[Federal Register Volume 84, Number 59 (Wednesday, March 27, 2019)]
[Notices]
[Pages 11555-11572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05844]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Hyundai Oilbank Co., Ltd., et al.; Proposed 
Final Judgments and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that proposed Final Judgments, 
Stipulations, and a Competitive Impact Statement have been filed with 
the United States District Court for the Southern District of Ohio in 
United States v. Hyundai Oilbank Co., Ltd., et al., Case No. 2:19-cv-
1037. On March 20, 2019, the United States filed a Complaint alleging 
that between 2005 and 2016, Hyundai Oilbank Co., Ltd. (``Hyundai 
Oilbank'') and S-Oil Corporation (``S-Oil''), along with other co-
conspirators, conspired to rig bids for Posts, Camps & Stations (PC&S) 
and Army and Air Force Exchange Service (AAFES) fuel supply contracts 
with the U.S. military in South Korea, in violation of Section 1 of the 
Sherman Act, 15 U.S.C. 1. A proposed Final Judgment for each Defendant, 
filed at the same time as the Complaint, requires Hyundai Oilbank and 
S-Oil to pay the United States, respectively, $39,100,000 and 
$12,980,000. In addition, each Defendant has agreed to cooperate with 
further civil investigative and judicial proceedings and to institute 
an antitrust compliance program.
    Copies of the Complaint, proposed Final Judgments, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the Southern District 
of Ohio. 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 website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Kathleen S. 
O'Neill, Chief, Transportation, Energy & Agriculture Section, Antitrust 
Division, Department of Justice, 450 5th Street NW, Suite 8000, 
Washington, DC 20530.

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the Southern District of Ohio Eastern 
Division

    UNITED STATES OF AMERICA, Plaintiff, v. HYUNDAI OILBANK CO., 
LTD, 182, Pyeongsin 2-ro, Daesan-eup, Seosan-si, Chungcheongnam-do, 
South Korea, and S-OIL CORPORATION, 192, Baekbeom-ro, Mapo-gu, 
Seoul, South Korea, Defendants.

CASE NO. 2:19-cv-1037

COMPLAINT: VIOLATION OF SECTION 1 OF THE SHERMAN ACT, 15 U.S.C. 
Sec.  1

COMPLAINT

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to obtain equitable monetary relief and recover damages

[[Page 11556]]

from Hyundai Oilbank Co., Ltd. and S-Oil Corporation for conspiring to 
rig bids and fix prices, in violation of Section 1 of the Sherman Act, 
15 U.S.C. Sec.  1, on the supply of fuel to the U.S. military for its 
operations in South Korea.

I. INTRODUCTION

    1. Since the end of the Korean War, the U.S. armed forces have 
maintained a significant presence in South Korea, protecting American 
interests in the region and safeguarding peace for the Korean people. 
To perform this important mission, American service members depend on 
fuel to power their bases and military vehicles. The U.S. military 
procures this fuel from oil refiners located in South Korea through a 
competitive bidding process.
    2. For at least a decade, rather than engage in fair and honest 
competition, Defendants and their co-conspirators defrauded the U.S. 
military by fixing prices and rigging bids for the contracts to supply 
this fuel. Defendants met and communicated in secret with other large 
South Korean oil refiners and logistics companies, and pre-determined 
which conspirator would win each contract. Defendants or their co-
conspirators then fraudulently submitted collusive bids to the U.S. 
military. Through this scheme, Defendants reaped vastly higher profit 
margins on the fuel they supplied to the U.S. military than on the fuel 
they sold to the South Korean military and to private parties.
    3. As a result of this conduct, Defendants and their co-
conspirators illegally overcharged American taxpayers by well over $100 
million. This conspiracy unreasonably restrained trade and commerce, in 
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1. 
Defendants have agreed to plead guilty to one count of a superseding 
indictment charging a criminal violation of Section 1 of the Sherman 
Act for this unlawful conduct, and in this civil action, the United 
States seeks compensation for the injuries it incurred as a result of 
this conspiracy.

II. DEFENDANTS

    4. Hyundai Oilbank Co., Ltd. (``Hyundai Oilbank'') is an oil 
company headquartered in Seosan, South Korea. Hyundai Oilbank refines 
and supplies gasoline, diesel, kerosene, and other petroleum products 
for sale internationally. During the conspiracy, Hyundai Oilbank 
partnered with a logistics firm (``Company A'') to supply fuel to U.S. 
military installations in South Korea, with Company A acting as the 
prime contractor under the relevant contracts.
    5. S-Oil Corporation (``S-Oil'') is an oil company headquartered in 
Seoul, South Korea. S-Oil refines and supplies gasoline, diesel, 
kerosene, and other petroleum products for sale internationally. 
Beginning in 2009, S-Oil partnered with Hanjin Transportation Co., Ltd. 
(``Hanjin'') to supply fuel to U.S. military installations in South 
Korea, with Hanjin acting as the prime contractor under the relevant 
contracts.
    6. Other persons, not named as defendants in this action, 
participated as co-conspirators in the offense alleged in this 
Complaint and performed acts and made statements in furtherance 
thereof. These co-conspirators include, among others, GS Caltex 
Corporation (``GS Caltex''), Hanjin, SK Energy Co., Ltd. (``SK 
Energy''), and Company A.
    7. Whenever this Complaint refers to any act, deed, or transaction 
of any business entity, it means that the business entity engaged in 
the act, deed, or transaction by or through its officers, directors, 
employees, agents, or other representatives while they were actively 
engaged in the management, direction, control, or transaction of its 
business or affairs.

III. JURISDICTION AND VENUE

    8. The United States brings this action under Section 4 of the 
Sherman Act, 15 U.S.C. Sec.  4, and Section 4A of the Clayton Act, 15 
U.S.C. Sec.  15a, seeking equitable relief, including equitable 
monetary remedies, and damages from Defendants' violation of Section 1 
of the Sherman Act, 15 U.S.C. Sec.  1.
    9. This Court has subject matter jurisdiction over this action 
under 15 U.S.C. Sec. Sec.  4 and 15a and 28 U.S.C. Sec. Sec.  1331 and 
1337.
    10. Defendants have consented to venue and personal jurisdiction in 
this district for the purpose of this Complaint.
    11. Defendants or their co-conspirators entered into contracts with 
the U.S. military to supply and deliver fuel to U.S. military 
installations in South Korea. Under the terms of these contracts, 
Defendants or their co-conspirators agreed that the laws of the United 
States would govern all contractual disputes and that U.S. 
administrative bodies and courts would have exclusive jurisdiction to 
resolve all such disputes. To be eligible to enter into these 
contracts, Defendants or their co-conspirators registered in databases 
located in the United States. For certain contracts, Defendants or 
their co-conspirators submitted bids to U.S. Department of Defense 
offices in the United States. After being awarded these contracts, 
Defendants or their co-conspirators submitted invoices to and received 
payments from U.S. Department of Defense offices in Columbus, Ohio, 
which included use of wires and mails located in the United States.
    12. Through these contracts with the U.S. military, Defendants' 
activities had a direct, substantial, and reasonably foreseeable effect 
on interstate commerce, import trade or commerce, and commerce with 
foreign nations. Defendants' conspiracy had a substantial and intended 
effect in the United States. Defendants caused U.S. Department of 
Defense agencies to pay non-competitive prices for the supply of fuel 
to U.S. military installations. Defendants or their co-conspirators 
also caused a U.S. Department of Defense agency located in the Southern 
District of Ohio to transfer U.S. dollars to their foreign bank 
accounts.

IV. BACKGROUND

    13. From at least March 2005 and continuing until at least October 
2016 (``the Relevant Period''), the U.S. military procured fuel for its 
installations in South Korea through competitive solicitation 
processes. Oil companies, either independently or in conjunction with a 
logistics company, submitted bids in response to these solicitations.
    14. The conduct at issue relates to two types of contracts to 
supply fuel to the U.S. military for use in South Korea: Post, Camps, 
and Stations (``PC&S'') contracts and Army and Air Force Exchange 
Services (``AAFES'') contracts.
    15. PC&S contracts are issued and administered by the Defense 
Logistics Agency (``DLA''), a combat support agency in the U.S. 
Department of Defense. DLA, formerly known as the Defense Energy 
Support Center, is headquartered in Fort Belvoir, Virginia. The fuel 
procured under PC&S contracts is used for military vehicles and to heat 
U.S. military buildings. During the Relevant Period, PC&S contracts ran 
for a term of three or four years. DLA issued PC&S solicitations 
listing the fuel requirements for installations across South Korea, 
with each delivery location identified by a separate line item. Bidders 
offered a price for each line item on which they chose to bid. DLA 
awarded contracts to the bidders offering the lowest price for each 
line item. The Defense Finance and Accounting Service (``DFAS''), a 
finance and accounting agency of the U.S. Department of Defense, wired 
payments to the PC&S contract awardees from its office in Columbus, 
Ohio.
    16. AAFES is an agency of the Department of Defense headquartered 
in

[[Page 11557]]

Dallas, Texas. AAFES operates official retail stores (known as 
``exchanges'') on U.S. Army and Air Force installations worldwide, 
which U.S. military personnel and their families use to purchase 
everyday goods and services, including gasoline for use in their 
personal vehicles. AAFES procures fuel for these stores via contracts 
awarded through a competitive solicitation process. The term of AAFES 
contracts is typically two years, but may be extended for additional 
years. In 2008, AAFES issued a solicitation that listed the fuel 
requirements for installations in South Korea. Unlike DLA, AAFES 
awarded the entire 2008 contract to the bidder offering the lowest 
price across all the listed locations.

V. DEFENDANTS' UNLAWFUL CONDUCT

    17. From at least March 2005 and continuing until at least October 
2016, Defendants and their co-conspirators engaged in a series of 
meetings, telephone conversations, e-mails, and other communications to 
rig bids and fix prices for the supply of fuel to U.S. military 
installations in South Korea.

2006 PC&S and 2008 AAFES Contracts

    18. GS Caltex, SK Energy, Hyundai Oilbank, and Company A conspired 
to rig bids and fix prices on the 2006 PC&S contracts, which were 
issued in response to solicitation SP0600-05-R-0063, supplemental 
solicitation SP0600-05-0063-0001, and their amendments. The term of the 
2006 PC&S contracts covered the supply of fuel from February 2006 
through July 2009.
    19. Between early 2005 and mid-2006, GS Caltex, SK Energy, Hyundai 
Oilbank, and other conspirators met multiple times and exchanged phone 
calls and e-mails to allocate the line items in the solicitations for 
the 2006 PC&S contracts. For each line item allocated to a different 
co-conspirator, the other conspirators agreed not to bid or to bid high 
enough to ensure that they would not win that item. Through these 
communications, these conspirators agreed to inflate their bids to 
produce higher profit margins. DLA awarded the 2006 PC&S line items 
according to the allocations made by the conspiracy.
    20. As part of their discussions related to the 2006 PC&S 
contracts, GS Caltex, Hyundai Oilbank, and other conspirators agreed 
not to compete with SK Energy in bidding for the 2008 AAFES contract. 
In 2008, GS Caltex, Hyundai Oilbank, and other conspirators honored 
their agreement: GS Caltex bid significantly above the bid submitted by 
SK Energy for the AAFES contract, while Hyundai Oilbank and Company A 
declined to bid even after AAFES explicitly requested their 
participation in the bidding. The initial term of the 2008 AAFES 
contract ran from July 2008 to July 2010; the contract was later 
extended through July 2013. As envisioned by the conspiracy, AAFES 
awarded the 2008 contract to SK Energy.

