[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Notices]
[Pages 239-253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28484]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. S&P Global Inc., et al.: Proposed Final Judgment
and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Order and Stipulation, and Competitive Impact Statement have been filed
with the United States District Court for the District of Columbia in
United States of America v. S&P Global Inc., et al., Civil Action No.
1:21-cv-03003. On November 12, 2021, the United States filed a
Complaint alleging that (1) S&P's proposed merger with IHS Markit Ltd.
would violate Section 7 of the Clayton Act, 15 U.S.C. 18; and (2) the
exclusivity and non-compete provisions of IHS Markit's Data License
with GasBuddy LLC violate Section 1 of the Sherman Act, 15 U.S.C. 1.
The proposed Final Judgment, filed at the same time as the Complaint:
(1) Requires S&P and IHS Markit to divest three price reporting agency
businesses, Oil Price Information Services (OPIS), Coals, Metals, and
Mining (CMM), and PetrochemWire (PCW); (2) requires S&P and IHS Markit
to waive the exclusivity and non-compete provisions of IHS Markit's
Data License with GasBuddy; and (3) prohibits S&P, IHS Markit, and OPIS
LLC from entering into, enforcing, renewing, or extending the term of
any similar exclusive or non-compete provisions.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection on the Antitrust
Division's website at https://www.justice.gov/atr and at the Office of
the Clerk of the United States District Court for the District of
Columbia. Copies of these materials may be obtained from the Antitrust
Division upon request and payment of the copying fee set by Department
of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments, including the name of the submitter, and
responses thereto, will be posted on the Antitrust Division's website,
filed with the Court, and, under certain circumstances, published in
the Federal Register. Comments should be submitted in English and
directed to Owen Kendler, Chief, Financial Services, Fintech, and
Banking Section, Antitrust Division, Department of Justice, 450 Fifth
Street NW, Suite 4000, Washington, DC 20530 (email address:
[email protected]).
Suzanne Morris,
Chief, Premerger and Division Statistics, Antitrust Division.
United States District Court
for the District of Columbia
United States of America, U.S. Department of Justice, Antitrust
Division, 450 Fifth Street NW, Suite 4000, Washington, DC 20530,
Plaintiff, v. S&P Global Inc., 55 Water Street, New York, NY 10041,
and IHS Markit Ltd., 4th Floor, Ropemaker Place, 25 Ropemaker
Street, London, United Kingdom, EC2Y 9LY, Defendants.
Civil Action No.: 1:21-cv-3003-JEB
COMPLAINT
The United States of America, acting under the direction of the
Attorney General of the United States, brings this civil antitrust
action against S&P Global Inc. (``S&P'') and IHS Markit Ltd. (``IHSM'')
to enjoin S&P's proposed merger with IHSM, to enjoin anticompetitive
conduct by IHSM, and to obtain other equitable relief. The United
States complains and alleges as follows:
I. Introducton
1. On November 30, 2020, S&P and IHSM announced a merger to combine
in an all-stock transaction that values IHSM at approximately $44
billion. S&P and IHSM are both financial and commodity information
conglomerates, providing market data, indices, news, and analytical
tools to participants in various financial and commodity markets around
the world.
2. S&P and IHSM operate two of the four global price reporting
agencies (``PRAs'') and two of the three leading PRAs in the United
States. S&P provides PRA services through its Platts division
(``Platts''), while IHSM offers PRA services primarily through its Oil
Price Information Services (``OPIS''), Coal, Metals, and Mining
(``CMM''), and PetrochemWire (``PCW'') businesses.
3. PRAs provide price assessments, news, and analysis related to
numerous commodity markets around the world. PRAs sell their services
to commodity industry participants (e.g., oil refiners, commodities
traders, large fuel consumers like airlines), that use the information
to inform supply and demand decisions, as a reference for price terms
in supply contracts, and as the basis for settling hedging instruments
like futures contracts.
[[Page 240]]
4. Competition between S&P's Platts division and IHSM's OPIS, CMM,
and PCW businesses has resulted in lower prices and increased quality
and innovation for PRA customers. The proposed merger would eliminate
this significant competition in markets that are already highly
concentrated.
