[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Notices]
[Pages 36346-36350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13185]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. BBA Aviation plc, et al.; Public 
Comment and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comment 
received on the proposed Final Judgment in United States of America v. 
BBA Aviation plc, et al., Civil Action No. 1:16-cv-00174, together with 
the Response of the United States to Public Comment.
    Copies of the comment and the United States' Response 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.

Patricia A. Brink,
Director of Civil Enforcement.

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: 1:16-cv-00174
Judge: Amy Berman Jackson

RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENT ON THE PROPOSED 
FINAL JUDGMENT

    Pursuant to Sections 2(b)-(h) of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), 
Plaintiff, the United States of America (``United States'') hereby 
files the single public comment received concerning the proposed Final 
Judgment in this case and the United States's response to the comment. 
After careful consideration of the submitted comment, the United States 
continues to believe that the proposed Final Judgment (``PFJ'') 
provides an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint. The United States will move the 
Court for entry of the proposed Final Judgment after the public comment 
and this Response have been published in the

[[Page 36347]]

Federal Register pursuant to 15 U.S.C. 16(d).

I. BACKGROUND

    On February 3, 2016, the United States filed a civil antitrust 
Complaint alleging that the proposed acquisition by Defendant BBA 
Aviation plc (``Signature'') of Defendants Landmark U.S. Corp LLC and 
LM U.S. Member LLC (``Landmark''), announced on September 23, 2015, 
would be likely to substantially lessen competition in the provision of 
full-service fixed-based operator (``FBO'') services at six airports in 
the United States, in violation of Section 7 of the Clayton Act, 15 
U.S.C. 18. The Complaint further alleged that, as a result of the 
acquisition as originally proposed, prices for these services in the 
United States would likely have increased and customers would have 
received services of lower quality.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate Order''); 
a Proposed Final Judgment (``PFJ''); and a Competitive Impact Statement 
(``CIS'') that explains how the PFJ is designed to remedy the likely 
anticompetitive effects of the proposed acquisition. As required by the 
Tunney Act, the United States published the PFJ and CIS in the Federal 
Register on February 10, 2016. In addition, the United States ensured 
that a summary of the terms of the PFJ and CIS, together with 
directions for the submission of the written comments, were published 
in The Washington Post on seven different days during the period of 
February 6, 2016 to February 12, 2016. See 15 U.S.C. 16)(c). The 60-day 
waiting period for public comments ended on April 12, 2016. Following 
expiration of that period, the United States received one comment, 
which is described below and attached hereto as Exhibit 1.

II. STANDARD OF JUDICIAL REVIEW

    The Tunney Act requires that proposed consent judgments in 
antitrust cases brought by the United States be subject to a 60-day 
public 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). 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 also United States v. SBC Commc'ns, Inc., 
489 F. Supp. 2d 1, 10-11 (D.D.C. 2007) (assessing public interest 
standard under the Tunney Act); United States v. InBev N.V./S.A., No. 
08-cv-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 
2009) (discussing nature of review of consent judgment under the Tunney 
Act; inquiry is limited to ``whether the government's determination 
that the proposed remedies will cure the antitrust violations alleged 
in the complaint was reasonable, and whether the mechanisms to enforce 
the final judgment are clear and manageable'').
    Under the APPA, a court considers, among other things, the 
relationship between the remedy secured and the specific allegations 
set forth in the Complaint, whether the decree is sufficiently clear, 
whether the 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) (citing United States v. Bechtel Corp., 
648 F.2d 660, 666 (9th Cir. 1981)). Instead, 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 in ``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).
    In determining whether a proposed settlement is in the public 
interest, ``the court `must accord deference to the government's 
predictions about the efficacy of its remedies.''' United States v. 
U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (quoting 
SBC Commc'ns, 489 F. Supp. at 17). See also Microsoft, 56 F.3d at 1461 
(noting that the government is entitled to deference as to its 
``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 the proposed remedies, its 
perception of the market structure, and its views of the nature of the 
case''); United States v.  Morgan Stanley, 881 F. Supp. 2d 563, 567-68 
(S.D.N.Y. 2012) (explaining that the government is entitled to 
deference in choice of remedies).
    Courts ``may not require that the remedies perfectly match the 
alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17. Rather, the 
ultimate question is 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.''' Microsoft, 56 F.3d at 1461. 
Accordingly, 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; see also 
United States v. Apple, Inc. 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012). 
And, 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 the public 
interest.'' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 
(D.D.C. 1982) (citations and internal quotations omitted); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy).
    In its 2004 amendments to the Tunney Act,\1\ Congress made clear 
its

