[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Notices]
[Pages 21383-21395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08210]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Iron Mountain Inc. and Recall Holdings Ltd.; 
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. Iron Mountain Inc. and Recall Holdings Ltd., Civil 
Action No. 1:16-cv-00595. On March 31, 2016, the United States filed a 
Complaint alleging that Iron Mountain's proposed acquisition of Recall 
would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed

[[Page 21384]]

Final Judgment, filed at the same time as the Complaint, requires Iron 
Mountain to divest Recall records management assets in fifteen 
metropolitan areas.
    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 Maribeth Petrizzi, 
Chief, Litigation II Section, Antitrust Division, U.S. Department of 
Justice, 450 5th Street NW., Suite 8700, Washington, DC 20530 
(telephone: (202) 307-0924).

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.

IRON MOUNTAIN INC.,
One Federal Street
Boston, MA 02110

and

RECALL HOLDINGS LTD.
697 Gardeners Road
Alexandria, Sydney
Australia

Defendants.

CASE NO.: 1:16-cv-00595
JUDGE: Amit P. Mehta
FILED: 03/31/2016

COMPLAINT

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
enjoin the proposed acquisition by Defendant Iron Mountain Incorporated 
(``Iron Mountain'') of Defendant Recall Holdings Limited (``Recall''). 
The United States alleges as follows:

I. NATURE OF THE ACTION

    1. Iron Mountain and Recall are the two largest providers of hard-
copy records management services (``RMS'') in the United States and 
compete directly to serve RMS customers in numerous geographic areas. 
RMS are utilized by a wide array of businesses that for legal, 
business, or other reasons have a need to store and manage substantial 
volumes of hard copy records for significant periods of time.
    2. In 15 metropolitan areas located throughout the United States, 
Iron Mountain and Recall are either the only significant providers of 
RMS, or two of only a few significant providers. In these 15 
metropolitan areas--Detroit, Michigan; Kansas City, Missouri; 
Charlotte, North Carolina; Durham, North Carolina; Raleigh, North 
Carolina; Buffalo, New York; Tulsa, Oklahoma; Pittsburgh, Pennsylvania; 
Greenville/Spartanburg, South Carolina; Nashville, Tennessee; San 
Antonio, Texas; Richmond, Virginia; San Diego, California; Atlanta, 
Georgia; and Seattle, Washington--Iron Mountain and Recall have 
competed aggressively against one another for customers, resulting in 
lower prices for RMS and higher quality service. Iron Mountain's 
acquisition of Recall would eliminate this vigorous competition and the 
benefits it has delivered to RMS customers in each of these 
metropolitan areas.
    3. Accordingly, Iron Mountain's acquisition of Recall likely would 
substantially lessen competition in the provision of RMS in these 15 
metropolitan areas in violation of Section 7 of the Clayton Act, 15 
U.S.C. 18, and should be enjoined.

II. JURISDICTION, VENUE, AND INTERSTATE COMMERCE

    4. The United States brings this action under Section 15 of the 
Clayton Act, 15 U.S.C. 25, as amended, to prevent and restrain the 
violation by Defendants of Section 7 of the Clayton Act, 15 U.S.C. 18.
    5. This Court has subject matter jurisdiction over this action 
pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 
1331, 1337(a), and 1345. In their RMS businesses, Iron Mountain and 
Recall each make sales and purchases in interstate commerce, ship 
records in the flow of interstate commerce, and engage in activities 
substantially affecting interstate commerce.
    6. Defendants Iron Mountain and Recall transact business in the 
District of Columbia and have consented to venue and personal 
jurisdiction in this District. This Court has personal jurisdiction 
over each Defendant and venue is proper in this District under Section 
12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(c).

III. THE DEFENDANTS AND THE TRANSACTION

    7. Iron Mountain is a Delaware corporation headquartered in Boston, 
Massachusetts. Iron Mountain is the largest RMS company in the United 
States, providing document storage and related services throughout the 
nation. For fiscal year 2014, Iron Mountain reported worldwide revenues 
of approximately $3.1 billion.
    8. Recall is an Australian company headquartered in Norcross, 
Georgia. Recall is the second-largest RMS company in the United States 
and provides document storage and related services throughout the 
nation. Recall's worldwide revenues for 2014 were approximately $836.1 
million.
    9. On June 8, 2015, Iron Mountain and Recall entered into a Scheme 
Implementation Deed by which Iron Mountain proposes to acquire Recall 
for approximately $2.6 billion in cash and stock, subject to 
adjustments.

IV. TRADE AND COMMERCE

A. Relevant Service Market: Records Management Services

    10. For a variety of legal and business reasons, companies must 
often retain hard-copy records for significant periods of time. Given 
the physical space required to store any substantial volume of records 
and the effort required to manage stored records, many customers 
contract with RMS vendors such as Iron Mountain and Recall to provide 
these services.
    11. RMS vendors pick up records from customers and bring them to a 
secure off-site facility, where they then index the records to allow 
their customers to keep track of them. RMS vendors retrieve stored 
records for their customers upon request and often perform other 
services related to the storage, tracking, and shipping of records. For 
example, they sometimes destroy stored records on behalf of the 
customer once preservation no longer is required.
    12. Customers that purchase RMS range from Fortune 500 companies to 
small firms that have a need to manage and store records. Customers 
include corporations with business records maintenance requirements, 
healthcare providers with patient records, and other companies that may 
wish to manage and store other types of records, such as case files, 
employee records, and other information.
    13. RMS procurements are typically made by competitive bid. 
Contracts usually specify fees for each service provided (e.g., pickup, 
monthly storage, retrieval, delivery, and transportation).

