 23, 2015, pursuant to 
which BBA intends to acquire all of the equity interests in Landmark 
for approximately $2.065 billion. The United States filed a civil 
antitrust Complaint on February 3, 2016, seeking to enjoin the proposed 
acquisition. The Complaint alleges that the likely effect of this 
acquisition would be to substantially lessen competition for full-
service fixed-base operator (``FBO'') services at Washington Dulles 
International Airport (``IAD''), located in Dulles, Virginia; 
Scottsdale Municipal Airport (``SDL''), located in Scottsdale, Arizona; 
Fresno Yosemite International Airport (``FAT''), located in Fresno, 
California; Jacqueline Cochran Regional Airport (``TRM''), located in 
Thermal, California; Westchester County Airport (``HPN''), located in 
White Plains, New York; and Ted Stevens Anchorage International Airport 
(``ANC''), located in Anchorage, Alaska (collectively, the 
``Divestiture Airports''), 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 aircraft fuel and other FBO services and a reduction 
in quality of such services at the Divestiture Airports.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate'') and 
proposed Final Judgment, which are designed to eliminate the 
anticompetitive effects of the acquisition. Under the proposed Final 
Judgment, which is explained more fully below, Defendants are required 
to sell the Landmark FBO assets (the ``Divestiture Assets'') at each of 
the Divestiture Airports. Under the terms of the Hold Separate, 
Defendants will take certain steps to ensure that the Divestiture 
Assets at the Divestiture Airports are operated as competitively 
independent, economically viable, and ongoing business concerns that 
will remain independent and uninfluenced by the consummation of the 
acquisition, and that competition is maintained during the pendency of 
the ordered divestiture.
    The United States and Defendants 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

[[Page 7148]]

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

    BBA is a United Kingdom public limited company headquartered in 
London, England that operates in the United States through its 
subsidiary Signature Flight Support Corporation (``Signature''), a 
Delaware corporation which has its principal place of business in 
Orlando, Florida. Signature has the largest FBO network in the world 
and in the United States. It owns or operates approximately 70 FBO 
facilities in the United States, including FBO operations at IAD, SDL, 
FAT, TRM, HPN, and ANC. BBA had worldwide revenues of approximately 
$2.3 billion in 2014, of which over $900 million were derived from 
Signature's U.S. FBO business.
    Landmark U.S. Corp. and LM U.S. Member are Delaware limited 
liability companies with their headquarters in Houston, Texas and 
together comprise the companies doing business as Landmark. They are 
subsidiaries of CP V Landmark II, L.P. and CP V Landmark, L.P., 
respectively, which are both Delaware limited partnerships affiliated 
with the Carlyle Group. Landmark has the third-largest FBO network in 
the United States, where it owns and operates approximately 60 FBO 
facilities, including FBO operations at IAD, SDL, FAT, TRM, HPN, and 
ANC. Landmark had worldwide revenues of over $700 million in 2014, of 
which over $500 million were derived from its U.S. FBO business.
    On September 23, 2015, BBA and Landmark executed a Securities 
Purchase Agreement pursuant to which BBA agreed to acquire all of the 
equity interests in Landmark for approximately $2.065 billion.
    The proposed transaction, as initially agreed to by Defendants, 
would substantially lessen competition for full-service FBO services at 
the six Divestiture Airports. At each of the Divestiture Airports, 
Signature and Landmark are either the only two competitors, or two of 
only three competitors. The acquisition is the subject of the Complaint 
and proposed Final Judgment filed by the United States today.