5. Accordingly, the proposed merger is likely to lessen competition
substantially in violation of Section 7 of the Clayton Act, 15 U.S.C.
18.
6. Separately, in 2016, IHSM's OPIS division entered into a 20-year
exclusive data license and non-compete agreement (the ``Data License'')
with a third-party data provider, GasBuddy LLC (``GasBuddy''), that
operates a popular crowd-sourced retail gas price information app and
has long provided OPIS with pricing data for resale to commercial
customers (e.g., retail gas station operators). This non-compete has
effectively prevented and continues to prevent GasBuddy--a company well
positioned to enter the retail gas price data market--from launching a
data service that would compete with OPIS.
7. Accordingly, the Data License unreasonably restrains trade in
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
II. Parties to the Proposed Merger and the Data License
8. S&P is a New York corporation headquartered in New York, New
York. S&P is comprised of four business divisions: S&P Global Ratings,
S&P Global Market Intelligence, S&P Dow Jones Indices, and S&P Platts.
It reported global 2020 revenues of $7.44 billion.
9. S&P Platts, which offers PRA services, among other products and
services, accounts for roughly 12% of S&P's revenue, reporting global
2020 revenues of $878 million.
10. IHSM is a Bermuda corporation headquartered in London, England.
IHSM is comprised of four business divisions: Financials Services,
Transportation, Consolidated Markets & Solutions, and Resources. It
reported global 2020 revenues of $4.29 billion.
11. IHSM provides PRA services primarily through its OPIS, CMM, and
PCW businesses, which are housed within IHSM's Resources division.
OPIS, CMM, and PCW reported global 2020 revenues of approximately $140
million.
12. GasBuddy is a Delaware limited liability company that provides
a crowd-sourced retail gas price information app. From 2013 until 2021,
GasBuddy was owned by UCG Holdings LP (``UCG''). In early 2021, UCG
sold GasBuddy to Professional Datasolutions, Inc.
III. Jurisdiction and Venue
13. The United States brings this action under Section 15 of the
Clayton Act, as amended, 15 U.S.C. 25, and Section 4 of the Sherman
Act, 15 U.S.C. 4, to prevent and restrain Defendants from violating
Section 7 of the Clayton Act, 15 U.S.C. 18, and to prevent and restrain
Defendant IHSM from violating Section 1 of the Sherman Act, 15 U.S.C.
1.
14. Defendants are engaged in, and their activities substantially
affect, interstate commerce. Defendants both offer commodity price
assessments, news, and analysis throughout the United States. This
Court therefore has subject matter jurisdiction over this action
pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and Section 4
of the Sherman Act, 15 U.S.C. 4, and 28 U.S.C. 1331, 1337(a), and 1345.
15. Defendants have each consented to personal jurisdiction and
venue in this jurisdiction for purposes of this action. Venue is proper
under Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C.
1391(b) and (c).
IV. Industry Background
16. PRAs provide commodity price assessments, news, and analysis
that are critical to the proper functioning of numerous commodity
markets. Some commodities, like corn or wheat, are traded on exchanges,
which make price information readily accessible. But for many
commodities--including many energy commodities like refined petroleum
products (e.g., gasoline and jet fuel), coal, and petrochemicals--
trading is done off-exchange in private transactions with no reporting
obligations. It is in these opaque markets where PRA price assessments
are used as a proxy for the prevailing market price.
17. To produce these price assessments, PRAs collect information
from commodity suppliers and participants in commodities transactions
and then apply proprietary methodologies and editorial judgment. PRAs
focus on providing daily price assessments, and often make the
assessments available to subscribers via a data feed.
18. In most cases, PRAs assess prices at a given time for a
specific commodity at a specific geographic location (e.g., jet fuel in
Los Angeles). In addition, most PRAs focus on assessing prices for spot
(or bulk) transactions, which happen at the top of the supply chain
(e.g., at the refinery gate where the commodity is created). Some
PRAs--like OPIS--also sell information regarding commodity prices down
the supply chain at the wholesale (referred to as ``rack'' in the
industry) and retail levels. In contrast to spot-level PRA services,
however, collecting rack and retail prices does not involve any
``assessment.'' Rack and retail prices are posted and PRAs simply
collect these posted (or charged) prices from market participants, or
through third party aggregators, and then combine and offer the data to
end customers. For example, retail gas station prices are knowable and
the collection thereof does not require further assessment because gas
stations advertise their prices for passing motorists.