[[Page 21385]]

Most customers purchase RMS in only one city. Some customers with 
operations in multiple cities prefer to purchase RMS from a single 
vendor pursuant to a single contract; other multi-city customers 
disaggregate their contracts and purchase RMS from different vendors in 
different cities.
    14. For companies with a significant volume of records, in-house 
storage is generally not a viable substitute for RMS. For a company to 
manage its records in-house, it must have a substantial amount of 
unused space, racking equipment, security features, and one or more 
dedicated employees. Similarly, entirely replacing RMS with digital 
records management services is generally not feasible. To switch from 
physical to electronic records, a customer would need to fundamentally 
shift its method of creating, using, and storing records and adapt to 
an entirely paperless system. For many customers, the time, expense, 
and other burdens associated with doing so are prohibitive.
    15. For these reasons, a hypothetical monopolist of RMS could 
profitably increase its prices by at least a small but significant non-
transitory amount. Accordingly, RMS constitutes a relevant product 
market and line of commerce for purposes of analyzing the likely 
competitive effects of the proposed acquisition under Section 7 of the 
Clayton Act, 15 U.S.C. 18.

B. Relevant Geographic Markets

    16. The geographic market for RMS consists of a metropolitan area 
or a radius around a metropolitan area. Customers generally require a 
potential RMS vendor to have a storage facility located within a 
certain proximity to the customer's location. Customers generally will 
not consider vendors located outside a particular radius, because the 
vendor will not be able to retrieve and deliver records on a timely 
basis. The radius a customer is willing to consider is usually measured 
in time, rather than miles, as the retrieval of records may be a time-
sensitive matter. Transportation costs also likely render a distant RMS 
vendor uncompetitive with vendors located closer to the customer.
    17. RMS vendors in the following 15 metropolitan areas--Detroit, 
Michigan; Kansas City, Missouri; Charlotte, North Carolina; Durham, 
North Carolina; Raleigh, North Carolina; Buffalo, New York; Tulsa, 
Oklahoma; Pittsburgh, Pennsylvania; Greenville/Spartanburg, South 
Carolina; Nashville, Tennessee; San Antonio, Texas; Richmond, Virginia; 
San Diego, California; Atlanta, Georgia; and Seattle, Washington--could 
profitably increase prices to local customers without losing 
significant sales to more distant competitors. As a result, a 
hypothetical monopolist of RMS in each of these 15 metropolitan areas 
could profitably increase its prices by at least a small but 
significant non-transitory amount. Accordingly, each of these areas is 
a relevant geographic market for the purposes of analyzing the 
competitive effects of the acquisition under Section 7 of the Clayton 
Act, 15 U.S.C. 18.

C. Anticompetitive Effects of the Proposed Acquisition

    18. Iron Mountain and Recall are the two largest RMS providers in 
the United States and directly compete to provide RMS in each relevant 
geographic market. Each relevant geographic market for the provision of 
RMS is highly concentrated. In each of the relevant geographic markets, 
Iron Mountain is the largest RMS provider and Recall is either the 
second or third-largest competitor, while few, if any, other 
significant competitors exist. Iron Mountain and Recall compete very 
closely for accounts, target one another's customers, and, in most of 
the relevant geographic markets, view one another as the other's most 
formidable competitor. The resulting significant increase in 
concentration in each metropolitan area and loss of head-to-head 
competition between Iron Mountain and Recall likely will result in 
higher prices and lower quality service for RMS customers in each 
relevant geographic market.

D. Entry Into the Market for RMS

    19. It is unlikely that entry or expansion into the provision of 
RMS in the relevant geographic markets alleged herein would be timely, 
likely, or sufficient to defeat the likely anticompetitive effects of 
the proposed acquisition.
    20. Any new RMS entrant would be required to expend significant 
time and capital to successfully enter any of the relevant geographic 
markets. RMS entry into a new geographic market generally requires a 
secure facility, racking equipment, delivery trucks, tracking software, 
and employees. In addition, a new entrant would have to expend 
substantial effort to build a reputation for dependable service, which 
is important to RMS customers who demand quick and reliable pickup of 
and access to their stored records.
    21. In order to recoup the costs of entry, an RMS vendor must fill 
a substantial amount of its facility's capacity. However, acquiring 
customers from existing RMS vendors in order to fill this capacity is 
often complicated by provisions in the customers' contracts requiring 
payment of permanent withdrawal fees if the customer permanently 
removes a box or record from storage. Customers will sometimes pay 
these withdrawal fees themselves, but more commonly, the new vendor 
will have to offer to pay the fees to induce the customer to switch. 
The vendor must then recoup the cost of the fees by imposing its own 
permanent withdrawal fees, amortizing the cost over a longer contract, 
or charging higher prices while still charging a competitive price for 
its services. Customer contracts also often impose a cap on the number 
of boxes per month that a customer may permanently remove from a RMS 
vendor's facility, such that a switch to a new RMS vendor may take 
several months to complete. Taken together, permanent withdrawal fees 
and other withdrawal restrictions make it difficult for a new RMS 
entrant to win customers away from existing RMS vendors.
    22. Likewise the permanent withdrawal fees and other withdrawal 
restrictions also make it more difficult for an RMS vendor already in a 
market to win enough customers away from competitors to expand 
significantly.