B. The Competitive Effects of the Transaction on the Relevant Markets

1. The Relevant Markets
    The Complaint alleges that the provision of full-service FBO 
services at each of the six Divestiture Airports are relevant markets 
within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18. An 
FBO is a commercial business that is granted the right by a local 
airport authority to sell fuel and provide related support services to 
general aviation customers. General aviation customers include charter, 
private, and corporate aircraft operators, as distinguished from 
scheduled commercial passenger and cargo airline operators.
    Full-service FBOs sell jet aviation fuel (``Jet A'') and typically 
also aviation gasoline (``avgas''); provide fueling services, including 
pumping fuel into aircraft; and provide additional ancillary services, 
including aircraft ground handling, aircraft parking and storage, and 
passenger and crew services such as baggage handling, ground 
transportation, catering, concierge, conference room, and lounge 
services.
    The largest source of revenue for an FBO is fuel sales. Full-
service FBOs usually do not charge separately for ancillary services 
they provide such as conference rooms, pilot lounges, flight planning, 
and transportation, and instead recover the cost of these services in 
the price that they charge for fuel. Full-service FBOs often charge 
separately for hangar and office space rentals, aircraft parking and 
storage, aircraft handling, tie-down and ground services, deicing, and 
catering.
    Full-service FBOs are distinct from self-service FBOs, which 
require that the aircraft pilot or crew tow the aircraft and pump the 
fuel and do not offer the full range of products, equipment, and 
ancillary services provided by full-service FBOs. For the vast majority 
of customers, self-service FBOs are not an alternative to a full-
service FBO.
    Obtaining FBO services at other airports in the general vicinity of 
the Divestiture Airports would not provide a meaningful alternative for 
most general aviation customers. Customers typically select an airport 
for its proximity to their final destination and other convenience 
factors, and in most cases the inconvenience and cost of flying an 
aircraft to another airport to refuel outweighs any difference in the 
fuel prices between the airports. General aviation customers at the 
Divestiture Airports would not switch to other airports in sufficient 
numbers to prevent post-acquisition price increases for fuel and other 
FBO services at the Divestiture Airports.
2. The Proposed Merger Would Produce Anticompetitive Effects
    Each of the markets for full-service FBO services at the 
Divestiture Airports is highly concentrated. Signature and Landmark are 
the only two providers of full-service FBO services at three of these 
airports--IAD, SDL, and FAT. At three other airports--TRM, HPN and 
ANC--a single smaller competitor exists beyond Signature and Landmark. 
Competition between the Signature and Landmark FBO facilities at each 
of these airports currently limits the ability of each company to raise 
prices for full-service FBO services. This head-to-head competition 
also forces each company to offer better service to general aviation 
customers at the Divestiture Airports. The proposed acquisition would 
eliminate the competitive constraint each provider imposes upon the 
other at each airport and would lead to a monopoly at IAD, SDL, and 
FAT. It would further reduce the number of competitors at TRM, HPN and 
ANC from three to two, thus enabling the merged firm to control at 
least 80% of each of these markets. This would result in higher prices 
for fuel and other FBO services and a lower quality of service at each 
of the Divestiture Airports, in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18.
3. Timely Entry Is Unlikely
    Successful entry into the provision of FBO services at the 
Divestiture Airports would not be timely, likely, or sufficient to 
deter the anticompetitive effects resulting from this transaction. 
First, FBO entry or expansion requires extensive lead time and capital 
investment to complete and there is no guarantee that the FBO provider 
would be able to obtain the necessary approvals and permits. Second, it 
often takes several years for a new FBO to build a significant customer 
base. Third, an FBO provider that wanted to enter or expand at an 
airport would need available land, to obtain the approval of the 
airport authority and necessary permits, and to construct facilities 
prior to beginning operations. At airports where there is insufficient 
existing land or infrastructure to support additional FBO facilities, 
an FBO provider would also need to develop adjacent land and expand the 
airport infrastructure. Thus, successful entry or expansion at any of 
the individual airports at issue likely would not occur in a timely 
manner or be sufficient to defeat a small but significant and non-
transitory price increase by the merged firm.