2009 PC&S Contracts

    21. Continuing their conspiracy, Defendants and other co-
conspirators conspired to rig bids and fix prices for the 2009 PC&S 
contracts, which were issued in response to solicitation SP0600-08-R-
0233. Hanjin and S-Oil joined the conspiracy for the purpose of bidding 
on the solicitation for the 2009 PC&S contracts. Hanjin and S-Oil 
partnered to bid jointly on the 2009 PC&S contracts, with S-Oil 
providing the fuel and Hanjin providing transportation and logistics. 
The term of the 2009 PC&S contracts covered the supply of fuel from 
October 2009 through August 2013.
    22. Between late 2008 and mid-2009, Defendants and other co-
conspirators met multiple times and exchanged phone calls and e-mails 
to allocate the line items in the solicitation for the 2009 PC&S 
contracts. As in 2006, these conspirators agreed to bid high so as to 
not win line items allocated to other co-conspirators. The original 
conspirators agreed to allocate to Hanjin and S-Oil certain line items 
that had previously been allocated to the original conspirators.
    23. With one exception, DLA awarded the 2009 PC&S contracts in line 
with the allocations made by the Defendants and other co-conspirators. 
Hyundai Oilbank and Company A accidentally won one line item that the 
conspiracy had allocated to GS Caltex. To remedy this misallocation, 
Company A, Hyundai Oilbank, and GS Caltex agreed that GS Caltex, rather 
than Hyundai Oilbank, would supply Company A with the fuel procured 
under this line item.

2013 PC&S Contracts

    24. Similar to 2006 and 2009, Defendants and other co-conspirators 
conspired to rig bids and fix prices for the 2013 PC&S contracts, which 
were issued in response to solicitation SP0600-12-R-0332. The term of 
the 2013 PC&S Contract covered the supply of fuel from August 2013 
through July 2016.
    25. Defendants and other co-conspirators communicated via phone 
calls and e-mails to allocate and set the price for each line item in 
the solicitation for the 2013 PC&S contracts. Defendants and other co-
conspirators believed that they had an agreement as to their bidding 
strategy and pricing for the 2013 PC&S contracts. As a result of this 
agreement, they bid higher prices than they would have in a competitive 
process.
    26. However, Hanjin and S-Oil submitted bids for the 2013 PC&S 
contracts below the prices set by the other co-conspirators. Although 
lower than the pricing agreed upon by the conspirators, Hanjin and S-
Oil still submitted bids above a competitive, non-collusive price, 
knowing that they would likely win the contracts because the other 
conspirators would bid even higher prices.
    27. As a result of their bidding strategy, Hanjin and S-Oil jointly 
won nearly all the line items in the 2013 PC&S contracts. As in 2009, 
S-Oil was to provide the fuel for these line items, and Hanjin was to 
provide transportation and logistics. GS Caltex and other co-
conspirators won a few, small line items; SK Energy won none. DLA made 
inflated payments under the 2013 PC&S contracts through October 2016.
    28. After the award of the 2013 PC&S contracts, Hanjin, S-Oil, and 
GS Caltex reached an understanding that GS Caltex, rather than S-Oil, 
would supply Hanjin with fuel for certain line items. Under this side 
agreement, Hanjin paid a much lower price to GS Caltex for fuel than 
the price it previously had agreed to pay S-Oil to acquire fuel for 
those line items. However, the price that Hanjin paid to GS Caltex 
exceeded a competitive price for fuel.

VI. VIOLATIONS ALLEGED

    29. The United States incorporates by reference the allegations in 
paragraphs 1 through 28.
    30. The conduct of Defendants and their co-conspirators 
unreasonably restrained trade and harmed competition for the supply of 
fuel to the U.S. military in South Korea in violation of Section 1 of 
the Sherman Act, 15 U.S.C. Sec.  1.
    31. The United States was injured as a result of the unlawful 
conduct because it paid more for the supply of fuel than it would have 
had the Defendants and their co-conspirators engaged in fair 
competition.

VII. REQUEST FOR RELIEF

    32. The United States requests that this Court:
    (a) adjudge that Defendants' and their co-conspirators' conduct 
constitutes an unreasonable restraint of interstate commerce, import 
trade or commerce, and commerce with foreign nations in

[[Page 11558]]

violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1;
    (b) award the United States damages to which it is entitled for the 
losses incurred as the result of Defendants' and their co-conspirators' 
conduct;
    (c) award the United States equitable disgorgement of the ill-
gotten gains obtained by Defendants;
    (d) award the United States its costs of this action; and
    (e) award the United States other relief that the Court deems just 
and proper.

Dated: March 20, 2019

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA:

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Makan Delrahim
Assistant Attorney General for Antitrust

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Andrew C. Finch
Principal Deputy Assistant Attorney General

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Bernard A. Nigro Jr.
Deputy Assistant Attorney General

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Patricia A. Brink
Director of Civil Enforcement

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Kathleen S. O'Neill
Chief Transportation, Energy & Agriculture Section

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Robert A. Lepore
Assistant Chief Transportation, Energy & Agriculture Section

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J. Richard Doidge
Julie Elmer
Jeremy Evans
John A. Holler
Jonathan Silberman
Patrick M. Kuhlmann

Attorneys for the United States,
U.S. Department of Justice,
Antitrust Division, 450 5th Street, NW, Suite 8000, Washington, DC 
20530, Tel: (202) 514-8944, Fax: (202) 616-2441, E-mail: 
[email protected]

Dated: March 20, 2019

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA

Benjamin C. Glassman
United States Attorney

By:

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Andrew M. Malek (Ohio Bar 0061442)
Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, 
Columbus, Ohio 43215, Tel: (614) 469-5715, Fax: (614) 469-2769, E-
mail: [email protected]

United States District Court for the Southern District of Ohio Eastern 
Division

    UNITED STATES OF AMERICA, Plaintiff, v. HYUNDAI OILBANK CO., 
LTD., Defendant.

CASE NO. 2:19-cv-1037

PROPOSED FINAL JUDGMENT AS TO DEFENDANT HYUNDAI OILBANK CO., LTD.

    WHEREAS Plaintiff, United States of America, filed its Complaint on 
March 20, 2019, the United States and Defendant Hyundai Oilbank Co., 
Ltd. (``Hyundai Oilbank''), by their respective attorneys, have 
consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law;
    WHEREAS, on such date as may be determined by the Court, Hyundai 
Oilbank will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the 
``Plea Agreement'') to Count One of a Superseding Indictment filed in 
the Southern District of Ohio (the ``Criminal Action'') that alleges a 
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1, relating 
to the same events giving rise to the allegations described in the 
Complaint;
    WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    NOW, THEREFORE, before the taking of any testimony and without 
trial or final adjudication of any issue of fact or law herein, and 
upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED:

I. JURISDICTION

    This Court has jurisdiction of the subject matter of this action 
and each of the parties consenting hereto. The Complaint states a claim 
upon which relief may be granted to the United States against Hyundai 
Oilbank under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.

II. APPLICABILITY

    This Final Judgment applies to Hyundai Oilbank, 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.

III. PAYMENT

    Hyundai Oilbank shall pay to the United States within ten (10) 
business days of the entry of this Final Judgment the amount of thirty-
nine million, one hundred thousand dollars ($39,100,000), less the 
amount paid (excluding any interest) pursuant to the settlement 
agreement attached hereto as Attachment 1, to satisfy all civil 
antitrust claims alleged against Hyundai Oilbank by the United States 
in the Complaint. Payment of the amount ordered hereby shall be made by 
wire transfer of funds or cashier's check. If the payment is made by 
wire transfer, Hyundai Oilbank shall contact Janie Ingalls of the 
Antitrust Division's Antitrust Documents Group at (202) 514-2481 for 
instructions before making the transfer. If the payment is made by 
cashier's check, the check shall be made payable to the United States 
Department of Justice and delivered to: Janie Ingalls, United States 
Department of Justice Antitrust Division, Antitrust Documents Group, 
450 5th Street, NW, Suite 1024, Washington, D.C. 20530. In the event of 
a default in payment, interest at the rate of eighteen (18) percent per 
annum shall accrue thereon from the date of default to the date of 
payment.

IV. COOPERATION

    Hyundai Oilbank shall cooperate fully with the United States 
regarding any matter about which Hyundai Oilbank has knowledge or 
information relating to any ongoing civil investigation, litigation, or 
other proceeding arising out of any ongoing federal investigation of 
the subject matter discussed in the Complaint (hereinafter, any such 
investigation, litigation, or proceeding shall be referred to as a 
``Civil Federal Proceeding'').
    The United States agrees that any cooperation provided in 
connection with the Plea Agreement and/or pursuant to the settlement 
agreement attached hereto as Attachment 1 will be considered 
cooperation for purposes of this Final Judgment, and the United States 
will use its reasonable best efforts, where appropriate, to coordinate 
any requests for cooperation in connection with the Civil Federal 
Proceeding with requests for cooperation in connection with the Plea 
Agreement and the settlement agreement attached hereto as Attachment 1, 
so as to avoid unnecessary duplication and expense.
    Hyundai Oilbank's cooperation shall include, but not be limited to, 
the following:
    (a) Upon request, completely and truthfully disclosing and 
producing, to the offices of the United States and at no expense to the 
United States, copies of all non-privileged information, documents, 
materials, and records in its possession (and for any foreign-language 
information, documents, materials, or records, copies must be produced 
with an English translation), regardless of their geographic location, 
about which the United States may inquire in connection with any Civil 
Federal Proceeding, including but not limited to all information about 
activities of Hyundai Oilbank and present and

[[Page 11559]]

former officers, directors, employees, and agents of Hyundai Oilbank;
    (b) Making available in the United States, at no expense to the 
United States, its present officers, directors, employees, and agents 
to provide information and/or testimony as requested by the United 
States in connection with any Civil Federal Proceeding, including the 
provision of testimony in trial and other judicial proceedings, as well 
as interviews with law enforcement authorities, consistent with the 
rights and privileges of those individuals;
    (c) Using its best efforts to make available in the United States, 
at no expense to the United States, its former officers, directors, 
employees, and agents to provide information and/or testimony as 
requested by the United States in connection with any Civil Federal 
Proceeding, including the provision of testimony in trial and other 
judicial proceedings, as well as interviews with law enforcement 
authorities, consistent with the rights and privileges of those 
individuals;
    (d) Providing testimony or information necessary to identify or 
establish the original location, authenticity, or other basis for 
admission into evidence of documents or physical evidence produced by 
Hyundai Oilbank in any Civil Federal Proceeding as requested by the 
United States; and
    (e) Completely and truthfully responding to all other inquiries of 
the United States in connection with any Civil Federal Proceeding.
    However, notwithstanding any provision of this Final Judgment, 
Hyundai Oilbank is not required to: (1) request of its current or 
former officers, directors, employees, or agents that they forgo 
seeking the advice of an attorney nor that they act contrary to that 
advice; (2) take any action against its officers, directors, employees, 
or agents for following their attorney's advice; or (3) waive any claim 
of privilege or work product protection.
    The obligations of Hyundai Oilbank to cooperate fully with the 
United States as described in this Section shall cease upon the 
conclusion of all Civil Federal Proceedings (which may include Civil 
Federal Proceedings related to the conduct of third parties), including 
exhaustion of all appeals or expiration of time for all appeals of any 
Court ruling in each such Civil Federal Proceeding, at which point the 
United States will provide written notice to Hyundai Oilbank that its 
obligations under this Section have expired.