V. VIOLATION ALLEGED

    23. The United States hereby incorporates paragraphs 1 through 22 
above.
    24. The proposed acquisition of Recall by Iron Mountain likely 
would substantially lessen competition for RMS in the 15 relevant 
geographic markets identified above in violation of Section 7 of the 
Clayton Act, 15 U.S.C. 18. Unless enjoined, the proposed acquisition 
likely would have the following anticompetitive effects relating to RMS 
in the relevant geographic markets, among others:
    (a) actual and potential competition between Iron Mountain and 
Recall for RMS in each relevant geographic market will be eliminated;
    (b) competition generally for RMS in each relevant geographic 
market will be substantially lessened; and
    (c) prices for RMS will likely increase and the quality of service 
will likely decrease in each relevant geographic market.

VI. REQUESTED RELIEF

    25. The United States requests that this Court:
    (a) adjudge and decree that Iron Mountain's acquisition of Recall 
would be unlawful and 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 acquisition of 
Recall by Iron

[[Page 21386]]

Mountain, or from entering into or carrying out any other contract, 
agreement, plan or understanding, the effect of which would be to 
combine Iron Mountain with Recall;
    (c) award the United States the cost for this action; and
    (d) award the United States such other and further relief as the 
Court deems just and proper.

Dated: March 31, 2016
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:

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WILLIAM J. BAER (DC BAR #324723)
Assistant Attorney General for Antitrust
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RENATA B. HESSE (DC BAR #466107)
Deputy Assistant Attorney General
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PATRICIA A. BRINK
Director of Civil Enforcement
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JAMES J. TIERNEY (DC Bar # 434610)
Chief, Networks & Technology Enforcement Section
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MATTHEW C. HAMMOND
AARON D. HOAG
Assistant Chiefs, Networks & Technology Enforcement Section
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SOYOUNG CHOE*
VITTORIO COTTAFAVI
ZACHARY GOODWIN
STEPHEN HARRIS
DANIELLE HAUCK
JENNIFER WAMSLEY (DC BAR #486540)
Trial Attorneys

United States Department of Justice
Antitrust Division
Networks & Technology Enforcement Section
450 Fifth Street, NW., Suite 7100
Washington, DC 20530
Phone: (202) 598-2436
Fascimile: (202) 514-903
Email: [email protected]
*Attorney of Record
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,
v.

IRON MOUNTAIN INC.,
and
RECALL HOLDINGS LTD.
Defendants.

CASE NO.: 1:16-cv-00595
JUDGE: Amit P. Mehta
FILED: 03/31/2016

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

    On June 8, 2015, Iron Mountain Inc. (``Iron Mountain'') reached an 
agreement to acquire all of the outstanding shares of Defendant Recall 
Holdings Ltd. (``Recall'') in a transaction valued at approximately 
$2.6 billion. The United States filed a civil antitrust Complaint on 
March 31, 2016, seeking to enjoin the proposed acquisition. The 
Complaint alleges that the likely effect of the acquisition would be to 
lessen competition substantially for the provision of hard-copy records 
management services (``RMS'') in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18, in the following fifteen metropolitan areas: 
Detroit, Michigan; Kansas City, Missouri; Charlotte, North Carolina; 
Durham, North Carolina; Raleigh, North Carolina; Buffalo, New York; 
Tulsa, Oklahoma; Pittsburgh, Pennsylvania; Greenville/Spartanburg, 
South Carolina; Nashville, Tennessee; San Antonio, Texas; Richmond, 
Virginia; San Diego, California; Atlanta, Georgia; and Seattle, 
Washington. This loss of competition likely would result in consumers 
paying higher prices for RMS and receiving inferior service in these 
areas.
    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 divest specified RMS assets in each of the 15 metropolitan areas of 
concern. Under the terms of the Hold Separate, Defendants will take 
certain steps to ensure that the assets 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 divestitures.
    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 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

    Iron Mountain is a Delaware corporation headquartered in Boston, 
Massachusetts. Iron Mountain is the largest RMS company in the United 
States, providing document storage and related services throughout the 
nation. For fiscal year 2014, Iron Mountain reported worldwide revenues 
of approximately $3.1 billion.
    Recall is an Australian company headquartered in Norcross, Georgia. 
Recall is the second-largest RMS company in the United States and 
provides document storage and related services throughout the nation. 
Recall's worldwide revenues for 2014 were approximately $836.1 million.
    On June 8, 2015, Iron Mountain and Recall entered into an agreement 
pursuant to which Iron Mountain proposes to acquire Recall for 
approximately $2.6 billion in cash and stock, subject to adjustments.
    The proposed transaction, as initially agreed to by Defendants, 
would lessen competition substantially in the provision of RMS in the 
relevant markets. This acquisition is the subject of the Complaint and 
proposed Final Judgment filed by the United States on March 31, 2016.