[[Page 7149]]

III. Explanation of the Proposed Final Judgment

A. Divestiture of Landmark's FBO Assets at the Divestiture Airports

    The divestiture requirement of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in the market 
for full-service FBO services by maintaining an independent and 
economically viable competitor at each of the Divestiture Airports.
    The proposed Final Judgment requires the Defendants to divest, as 
viable ongoing business concerns, the Landmark FBO assets at IAD, SDL, 
FAT, TRM, HPN, and ANC (collectively, the ``Divestiture Assets''). The 
Divestiture Assets include all rights in Landmark's existing and future 
FBO facilities at the Divestiture Airports, including any and all 
tangible and intangible assets that are primarily related to or 
primarily used in connection with the business of providing FBO 
services at the Divestiture Airports.
    In antitrust cases where the United States requires a divestiture 
remedy, it seeks completion of the divestiture within the shortest 
period of time reasonable under the circumstances. To this end, Section 
IV(A) of the proposed Final Judgment requires the Defendants to 
complete the divestiture within ninety (90) calendar days after the 
filing of the Complaint or five calendar (5) days after the Court 
enters the Final Judgment, whichever is later. The proposed Final 
Judgment provides that this time period may be extended one or more 
times by the United States in its sole discretion for a period not to 
exceed sixty (60) calendar days, and that such an extension will be 
granted if pending state or local regulatory approval is the only 
matter precluding divestiture. The Divestiture Assets must be divested 
in such a way as to satisfy the United States in its sole discretion 
that they can and will be operated by the purchaser as a viable, 
ongoing business that can compete effectively in the relevant markets. 
Defendants must take all reasonable steps necessary to accomplish the 
divestiture quickly and shall cooperate with prospective purchasers.
    Sections IV(C)-(G) of the proposed Final Judgment require 
Defendants to furnish information and make certain warranties to 
prospective acquirers in an attempt to sell the Divestiture Assets. Any 
acquirer of the Divestiture Assets must be approved by the United 
States in its sole discretion and must satisfy the United States that 
it has the intent and capability to compete effectively in the relevant 
markets.
    In the event that Defendants do not accomplish the divestiture 
within the time period prescribed, Section V(A) of the proposed Final 
Judgment provides that 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 divestiture is 
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. At the 
end of six (6) months, if the divestitures have not been accomplished, 
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.

B. Notification of Future Transactions

    Section XI of the proposed Final Judgment requires BBA to provide 
advance notification of certain future acquisitions that would not 
otherwise be reportable under the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, 15 U.S.C. 18a (``HSR Act''). Specifically, 
Section XI provides that BBA (including Signature) must provide advance 
notification to the Antitrust Division before directly or indirectly 
acquiring any leases from, assets of, or interests in any entity 
providing FBO services at (i) Boeing Field/King County International 
Airport (``BFI''); or (ii) any other airport in the United States where 
BBA is already providing FBO services unless (1) the value of the 
assets, interests, or leases is less than $20 million or (2) two or 
more full-service FBOs who are not parties to the transaction are 
already operating at the airport. Section XI provides for waiting 
periods and opportunities for the United States to obtain additional 
information similar to the provisions of the HSR Act. These provisions 
are intended to inform the Division of transactions that raise 
competitive concerns similar to those remedied here and to provide the 
Division with the opportunity, if necessary, to seek effective relief.

C. Hold Separate Provisions

    In connection with the proposed Final Judgment, Defendants have 
agreed to the terms of a Hold Separate Stipulation and Order (``Hold 
Separate''), which is intended to ensure that the Divestiture Assets 
are operated as competitively independent and economically viable 
ongoing business concerns and that competition is maintained during the 
pendency of the ordered divestitures. Sections V(A)-(B) of the Hold 
Separate specify that the Divestiture Assets will be maintained as 
separate viable businesses and that BBA and Signature employees will 
not gain access to customer or supplier lists specific to the 
Divestiture Assets prior to divestiture. Sections V(C)-(E) further 
require that Defendants maintain or increase the current sales and 
quality of the Divestiture Assets, including maintaining current 
customer discounts and agreements that relate to the Divestiture 
Assets. Section V(H) obligates Defendants to use best efforts to obtain 
any necessary airport authority approvals in connection with the sale 
of the Divestiture Assets.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the 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

[[Page 7150]]

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. In addition, comments will be posted on 
the U.S. Department of Justice, Antitrust Division's internet Web site 
and, under certain circumstances, published in the Federal Register. 
Written comments should be submitted to: James J. Tierney, Chief, 
Networks and Technology Enforcement Section, Antitrust Division, United 
States Department of Justice, 450 5th St. NW., Suite 7100, 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 BBA's acquisition of 
Landmark. The United States is satisfied, however, that the divestiture 
of assets described in the proposed Final Judgment will preserve 
competition for the provision of full-service FBO services at the 
Divestiture Airports 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.