V. ANTITRUST COMPLIANCE PROGRAM

    A. Within thirty (30) days after entry of this Final Judgment, 
Hyundai Oilbank shall appoint an Antitrust Compliance Officer and 
identify to the United States his or her name, business address, 
telephone number, and email address. Within forty-five (45) days of a 
vacancy in the Antitrust Compliance Officer position, Hyundai Oilbank 
shall appoint a replacement, and shall identify to the United States 
the Antitrust Compliance Officer's name, business address, telephone 
number, and email address. Hyundai Oilbank's initial or replacement 
appointment of an Antitrust Compliance Officer is subject to the 
approval of the United States, in its sole discretion.
    B. The Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's employees and directors with 
responsibility for bidding for any contract with the United States. The 
antitrust compliance program shall provide at least two hours of 
training annually on the antitrust laws of the United States, such 
training to be delivered by an attorney with relevant experience in the 
field of United States antitrust law.
    C. Each Antitrust Compliance Officer shall obtain, within six 
months after entry of this Final Judgment, and on an annual basis 
thereafter, on or before each anniversary of the entry of this Final 
Judgment, from each person subject to Paragraph V.B of this Final 
Judgment, and thereafter maintaining, a certification that each such 
person has received the required two hours of annual antitrust 
training.
    D. Each Antitrust Compliance Officer shall communicate annually to 
all employees that they may disclose to the Antitrust Compliance 
Officer, without reprisal, information concerning any potential 
violation of the United States antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to the United 
States within six months after entry of this Final Judgment, and on an 
annual basis thereafter, on or before each anniversary of the entry of 
this Final Judgment, a written statement as to the fact and manner of 
Hyundai Oilbank's compliance with Section V of this Final Judgment.

VI. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any of the parties 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 or terminate any of its 
provisions, to enforce compliance, and to punish violations of its 
provisions.

VII. ENFORCEMNT OF FINAL JUDGMENT

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. Hyundai Oilbank agrees that in any civil 
contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of this 
Final Judgment, the United States may establish a violation of the 
decree and the appropriateness of any remedy therefor by a 
preponderance of the evidence, and Hyundai Oilbank waives any argument 
that a different standard of proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. Hyundai Oilbank agrees that they may be held in contempt of, 
and that the Court may enforce, any provision of this Final Judgment 
that, as interpreted by the Court in light of these procompetitive 
principles and applying ordinary tools of interpretation, is stated 
specifically and in reasonable detail, whether or not it is clear and 
unambiguous on its face. In any such interpretation, the terms of this 
Final Judgment should not be construed against either party as the 
drafter.
    C. In any enforcement proceeding in which the Court finds that 
Hyundai Oilbank has violated this Final Judgment, the United States may 
apply to the Court for a one-time extension of this Final Judgment, 
together with such other relief as may be appropriate. In connection 
with any successful effort by the United States to enforce this Final 
Judgment against Hyundai Oilbank, whether litigated or resolved prior 
to litigation, Hyundai Oilbank agrees to reimburse the United States 
for the fees and expenses of its attorneys, as well as any other costs 
including experts' fees, incurred in connection with that enforcement 
effort, including in the investigation of the potential violation.

VIII. EXPIRATION OF FINAL JUDGMENT

    33. Unless this Court grants an extension, this Final Judgment 
shall expire seven (7) years from the date of its entry, except that 
after five (5) years from the date of its entry, this Final Judgment 
may be terminated upon notice by the United States to the Court

[[Page 11560]]

and Hyundai Oilbank that the continuation of the Final Judgment no 
longer is necessary or in the public interest.

IX. PUBLIC INTEREST DETERMINATION

    34. 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. Sec.  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.

DATED:-----------------------------------------------------------------
-----------------------------------------------------------------------
United States District Judge

ATTACHMENT 1

SETTLEMENT AGREEMENT

    This Settlement Agreement (``Agreement'') is entered into among the 
United States of America, acting through the Civil Division of the 
United States Department of Justice and the United States Attorney's 
Office for the Southern District of Ohio, on behalf of the Defense 
Logistics Agency (``DLA'') and the Army and Air Force Exchange Service 
(``AAFES'') (collectively the ``United States''), Hyundai Oilbank Co., 
Ltd. (``Hyundai''), and Relator [REDACTED] (hereafter collectively 
referred to as ``the Parties''), through their authorized 
representatives.

RECITALS

    A. Hyundai is a South Korea-based energy company that produces 
various petroleum products that it sells to South Korean and 
international customers, including the United States Department of 
Defense (``DoD'').
    B. On February 28, 2018, Relator, a resident and citizen of South 
Korea, filed a qui tam action in the United States District Court for 
the Southern District of Ohio captioned United States ex rel. 
[REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant 
to the qui tam provisions of the False Claims Act, 31 U.S.C. Sec.  
3730(b) (the ``Civil FCA Action''). Relator contends that Hyundai 
conspired with other South Korean entities to rig bids on DoD contracts 
to supply fuel to U.S. military bases throughout South Korea beginning 
in 2005 and continuing until 2016, including DLA Post, Camps, and 
Stations (``PC&S'') contracts executed in 2006, 2009, and 2013, and 
AAFES contracts executed in 2008.
    C. On such date as may be determined by the Court, Hyundai will 
plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to Count One of a Superseding Indictment filed in the 
Southern District of Ohio (the ``Criminal Action'') that alleges that 
Hyundai participated in a combination and conspiracy beginning at least 
in or around March 2005 and continuing until at least in or around 
October 2016, to suppress and eliminate competition on certain 
contracts solicited by the DoD to supply fuel to numerous U.S. Army, 
Navy, Marine, and Air Force installations in South Korea, including 
PC&S contracts and the 2008 AAFES contract, in violation of the Sherman 
Antitrust Act, 15 U.S.C. Sec.  1.
    D. Hyundai will execute a Stipulation with the Antitrust Division 
of the United States Department of Justice in which Hyundai will 
consent to the entry of a Final Judgment to be filed in United States 
v. Hyundai Oilbank Co., Ltd., Civil Action No. [to be assigned] (S.D. 
Ohio) (the ``Civil Antitrust Action'') that will settle any and all 
civil antitrust claims of the United States against Hyundai arising 
from any act or offense committed before the date of the Stipulation 
that was undertaken in furtherance of an attempted or completed 
antitrust conspiracy involving PC&S and/or AAFES fuel supply contracts 
with the U.S. military in South Korea during the period 2005 through 
2016.
    E. The United States contends that it has certain civil claims 
against Hyundai arising from the conduct described in the Plea 
Agreement in the Criminal Action and in the Stipulation in the Civil 
Antitrust Action, as well as the conduct, actions, and claims alleged 
by Relator in the Civil FCA Action. The conduct referenced in this 
Paragraph is referred to below as the Covered Conduct.
    F. With the exception of any admissions that are made by Hyundai in 
connection with the Plea Agreement in the Criminal Action, this 
Settlement Agreement is neither an admission of liability by Hyundai 
nor a concession by the United States that its claims are not well 
founded.
    To avoid the delay, uncertainty, inconvenience, and expense of 
protracted litigation of the above claims, and in consideration of the 
mutual promises and obligations of this Settlement Agreement, the 
Parties agree and covenant as follows:

TERMS AND CONDITIONS

    1.a. Hyundai agrees to pay to the United States $28,818,814 (``FCA 
Settlement Amount''), of which $13,266,973 is restitution, by 
electronic funds transfer no later than thirteen (13) business days 
after the Effective Date of this Agreement pursuant to written 
instructions to be provided by the Civil Division of the Department of 
Justice. Relator claims entitlement under 31 U.S.C. Sec.  3730(d) to a 
share of the proceeds of this Settlement Agreement and to Relator's 
reasonable expenses, attorneys' fees and costs. The FCA Settlement 
Amount does not include the Relator's fees and costs, and Hyundai 
acknowledges that Relator retains all rights to recover such expenses, 
attorneys' fees, and costs from Hyundai pursuant to 31 U.S.C. Sec.  
3730(d).
    1.b. If Hyundai's Plea Agreement in the Criminal Action is not 
accepted by the Court or the Court does not enter a Final Judgment in 
the Civil Antitrust Action, this Agreement shall be null and void at 
the option of either the United States or Hyundai. If either the United 
States or Hyundai exercises this option, which option shall be 
exercised by notifying all Parties, through counsel, in writing within 
five (5) business days of the Court's decision, the Parties will not 
object and this Agreement will be rescinded and the FCA Settlement 
Amount shall be returned to Hyundai. If this Agreement is rescinded, 
Hyundai will not plead, argue or otherwise raise any defenses under the 
theories of statute of limitations, laches, estoppel or similar 
theories, to any civil or administrative claims, actions or proceedings 
arising from the Covered Conduct that are brought by the United States 
within ninety (90) calendar days of rescission, except to the extent 
such defenses were available on the day on which Relator's qui tam 
complaint in the Civil FCA Action was filed.
    2. Subject to the exceptions in Paragraph 4 (concerning excluded 
claims) below, and conditioned upon Hyundai's full payment of the FCA 
Settlement Amount, the United States releases Hyundai together with its 
current and former parent corporations; direct and indirect 
subsidiaries; brother or sister corporations; divisions; current or 
former corporate owners; and the corporate successors and assigns of 
any of them from any civil or administrative monetary claim the United 
States has for the Covered Conduct under the False Claims Act, 31 
U.S.C. Sec. Sec.  3729-3733; the Program Fraud Civil Remedies Act, 31 
U.S.C. Sec. Sec.  3801-3812; Contract Disputes Act, 41 U.S.C. 
Sec. Sec.  7101-7109; or the common law theories of breach of

[[Page 11561]]