B. The Competitive Effects of the Transaction

1. The Relevant Service Market
    The Complaint alleges that RMS constitute a relevant product market 
and line of commerce within the meaning of Section 7 of the Clayton 
Act, 15 U.S.C. 18. For a variety of legal and business reasons, 
companies frequently must keep hard-copy records for significant 
periods of time. Given the physical space required to store any 
substantial volume of records and the effort required to manage stored 
records, many customers contract with RMS vendors such as Iron Mountain 
and Recall to provide these services.
    RMS vendors typically pick up records from customers and bring them 
to a secure off-site facility, where they then index the records to 
allow their customers to keep track of them. RMS vendors retrieve 
stored records for their customers upon request and often perform other 
services related to the storage, tracking, and shipping of

[[Page 21387]]

records. For example, they sometimes destroy stored records on behalf 
of the customer once preservation is no longer required.
    Customers of RMS include Fortune 500 firms, as well as local 
businesses throughout the United States. Customers often procure RMS by 
competitive bid and contracts usually specify fees for each service 
provided (e.g., pickup, monthly storage, retrieval, delivery, and 
transportation). Most customers purchase RMS in only one city. Some 
customers with operations in multiple cities prefer to purchase RMS 
from a single vendor pursuant to a single contract; other multi-city 
customers disaggregate their contracts and purchase RMS from different 
vendors in different cities.
    The Complaint alleges for companies with a significant volument of 
records, in-house storage is generally not a viable substitute for RMS. 
For a company to manage its records in-house, it must have a 
substantial amount of unused space, racking equipment, security 
features, and one or more dedicated employees. Similarly, entirely 
replacing RMS with digital records management services is generally not 
feasible. To switch from physical to electronic records, a customer 
would need to fundamentally shift its method of creating, using and 
storing records and adopt an entirely paperless system.
    For these reasons, the Complaint alleges that a hypothetical 
monopolist of RMS could profitably increase its prices by at least a 
small but significant non-transitory amount. In the event of a small 
but significant increase in price for RMS, customers would not switch 
to any other alternative. Thus, the Complaint alleges that the 
provision of RMS constitutes a relevant service market for purposes of 
analyzing the effects of the transaction.
2. Relevant Geographic Markets
    The geographic market for RMS consists of a metropolitan area or a 
radius around a metropolitan area. Customers generally require a 
potential RMS vendor to have a storage facility located within a 
certain proximity to the customer's location. Customers generally will 
not consider vendors located outside a particular radius, because the 
vendor will not be able to retrieve and deliver records on a timely 
basis. The radius a customer is willing to consider is usually measured 
in time, rather than miles, as the retrieval of records may be a time-
sensitive matter. Transportation costs also likely render a distant RMS 
vendor uncompetitive with vendors located closer to the customer.
    In each of the metropolitan areas identified in the Complaint, a 
hypothetical monopolist RMS firm could profitably increase prices to 
local customers without losing significant sales to more distant 
competitors. Accordingly, each of these metropolitan areas is a 
relevant geographic market for the purposes of analyzing the 
competitive effects of the acquisition under Section 7 of the Clayton 
Act, 15 U.S.C. 18.
3. Anticompetitive Effects of the Proposed Acquisition
    As alleged in the Complaint, Iron Mountain and Recall are the two 
largest RMS providers in the United States and the only significant RMS 
providers, or two of only a few significant RMS providers, in each of 
the relevant geographic markets. In each of the geographic markets, 
Iron Mountain is the largest RMS provider, Recall is the second- or 
third-largest RMS competitor, and the market is highly concentrated. In 
each of these markets, Iron Mountain and Recall directly compete with 
one another to provide RMS, resulting in lower prices and better 
quality service for RMS customers. According to the Complaint, the 
significant increase in concentration and loss of head-to-head 
competition that will result from the proposed acquisition will likely 
cause prices for RMS to increase and the quality of RMS services to 
decline in each relevant market.
4. Difficulty of Entry
    According to the Complaint, it is unlikely that entry or expansion 
into the provision of RMS in the relevant geographic markets would be 
timely, likely, or sufficient to defeat the likely anticompetitive 
effects of the proposed acquisition.
    Any new RMS entrant would be required to expend significant time 
and capital to successfully enter any of the relevant markets. Entry 
into a new geographic market requires a secure facility, racking 
equipment, delivery trucks, tracking software, and employees. In 
addition, a new entrant would have to expend substantial effort to 
build a reputation for dependable service, which is important to RMS 
customers who demand quick and reliable pickup of and access to their 
stored records. In order to recoup the costs of entry, an RMS vendor 
must fill a substantial amount of its facility's capacity. However, 
acquiring customers from existing RMS vendors in order to fill this 
capacity is often complicated by provisions in the customers' contracts 
requiring payment of permanent withdrawal fees if the customer 
permanently removes a box or record from storage. Customers will 
sometimes pay these withdrawal fees themselves, but more commonly, the 
new vendor will have to offer to pay the fees to induce the customer to 
switch. The vendor must then recoup the cost of the fees by amortizing 
the cost over a longer contract, or charging higher prices while still 
charging a competitive price for its services. Contracts often impose a 
cap on the number of boxes per month that a customer may permanently 
remove from a RMS vendor's facility, such that a switch to a new RMS 
vendor may take several months or more to complete. Taken together, 
permanent withdrawal fees and other withdrawal restrictions make it 
difficult for a new RMS entrant to win customers away from existing RMS 
vendors.
    Such fees and withdrawal restrictions also make it more difficult 
for existing RMS vendors to expand significantly. For all of these 
reasons, the Complaint alleges that new entry or expansion by existing 
firms is unlikely to remedy the anticompetitive effects of the proposed 
acquisition.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