VII. 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). In considering these statutory factors, 
the Court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public 
interest standard under the Tunney Act); United States v, U.S. Airways 
Group, Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry is limited'' in Tunney Act settlements); United 
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009-2 Trade Cas. (CCH) ] 
76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 2009) 
(noting that the court's review of a consent judgment is limited and 
only inquires ``into whether the government's determination that the 
proposed remedies will cure the antitrust violations alleged in the 
complaint was reasonable, and whether the mechanism to enforce the 
final judgment are clear and manageable.'').\1\
---------------------------------------------------------------------------

    \1\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for courts 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); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    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 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. 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).\2\ In 
determining whether a proposed settlement is in the public interest, 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.'' SBC Commc'ns, 489 F. 
Supp. 2d at 17; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting 
that a court should not reject the proposed remedies because it 
believes others are preferable); 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 the market 
structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \2\ 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' '').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[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.

[[Page 7151]]

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 U.S. Airways, 
38 F. Supp. 3d at 76 (noting that room must be made for the government 
to grant concessions in the negotiation process for settlements) 
(citing Microsoft, 56 F.3d at 1461); 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; see also U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the `public 
interest' is not to be measured by comparing the violations alleged in 
the complaint against those the court believes could have, or even 
should have, been alleged''). 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. Microsoft, 56 
F.3d at 1459-60. As this Court 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 that ``[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); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). The language wrote into the statute what Congress intended when 
it enacted the Tunney Act in 1974, as Senator Tunney 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 Sen. 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.\3\ A 
court can make its public interest determination based on the 
competitive impact statement and response to public comments alone. 
U.S. Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------

    \3\ 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''); 
United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, *22 (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.''); S. Rep. No. 93-298, 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.'').
---------------------------------------------------------------------------

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: February 3, 2016.

    Respectfully submitted,

/s/ Patricia L. Sindel,

Patricia L. Sindel (D.C. Bar #997505),
Trial Attorney, Networks & Technology, Enforcement Section, U.S. 
Department of Justice, Antitrust Division, 450 Fifth Street NW., Suite 
7100, Washington, DC 20530, Telephone: (202) 598-8300, Facsimile: (202) 
616-8544, Email: [email protected].

United States District Court for the District of Columbia

United States of America,

Plaintiff,

v.

BBA Aviation PLC, Landmark U.S. Corp LLC,

and

LM U.S. Member LLC,

Defendants.

CASE NO.: 1:16-cv-00174
JUDGE: Amy Berman Jackson
FILED: 02/03/2016

Proposed Final Judgment

    Whereas, Plaintiff United States of America filed its Complaint on 
February 3, 2016, the United States and Defendants BBA Aviation plc, 
Landmark U.S. Corp LLC, and LM U.S. Member LLC, by their respective 
attorneys, have consented to the entry of this Final Judgment without 
trial or adjudication of any issue of fact or law, and without this 
Final Judgment constituting any evidence against or admission by any 
party regarding any issue of fact or law;
    And Whereas, Defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And Whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by the Defendants to 
assure that competition is not substantially lessened;
    And Whereas, 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 this action 
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, 15 U.S.C. 18, as amended.