contract, payment by mistake, unjust enrichment, and fraud.
    3. Except as set forth in Paragraph 1 (concerning Relator's claims 
under 31 U.S.C. Sec.  3730(d)), and conditioned upon Hyundai's full 
payment of the FCA Settlement Amount, Relator, for himself and for his 
heirs, successors, attorneys, agents, and assigns, releases Hyundai 
together with its current and former parent corporations; direct and 
indirect subsidiaries; brother or sister corporations; divisions; 
current or former corporate owners; the corporate successors and 
assigns of any of them as well as Hyundai owners, directors, officers, 
agents, employees and counsel from (a) any civil monetary claim the 
Relator has or may have for the claims set forth in the Civil FCA 
Action, the Civil Antitrust Action, the Criminal Action, and the 
Covered Conduct under the False Claims Act, 31 U.S.C. Sec. Sec.  3729-
3733, up until the date of this Agreement; and (b) all liability, 
claims, demands, actions, or causes of action whatsoever, whether known 
or unknown, fixed or contingent, in law or in equity, in contract or in 
tort, under any federal, state, or Korean statute, law, regulation or 
doctrine, that Relator, his heirs, successors, attorneys, agents, and 
assigns otherwise has brought or would have standing to bring as of the 
date of this Agreement, including any liability to Relator arising from 
or relating to the claims Relator asserted or could have asserted in 
the Civil FCA Action, up until the date of this Agreement. Relator 
represents he does not know of any conduct by Hyundai or any current or 
former owners, officers, directors, trustees, shareholders, employees, 
executives, agents, or affiliates that would constitute a violation of 
the False Claims Act other than the claims set forth in the Civil FCA 
Action and the Covered Conduct, and Relator acknowledges and agrees 
that his representations are a material inducement to Hyundai's 
willingness to enter into this Agreement. Relator further represents 
and warrants that he and his counsel are the exclusive owner of the 
rights, claims, and causes of action herein released and none of them 
have previously assigned, reassigned, or transferred or purported to 
assign, reassign, or transfer, through bankruptcy or by any other 
means, any or any portion of any claim, demand, action, cause of 
action, or other right released or discharged under this Agreement 
except between themselves and their counsel.
    4. Notwithstanding the releases given in paragraphs 2 and 3 of this 
Agreement, or any other term of this Agreement, the following claims of 
the United States are specifically reserved and are not released:
    a. Any liability arising under Title 26, U.S. Code (Internal 
Revenue Code);
    b. Any criminal liability, except to the extent detailed in the 
Plea Agreement;
    c. Except as explicitly stated in this Agreement, any 
administrative liability, including the suspension and debarment rights 
of any federal agency;
    d. Any liability to the United States (or its agencies) for any 
conduct other than the Covered Conduct;
    e. Any liability based upon obligations created by this Agreement;
    f. Any liability of individuals;
    g. Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services;
    h. Any liability for failure to deliver goods or services due; and
    i. Any liability for personal injury or property damage or for 
other consequential damages arising from the Covered Conduct.
    5. Relator and his heirs, successors, attorneys, agents, and 
assigns shall not object to this Agreement but agree and confirm that 
this Agreement is fair, adequate, and reasonable under all the 
circumstances, pursuant to 31 U.S.C. Sec.  3730(c)(2)(B). The 
determination of Relator's share, if any, of the FCA Settlement Amount 
pursuant to 31 U.S.C. Sec.  3730(d) is a matter that shall be handled 
separately by and between the Relator and the United States, without 
any direct involvement or input from Hyundai. In connection with this 
Agreement and this Civil FCA Action, Relator, on behalf of himself and 
his heirs, successors, attorneys, agents, and assigns agrees that 
neither this Agreement, nor any intervention by the United States in 
the Civil FCA Action in order to dismiss the Civil FCA Action, nor any 
dismissal of the Civil FCA Action, shall waive or otherwise affect the 
ability of the United States to contend that provisions in the False 
Claims Act, including 31 U.S.C. Sec.  3730(d)(3), bar Relator from 
sharing in the proceeds of this Agreement, except that the United 
States will not contend that Relator is barred from sharing in the 
proceeds of this Agreement pursuant to 31 U.S.C. Sec.  3730(e)(4). 
Moreover, the United States and Relator, on behalf of himself and his 
heirs, successors, attorneys, agents, and assigns agree that they each 
retain all of their rights pursuant to the False Claims Act on the 
issue of the share percentage, if any, that Relator should receive of 
any proceeds of the settlement of his claims, and that no agreements 
concerning Relator share have been reached to date.
    6. Hyundai waives and shall not assert any defenses Hyundai may 
have to any criminal prosecution or administrative action relating to 
the Covered Conduct that may be based in whole or in part on a 
contention that, under the Double Jeopardy Clause in the Fifth 
Amendment of the Constitution, or under the Excessive Fines Clause in 
the Eighth Amendment of the Constitution, this Agreement bars a remedy 
sought in such criminal prosecution or administrative action.
    7. Hyundai fully and finally releases the United States, its 
agencies, officers, agents, employees, and servants, from any claims 
(including attorney's fees, costs, and expenses of every kind and 
however denominated) that Hyundai has asserted, could have asserted, or 
may assert in the future against the United States, its agencies, 
officers, agents, employees, and servants, related to the Covered 
Conduct and the United States' investigation and prosecution thereof.
    8. Conditioned upon Relator's agreement herein, Hyundai fully and 
finally releases Relator his heirs, successors, assigns, agents and 
attorneys (the ``Relator Released Parties''), from (a) any civil 
monetary claim Hyundai has or may have now or in the future against the 
Relator Released Parties related to the claims set forth in the Civil 
FCA Action, the Civil Antitrust Action, the Criminal Action, and the 
Covered Conduct under the False Claims Act, 31 U.S.C. Sec. Sec.  3729-
3733, and the Relator's investigation and prosecution thereof, 
including attorney's fees, costs, and expenses of every kind and 
however denominated, up until the date of this Agreement; and (b) all 
liability, claims, demands, actions, or causes of action whatsoever, 
whether known or unknown, fixed or contingent, in law or in equity, in 
contract or in tort, under any federal, state, or Korean statute, law, 
regulation or doctrine, that Hyundai otherwise have brought or would 
have standing to bring as of the date of this Agreement, including any 
liability to Hyundai arising from or relating to claims Hyundai 
asserted or could have asserted related to the Civil FCA Action, up 
until the date of this Agreement. Hyundai further acknowledges and 
agrees that these representations are a material inducement to 
Relator's willingness to enter into this Agreement.
    9. a. Unallowable Costs Defined: All costs (as defined in the 
Federal Acquisition Regulation, 48 C.F.R. Sec.  31.205-47) incurred by 
or on behalf of Hyundai, and its present or former officers, directors, 
employees,

[[Page 11562]]

shareholders, and agents in connection with:
    (1) the matters covered by this Agreement, any related plea 
agreement, and any related civil antitrust agreement;
    (2) the United States' audit(s) and civil and any criminal 
investigation(s) of the matters covered by this Agreement;
    (3) Hyundai's investigation, defense, and corrective actions 
undertaken in response to the United States' audit(s) and civil and any 
criminal investigation(s) in connection with the matters covered by 
this Agreement (including attorney's fees);
    (4) the negotiation and performance of this Agreement, any related 
plea agreement, and any related civil antitrust agreement;
    (5) the payment Hyundai makes to the United States pursuant to this 
Agreement and any payments that Hyundai may make to Relator, including 
costs and attorneys' fees,

are unallowable costs for government contracting purposes (hereinafter 
referred to as Unallowable Costs).
    b. Future Treatment of Unallowable Costs: Unallowable Costs will be 
separately determined and accounted for by Hyundai, and Hyundai shall 
not charge such Unallowable Costs directly or indirectly to any 
contract with the United States.
    c. Treatment of Unallowable Costs Previously Submitted for Payment: 
Within 90 days of the Effective Date of this Agreement, Hyundai shall 
identify and repay by adjustment to future claims for payment or 
otherwise any Unallowable Costs included in payments previously sought 
by Hyundai or any of its subsidiaries or affiliates from the United 
States. Hyundai agrees that the United States, at a minimum, shall be 
entitled to recoup from Hyundai any overpayment plus applicable 
interest and penalties as a result of the inclusion of such Unallowable 
Costs on previously-submitted requests for payment. The United States, 
including the Department of Justice and/or the affected agencies, 
reserves its rights to audit, examine, or re-examine Hyundai's books 
and records and to disagree with any calculations submitted by Hyundai 
or any of its subsidiaries or affiliates regarding any Unallowable 
Costs included in payments previously sought by Hyundai, or the effect 
of any such Unallowable Costs on the amount of such payments.
    10. Hyundai agrees to cooperate fully and truthfully with the 
United States in connection with the Civil FCA Action. The Civil 
Division of the United States Department of Justice will use reasonable 
best efforts, where appropriate, to coordinate any requests for 
cooperation in connection with the Civil FCA Action with requests for 
cooperation in connection with the Plea Agreement in the Criminal 
Action and the Civil Antitrust Action, so as to avoid unnecessary 
duplication and expense. Hyundai's ongoing, full, and truthful 
cooperation shall include, but not be limited to:
    a. upon request by the United States with reasonable notice, 
producing at the offices of counsel for the United States in 
Washington, D.C. and not at the expense of the United States, complete 
and un-redacted copies of all non-privileged documents related to the 
Covered Conduct wherever located in Hyundai's possession, custody, or 
control;
    b. upon request by the United States with reasonable notice, making 
current Hyundai directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon;
    c. upon request by the United States with reasonable notice, (i) 
using best efforts to assist in locating former Hyundai directors, 
officers, and employees identified by attorneys and/or investigative 
agents of the United States, and (ii) using best efforts to make any 
such former Hyundai directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon; and
    d. upon request by the United States with reasonable notice, making 
current Hyundai directors, officers, and employees available, and using 
best efforts to make former Hyundai directors, officers, employees 
available, to testify, consistent with the rights and privileges of 
such individuals, fully, truthfully, and under oath, without falsely 
implicating any person or withholding any information, (i) at 
depositions in the United States, Hong Kong, or any other mutually 
agreed upon place, (ii) at trial in the United States, and (iii) at any 
other judicial proceedings wherever located related to the Civil FCA 
Action.
    11. This Agreement is intended to be for the benefit of the Parties 
only.
    12. Upon receipt of the payment of the FCA Settlement Amount 
described in Paragraph 1.a. above, the Court's acceptance of Hyundai's 
Plea Agreement in the Criminal Action, and the Court's entry of a Final 
Judgment in the Civil Antitrust Action, the United States and Relator 
shall promptly sign and file a Joint Stipulation of Dismissal, with 
prejudice, of the claims filed against Hyundai in the Civil FCA Action, 
pursuant to Rule 41(a)(1), which dismissal shall be conditioned on the 
Court retaining jurisdiction over Relator's claims to a relator's share 
and recovery of attorneys' fees and costs pursuant to 31 U.S.C. 
Sec. 3730(d).
    13. Except with respect to the recovery of Relator's attorneys' 
fees, expenses, and costs pursuant to 31 U.S.C. Sec. 3730(d), each 
Party shall bear its own legal and other costs incurred in connection 
with this matter. The Parties agree that Relator and Hyundai will not 
seek to recover from the United States any costs or fees related to the 
preparation and performance of this Agreement.
    14. Each party and signatory to this Agreement represents that it 
freely and voluntarily enters in to this Agreement without any degree 
of duress or compulsion.
    15. This Agreement is governed by the laws of the United States. 
The exclusive jurisdiction and venue for any dispute relating to this 
Agreement is the United States District Court for the Southern District 
of Ohio. Hyundai agrees that the United States District Court for the 
Southern District of Ohio has jurisdiction over it for purposes of this 
case. For purposes of construing this Agreement, this Agreement shall 
be deemed to have been drafted by all Parties to this Agreement and 
shall not, therefore, be construed against any Party for that reason in 
any subsequent dispute.
    16. This Agreement constitutes the complete agreement between the 
Parties on the subject matter addressed herein. This Agreement may not 
be amended except by written consent of the Parties.
    17. The undersigned counsel represent and warrant that they are 
fully authorized to execute this Agreement on behalf of the persons and 
entities indicated below.
    18. This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same 
Agreement.
    19. This Agreement is binding on Hyundai's successors, transferees, 
heirs, and assigns.
    20. This Agreement is binding on Relator's successors, transferees, 
heirs, and assigns.

[[Page 11563]]

    21. All parties consent to the United States' disclosure of this 
Agreement, and information about this Agreement, to the public, as 
permitted by order of the Court. This Agreement shall not be released 
in un-redacted form until the Court unseals the entire Civil FCA 
Action.
    22. This Agreement is effective on the date of signature of the 
last signatory to the Agreement (Effective Date of this Agreement). 
Facsimiles of signatures shall constitute acceptable, binding 
signatures for purposes of this Agreement.

THE UNITED STATES OF AMERICA

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Andrew A. Steinberg

Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 
Department of Justice

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Mark T. D'Alessandro

Civil Chief, Andrew Malek, Assistant United States Attorney, U.S. 
Attorney's Office for the Southern District of Ohio

HYUNDAI OILBANK CO., LTD. - DEFENDANT

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Minsung Kim

Authorized Representative of Hyundai Oilbank Co., Ltd.
DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Gejaa Gobena
Andrew J. Lee
Kathryn M. Hellings

Hogan Lovells U.S. LLP, Counsel for Hyundai Oilbank Co., Ltd.

[REDACTED]--RELATOR

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

[REDACTED]

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Eric Havian
Constantine Cannon LLP, Counsel for Relator

United States District Court for the Southern District of Ohio Eastern 
Division

    UNITED STATES OF AMERICA, Plaintiff v. S-OIL CORPORATION, 
Defendant.

CASE NO. 2:19-cv-1037

PROPOSED FINAL JUDGMENT AS TO DEFENDANT S-OIL CORPORATION

    WHEREAS Plaintiff, United States of America, filed its Complaint on 
March 20, 2019, the United States and Defendant S-Oil Corporation (``S-
Oil''), by their respective attorneys, have consented to the entry of 
this Final Judgment without trial or adjudication of any issue of fact 
or law;
    WHEREAS, on such date as may be determined by the Court, S-Oil will 
plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to Count One of a Superseding Indictment filed in the 
Southern District of Ohio (the ``Criminal Action'') that alleges a 
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1, relating 
to the same events giving rise to the allegations described in the 
Complaint;
    WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    NOW, THEREFORE, before the taking of any testimony and without 
trial or final adjudication of any issue of fact or law herein, and 
upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED:

I. JURISDICTION

    This Court has jurisdiction of the subject matter of this action 
and each of the parties consenting hereto. The Complaint states a claim 
upon which relief may be granted to the United States against S-Oil 
under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.