A. Divestitures

    The divestitures required by the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition by 
establishing independent and economically viable competitors in the 
provision of RMS in each of the relevant geographic markets.
    The proposed Final Judgment requires Defendants to divest, as 
viable ongoing business concerns, Recall RMS assets in all fifteen 
geographic markets identified in the Complaint (collectively, the 
``Divestiture Assets''). The Divestiture Assets include specified 
Recall records management facilities in these areas along with all 
tangible and intangible assets used in the operation of the records 
management businesses associated with these facilities. In each of the 
geographic markets other than Atlanta, Defendants are divesting all of 
Recall's RMS assets. In Atlanta, Defendants are divesting most, but not 
all, of Recall's RMS facilities because the facilities to be divested 
are sufficient to serve all of Recall's local customers in Atlanta and 
to compete for new business in the area.
    Section IV.A of the proposed Final Judgment requires Defendants, 
within 10 calendar days after consummation of the transaction sought to 
be enjoined by the Complaint, to divest RMS assets in thirteen of the 
fifteen geographic

[[Page 21388]]

markets to Access CIG, LLC (``Access''). Access is an established 
player in the RMS industry and is currently the third-largest RMS 
provider in the United States. In addition to preserving competition in 
each of the thirteen geographic markets, the divestitures, when 
combined with Access's existing operations, will enable Access to offer 
RMS in all of the metropolitan areas that Recall currently offers RMS. 
Access will be acquiring the Divestiture Assets in Detroit, Kansas 
City, Charlotte, Durham, Raleigh, Buffalo, Tulsa, Pittsburgh, 
Greenville/Spartanburg, Nashville, San Antonio, Richmond, and San 
Diego. If, for some reason, Defendants are unable to complete the 
divestitures to Access, they must sell the Divestiture Assets to an 
alternative purchaser approved by the United States.
    Section IV.B of the proposed Final Judgment requires Defendants, 
within ninety days after consummation of the transaction sought to be 
enjoined by the Complaint, or five days after notice of the entry of 
the Final Judgment by the Court, whichever is later, to divest 
specified RMS assets as viable ongoing businesses in the remaining two 
geographic markets. In these two geographic areas--Atlanta and 
Seattle--Access is already a significant RMS provider, and thus a 
divestiture to Access would not restore the competition lost through 
the proposed acquisition.
    Pursuant to Section IV.L, Defendants must divest the Divestiture 
Assets in such a way as to satisfy the United States in its sole 
discretion that the assets can and will be operated by the purchasers 
as viable, ongoing records management businesses that can compete 
effectively in the relevant markets. Defendants must take all 
reasonable steps necessary to accomplish the divestitures required by 
Sections IV.A and IV.B quickly and shall cooperate with prospective 
purchasers.
    In the event that the Defendants do not accomplish all of the 
divestitures within the periods prescribed in the proposed Final 
Judgment, Section V provides that the Court will appoint a trustee 
selected by the United States to effect the divestiture of any 
remaining Divestiture Assets. If a trustee is appointed, Section V 
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 divestiture. At the end of six 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.

C. Other Divestiture-Related Provisions

    Section IV.I of the proposed Final Judgment gives the purchasers of 
the Divested Assets the right to require the Defendants to provide 
certain transition services pursuant to a transition services 
agreement. This provision is designed to ensure the smooth operation of 
the divested assets during the first six months after the sale of the 
Divestiture Assets.
    Section IV.J of the proposed Final Judgment is designed to help 
ensure that the purchasers of the Divestiture Assets can compete to 
provide RMS to customers that are served by both divested records 
management facilities and records management facilities that are being 
retained by Defendants. These customers are defined as Split Multi-City 
Customers in Section II.L. Section IV.J of the proposed Final Judgment 
requires Defendants to allow any Split Multi-City Customer to terminate 
or otherwise modify its contract with Defendants so as to enable the 
customer to transfer records to the purchaser(s) of the Divestiture 
Assets without paying permanent withdrawal fees, retrieval fees, or 
other fees associated with transferring such customer's records from a 
Recall records management facility that would otherwise be required 
under the customer's contract with Defendants. If a Split Multi-City 
Customer chooses to exercise this provision, it will only be required 
to pay Defendants the costs associated with transporting the records 
from Defendants' RMS facilities to the new facility, and the costs 
associated with reshelving the records at the new facility, if such 
customer requests such services from the Defendants. All Split Multi-
City Customers will be informed of their rights under Section IV.J by 
letter as specified in Section IV.K of the proposed Final Judgment.