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' means an entity to which Defendants divest some or 
all of the Divestiture Assets.
    B. ``BBA'' means Defendant BBA Aviation plc, a public limited 
company incorporated in England and Wales with its headquarters in 
London, England; BBA US Holdings, Inc., a Delaware

[[Page 7152]]

corporation with its headquarters in Orlando, Florida; Signature Flight 
Support Corporation, a Delaware corporation with its headquarters in 
Orlando, Florida; and their successors and assigns, subsidiaries, 
divisions, groups, affiliates, partnerships, joint ventures, directors, 
officers, managers, agents, and employees.
    C. ``Landmark'' means Defendant Landmark U.S. Corp LLC, a Delaware 
limited liability company with its headquarters in Houston, Texas; 
Defendant LM U.S. Member LLC, a Delaware limited liability company with 
its headquarters in Houston, Texas; CP V Landmark Investors Corp 
Holdings Partnership, L.P., a Delaware limited partnership; CP V 
Landmark Corp Holdings Partnership, L.P., a Delaware limited 
partnership; CP V Landmark GP LLC, a Delaware limited liability 
company; Landmark U.S. Holdings LLC, a Delaware limited liability 
company; Landmark U.S. Corp Holdings, L.P., a Delaware limited 
partnership; CP V LM Manager LLC, a Delaware limited liability company; 
and their successors and assigns, subsidiaries, divisions, groups, 
affiliates, partnerships, joint ventures, directors, officers, 
managers, agents, and employees.
    D. ``ANC'' means Ted Stevens Anchorage International Airport, 
located in Anchorage, Alaska.
    E. ``BFI'' means Boeing Field/King County International Airport, 
located in Seattle, Washington.
    F. ``Divestiture Airports'' means ANC, FAT, HPN, IAD, SDL, and TRM.
    G. ``Divestiture Assets'' means the Landmark FBO Assets at ANC, 
FAT, HPN, IAD, SDL and TRM.
    H. ``FAT'' means Fresno Yosemite International Airport, located in 
Fresno, California.
    I. ``FBO Facilities'' means any and all tangible and intangible 
assets that are primarily related to or primarily used in connection 
with the business of providing FBO Services at the Divestiture 
Airports, including, but not limited to, all personal property, 
inventory, office furniture, materials, supplies, terminal space, 
hangars, ramps, general aviation fuel tank farms for jet fuel and 
aviation gasoline, and related fueling equipment, and all other 
tangible property and assets primarily used in connection with the 
business of providing FBO Services at the Divestiture Airports; all 
licenses, permits, and authorizations issued by any governmental 
organization primarily relating to the business of providing FBO 
Services at the Divestiture Airports, subject to the licensor's 
approval or consent; all contracts, teaming arrangements, agreements, 
leases, commitments, certifications, and understandings primarily 
relating to the business of providing FBO Services at the Divestiture 
Airports, including supply agreements; all customer lists, contracts, 
accounts, and credit records; all repair and performance records, and 
all other records primarily relating to the business of providing FBO 
Services at the Divestiture Airports; and all intangible assets 
primarily used in the development, production, and sale of FBO Services 
at the Divestiture Airports, including, but not limited to, all 
licenses and sublicenses, technical information, computer software and 
related documentation, know-how, drawings, blueprints, designs, design 
protocols, specifications for materials, specifications for parts and 
devices, and safety procedures for the handling of materials and 
substances.
    J. ``FBO Services'' means all services relating to providing fixed 
base operations at an airport, including but not limited to aircraft 
fueling; aircraft ground handling, including marshalling, towing, 
staging, deicing, pre-heating and air conditioning, providing ground 
power and equipment, interior and exterior cleaning, lavatory service, 
and water service; aircraft parking and storage, including tie-down and 
hangar rental; flight planning and support services; and passenger and 
crew services, including baggage handling, catering, concierge and 
errand services, office space rental, conference room and lounge 
services, and arranging for U.S. customs clearance, lodging, and ground 
transportation; but, for the avoidance of doubt, excluding aircraft 
maintenance, repair and overhaul services.
    K. ``Full-Service FBO'' means a facility that provides FBO 
Services, including selling aircraft fuel (at least jet fuel) and 
pumping fuel into aircraft.
    L. ``HPN'' means Westchester County Airport, located in White 
Plains, New York.
    M. ``IAD'' means Washington Dulles International Airport, located 
in Dulles, Virginia.
    N. ``Landmark FBO Assets'' means all rights, titles, and interests, 
including all fee, leasehold, and real property rights, in Landmark's 
existing and future FBO Facilities at the Divestiture Airports that BBA 
acquires in the Proposed Transaction.
    O. ``Proposed Transaction'' means the proposed acquisition by BBA 
of all of the interests in CP V Landmark Investors Corp. Holdings 
Partnership, L.P., CP V Landmark Corp. Holdings Partnership, L.P., 
Landmark U.S. Corp. LLC, and LM U.S. Member LLC pursuant to the 
Securities Purchase Agreement dated September 23, 2015.
    P. ``SDL'' means Scottsdale Municipal Airport, located in 
Scottsdale, Arizona.
    Q. ``TRM'' means Jacqueline Cochran Regional Airport, located in 
Thermal, California.