II. APPLICABILITY

    This Final Judgment applies to S-Oil, 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.

III. PAYMENT

    S-Oil shall pay to the United States within ten (10) business days 
of the entry of this Final Judgment the amount of twelve million, nine 
hundred and eighty thousand dollars ($12,980,000), less the amount paid 
(excluding any interest) pursuant to the settlement agreement attached 
hereto as Attachment 1, to satisfy all civil antitrust claims alleged 
against S-Oil by the United States in the Complaint. Payment of the 
amount ordered hereby shall be made by wire transfer of funds or 
cashier's check. If the payment is made by wire transfer, S-Oil shall 
contact Janie Ingalls of the Antitrust Division's Antitrust Documents 
Group at (202) 514-2481 for instructions before making the transfer. If 
the payment is made by cashier's check, the check shall be made payable 
to the United States Department of Justice and delivered to: Janie 
Ingalls, United States Department of Justice Antitrust Division, 
Antitrust Documents Group, 450 5th Street, NW, Suite 1024, Washington, 
D.C. 20530. In the event of a default in payment, interest at the rate 
of eighteen (18) percent per annum shall accrue thereon from the date 
of default to the date of payment.

IV. COOPERATION

    S-Oil shall cooperate fully with the United States regarding any 
matter about which S-Oil has knowledge or information relating to any 
ongoing civil investigation, litigation, or other proceeding arising 
out of any ongoing federal investigation of the subject matter 
discussed in the Complaint (hereinafter, any such investigation, 
litigation, or proceeding shall be referred to as a ``Civil Federal 
Proceeding'').
    The United States agrees that any cooperation provided in 
connection with the Plea Agreement and/or pursuant to the settlement 
agreement attached hereto as Attachment 1 will be considered 
cooperation for purposes of this Final Judgment, and the United States 
will use its reasonable best efforts, where appropriate, to coordinate 
any requests for cooperation in connection with the Civil Federal 
Proceeding with requests for cooperation in connection with the Plea 
Agreement and the settlement agreement attached hereto as Attachment 1, 
so as to avoid unnecessary duplication and expense.
    S-Oil's cooperation shall include, but not be limited to, the 
following:
    (a) Upon request, completely and truthfully disclosing and 
producing, to the offices of the United States and at no expense to the 
United States, copies of all non-privileged information, documents, 
materials, and records in its possession (and for any foreign-language 
information, documents, materials, or records, copies must be produced 
with an English translation), regardless of their geographic location, 
about which the United States may inquire in connection with any Civil 
Federal Proceeding, including but not limited to all information about 
activities of S-Oil and present and former officers, directors, 
employees, and agents of S-Oil;
    (b) Making available in the United States, at no expense to the 
United States, its present officers, directors, employees, and agents 
to provide information and/or testimony as requested by the United 
States in connection with any Civil Federal Proceeding, including the 
provision of testimony in trial and other judicial proceedings, as well 
as interviews with law enforcement authorities, consistent with the 
rights and privileges of those individuals;

[[Page 11564]]

    (c) Using its best efforts to make available in the United States, 
at no expense to the United States, its former officers, directors, 
employees, and agents to provide information and/or testimony as 
requested by the United States in connection with any Civil Federal 
Proceeding, including the provision of testimony in trial and other 
judicial proceedings, as well as interviews with law enforcement 
authorities, consistent with the rights and privileges of those 
individuals;
    (d) Providing testimony or information necessary to identify or 
establish the original location, authenticity, or other basis for 
admission into evidence of documents or physical evidence produced by 
S-Oil in any Civil Federal Proceeding as requested by the United 
States; and
    (e) Completely and truthfully responding to all other inquiries of 
the United States in connection with any Civil Federal Proceeding.
    However, notwithstanding any provision of this Final Judgment, S-
Oil is not required to: (1) request of its current or former officers, 
directors, employees, or agents that they forgo seeking the advice of 
an attorney nor that they act contrary to that advice; (2) take any 
action against its officers, directors, employees, or agents for 
following their attorney's advice; or (3) waive any claim of privilege 
or work product protection.
    The obligations of S-Oil to cooperate fully with the United States 
as described in this Section shall cease upon the conclusion of all 
Civil Federal Proceedings (which may include Civil Federal Proceedings 
related to the conduct of third parties), including exhaustion of all 
appeals or expiration of time for all appeals of any Court ruling in 
each such Civil Federal Proceeding, at which point the United States 
will provide written notice to S-Oil that its obligations under this 
Section have expired.

V. ANTITRUST COMPLIANCE PROGRAM

    A. Within thirty (30) days after entry of this Final Judgment, S-
Oil shall appoint an Antitrust Compliance Officer and identify to the 
United States his or her name, business address, telephone number, and 
email address. Within forty-five (45) days of a vacancy in the 
Antitrust Compliance Officer position, S-Oil shall appoint a 
replacement, and shall identify to the United States the Antitrust 
Compliance Officer's name, business address, telephone number, and 
email address. S-Oil's initial or replacement appointment of an 
Antitrust Compliance Officer is subject to the approval of the United 
States, in its sole discretion.
    B. The Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's employees and directors with 
responsibility for bidding for any contract with the United States. The 
antitrust compliance program shall provide at least two hours of 
training annually on the antitrust laws of the United States, such 
training to be delivered by an attorney with relevant experience in the 
field of United States antitrust law.
    C. Each Antitrust Compliance Officer shall obtain, within six 
months after entry of this Final Judgment, and on an annual basis 
thereafter, on or before each anniversary of the entry of this Final 
Judgment, from each person subject to Paragraph V.B of this Final 
Judgment, and thereafter maintaining, a certification that each such 
person has received the required two hours of annual antitrust 
training.
    D. Each Antitrust Compliance Officer shall communicate annually to 
all employees that they may disclose to the Antitrust Compliance 
Officer, without reprisal, information concerning any potential 
violation of the United States antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to the United 
States within six months after entry of this Final Judgment, and on an 
annual basis thereafter, on or before each anniversary of the entry of 
this Final Judgment, a written statement as to the fact and manner of 
S-Oil's compliance with Section V of this Final Judgment.

V. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any of the parties 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 or terminate any of its 
provisions, to enforce compliance, and to punish violations of its 
provisions.

VI. Enforcement of final judgment

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. S-Oil agrees that in any civil contempt 
action, any motion to show cause, or any similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of the decree and the 
appropriateness of any remedy therefor by a preponderance of the 
evidence, and S-Oil waives any argument that a different standard of 
proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. S-Oil agrees that they may be held in contempt of, and that 
the Court may enforce, any provision of this Final Judgment that, as 
interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In any enforcement proceeding in which the Court finds that S-
Oil has violated this Final Judgment, the United States may apply to 
the Court for a one-time extension of this Final Judgment, together 
with such other relief as may be appropriate. In connection with any 
successful effort by the United States to enforce this Final Judgment 
against S-Oil, whether litigated or resolved prior to litigation, S-Oil 
agrees to reimburse the United States for the fees and expenses of its 
attorneys, as well as any other costs including experts' fees, incurred 
in connection with that enforcement effort, including in the 
investigation of the potential violation.

VII. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire seven (7) years from the date of its entry, except that after 
five (5) years from the date of its entry, this Final Judgment may be 
terminated upon notice by the United States to the Court and S-Oil that 
the continuation of the Final Judgment no longer is necessary or in the 
public interest.

VIII. 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. Sec.  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.

[[Page 11565]]


DATED: ________________

____________________

United States District Judge

ATTACHMENT 1

SETTLEMENT AGREEMENT

    This Settlement Agreement (``Agreement'') is entered into among the 
United States of America, acting through the Civil Division of the 
United States Department of Justice and the United States Attorney's 
Office for the Southern District of Ohio, on behalf of the Defense 
Logistics Agency (``DLA'') and the Army and Air Force Exchange Service 
(``AAFES'') (collectively the ``United States''), S-Oil Corporation 
(``S-Oil''), and Relator [REDACTED] (hereafter collectively referred to 
as ``the Parties''), through their authorized representatives.

RECITALS

    A. S-Oil is a South Korea-based energy company that produces 
various petroleum products that it sells to South Korean and 
international customers, including the United States Department of 
Defense (``DoD'').
    B. On February 28, 2018, Relator, a resident and citizen of South 
Korea, filed a qui tam action in the United States District Court for 
the Southern District of Ohio captioned United States ex rel. 
[REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant 
to the qui tam provisions of the False Claims Act, 31 U.S.C. Sec.  
3730(b) (the ``Civil FCA Action''). Relator contends that S-Oil 
conspired with other South Korean entities to rig bids on DoD contracts 
to supply fuel to U.S. military bases throughout South Korea beginning 
in 2008 and continuing until 2016, including DLA Post, Camps, and 
Stations (PC&S) contracts executed in 2009 and 2013.
    C. On such date as may be determined by the Court, S-Oil will plead 
guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to Count One of a Superseding Indictment filed in United 
States v. S-Oil Corp., Criminal Action No. 2:18 Cr. 152 (S.D. Ohio) 
(the ``Criminal Action'') that will allege that S-Oil participated in a 
combination and conspiracy beginning at least in or around November or 
December 2008 and continuing until at least in or around October 2016, 
to suppress and eliminate competition on certain contracts solicited by 
the DoD to supply fuel to numerous U.S. Army, Navy, Marine, and Air 
Force installations in South Korea, including PC&S contracts, in 
violation of the Sherman Antitrust Act, 15 U.S.C. Sec.  1.
    D. S-Oil will execute a Stipulation with the Antitrust Division of 
the United States Department of Justice in which S-Oil will consent to 
the entry of a Final Judgment to be filed in United States v. S-Oil 
Corp., Civil Action No. [to be assigned] (S.D. Ohio) (the ``Civil 
Antitrust Action'') that will settle any and all civil antitrust claims 
of the United States against S-Oil arising from any act or offense 
committed before the date of the Stipulation that was undertaken in 
furtherance of an attempted or completed antitrust conspiracy involving 
PC&S and/or AAFES fuel supply contracts with the U.S. military in South 
Korea during the period 2005 through 2016.
    E. The United States contends that it has certain civil claims 
against S-Oil arising from the conduct described in the Plea Agreement 
in the Criminal Action and in the Stipulation in the Civil Antitrust 
Action, as well as the conduct, actions, and claims alleged by Relator 
in the Civil FCA Action. The conduct referenced in this Paragraph is 
referred to below as the Covered Conduct.
    F. With the exception of any admissions that are made by S-Oil in 
connection with the Plea Agreement in the Criminal Action, this 
Settlement Agreement is neither an admission of liability by S-Oil nor 
a concession by the United States that its claims are not well founded.
    To avoid the delay, uncertainty, inconvenience, and expense of 
protracted litigation of the above claims, and in consideration of the 
mutual promises and obligations of this Settlement Agreement, the 
Parties agree and covenant as follows:

TERMS AND CONDITIONS

    1.a. S-Oil agrees to pay to the United States $12,980,000 (the 
``FCA Settlement Amount''), of which $5,900,000 is restitution, by 
electronic funds transfer no later than ten (10) business days after 
the Effective Date of this Agreement pursuant to written instructions 
to be provided by the Civil Division of the Department of Justice.
    1.b. Relator claims entitlement under 31 U.S.C. Sec.  3730(d) to a 
share of the proceeds of this Settlement Agreement and to Relator's 
reasonable expenses, attorneys' fees and costs. The FCA Settlement 
Amount does not include the Relator's fees and costs, and S-Oil 
acknowledges that Relator retains all rights to recover such reasonable 
expenses, attorneys' fees, and costs from S-Oil pursuant to 31 U.S.C. 
Sec.  3730(d). Relator's claims pursuant to 31 U.S.C. Sec.  3730(d) 
regarding fees and costs will be addressed pursuant to a separate 
written agreement between S-Oil and Relator or, in the absence of an 
agreement, as may be ordered by the Court.
    1.c. If S-Oil's Plea Agreement in the Criminal Action is not 
accepted by the Court or the Court does not enter a Final Judgment in 
the Civil Antitrust Action, this Agreement shall be null and void at 
the option of either the United States or S-Oil. If either the United 
States or S-Oil exercises this option, which option shall be exercised 
by notifying all Parties, through counsel, in writing within five (5) 
business days of the Court's decision, the Parties will not object and 
this Agreement will be rescinded and the FCA Settlement Amount shall be 
returned to S-Oil. If this Agreement is rescinded, S-Oil will not 
plead, argue or otherwise raise any defenses under the theories of 
statute of limitations, laches, estoppel or similar theories, to any 
civil or administrative claims, actions or proceedings arising from the 
Covered Conduct that are brought by the United States within ninety 
(90) calendar days of rescission, except to the extent such defenses 
were available on the day on which Relator's qui tam complaint in the 
Civil FCA Action was filed.
    2. Subject to the exceptions in Paragraph 4 (concerning excluded 
claims) below, and conditioned upon S-Oil's full payment of the FCA 
Settlement Amount, the United States fully and finally releases S-Oil 
together with its current and former parent corporations; direct and 
indirect subsidiaries; brother or sister corporations; divisions; 
current or former corporate owners; corporate affiliates; and the 
corporate successors and assigns of any of them (the ``S-Oil Released 
Parties'') from any civil or administrative monetary claim the United 
States has for the Covered Conduct under the False Claims Act, 31 
U.S.C. Sec. Sec.  3729-3733; the Program Fraud Civil Remedies Act, 31 
U.S.C. Sec. Sec.  3801-3812; Contract Disputes Act, 41 U.S.C. 
Sec. Sec.  7101-7109; or the common law theories of breach of contract, 
payment by mistake, unjust enrichment, and fraud, or under any statute 
creating causes of action for civil damages or civil penalties which 
the Civil Division of the United States Department of Justice has 
authority to assert and compromise pursuant to 28 C.F.R. Part O, 
Subpart I, Sec.  0.45(d).
    3. Subject to the exception set forth in Paragraph 1b, and 
conditioned upon S-Oil's full payment of the FCA Settlement Amount, 
Relator, for himself and for his heirs, successors, attorneys, agents, 
and assigns, fully and finally releases the S-Oil Released Parties, 
officers, directors, trustees, shareholders, employees, executives, 
agents and the successors and assigns of

[[Page 11566]]

any of them, from (a) any civil monetary claim the Relator has or may 
have for the claims set forth in the Civil FCA Action, the Civil 
Antitrust Action, the Criminal Action, and the Covered Conduct under 
the False Claims Act, 31 U.S.C. Sec. Sec.  3729-3733, up until the date 
of this Agreement; and (b) all liability, debts, contracts, covenants, 
promises, claims, demands, actions, causes of action, rights of 
subrogation, contribution, indemnity, damages, loss, cost or expenses 
whatsoever, whether known or unknown, fixed or contingent, in law or in 
equity, in contract or in tort, under any federal, state, or Korean 
statute, law, regulation or doctrine, that Relator, his heirs, 
successors, attorneys, agents, and assigns otherwise has brought or 
would have standing to bring as of the date of this Agreement, 
including, without limitation, any liability to Relator arising from or 
relating to the claims Relator has asserted, may assert or could have 
asserted in the Civil FCA Action, up until the date of this Agreement. 
Relator represents and warrants that he and his counsel are the 
exclusive owner of the rights, claims and causes of action herein 
released and none of them have previously assigned, reassigned, or 
transferred or purported to assign, reassign or transfer, through 
bankruptcy or by any other means, any or any portion of any claim, 
demand, action, cause of action, or other right released or discharged 
under this Agreement except between themselves and their counsel. 
Relator further represents he does not know of any conduct by the S-Oil 
Released Parties or any current or former owners, officers, directors, 
trustees, shareholders, employees, executives, agents, or affiliates of 
the S-Oil Released Parties that would constitute a violation of the 
False Claims Act other than the claims set forth in the Civil FCA 
Action and the Covered Conduct, and Relator acknowledges and agrees 
that his representations are a material inducement to S-Oil's 
willingness to enter into this Agreement.
    4. Notwithstanding the releases given in paragraphs 2 and 3 of this 
Agreement, or any other term of this Agreement, the following claims of 
the United States are specifically reserved and are not released:
    a. Any liability arising under Title 26, U.S. Code (Internal 
Revenue Code);
    b. Any criminal liability, except to the extent detailed in the 
Plea Agreement;
    c. Except as explicitly stated in this Agreement, any 
administrative liability, including the suspension and debarment rights 
of any federal agency;
    d. Any liability to the United States (or its agencies) for any 
conduct other than the Covered Conduct;
    e. Any liability based upon obligations created by this Agreement;
    f. Any liability of individuals;
    g. Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services;
    h. Any liability for failure to deliver goods or services due; and
    i. Any liability for personal injury or property damage or for 
other consequential damages arising from the Covered Conduct.
    5. Relator and his heirs, successors, attorneys, agents, and 
assigns shall not object to this Agreement but agree and confirm that 
this Agreement is fair, adequate, and reasonable under all the 
circumstances, pursuant to 31 U.S.C. Sec.  3730(c)(2)(B). The 
determination of Relator's share, if any, of the FCA Settlement Amount 
pursuant to 31 U.S.C. Sec.  3730(d) is a matter that shall be handled 
separately by and between the Relator and the United States, without 
any direct involvement or input from S-Oil. In connection with this 
Agreement and the Civil FCA Action, Relator, on behalf of himself and 
his heirs, successors, attorneys, agents, and assigns agrees that 
neither this Agreement, nor any intervention by the United States in 
the Civil FCA Action in order to dismiss the Civil FCA Action, nor any 
dismissal of the Civil FCA Action, shall waive or otherwise affect the 
ability of the United States to contend that provisions in the False 
Claims Act, including 31 U.S.C. Sec.  3730(d)(3), bar Relator from 
sharing in the proceeds of this Agreement, except that the United 
States will not contend that Relator is barred from sharing in the 
proceeds of this Agreement pursuant to 31 U.S.C. Sec.  3730(e)(4). 
Moreover, the United States and Relator, on behalf of himself and his 
heirs, successors, attorneys, agents, and assigns agree that they each 
retain all of their rights pursuant to the False Claims Act on the 
issue of the share percentage, if any, that Relator should receive of 
any proceeds of the settlement of his claims, and that no agreements 
concerning Relator share have been reached to date.
    6. S-Oil waives and shall not assert any defenses S-Oil may have to 
any criminal prosecution or administrative action relating to the 
Covered Conduct that may be based in whole or in part on a contention 
that, under the Double Jeopardy Clause in the Fifth Amendment of the 
Constitution, or under the Excessive Fines Clause in the Eighth 
Amendment of the Constitution, this Agreement bars a remedy sought in 
such criminal prosecution or administrative action.
    7. S-Oil fully and finally releases the United States, its 
agencies, officers, agents, employees, and servants, from any claims 
(including attorney's fees, costs, and expenses of every kind and 
however denominated) that S-Oil has asserted, could have asserted, or 
may assert in the future against the United States, its agencies, 
officers, agents, employees, and servants, related to the Covered 
Conduct and the United States' investigation and prosecution thereof.
    8. Conditioned upon Relator's agreement herein, the S-Oil Released 
Parties fully and finally release Relator his heirs, successors, 
assigns, agents and attorneys (the ``Relator Released Parties''), from 
(a) any civil monetary claim S-Oil has or may have now or in the future 
against the Relator Released Parties related to the claims set forth in 
the Civil FCA Action, the Civil Antitrust Action, the Criminal Action, 
and the Covered Conduct under the False Claims Act, 31 U.S.C. 
Sec. Sec.  3729-3733, and the Relator's investigation and prosecution 
thereof, including attorney's fees, costs, and expenses of every kind 
and however denominated, up until the date of this Agreement; and (b) 
all liability, claims, demands, actions, or causes of action 
whatsoever, whether known or unknown, fixed or contingent, in law or in 
equity, in contract or in tort, under any federal, state, or Korean 
statute, law, regulation or doctrine, that the S-Oil Released Parties 
otherwise have brought or would have standing to bring as of the date 
of this Agreement, including any liability to S-Oil arising from or 
relating to claims the S-Oil Released Parties asserted or could have 
asserted related to the Civil FCA Action, up until the date of this 
Agreement. The S-Oil Released Parties further acknowledge and agree 
that these representations are a material inducement to Relator's 
willingness to enter into this Agreement.
    9. a. Unallowable Costs Defined: All costs (as defined in the 
Federal Acquisition Regulation, 48 C.F.R. Sec.  31.205-47) incurred by 
or on behalf of S-Oil, and its present or former officers, directors, 
employees, shareholders, and agents in connection with:
    (1) the matters covered by this Agreement, any related plea 
agreement, and any related civil antitrust agreement;
    (2) the United States' audit(s) and civil and any criminal 
investigation(s) of the matters covered by this Agreement;
    (3) S-Oil's investigation, defense, and corrective actions 
undertaken in

[[Page 11567]]

response to the United States' audit(s) and civil and any criminal 
investigation(s) in connection with the matters covered by this 
Agreement (including attorney's fees);
    (4) the negotiation and performance of this Agreement, any related 
plea agreement, and any related civil antitrust agreement;
    (5) the payment S-Oil makes to the United States pursuant to this 
Agreement and any payments that S-Oil may make to Relator, including 
costs and attorneys' fees,