D. Notification of Future Acquisitions

    Section XI of the proposed Final Judgment requires Defendants to 
provide advance notification of certain future proposed acquisitions 
not otherwise subject to the Hart-Scott-Rodino Antitrust Improvements 
Act of 1976, 15 U.S.C. 18a. Specifically, Defendants must provide at 
least thirty days advance written notice to the United States before 
Defendants acquire, directly or indirectly, any interest in any RMS 
business located within fifty miles of any Iron Mountain RMS facility 
located in the geographic areas listed in Appendix C of the proposed 
Final Judgment where the business to be acquired generated at least $1 
million in revenues from RMS in the most recent completed calendar 
year. Section XI then provides for waiting periods and opportunities 
for the United States to obtain additional information similar to the 
provisions of the HSR Act before acquisitions in these geographic areas 
can be consummated.
    The geographic areas listed in Appendix C include the fifteen 
geographic markets subject to divestitures as well as certain other 
metropolitan areas where Iron Mountain and Recall both provided RMS 
prior to the proposed acquisition. Although the United States did not 
believe that divestitures in these geographic areas were necessary, 
given the consolidation trends in the RMS industry, the United States 
sought to ensure that the Division had the opportunity to review future 
acquisitions in these areas so that it can seek effective relief, if 
necessary. The additional metropolitan areas covered by Section XI are: 
Phoenix, Arizona; Denver, Colorado; Jacksonville, Florida; Miami, 
Florida; Orlando, Florida; Minneapolis, Minnesota; St. Louis, Missouri; 
Las Vegas, Nevada; Cleveland, Ohio; Portland, Oregon; Dallas, Texas; 
and Houston, Texas.

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

[[Page 21389]]

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 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 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. 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:

Maribeth Petrizzi, Chief
Litigation II Section
Antitrust Division
United States Department of Justice
450 Fifth Street, NW., Suite 8700
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 the proposed acquisition. 
The United States is satisfied, however, that the divestiture of assets 
described in the proposed Final Judgment will preserve competition for 
the provision of RMS in the relevant 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.

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

[[Page 21390]]

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. 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: March 31, 2016
Respectfully submitted,
________________/s/_________________

Soyoung Choe
U.S. Department of Justice, Antitrust Division
Networks & Technology Enforcement Section
450 Fifth Street, NW., Suite 7100
Washington, DC 20530
Phone: (202) 598-2436
Facsimile: (202) 616-8544
Email: [email protected]
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,
v.

IRON MOUNTAIN INC.,
and

RECALL HOLDINGS LTD.

Defendants.

CASE NO.: 1:16-cv-00595
JUDGE: Amit P. Mehta
FILED: 03/31/2016

FINAL JUDGMENT

    WHEREAS, Plaintiff United States of America filed its Complaint on 
March 31, 2016, the United States and Defendants Iron Mountain 
Incorporated and Recall Holdings Limited, 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

[[Page 21391]]