III. Applicability

    A. This Final Judgment applies to BBA and Landmark, as defined 
above, and all other persons in active concert or participation with 
any of them who receive actual notice of this Final Judgment by 
personal service or otherwise.
    B. 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 an acquirer of the assets divested pursuant to this 
Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within (i) ninety (90) 
calendar days after the filing of the Complaint in this matter or (ii) 
five (5) calendar days after notice of 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 sixty (60) calendar days in total, and 
shall notify the Court in such circumstances. If pending state or local 
regulatory approval is the only remaining matter precluding a 
divestiture during the period set forth in this Section IV.A, the 
United States will not withhold its agreement to such an extension or 
extensions. Defendants agree to use their best efforts to complete the 
required divestitures as expeditiously as possible.
    B. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets. 
Following the sale of the Divestiture Assets, Defendants will not 
undertake, directly or indirectly, any challenges to the environmental, 
zoning, or other permits relating to the operation of the Divestiture 
Assets.
    C. In accomplishing the divestiture ordered by this Final Judgment, 
Defendants promptly shall make known, by usual and customary means, the 
availability of the Divestiture Assets.

[[Page 7153]]

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. 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 privileges or work-product 
doctrine. Defendants shall make available such information to the 
United States at the same time that such information is made available 
to any other person.
    D. Defendants shall provide the Acquirer and the United States 
information relating to the personnel at the Divestiture Airports 
involved in the operation, management, and sales of the Divestiture 
Assets to enable the Acquirer to make offers of employment. Defendants 
will not interfere with any negotiations by the Acquirer to employ any 
Defendant employee whose primary responsibility is the operation, 
management, and sales of the Divestiture Assets.
    E. 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. Defendants shall warrant to the Acquirer that each asset will be 
operational on the date of sale.
    G. Defendants shall warrant to the Acquirer that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset.
    H. Unless the United States otherwise consents in writing, the 
divestitures pursuant to Section IV, or by Divestiture 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 continue to be used by the Acquirer as 
part of a viable, ongoing business engaged in providing FBO Services at 
the Divestiture Airports. The divestitures, whether pursuant to Section 
IV or Section V of this Final Judgment,
    (1) shall be made to an Acquirer that, in the United States' sole 
judgment, has the intent and capability (including the necessary 
managerial, operational, technical and financial capability) to compete 
effectively in the provision of FBO Services at the Divestiture 
Airports; and
    (2) shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement between an 
Acquirer and Defendants give Defendants the ability unreasonably to 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere with the ability of the Acquirer to compete 
effectively.