19. PRA customers are located worldwide and span a wide range of
industries. While major oil and gas companies, commodities traders, and
large energy consumers generate the majority of PRA revenues, there are
many smaller customers that participate in, or are affected by,
commodity markets.
V. Relevant Markets Related to the Proposed Merger
A. Relevant Product Markets
20. S&P, through its Platts division, and IHSM, through its OPIS,
CMM, and PCW businesses, both provide PRA services for refined
petroleum products (e.g., gasoline and jet fuel), coal, and
petrochemicals. More specifically, both companies provide spot-level
price assessments, and related news and analysis, for dozens of the
same types of refined petroleum products, coal, and petrochemicals,
across dozens of the same geographic locations across the United States
and the world.
21. PRA services for any particular type of refined petroleum
product, coal, or petrochemical are not a reasonable substitute for PRA
services for any other type of refined petroleum product, coal, or
petrochemical. Similarly, PRA services for a particular commodity at
one geographic location are not a reasonable substitute for PRA
services for the same commodity at a different geographic location. For
example, the spot price of jet fuel in Los Angeles is not a reasonable
substitute for a customer seeking the spot price of jet fuel in New
York.
22. Despite the lack of substitutability between PRA services for
different commodities, or for the same commodity at different
geographic locations, spot-level PRA services for U.S.-located (i)
refined petroleum products, (ii) coal, and (iii) petrochemicals can be
analyzed in the
[[Page 241]]
aggregate because each is offered under similar competitive conditions.
23. Therefore, spot-level PRA services for U.S.-located refined
petroleum products, coal, and petrochemicals are each lines of
commerce, or relevant product markets, for the purposes of analyzing
the effects of the proposed merger under Section 7 of the Clayton Act,
Clayton Act, 15 U.S.C. 18.
B. Relevant Geographic Market
24. Commodity market participants looking for spot-level PRA
services for U.S.-located refined petroleum products, coal, or
petrochemicals cannot reasonably turn to a PRA without significant U.S.
operations and an established reputation for accurately reporting
commodity prices and developments. To gather the trading details and
market intelligence necessary to provide PRA services that customers
can trust to reflect current trading conditions, PRAs must have a large
number of U.S.-based analysts (referred to as ``price reporters'' in
the industry) with close connections to the relevant players, and a
detailed understanding of supply and demand dynamics, in the major U.S.
trading hubs. In addition, PRA customers value established PRA
providers that have a proven track record of accurately covering a
given U.S. commodity market.
25. A hypothetical monopolist of spot-level PRA services for
refined petroleum products, coal, or petrochemicals in the United
States could profitably impose a small but significant non-transitory
increase in price for its services without losing sufficient sales to
render the price increase unprofitable. Accordingly, spot-level PRA
services for refined petroleum products, coal, or petrochemicals in the
United States is a relevant market for the purposes of analyzing the
effects of the proposed merger under Section 7 of the Clayton Act,
Clayton Act, 15 U.S.C. 18.
VI. S&P'S Proposed Merger With IHSM is Likely to Result in
Anticompetitive Effects
26. Today, S&P and IHSM compete vigorously in each of the relevant
markets, resulting in lower prices and increased quality and innovation
for PRA customers.
27. In each of the relevant markets, S&P and IHSM are two of a very
small number of companies providing PRA services. In spot-level PRA
services for both refined petroleum products and coal in the United
States, S&P and IHSM are two of the three companies that generate the
vast majority of revenues in the two markets. And in spot-level PRA
services for petrochemicals in the United States, S&P and IHSM are two
of the four companies that generate the vast majority of revenues.
28. For many price assessments (e.g., the spot price for jet fuel
in Los Angeles), one PRA will become the market standard, or benchmark,
after an initial period where PRAs vie for market adoption. Once market
adoption occurs, that PRA's price assessment becomes embedded in the
market ecosystem, as it is frequently referenced in price indexation
formulas in supply contracts and in the relevant derivative contracts
traded on major derivatives exchanges that are used by market
participants to hedge their positions.