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 the Divestiture Assets.
    B. ``Acquirer of the Appendix A Divestiture Assets'' means Access 
or another entity to which Defendants divest the Appendix A Divestiture 
Assets.
    C. ``Acquirer(s) of the Appendix B Divestiture Assets'' means the 
entity or entities to which Defendants divest the Appendix B 
Divestiture Assets.
    D. ``Iron Mountain'' means Defendant Iron Mountain Incorporated, a 
Delaware corporation with its headquarters in Boston, Massachusetts, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    E. ``Recall'' means Defendant Recall Holdings Limited, an 
Australian public company limited by shares and registered in New South 
Wales under Australian law, with its headquarters in Norcross, Georgia, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    F. ``Access'' means Access CIG, LLC, a Delaware limited liability 
company headquartered in Livermore, California, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    G. ``Appendix A Divestiture Assets'' means:
    1. The Records Management facilities listed in Appendix A; and
    2. All tangible and intangible assets used in the operation of the 
Records Management businesses associated with the Records Management 
facilities listed in Appendix A, including, but not limited to:
    a. All tangible assets, including fixed assets, vehicles, garages, 
capital equipment, personal property, inventory, office furniture, 
materials, supplies, and other tangible property, and all assets used 
in connection with the Records Management facilities listed in Appendix 
A; all licenses, permits and authorizations issued by any governmental 
organization relating to the Records Management facilities listed in 
Appendix A; all contracts, teaming arrangements, agreements, leases, 
commitments, certifications, and understandings relating to the Records 
Management facilities listed in Appendix A; all customer lists relating 
to the Records Management facilities listed in Appendix A; all customer 
contracts, accounts, and credit records relating to the Records 
Management facilities listed in Appendix A (other than for Split Multi-
City Customers who choose to remain with Defendants); and all repair 
and performance records and all other records relating to the Records 
Management facilities listed in Appendix A; and
    b. All intangible assets used in the development, production, 
servicing and sale of the Records Management services associated with 
the Records Management facilities listed in Appendix A, including all 
patents, licenses and sublicenses, intellectual property, copyrights, 
service marks, service names, technical information, computer software 
and related documentation, 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, and all manuals and technical information Defendants 
provide to their own employees, customers, suppliers, agents or 
licensees relating to the Records Management facilities listed in 
Appendix A.
    H. ``Appendix B Divestiture Assets'' means:
    1. The Records Management facilities listed in Appendix B; and
    2. All tangible and intangible assets used in the operation of the 
Records Management businesses associated with the Records Management 
facilities listed in Appendix B, including, but not limited to:
    a. All tangible assets, including fixed assets, vehicles, garages, 
capital equipment, personal property, inventory, office furniture, 
materials, supplies, and other tangible property, and all assets used 
in connection with the Records Management facilities listed in Appendix 
B; all licenses, permits and authorizations issued by any governmental 
organization relating to the Records Management facilities listed in 
Appendix B; all contracts, teaming arrangements, agreements, leases, 
commitments, certifications, and understandings relating to the Records 
Management facilities listed in Appendix B; all customer lists relating 
to the Records Management facilities listed in Appendix B; all customer 
contracts, accounts, and credit records relating to the Records 
Management facilities listed in Appendix B (other than for Split Multi-
City Customers who choose to remain with Defendants); and all repair 
and performance records and all other records relating to the Records 
Management facilities listed in Appendix B; and
    b. All intangible assets used in the development, production, 
servicing and sale of the Records Management services associated with 
the Records Management facilities listed in Appendix B, including all 
patents, licenses and sublicenses, intellectual property, copyrights, 
service marks, service names, technical information, computer software 
and related documentation, 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, and all manuals and technical information Defendants 
provide to their own employees, customers, suppliers, agents or 
licensees relating to the Records Management facilities listed in 
Appendix B.
    I. ``Divestiture Assets'' means the Appendix A Divestiture Assets 
and Appendix B Divestiture Assets.
    J. ``Divestiture Records Management Facilities'' means the Records 
Management facilities listed in Appendices A and B.
    K. ``Records Management'' means the storage and management of 
physical records and the provision of services relating to physical 
records, such as transporting and indexing records.
    L. ``Split Multi-City Customer'' means a Recall customer that, as 
of the date of divestiture of a Divestiture Records Management 
Facility, has records stored at both the Divestiture Records Management 
Facility and one or more other Recall Records Management facilities 
that are to be retained by Defendants. A Split Multi-City Customer does 
not include a Recall customer that has separate contracts for

[[Page 21392]]

each Recall facility in which it stores records.

III. Applicability

    A. This Final Judgment applies to Iron Mountain and Recall, 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 the Acquirers of the assets divested pursuant to this 
Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within 10 calendar days 
after consummation of the transaction sought to be enjoined by the 
Complaint, to divest the Appendix A Divestiture Assets in a manner 
consistent with this Final Judgment to Access or another Acquirer of 
the Appendix A Divestiture Assets 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. Defendants agree to use their best efforts to divest the 
Appendix A Divestiture Assets as expeditiously as possible.
    B. Defendants are ordered and directed, within ninety (90) calendar 
days after consummation of the transaction sought to be enjoined by the 
Complaint, or five (5) calendar days after notice of the entry of this 
Final Judgment by the Court, whichever is later, to divest the Appendix 
B Divestiture Assets in a manner consistent with this Final Judgment to 
an Acquirer or Acquirer(s) of the Appendix B Divestiture Assets 
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. Defendants agree to use 
their best efforts to divest the Appendix B Divestiture Assets as 
expeditiously as possible.
    C. In the event Defendants are attempting to divest the Appendix A 
Divestiture Assets to an Acquirer other than Access, and in 
accomplishing the divestiture of the Appendix B Divestiture Assets 
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 an 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 
qualified 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 privilege 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(s) and the United States 
information relating to the personnel involved in the operation and 
management of the Divestiture Assets or the sale of Records Management 
services provided from the Divestiture Assets to enable the Acquirer(s) 
to make offers of employment. Defendants will not interfere with any 
negotiations by the Acquirer(s) to employ any Defendant employee whose 
primary responsibility is the operation and management of the 
Divestiture Assets or the sale of Records Management services provided 
from 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(s) that the Divestiture 
Assets will be operational on the date of sale.
    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(s) that there are no 
material defects in the environmental, zoning or other permits 
pertaining to the operation of the Divestiture Assets, and that 
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.
    I. At the option of the Acquirer(s), Defendants shall enter into a 
Transition Services Agreement for any services that are reasonably 
necessary for the Acquirer(s) to operate any of the Divestiture Records 
Management Facilities for a period of up to six (6) months. The United 
States, in its sole discretion, may approve one or more extensions of 
this agreement for a total of up to an additional six (6) months. 
Defendants shall perform all duties and provide all services required 
of Defendants under the Transition Services Agreement. The terms and 
conditions of any contractual arrangement meant to satisfy this 
provision must be reasonably related to market conditions. Any 
amendments, modifications or extensions of the Transition Services 
Agreement may only be entered into with the approval of the United 
States, in its sole discretion.
    J. For a period of one (1) year from the date of the sale of any 
Divestiture Assets to an Acquirer, Defendants shall allow any Split 
Multi-City Customer to terminate or otherwise modify its contract with 
Recall so as to enable the Split Multi-City Customer to transfer some 
or all of its records to that Acquirer without penalty or delay and 
shall not enforce any contractual provision providing for permanent 
withdrawal fees, retrieval fees, or other fees associated with 
transferring such customer's records from a Recall Records Management 
facility to a facility operated by the Acquirer; except that if a Split 
Multi-City Customer requests that Defendants physically transport such 
records to the Acquirer, nothing in this Section IV.J prohibits 
Defendants from charging: (1) Either the transportation fees listed in 
the Split Multi-City Customer's contract with Recall or $.30 per 
carton, whichever is less; or (2) either the re-filing fees listed in 
the Split Multi-City Customer's contract with Recall or $.45 per 
carton, whichever is less, if the Split Multi-City Customer requests 
that Defendants handle the re-filing of the cartons at the Acquirer's 
facility.
    K. Within five (5) business days of the date of the sale of the 
Divestiture Assets to an Acquirer, Defendants shall send a letter, in a 
form approved by the United States in its sole discretion, to all Split 
Multi-City Customers of the Divestiture Records Management Facilities 
acquired by that Acquirer notifying the recipients of the divestiture 
and providing a copy of this Final Judgment. Defendants shall provide 
the United States a copy of their letter at least five (5) business 
days