V. Appointment of Divestiture Trustee

    A. If Defendants have not divested the Divestiture Assets within 
the time period specified in Section IV.A., Defendants shall notify the 
United States of that fact in writing. Upon application of the United 
States, the Court shall appoint a Divestiture 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 Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture 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 Divestiture Trustee, subject 
to the provisions of Sections IV, V, and VI of this Final Judgment, and 
shall have such other powers as this Court deems appropriate. Subject 
to Section V.D. of this Final Judgment, the Divestiture Trustee may 
hire, at the cost and expense of Defendants, any investment bankers, 
attorneys, or other agents, who shall be solely accountable to the 
Divestiture Trustee, reasonably necessary in the Divestiture Trustee's 
judgment to assist in the divestiture. Any such investment bankers, 
attorneys, or other agents shall serve on such terms and conditions as 
the United States approves, including confidentiality requirements and 
conflict of interest certifications.
    C. Defendants shall not object to a sale by the Divestiture Trustee 
on any ground other than the Divestiture Trustee's malfeasance. Any 
such objections by Defendants must be conveyed in writing to the United 
States and the Divestiture Trustee within ten (10) calendar days after 
the Divestiture Trustee has provided the notice required under Section 
VI of this Final Judgment.
    D. The Divestiture Trustee shall serve at the cost and expense of 
Defendants pursuant to a written agreement, on such terms and 
conditions as the United States approves, including confidentiality 
requirements and conflict of interest certifications. The Divestiture 
Trustee shall account for all monies derived from the sale of the 
assets sold by the Divestiture Trustee and all costs and expenses so 
incurred. After approval by the Court of the Divestiture Trustee's 
accounting, including fees for its services yet unpaid and those of any 
professionals and agents retained by the Divestiture Trustee, all 
remaining money shall be paid to Defendants and the trust shall then be 
terminated. The compensation of the Divestiture Trustee and any 
professionals and agents retained by the Divestiture Trustee shall be 
reasonable in light of the value of the Divestiture Assets and based on 
a fee arrangement providing the Divestiture 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. If the 
Divestiture Trustee and Defendants are unable to reach agreement on the 
Divestiture Trustee's or any agents' or consultants' compensation or 
other terms and conditions of engagement within fourteen (14) calendar 
days of appointment of the Divestiture Trustee, the United States may, 
in its sole discretion, take appropriate action, including making a 
recommendation to the Court. The Divestiture Trustee shall, within 
three (3) business days of hiring any other professionals or agents, 
provide written notice of such hiring and the rate of compensation to 
Defendants and the United States.
    E. Defendants shall use their best efforts to assist the 
Divestiture Trustee in accomplishing the required divestiture. The 
Divestiture Trustee and any consultants, accountants, attorneys, and 
other agents retained by the Divestiture 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 Divestiture Trustee 
may reasonably request, subject to reasonable protection for trade 
secret or other confidential research, development, or commercial 
information or any applicable privileges. Defendants shall take no 
action to interfere with or to impede the Divestiture Trustee's 
accomplishment of the divestiture.
    F. After its appointment, the Divestiture Trustee shall file 
monthly reports with the United States and, as

[[Page 7154]]

appropriate, the Court setting forth the Divestiture Trustee's efforts 
to accomplish the divestiture ordered under this Final Judgment. To the 
extent such reports contain information that the Divestiture 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 Divestiture Trustee 
shall maintain full records of all efforts made to divest the 
Divestiture Assets.
    G. If the Divestiture Trustee has not accomplished the divestiture 
ordered under this Final Judgment within six (6) months after its 
appointment, the Divestiture Trustee shall promptly file with the Court 
a report setting forth (1) the Divestiture Trustee's efforts to 
accomplish the required divestiture; (2) the reasons, in the 
Divestiture Trustee's judgment, why the required divestiture has not 
been accomplished; and (3) the Divestiture Trustee's recommendations. 
To the extent such report contains information that the Divestiture 
Trustee deems confidential, such report shall not be filed in the 
public docket of the Court. The Divestiture 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 
Divestiture Trustee's appointment by a period requested by the United 
States.
    H. If the United States determines that the Divestiture Trustee has 
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute 
Divestiture Trustee.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, Defendants or the Divestiture 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 Divestiture Trustee is 
responsible, it shall similarly notify Defendants. The notice shall set 
forth the details of the proposed divestiture and list the name, 
address, and telephone number of each person not previously identified 
who offered or expressed an interest in or desire to acquire any 
ownership interest in the 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 Defendants, 
the proposed Acquirer, any other third party, or the Divestiture 
Trustee, if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer, and any other potential Acquirer. 
Defendants and the Divestiture Trustee shall furnish any additional 
information requested within fifteen (15) calendar days of the receipt 
of the request, unless the parties shall otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from Defendants, the 
proposed Acquirer, any third party, and the Divestiture Trustee, 
whichever is later, the United States shall provide written notice to 
Defendants and the Divestiture Trustee, if there is one, stating 
whether or not it objects to the proposed divestiture. If the United 
States provides written notice that it does not object, the divestiture 
may be consummated, subject only to Defendants' limited right to object 
to the sale under Section V.C. of this Final Judgment. Absent written 
notice that the United States does not object to the proposed Acquirer 
or upon objection by the United States, a divestiture proposed under 
Section IV or Section V shall not be consummated. Upon objection by 
Defendants under Section V.C., a divestiture proposed under Section V 
shall not be consummated unless approved by the Court.