are unallowable costs for government contracting purposes (hereinafter 
referred to as Unallowable Costs).
    b. Future Treatment of Unallowable Costs: Unallowable Costs will be 
separately determined and accounted for by S-Oil, and S-Oil shall not 
charge such Unallowable Costs directly or indirectly to any contract 
with the United States.
    c. Treatment of Unallowable Costs Previously Submitted for Payment: 
Within 90 days of the Effective Date of this Agreement, S-Oil shall 
identify and repay by adjustment to future claims for payment or 
otherwise any Unallowable Costs included in payments previously sought 
by S-Oil or any of its subsidiaries or affiliates from the United 
States. S-Oil agrees that the United States, at a minimum, shall be 
entitled to recoup from S-Oil any overpayment plus applicable interest 
and penalties as a result of the inclusion of such Unallowable Costs on 
previously-submitted requests for payment. The United States, including 
the Department of Justice and/or the affected agencies, reserves its 
rights to audit, examine, or re-examine S-Oil's books and records and 
to disagree with any calculations submitted by S-Oil or any of its 
subsidiaries or affiliates regarding any Unallowable Costs included in 
payments previously sought by S-Oil, or the effect of any such 
Unallowable Costs on the amount of such payments.
    10. S-Oil agrees to cooperate fully and truthfully with the United 
States in connection with the Civil FCA Action. The Civil Division of 
the United States Department of Justice will use reasonable best 
efforts, where appropriate, to coordinate any requests for cooperation 
in connection with the Civil FCA Action with requests for cooperation 
in connection with the Plea Agreement in the Criminal Action and the 
Civil Antitrust Action, so as to avoid unnecessary duplication and 
expense. S-Oil's ongoing, full, and truthful cooperation shall include, 
but not be limited to:
    a. upon request by the United States with reasonable notice, 
producing at the offices of counsel for the United States in 
Washington, D.C. and not at the expense of the United States, complete 
and un-redacted copies of all non-privileged documents related to the 
Covered Conduct wherever located in S-Oil's possession, custody, or 
control, including but not limited to, reports, memoranda of 
interviews, and records concerning any investigation of the Covered 
Conduct that S-Oil has undertaken, or that has been performed by 
another on S-Oil's behalf;
    b. upon request by the United States with reasonable notice, making 
current S-Oil directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon;
    c. upon request by the United States with reasonable notice, (i) 
using best efforts to assist in locating former S-Oil directors, 
officers, and employees identified by attorneys and/or investigative 
agents of the United States, and (ii) using best efforts to make any 
such former S-Oil directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon; and
    d. upon request by the United States with reasonable notice, making 
current S-Oil directors, officers, and employees available, and using 
best efforts to make former S-Oil directors, officers, employees 
available, to testify, consistent with the rights and privileges of 
such individuals, fully, truthfully, and under oath, without falsely 
implicating any person or withholding any information, (i) at 
depositions in the United States, Hong Kong, or any other mutually 
agreed upon place, (ii) at trial in the United States, and (iii) at any 
other judicial proceedings wherever located related to the Civil FCA 
Action.
    11. This Agreement is intended to be for the benefit of the Parties 
only.
    12. Upon receipt of the payment of the FCA Settlement Amount 
described in Paragraph 1.a. above, the Court's acceptance of S-Oil's 
Plea Agreement in the Criminal Action, and the Court's entry of a Final 
Judgment in the Civil Antitrust Action, the United States and Relator 
shall promptly sign and file a Joint Stipulation of Dismissal, with 
prejudice, of the claims filed against S-Oil in the Civil FCA Action, 
pursuant to Rule 41(a)(1), which dismissal shall be conditioned on the 
Court retaining jurisdiction over Relator's claims to a relator's share 
and against S-Oil for recovery of attorneys' fees and costs pursuant to 
31 U.S.C. Sec. 3730(d).
    13. Except with respect to the recovery of Relator's attorneys' 
fees, expenses, and costs pursuant to 31 U.S.C. Sec. 3730(d) as 
provided for in Paragraph 1.b., each Party shall bear its own legal and 
other costs incurred in connection with this matter. The Parties agree 
that Relator and S-Oil will not seek to recover from the United States 
any costs or fees related to the preparation and performance of this 
Agreement.
    14. Each party and signatory to this Agreement represents that it 
freely and voluntarily enters in to this Agreement without any degree 
of duress or compulsion.
    15. This Agreement is governed by the laws of the United States. 
The exclusive jurisdiction and venue for any dispute relating to this 
Agreement is the United States District Court for the Southern District 
of Ohio. S-Oil agrees that the United States District Court for the 
Southern District of Ohio has jurisdiction over it for purposes of this 
case. For purposes of construing this Agreement, this Agreement shall 
be deemed to have been drafted by all Parties to this Agreement and 
shall not, therefore, be construed against any Party for that reason in 
any subsequent dispute.
    16. This Agreement constitutes the complete agreement between the 
Parties on the subject matter addressed herein. This Agreement may not 
be amended except by written consent of the Parties.
    17. The undersigned counsel represent and warrant that they are 
fully authorized to execute this Agreement on behalf of the persons and 
entities indicated below.
    18. This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same 
Agreement.
    19. This Agreement is binding on S-Oil's successors, transferees, 
heirs, and assigns.
    20. This Agreement is binding on Relator's successors, transferees, 
heirs, and assigns.
    21. All parties consent to the United States', S-Oil's and 
Relator's disclosure of this Agreement, and information about this 
Agreement, to the public, as permitted by order of the Court. This 
Agreement shall not be released in un-redacted form until the Court 
unseals the entire Civil FCA Action.
    22. This Agreement is effective on the date of signature of the 
last signatory to

[[Page 11568]]

the Agreement (Effective Date of this Agreement). Facsimiles of 
signatures shall constitute acceptable, binding signatures for purposes 
of this Agreement.

THE UNITED STATES OF AMERICA

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Andrew A. Steinberg

Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 
Department of Justice

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------
Mark T. D'Alessandro
Civil Chief

Andrew Malek
Assistant United States Attorney,
U.S. Attorney's Office for the Southern District of Ohio

S-OIL CORPORATION--DEFENDANT

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Sung-Woo Park
Authorized Representative of S-Oil Corporation

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Sonia K. Pfaffenroth
William J. Baer

James W. Cooper
Wrede H. Smith III

Andy T. Wang

Arnold & Porter Kaye Scholer LLP, Counsel for S-Oil Corporation

[REDACTED]--RELATOR

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

REDACTED

DATED:-----------------------------------------------------------------
BY:--------------------------------------------------------------------

Eric Havian
Constantine Cannon LLP, Counsel for Relator

United States District Court for the Southern District of Ohio Eastern 
Division

    UNITED STATES OF AMERICA, Plaintiff, v. HYUNDAI OILBANK CO., 
LTD. and S-OIL CORPORATION, Defendants.

CASE NO. 2:19-cv-1037

COMPETITIVE IMPACT STATEMENT

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

I. NATURE AND PURPOSE OF THE PROCEEDING

    On March 20, 2019, the United States filed a civil antitrust 
complaint against Defendants Hyundai Oilbank Co., Ltd. (``Hyundai 
Oilbank'') and S-Oil Corporation (``S-Oil'') alleging that Defendants 
violated Section 1 of the Sherman Act, 15 U.S.C. Sec.  1. From at least 
March 2005 and continuing until at least October 2016 (``the Relevant 
Period''), Defendants and their co-conspirators conspired to fix prices 
and rig bids for the supply of fuel to the U.S. military for its 
operations in South Korea. As a result of this illegal conduct, 
Defendants and their co-conspirators overcharged American taxpayers by 
well over $100 million. Defendants have agreed to plead guilty to one 
count of a superseding indictment charging a criminal violation of 
Section 1 of the Sherman Act for this unlawful conduct; in this 
parallel civil action, the United States seeks compensation for the 
injury it incurred as a result of the conspiracy.
    At the same time the Complaint was filed, the United States also 
filed agreed-upon proposed Final Judgments that would remedy 
Defendants' violation by having Hyundai Oilbank and S-Oil pay 
$39,100,000 and $12,980,000, respectively, to the United States. These 
payments resolve all civil claims of the United States against 
Defendants related to the conduct described in the Complaint. The 
United States and Defendants have stipulated that the proposed Final 
Judgments may be entered after compliance with the APPA. Entry of the 
proposed Final Judgments would terminate this action, except that the 
Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgments and to punish violations 
thereof.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION

A. Defendants

    Hyundai Oilbank is an oil company headquartered in Seosan, South 
Korea. Hyundai Oilbank refines and supplies gasoline, diesel, kerosene, 
and other petroleum products for sale internationally. During the 
conspiracy, Hyundai Oilbank partnered with a logistics firm (``Company 
A'') to supply fuel to U.S. military installations in South Korea, with 
Company A acting as the prime contractor under the relevant contracts.
    S-Oil is an oil company headquartered in Seoul, South Korea. S-Oil 
refines and supplies gasoline, diesel, kerosene, and other petroleum 
products for sale internationally. Beginning in 2009, S-Oil partnered 
with Hanjin Transportation Co., Ltd. (``Hanjin'') to supply fuel to 
U.S. military installations in South Korea, with Hanjin acting as the 
prime contractor under the relevant contracts.
    Other persons, not named as defendants in this action, participated 
as co-conspirators in the violation alleged in the Complaint and 
performed acts and made statements in furtherance thereof. These co-
conspirators included, among others, GS Caltex Corporation (``GS 
Caltex''), Hanjin, SK Energy Co., Ltd. (``SK Energy''), and Company A.
    On December 12, 2018, GS Caltex, Hanjin and SK Energy pleaded 
guilty to an information charging a criminal violation of Section 1 of 
the Sherman Act for this unlawful conduct. See United States v. GS 
Caltex Corporation, No. 2:18-cr-240 (S.D. Ohio, filed November 14, 
2018); United States v. Hanjin Transportation Co., Ltd., No. 2:18-cr-
241 (S.D. Ohio, filed November 14, 2018); United States v. SK Energy 
Company, No. 2:18-cr-239 (S.D. Ohio, filed November 14, 2018). GS 
Caltex, Hanjin, and SK Energy have also settled civil claims brought by 
the United States in a separately filed civil action relating to the 
same conduct. See United States v. GS Caltex Corp. et al., No. 2:18-cv-
1456 (S.D. Ohio, filed November 14, 2018).

B. PC&S and AAFES Contracts

    The United States military procures fuel for its installations in 
South Korea through competitive solicitation processes. Oil companies, 
either independently or with a transportation company, submitted bids 
in response to these solicitations.
    The conduct at issue in this action relates to two types of 
contracts to supply fuel to the U.S. military in South Korea: Post, 
Camps, and Stations (``PC&S'') contracts and Army and Air Force 
Exchange Services (``AAFES'') contracts.
    PC&S contracts are issued and administered by the Defense Logistics 
Agency (``DLA''), a combat support agency of the U.S. Department of 
Defense. The fuel procured under PC&S contracts is used to power 
military vehicles and heat U.S. military buildings. During the Relevant 
Period, DLA issued PC&S solicitations listing the fuel requirements for 
installations across South Korea, with each delivery location 
identified by a separate line item. Bidders submitted initial bids, 
offering a price for each line item on which they chose to bid. After 
DLA reviewed the initial bids, bidders were allowed to submit revised 
final bids. DLA reviewed the bids and awarded contracts to the bidders 
offering the lowest price for each line item. Payments under the PC&S 
contracts were wired to the awardees by a finance

[[Page 11569]]

and accounting agency of the U.S. Department of Defense from its office 
in Columbus, Ohio.
    AAFES is an agency of the Department of Defense headquartered in 
Dallas, Texas. AAFES operates official retail stores (known as 
``exchanges'') on U.S. Army and Air Force installations worldwide, 
which U.S. military personnel and their families use to purchase 
everyday goods and services, including gasoline for use in their 
personal vehicles. AAFES procures fuel for these stores via contracts 
awarded through a competitive solicitation process.
    In 2008, AAFES issued a solicitation that listed the fuel 
requirements for installations in South Korea. Bidders submitted bids 
offering a price for each line item in the solicitation. Unlike DLA, 
AAFES awarded the entire 2008 contract to the bidder offering the 
lowest price across all the listed locations.