29. Competition among PRAs plays out in various forms. As
referenced above, PRAs initially vie to become the benchmark price
assessment for many commodities. Because benchmark price assessments
can generate substantial subscription revenues, PRAs compete fiercely
on price, quality, and innovation dimensions to gain benchmark status.
And given the ongoing energy transition to more renewable energy
sources like biofuels, there are likely to be many new benchmark
opportunities in the near future. Established PRAs--like those operated
by S&P and IHSM--are often best placed to compete for new benchmark
opportunities.
30. Even after one PRA has been chosen as the benchmark,
substantial competition remains between the PRAs covering that
commodity, including competition (i) among the non-benchmark PRAs to
serve as a secondary source for many customers, who use the secondary
source as a ``second look'' to check the accuracy of the benchmark
provider, and (ii) between the secondary source and the benchmark
provider along both price and quality dimensions, resulting from the
disciplining effect of this second-look, accuracy check.
31. While it is rare, some commodity markets have switched their
benchmark from one PRA to another because of price and/or quality
concerns. So, as one industry observer put it, ``[d]espite the enormous
difficulties of displacing an incumbent and the extreme rarity of
switches, rival PRAs have to nonetheless invest heavily in marketing
and in business development staff in order to be considered as a
credible alternative during those rare moments when the incumbent
stumbles.'' \1\
---------------------------------------------------------------------------
\1\ Owain Johnson, The Price Reporters: A Guide to PRAs and
Commodity Benchmarks (Routledge 2018) at 34.
---------------------------------------------------------------------------
32. By eliminating the substantial head-to-head competition that
exists today between S&P and IHSM, the proposed merger would result in
higher prices and decreased quality and innovation for PRA customers.
Accordingly, the proposed merger likely would substantially lessen
competition in spot-level PRA services for refined petroleum products,
coal, and petrochemicals in the United States.
VII. Absence of Countervailing Factors Related to the Proposed Merger
33. Entry into spot-level PRA services for refined petroleum
products, coal, or petrochemicals in the United States is unlikely to
be timely, likely, or sufficient to prevent the proposed merger's
anticompetitive effects. As S&P and IHSM executives have recognized,
barriers to entry into spot-level PRA services for refined petroleum
products, coal, or petrochemicals in the United States are high. These
barriers to entry include (i) the large sunk costs and significant
other expenditures necessary to begin providing commodity price
assessments, news, and analysis; (ii) significant time and expense to
build a reputation for accurately covering commodity markets; and (iii)
the difficulty of displacing a benchmark PRA provider once that PRA's
price assessment becomes the benchmark and gets embedded in supply and
derivative contracts. Unsurprisingly given all of these barriers, no
significant PRA has entered in over 20 years.
34. The proposed merger is unlikely to generate verifiable, merger-
specific efficiencies sufficient to reverse or outweigh the
anticompetitive effects that are likely to occur.
VIII. The Data License Is an Unreasonable Restraint of Trade
35. As noted above, in addition to offering spot-level PRA
services, OPIS also collects and resells information related to retail
gas prices, largely in the United States. Since 2009, GasBuddy has been
one of OPIS's two main sources of retail gas price data.
36. OPIS resells these data to customers like retail gas station
operators or oil refiners, that use the data for competitive
benchmarking and to inform supply and demand decisions.
37. In 2012, OPIS learned that ``GasBuddy [saw] a big opportunity
in pursuing data sales,'' and GasBuddy notified OPIS in ``October
[2012] that they [would] cease providing retail prices to [OPIS]
effective Jan. 1 [2013].'' OPIS saw GasBuddy's plan as a significant
threat to its retail gas price information business because it would
greatly reduce the number of real-time
[[Page 242]]
gas prices that OPIS could provide, and it would also ``greatly
intensify competition in the retail pricing space.'' In response, OPIS
made a ``tactical plan'' to ``buy[ ] GasBuddy'' to thwart this
potential competition.
38. In March 2013, UCG--OPIS's then-owner--followed through with
this plan and bought GasBuddy in a transaction that was below the
reportability thresholds of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, 15 U.S.C. 18a.