[[Page 36348]]

intent to preserve the practical benefits of using 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). 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 the Tunney Act proceedings.'' 
SBC Commc'ns, 489 F. Supp. 2d at 11; see also United States v. Enova 
Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (``[T]he Tunney Act 
expressly allows the court to make its public interest determination on 
the basis of the competitive impact statement and response to public 
comments alone.''); US Airways, 38 F. Supp. 3d at 76 (same).
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    \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).
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III. SUMMARY OF PUBLIC COMMENT AND THE UNITED STATES'S RESPONSE

    The United States received one public comment from the City of 
Dallas (``Dallas''). Though the comment was submitted after the 
deadline for comments had passed, the United States has nevertheless 
issued a full response. Dallas submitted the comment to express concern 
about the possible anticompetitive effects of Signature's acquisition 
of Landmark at Love Field Airport (``Love Field''), which Dallas 
operates. Combined, Signature and Landmark have 54 percent of the FBO 
market and lease nearly 70 percent of the FBO facilities at Love Field. 
Dallas submitted the comment to provide additional information about 
the situation at Love Field and highlight what Dallas believes to be 
competitive concerns the PFJ does not address. In particular, Dallas is 
concerned that the PFJ would not require Signature to report future FBO 
acquisitions at Love Field to the United States. Dallas does not, 
however, argue in favor of a divesture of FBO assets at Love Field.
    The United States appreciates Dallas's advocacy efforts on behalf 
of competition at Love Field. The United States carefully considered 
the effects of the acquisition at Love Field and chose not to take 
enforcement action against such acquisition. Over the course of a five-
month investigation, the United States reviewed party and third-party 
documents, conducted economic data analysis, and talked with dozens of 
industry participants including the Aviation Director for the City of 
Dallas. As a result of this investigation, the United States did not 
allege a violation of the Clayton Act resulting from the acquisition of 
Love Field in its Complaint. Therefore, the comment submitted by Dallas 
is not a comment addressing the question before the Court, which is 
whether the proposed remedy will cure the antitrust violations alleged 
in the Complaint. Should any future acquisitions by Signature at Love 
Field raise a possibility of competitive harm, Dallas or any other 
affected party may raise those concerns with the United States to be 
evaluated at such future date.

IV. CONCLUSION

    After reviewing the public comment, the United States continues to 
believe that the PFJ, as drafted, provides an effective and appropriate 
remedy for the antitrust violations alleged in the Complaint, and is 
therefore in the public interest. The United States will move this 
Court to enter the PFJ soon after the comment and this response are 
published in the Federal Register.

Dated: May 27, 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].

KAPLAN KIRSCH ROCKWELL

April 20, 2016

James J. Tierney, Chief
Networks & Technology Enforcement Section
United States Department of Justice
Antitrust Division
450 Fifth Street NW., Suite 7100
Washington, DC 20530

Re: BBA Aviation, PLC and Landmark U.S. Corp LLC
 Case No. 1:16-cv-00174

Dear Mr. Tierney:

    As counsel to the City of Dallas (``City''), Kaplan Kirsch & 
Rockwell LLP (``Firm'') submits these comments in the matter of 
United States v. BBA Aviation, et al., case no. 1:16-cv-00174, 
concerning the merger of BBA Aviation (parent corporation to 
Signature Flight Support Corporation (``Signature'')), and Landmark 
U.S. Corp LLC (``Landmark''). The Firm and the City recognize that 
the deadline for comments on this matter has passed, but 
respectfully request that the Department of Justice accept these 
comments despite their tardiness.\1\
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    \1\ See81 Fed. Reg. 7144 (Feb. 10, 2016) (setting 60-day comment 
period).
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    The City owns and operates Dallas Love Field Airport (``Love 
Field''). The City is concerned about the possible anticompetitive 
effects of the merger between Landmark and Signature at Love Field, 
where both Landmark and Signature currently operate.
    Presently, there are six (6) fixed base operator (``FBO'') 
locations at Love Field, operated by five different FBO entities. 
Landmark operates one (1) of the FBO locations, and Signature 
operates two (2) of the locations.\2\ In 2015, Signature's two (2) 
locations combined sold 40 percent of the total aviation fuel \3\ at 
Love Field (by FBOs), and Landmark's single location sold 14 percent 
of the total aviation fuel. This, after the proposed merger, would 
result in 54 percent of the fuel at Love Field being provided by the 
``new'' Signature.
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    \2\ Signature operates both Signature Flight Support (also known 
as Signature North) and Dalfort Fueling.
    \3\ 100LL and Jet-A.
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    The remaining three (3) FBOs sold 46 percent of the fuel, with 
two smaller locations selling approximately 9 percent each, and one 
larger entity selling 28 percent. In addition to conducting a 
majority of the fuel sales, Landmark and Signature together lease 
nearly 70 percent of the total hangar, general aviation terminal 
facilities, and office space at Love Field. A chart with a breakdown 
of the data used to calculate these percentages is enclosed with 
this letter as Attachment A.
    Under the Department of Justice and Federal Trade Commission's 
Horizontal Merger Guidelines, markets with an initial score over 
2500 on the Herfindahl-Hirschman Index (``HHI'') are considered 
``highly concentrated.'' \4\ When a prospective merger in a highly 
concentrated market would result in an HHI increase of 200 or more, 
the transaction ``will be presumed to be likely to enhance market 
power.'' \5\ Such increases in HHI are considered indicators of 
transactions ``for which it is particularly important to examine 
whether other competitive factors confirm, reinforce, or counteract 
the potentially harmful effects of increased concentration.'' \6\
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    \4\ Horizontal Merger Guidelines Sec.  5.3.
    \5\ Id.
    \6\ Id.
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    At Love Field, the fuel flowage data suggests that the existing 
market is already highly concentrated, and that a merger of 
Signature and Landmark would increase the HHI by well over 200 
points.\7\ Despite this potential effect, there are no indications 
that the Department of Justice examined any of the competitive 
effects of the merger at Love Field. In fact, it appears that the 
Department of Justice failed to consider the impact on Love Field 
whatsoever, or, alternatively, failed to adequately explain why it 
chose to ignore those impacts.
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    \7\ The City recognizes that HHI is typically calculated using 
revenue data, but such information is proprietary and unavailable to 
the City.
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    These facts and the Department's own guidelines demonstrate the 
need to carefully scrutinize the merger's potential effects at Love 
Field. Yet, the materials published by the Department of Justice in 
the Federal Register and filed with the United States District Court 
for the District of Columbia make no reference to operations at Love 
Field.