[[Page 21393]]

before it is sent. The letter shall specifically advise customers of 
the rights provided under Section IV.J of this Final Judgment. The 
Acquirer shall have the option to include its own letter with 
Defendants' letter.
    L. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, or by Divestiture Trustee appointed 
pursuant to Section V, of this Final Judgment, (1) shall include the 
entire Divestiture Assets (unless the United States in its sole 
discretion approves the divestiture of a subset of the Divestiture 
Assets), and (2) 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(s) as part of a viable, ongoing 
Records Management business. Divestiture of the Divestiture Assets may 
be made to one or more Acquirers provided that in each instance it is 
demonstrated to the sole satisfaction of the United States that the 
Divestiture Assets will remain viable and the divestiture of such 
assets will remedy the competitive harm alleged in the Complaint. The 
divestitures, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) shall be made to an Acquirer(s) that, in the United States' 
sole judgment, has the intent and capability (including the necessary 
managerial, operational, technical and financial capability) of 
competing effectively in the records management business; 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(s) and Defendants give Defendants the ability unreasonably to 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere in the ability of the Acquirer(s) to compete 
effectively.

V. Appointment of Divestiture Trustee

    A. If Defendants have not divested all of the Divestiture Assets 
within the time periods specified in Sections IV.A and IV.B, 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 any remaining Divestiture Assets.
    B. After the appointment of a Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the remaining Divestiture Assets. The Divestiture Trustee shall have 
the power and authority to accomplish the divestiture to an Acquirer(s) 
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.
    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 to be sold 
by the Divestiture Trustee 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 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 reports contains information that the Divestiture 
Trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. The Divestiture Trustee shall at

[[Page 21394]]

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(s), any other third party, or the Divestiture 
Trustee, if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer(s), 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(s), 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(s) or upon objection by the United States, a divestiture 
proposed under Section IV or Section V shall not be consummated. Upon 
objection by Defendants under Section V.C, a divestiture proposed under 
Section V shall not be consummated unless approved by the Court.

VII. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to Section IV or V of this 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 
Stipulation and 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 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,

[[Page 21395]]

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''), 
Defendants, without providing advance notification to DOJ, shall not 
directly or indirectly acquire any assets of or any interest, including 
any financial, security, loan, equity or management interest, in any 
Records Management business located within a fifty (50) mile radius of 
any Iron Mountain Records Management facility in the metropolitan 
statistical areas associated with the cities listed in Appendix C 
during the term of this Final Judgment; provided that notification 
pursuant to this Section shall not be required where the assets or 
interest being acquired generated less than $1 million in revenue from 
Records Management services in the most recent completed calendar year.
    B. Such notification shall be provided to the DOJ 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 Records Management. Notification shall be provided 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, and any management or 
strategic plans discussing the proposed transaction. 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 transaction or agreement until thirty 
(30) calendar days after submitting all such additional information. 
Early termination of the waiting periods in this paragraph 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 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 (10) 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 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 Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16
-----------------------------------------------------------------------

United States District Judge

[FR Doc. 2016-08210 Filed 4-8-16; 8:45 am]
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