39. In 2016, UCG sold OPIS to IHSM, but retained its ownership of
GasBuddy. In order to maximize the value of OPIS and prevent GasBuddy
from competing with OPIS under IHSM's ownership, UCG had OPIS and
GasBuddy enter into the Data License, which (1) gave OPIS exclusive,
worldwide rights to GasBuddy's data for 20 years; (2) required OPIS to
pay no licensing fees for the data; and (3) subjected GasBuddy to a
non-compete provision that restrained it from competing with OPIS or
any other firm in the sale of retail gas price data to commercial
customers. OPIS summarized the Data License simply as a ``long-term
agreement where we are the sole distributor of GasBuddy data and they
can't even sell it themselves.''
40. Retail gas price data providers compete to serve commercial
customers on both price and quality, and the Data License has
prevented--and continues to prevent--GasBuddy from launching a
competing retail gas price data service. But for the non-compete
agreement, GasBuddy would be free to enter the retail gas price data
market and compete with OPIS. The non-compete provision imposed on
GasBuddy is a horizontal restraint that stifles competition. The Data
License, therefore, has resulted, and continues to result, in higher
prices and lower quality in the retail gas price data market.
41. Furthermore, the non-compete provision imposed on GasBuddy was
not reasonably necessary to a separate, legitimate transaction or
collaboration. For example, the 20-year term of the non-compete was
overbroad in its duration. That is, the noncompete was longer than
necessary to effectuate and transfer any intellectual property,
goodwill, or customer relationships associated with UCG's 2016 sale of
OPIS. Nothing about IHSM's 2016 acquisition of OPIS justified a ban on
competition between GasBuddy and OPIS until 2036. To the contrary, the
non-compete simply inflated the value of OPIS and now protects only
IHSM's desire to be free from competition in the market for the sale of
retail gas price data.
42. The Data License, therefore, unreasonably restrains trade in
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
IX. Violations Alleged
Count One: Violation of Section 7 of the Clayton Act, 15 U.S.C. 18
43. The United States hereby incorporates the allegations of
paragraphs 1 through 42 above as if set forth fully herein.
44. S&P and IHSM are hereby named defendants on Count One of this
Complaint.
45. S&P's proposed merger with IHSM is likely to substantially
lessen competition in the relevant markets, in violation of Section 7
of the Clayton Act, 15 U.S.C. 18.
46. Unless enjoined, the proposed merger would likely have the
following anticompetitive effects, among others, in the relevant
markets:
(a) eliminate present and future competition between S&P and IHSM;
(b) competition generally will be substantially lessened; and
(c) prices will likely increase and quality and innovation will
likely decrease.
Count Two: Violation of Section 1 of the Sherman Act, 15 U.S.C. 1
47. The United States hereby incorporates the allegations of
paragraphs 1 through 42 above as if set forth fully herein.
48. IHSM is hereby named as the defendant on Count Two of this
Complaint.
49. Beginning at least as early as 2016, and continuing to this
day, IHSM's subsidiary OPIS has engaged in a contract, the Data
License, with GasBuddy that unreasonably restrains trade to OPIS's
benefit, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
50. Unless enjoined, the contract would likely continue to have the
following anticompetitive effects, among others:
(a) eliminate future competition between OPIS and GasBuddy for the
sale of retail gas price information; and
(b) cause prices for retail gas price information to be higher than
they would otherwise be and reduce the levels of quality, service, and
innovation below what they would be absent the agreement.
X. Request for Relief
51. The United States requests that the Court:
(a) adjudge and decree S&P's proposed merger with IHSM to violate
Section 7 of the Clayton Act, 15 U.S.C. 18;
(b) adjudge and decree that the Data License is a contract in
unreasonable restraint of trade in violation of Section 1 of the
Sherman Act, 15 U.S.C. 1;
(c) permanently enjoin Defendants from consummating S&P's proposed
merger with IHSM or from entering into or carrying out any other
agreement, understanding, or plan by which the assets or businesses of
S&P and IHSM would be combined;
(d) permanently enjoin Defendant IHSM from enforcing the non-
compete contained in the Data License;
(e) award the United States its costs of this action; and
(f) grant the United States such other relief the Court deems just
and proper.
Dated: November 12, 2021
Respectfully Submitted,
-----------------------------------------------------------------------
Richard A. Powers,
Acting Assistant Attorney General, Antitrust Division.