[[Page 36349]]

    The proposed consent decree requires Signature and Landmark to 
divest their assets from six airports where both currently operate, 
but there is not even an acknowledgement that both firms operate 
FBOs at Love Field.\8\ While the City does not necessarily advocate 
for a divestiture of Signature or Landmark's assets at Love Field, 
the lack of discussion or findings on the issue is troubling, 
especially when such an absence is inconsistent with the 
Department's own guidance on this issue.
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    \8\ The City also notes that there is no discussion of San 
Antonio International Airport or Teterboro Airport, the two other 
U.S. airports where both Signature and Landmark presently operate.
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    The proposed consent decree not only imposes no constraints on 
Signature-Landmark operations at Love Field, but would effectively 
allow Signature-Landmark to acquire another FBO at Love Field. The 
proposal allows such an acquisition at ``an airport where [the 
merged entity] 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.'' \9\ This 
provision will be insufficient to protect the competitive 
environment at Love Field \10\ because BBA could acquire the 
remaining FBOs without Department of Justice scrutiny or permission. 
The new Signature-Landmark entity could acquire the next-largest FBO 
at Love Field because of the exception allowing such acquisition 
when there are two other FBOs at the airport, and could then acquire 
the other entities if they are valued below $20 million.\11\ By 
failing to address this potential issue now, the Department of 
Justice leaves open the possibility that BBA could later acquire an 
exclusive right at Love Field.
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    \9\ 81 FR at 7155 (emphasis added).
    \10\ The City is also concerned that even greater concentration 
of FBO business at Love Field may result in violations of the 
Federal Aviation Administration Grant Assurances, which specifically 
prohibit the granting of ``exclusive rights'' to aeronautical 
service providers. See FAA Order 5.190.6B, ]8.1. The City has an 
affirmative obligation to ensure that an exclusive right is not 
created at Love Field.
    \11\ The City presently has no information about the value of 
any of the other FBOs at Love Field, but all are small entities that 
operate only at Love Field.
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    The City urges the Department of Justice to include more 
specific protections for Love Field and other airports that are not 
proposed for divestiture, but where the market power of the merged 
entity could pose a serious threat of further market concentration. 
Specifically, the City suggests including provisions that would 
serve to prevent the future purchase of FBOs at any airport where 
Signature and Landmark both operated prior to the merger, regardless 
of the value of the transaction or presence of additional FBOs. As 
explained above, the current provision in the proposed consent 
decree is too narrow to adequately protect Love Field. A broader 
provision would better protect Love Field and other airports from 
potential anticompetitive environments.
    Thank you for your time and consideration in this matter. If you 
have any questions about any of the comments in this letter, please 
do not hesitate to contact me.

Sincerely,

/s/--------------------------------------------------------------------
Peter J. Kirsch by Nicholas M. Clabbers,

On behalf of: City of Dallas, Department of Aviation, 8008 Herb 
Kelleher Way, LB16, Dallas, Texas 75235.

                                                  Attachment A
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                               FBO fuel sales at Dallas Love Field  (2015 totals)
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                               FBO                                100 LL  (gals)   Jet A  (gals)       Total
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Signature Flight Support........................................           9,992       4,126,136       4,136,128
Signature Dalfort...............................................           8,335       3,935,851       3,944,186
Landmark Aviation...............................................          37,380       2,881,685       2,919,065
Total Signature + Landmark......................................          55,707      10,943,672      10,999,379
All Other FBOs..................................................         101,600       9,238,107       9,339,707
S+L Market Share Post-Merger \1\................................           35.4%           54.2%             54%
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                            FBO Facility Leaseholds at Dallas Love Field (as of 2015)
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                                                                         Terminal and  offices
                  FBO                          Hangars  (sqft)                  (sqft)                 Total
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Signature Flight Support...............  220,500....................  97,688....................         318,188
Signature Dalfort......................  400,703....................  14,212....................         414,915
Landmark Aviation......................  106,890....................  79,848....................         186,738
Total Signature + Landmark.............  728,093....................  191,748...................         919,841
All Other FBOs \2\.....................  N/A........................  N/A.......................         432,108
S + L Percentages Post-Merger..........  Unknown....................  Unknown...................             68%
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\1\ The calculations of approximate market share are based solely on the fuel quantities sold, as the City does
  not have access to proprietary revenue data.
\2\ The data available for the other FBOs does not delineate between hangar and office space.


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[FR Doc. 2016-13185 Filed 6-3-16; 8:45 am]
 BILLING CODE 4410-11-P