C. The Alleged Violation

    The Complaint alleges that Defendants and their co-conspirators 
engaged in a series of meetings, telephone conversations, e-mails, and 
other communications to rig bids and fix prices for the supply of fuel 
to U.S. military installations in South Korea under several PC&S and 
AAFES contracts.
    First, the Complaint alleges that GS Caltex, SK Energy, Hyundai 
Oilbank, and Company A conspired to rig bids and fix prices on the 
contracts issued in response to DLA solicitations SP0600-05-R-0063 and 
SP0600-05-R-0063-0001 (``2006 PC&S contracts''). The term of the 2006 
PC&S contracts covered the supply of fuel from February 2006 through 
July 2009.
    The Complaint alleges that between early 2005 and mid-2006, GS 
Caltex, SK Energy, Hyundai Oilbank, and other conspirators met multiple 
times and exchanged phone calls and e-mails to allocate the line items 
in the solicitations for the 2006 PC&S contracts. Through such 
communications, these conspirators agreed to inflate their bids to 
produce larger profit margins. For each line item allocated to a 
different co-conspirator, the other conspirators agreed not to bid or 
to bid high enough to ensure that they would not win that item. DLA 
awarded the 2006 PC&S line items according to the allocations made by 
the conspiracy.
    Second, the Complaint alleges that, as part of their discussions 
related to the 2006 PC&S contracts, GS Caltex, Hyundai Oilbank, and 
other co-conspirators agreed not to compete with SK Energy in bidding 
for the June 2008 AAFES solicitation (``2008 AAFES contract''). The 
initial term of the 2008 AAFES contract ran from July 2008 to July 
2010; the contract was later extended through July 2013.
    Third, the Complaint alleges that Defendants and other co-
conspirators conspired to rig bids and fix prices for the contracts 
issued in response to DLA solicitation SP0600-08-R-0233 (``2009 PC&S 
contracts''). Hanjin and S-Oil joined the conspiracy for the purpose of 
bidding on SP0600-08-R-0233. The term of the 2009 PC&S contracts 
covered the supply of fuel from October 2009 through August 2013.
    The Complaint explains that between late 2008 and mid-2009, 
Defendants and other co-conspirators met multiple times and exchanged 
phone calls and e-mails to allocate the line items in the solicitation 
for the 2009 PC&S contracts. As in 2006, these conspirators agreed to 
bid high so as to not win line items allocated to other co-
conspirators. The original conspirators agreed to allocate to Hanjin 
and S-Oil certain line items that had previously been allocated to the 
original conspirators.
    Finally, the Complaint alleges that Defendants and other co-
conspirators once again conspired to rig bids and fix prices for the 
contracts issued in response to DLA solicitation SP0600-12-R-0332 
(``2013 PC&S contracts''). The term of the 2013 PC&S contracts covered 
the supply of fuel from August 2013 through July 2016.
    The Complaint explains that Defendants and other co-conspirators 
communicated via phone calls and e-mails to allocate and set the price 
for each line item in the solicitation for the 2013 PC&S contracts. 
Defendants and other co-conspirators believed that they had an 
agreement as to their bidding strategy and pricing for the 2013 PC&S 
contracts. As a result of this agreement, they submitted bids with 
pricing above what they would have offered absent collusion.
    Hanjin and S-Oil submitted bids for the 2013 PC&S contracts below 
the prices set by the other co-conspirators, however. Although lower 
than the pricing agreed upon by the conspirators, Hanjin and S-Oil 
still submitted bids above a competitive, non-collusive price, knowing 
that they would likely win the contracts because the other conspirators 
would bid even higher prices.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENTS

    For violations of Section 1 of the Sherman Act, the United States 
may seek damages, 15 U.S.C. Sec.  15a, and equitable relief, 15 U.S.C. 
Sec.  4, including equitable monetary remedies. See United States v. 
KeySpan Corp., 763 F. Supp. 2d 633, 638-641 (S.D.N.Y. 2011).
    This action is related to two civil actions based on the same facts 
alleged in the Complaint, both filed in the United States District 
Court for the Southern District of Ohio: (1) United States v. GS Caltex 
Corp., et al., No. 2:18-cv-1456, which seeks recovery from a different 
set of co-conspirators; and (2) a qui tam action currently filed under 
seal, alleging a violation of the False Claims Act, 31 U.S.C. Sec.  
3730.

A. Payment and Cooperation

    The proposed Final Judgments require Hyundai Oilbank and S-Oil 
respectively to pay $39,100,000 and $12,980,000 to the United States 
within 10 business days of entry of the Final Judgment. These payments 
will satisfy all civil claims arising from the events described in 
Section II supra that the United States has against Defendants under 
Section 1 of the Sherman Act and under the False Claims Act. The 
resolution of the United States' claims under the False Claims Act is 
set forth in separate agreements reached between Defendants, the U.S. 
Attorney's Office for the Southern District of Ohio, and the U.S. 
Department of Justice's Civil Division. See Attachment 1 to each of the 
proposed Final Judgments.
    As a result of the unlawful agreements in restraint of trade 
between Defendants and their co-conspirators, the United States paid 
more for the supply of fuel to U.S. military installations in South 
Korea than it would have if the companies had engaged in fair and 
honest competition. Defendants' payments under the proposed Final 
Judgments fully compensate the United States for losses it suffered and 
deprive Defendants of the illegitimate profits they gained as a result 
of the collusive bidding. In addition to the payment of damages, the 
proposed Final Judgments also require Defendants to cooperate with the 
United States regarding any ongoing civil investigation, trial, or 
other proceeding related to the conduct described in the Complaint. To 
assist with these proceedings, Defendants are required to provide all 
non-privileged information in their possession, make available their 
present employees, and use best efforts to make available their former 
employees, for interviews or testimony, as requested by the United 
States.
    Under Section 4A of the Clayton Act, the United States is entitled 
to treble damages for injuries it has suffered as a result of 
violations of the Sherman Act. Under the proposed Final Judgments,

[[Page 11570]]

each Defendant will pay an amount that exceeds the overcharge but that 
reflects the value of the cooperation commitments Defendants have made 
as a condition of settlement and the cost savings realized by avoiding 
extended litigation. However, because Defendants agreed to settle and 
cooperate with the United States later than GS Caltex, Hanjin, and SK 
Energy, Defendants' payments reflect a higher multiple of the 
overcharge than the settlement payments made by those co-conspirators.
    The proposed Final Judgments also require Hyundai Oilbank and S-Oil 
to appoint an Antitrust Compliance Officer and to institute an 
antitrust compliance program. Under the antitrust compliance program, 
employees and directors of Defendants with responsibility for bidding 
on contracts with the United States must undergo training and all 
employees must be informed that there will no reprisal for disclosing 
to the Antitrust Compliance Officer any potential violations of the 
United States antitrust laws. The Antitrust Compliance Officer is 
required annually to certify that the Defendant is in compliance with 
this requirement.

B. Enforcement of Final Judgments

    The proposed Final Judgments contain provisions designed to promote 
compliance and make the enforcement of Division consent decrees as 
effective as possible. Paragraph VII(A) provides that the United States 
retains and reserves all rights to enforce the provisions of the 
proposed Final Judgments, including its rights to seek an order of 
contempt from the Court. Defendants have agreed that in any civil 
contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of the 
Final Judgments, the United States may establish the violation and the 
appropriateness of any remedy by a preponderance of the evidence and 
that Defendants have waived any argument that a different standard of 
proof should apply. This provision aligns the standard for compliance 
obligations with the standard of proof that applies to the underlying 
offense that the compliance commitments address.
    Paragraph VII(B) provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgments. The 
proposed Final Judgments were drafted to restore all competition the 
United States alleged was harmed by Defendants' challenged conduct. 
Defendants agree that they will abide by the proposed Final Judgments, 
and that they may be held in contempt of this Court for failing to 
comply with any provision of the proposed Final Judgments that is 
stated specifically and in reasonable detail, as interpreted in light 
of this procompetitive purpose.
    Paragraph VII(C) further provides that should the Court find in an 
enforcement proceeding that a Defendant has violated the Final 
Judgment, the United States may apply to the Court for a one-time 
extension of the Final Judgment, together with such other relief as may 
be appropriate. In addition, in order to compensate American taxpayers 
for any costs associated with the investigation and enforcement of 
violations of a proposed Final Judgment, Paragraph VII(C) provides that 
in any successful effort by the United States to enforce a Final 
Judgment against a Defendant, whether litigated or resolved before 
litigation, Defendants agree to reimburse the United States for any 
attorneys' fees, experts' fees, or costs incurred in connection with 
any enforcement effort, including the investigation of the potential 
violation.
    Finally, Section VIII of the proposed Final Judgments provide that 
each Final Judgment shall expire seven years from the date of its 
entry, except that after five years from the date of its entry, a Final 
Judgment may be terminated upon notice by the United States to the 
Court and the Defendant that the continuation of that Final Judgment is 
no longer necessary or in the public interest.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Entry of the proposed Final Judgments will neither impair nor 
assist the bringing of any private antitrust damages action. Under the 
provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec.  16(a), 
the proposed Final Judgments have no prima facie effect in any 
subsequent lawsuit that may be brought against Defendants.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL 
JUDGMENTS

    The United States and Defendants have stipulated that the proposed 
Final Judgments may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgments are in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgments within which any 
person may submit to the United States written comments regarding a 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States, which remains free to withdraw 
its consent to a 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 Antitrust Division's internet website and, in certain 
circumstances, published in the Federal Register.
    Written comments should be submitted by mail to:

Kathleen S. O'Neill, Chief, Transportation, Energy & Agriculture 
Section, Antitrust Division, United States Department of Justice, 450 
5th Street, NW, Suite 8000, Washington, DC 20530.

    The proposed Final Judgments provide that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any necessary or appropriate modification, interpretation, or 
enforcement of a Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENTS

    The United States considered, as an alternative to the proposed 
Final Judgments, a full trial on the merits against Defendants. The 
United States is satisfied, however, that the relief in the proposed 
Final Judgments remedies the violation of the Sherman Act alleged in 
the Complaint. The proposed Final Judgments represent substantial 
monetary relief while avoiding the time, expense, and uncertainty of a 
full trial on the merits. Further, Defendants' agreements to cooperate 
with the civil investigation and any potential litigation will enhance 
the ability of the United States to obtain relief from the remaining 
conspirators.

VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENTS

    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 60-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. Sec.  16(e)(1). In making that 
determination, the court, in

[[Page 11571]]

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. Sec.  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. Hillsdale Cmty. Health Ctr., 2015 U.S. Dist. LEXIS 162505, at 
*3 (E.D. Mich. 2015) (explaining that the ``Court's review is limited'' 
in Tunney Act settlements); United States v. InBev N.V./S.A., No. 08-
1965 (JR), 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'').
    Under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations in 
the government's complaint, whether the decree is sufficiently clear, 
whether its enforcement mechanisms are sufficient, and whether the 
decree may positively harm third parties. See Microsoft, 56 F.3d at 
1458-62; United States v. Medical Mut. of Ohio, 1998 U.S. Dist. LEXIS 
21508, at *2-3 (N.D. Ohio 1998). 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. Instead:

[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).\1\
---------------------------------------------------------------------------

    \1\ See also 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'').
---------------------------------------------------------------------------

    In determining whether a proposed settlement is in the public 
interest, a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also United States v. U.S. Airways 
Group, Inc., 38 F. Supp. 3d 69, 74 (D.D.C. 2014) (noting that a court 
should not reject the proposed remedies because it believes others are 
preferable and that room must be made for the government to grant 
concessions in the negotiation process for settlements); United States 
v. Dairy Farmers of Am., Inc., 2007 U.S. Dist. LEXIS 33230, at *3 (E.D. 
Ky. 2007) (citing United States v. Microsoft, 231 F. Supp. 2d 144, 152 
(D.D.C. 2002)) (noting that a court ``must accord deference 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 
government's prediction as to the effect of proposed remedies, its 
perception of the market structure, and its views of the nature of the 
case''). 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 (quoting United States v. Western Elec. Co., 900 F.2d 283, 309 
(D.C. Cir. 1990)). 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; see also Dairy Farmers, 2007 U.S. Dist. LEXIS 33230 at 
*3 (citing Microsoft favorably).
    In its 2004 amendments,\2\ 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. Sec.  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). This language

[[Page 11572]]

explicitly wrote into the statute what Congress intended when it first 
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. 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. See also United States v. Enova Corp., 107 F. 
Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ``Tunney Act expressly 
allows the court to make its public interest determination on the basis 
of the competitive impact statement and response to comments alone''); 
S. Rep. No. 93-298 93d Cong., 1st Sess., at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.'').
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
Sec.  16(e) (2004), with 15 U.S.C. Sec.  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).
---------------------------------------------------------------------------

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 Judgments.

Dated: March 20, 2019

Respectfully submitted,

Benjamin C. Glassman
United States Attorney

/s/ Andrew M. Malek
Andrew M. Malek (Ohio Bar 0061442)
Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, 
Columbus, Ohio 43215, Tel: (614) 469-5715, Fax: (614) 469-2769, E-
mail: [email protected]

/s/ J. Richard Doidge
Richard Doidge Attorney, U.S. Department of Justice, Antitrust 
Division, 450 5th Street NW, Suite 8000, Washington, DC 20530, Tel: 
(202) 514-8944, Fax: (202) 616-2441, E-mail: [email protected]

[FR Doc. 2019-05844 Filed 3-26-19; 8:45 am]
 BILLING CODE 4410-11-P