VII. Financing

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

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, Defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestiture 
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 divestiture has been completed under Section IV or V, Defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of its compliance with Section IV or V of this Final Judgment. 
Each such affidavit shall include the name, address, and telephone 
number of each person who, during the preceding thirty (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 prospective Acquirers, 
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 limitation on 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 
divestiture has been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of any related orders such as any Hold Separate 
Order, 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

[[Page 7155]]

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 copy 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 Defendants.
    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 response 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)(1)(G) 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)(1)(G) 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. Notification

    A. Unless such transaction is otherwise subject to the reporting 
and waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
Defendant BBA, without providing advance notification to the Antitrust 
Division, shall not directly or indirectly assume a lease from, acquire 
assets of, or acquire interest in any entity engaged in provision of 
FBO Services during the term of this Final Judgment at (i) BFI; or (ii) 
an airport where BBA is already providing FBO Services in the United 
States unless (1) the assumption or acquisition is valued at less than 
$20 million dollars, or (2) at least two Full-Service FBOs not involved 
in the transaction provide FBO Services at the airport where the 
assumption or acquisition will take place.
    B. Such notification shall be provided to the Antitrust Division in 
the same format as and per the instructions relating to the 
Notification and Report Form set forth in the Appendix to Part 803 of 
Title 16 of the Code of Federal Regulations as amended, except that the 
information requested in Items 5 through 8 of the instructions must be 
provided only about the provision of FBO Services. Notification shall 
be provided within five (5) business days of entering into a definitive 
assumption or acquisition agreement and at least thirty (30) calendar 
days prior to acquiring any such interest and shall include, beyond 
what may be required by the applicable instructions, the names of the 
principal representatives of the parties to the agreement who 
negotiated the agreement, any management or strategic plans discussing 
the proposed transaction, and a reference to this Final Judgment. 
Should BBA contact an airport authority formally requesting approval of 
a lease transfer in a transaction that would require the notification 
described in this Section prior to entering into a definitive 
acquisition agreement, BBA shall report that communication to the 
Division within two (2) business days, though the thirty (30) day 
waiting period shall not begin until the Division receives the 
information provided in the Notification and Report Form. If within the 
30-day period after notification, representatives of the Antitrust 
Division make a written request for additional information, Defendants 
shall not consummate the proposed assumption or acquisition agreement 
until thirty (30) calendar days after submitting all such additional 
information.
    C. Early termination of the waiting period in this Section may be 
requested, and, where appropriate, granted in the same manner as is 
applicable under the requirements and provisions of the HSR Act and 
rules promulgated thereunder. This Section shall be broadly construed 
and any ambiguity or uncertainty regarding the filing of notice under 
this Section shall be resolved in favor of filing notice.

XII. No Reacquisition

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

XIII. Retention of Jurisdiction

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

XIV. Expiration of Final Judgment

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

XV. 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' responses to such 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:
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Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16.


_----------------------------------------------------------------------
United States District Judge

[FR Doc. 2016-02720 Filed 2-9-16; 8:45 am]
 BILLING CODE 4410-11-P