-----------------------------------------------------------------------
Kathleen S. O'Neill,
Senior Director of Investigations and Litigation.
-----------------------------------------------------------------------
Owen M. Kendler,
Chief, Financial Services, Fintech, and Banking Section.
-----------------------------------------------------------------------
Lisa A. Scanlon,
Assistant Chief, Financial Services, Fintech, and Banking Section.
-----------------------------------------------------------------------
Travis Chapman,*
Vittorio Cottafavi, Collier Kelley, Rachel Zwolinski,
Trial Attorneys, Financial Services, Fintech, and Banking Section,
Antitrust Division, 450 Fifth Street NW, Suite 4000, Washington, DC
20530, Telephone: (202) 353-9006, Email: [email protected].
* Lead Attorney to be noticed.
United States District Court
District of Columbia
United States of America, Plaintiff, v. S&P Global Inc., IHS
Markit Ltd., and Oil Price Information Services, LLC, Defendants.
Civil Action No.: 1:21-cv-3003-JEB
PROPOSED FINAL JUDGMENT
Whereas, Plaintiff, United States of America, filed its Complaint
against S&P Global Inc. (``S&P'') and IHS Markit Ltd. (``IHSM'') on
November 12, 2021;
And whereas, pursuant to a Stipulation and Order among S&P, IHSM,
and Oil Price Information Services, LLC (``OPIS LLC'') (collectively,
``Defendants'') and Plaintiff, the Court has joined OPIS LLC as a
defendant to this action for the
[[Page 243]]
purposes of settlement and for the entry of this Final Judgment;
And whereas, Plaintiff and Defendants, have consented to entry of
this Final Judgment without the taking of testimony, without trial or
adjudication of any issue of fact or law, and without this Final
Judgment constituting any evidence against or admission by any party
relating to any issue of fact or law;
And whereas, S&P and IHSM agree to make a divestiture, and
Defendants agree to undertake certain actions to remedy the loss of
competition alleged in the Complaint;
And whereas, S&P and IHSM represent that the divestiture to News
Corp. required by this Final Judgment can and will be made, Defendants
represent that the other relief required by this Final Judgment can and
will be made, and Defendants represent that they will not later raise a
claim of hardship or difficulty as grounds for asking the Court to
modify any provision of this Final Judgment;
Now therefore, it is ordered, adjudged, and decreed:
I. Jurisdiction
The Court has jurisdiction over the subject matter of and each of
the parties to this action. The Complaint states a claim upon which
relief may be granted against S&P and IHSM under Section 7 of the
Clayton Act, as amended (15 U.S.C. 18), and Section 1 of the Sherman
Act, as amended (15 U.S.C. 1). Pursuant to the Stipulation and Order
filed simultaneously with this Final Judgment joining OPIS LLC as a
defendant to this action, OPIS LLC has consented to this Court's
exercise of specific personal jurisdiction over OPIS LLC in this matter
solely for the purposes of settlement and for the entry and enforcement
of the Final Judgment.
II. Definitions
As used in this Final Judgment:
A. ``Data License'' means the Data License Agreement between Oil
Price Information Service, LLC, and GasBuddy/Open Store, LLC, dated
January 5, 2016.
B. ``Divestiture Business'' means (1) IHSM's Oil Price Information
Service (``OPIS'') business, including the business known as
PetrochemWire and OPIS's 15% stake in PRIMA Regulated Markets Limited
and 25% stake in a2i systems A/S, and (2) IHSM's Coals, Metals, and
Mining (``CMM'') business.
C. ``Divestiture Assets'' means all of S&P's and IHSM's rights,
titles, and interests in and to all property and assets, tangible and
intangible, wherever located, (1) owned by the Divestiture Business, or
(2) primarily related to or used in connection with, or necessary to
the operation of, the Divestiture Business (with the United States, in
its sole discretion, to resolve any disagreement regarding which
property and assets, tangible and intangible, are Divestiture Assets),
including:
1. Lease agreements for offices located at: (a) 2099 Gaither Road,
Rockville, MD 20850; (b) 3349 Highway 139, Wall Township, NJ 07719; and
(c) 1295 Bandana Boulevard North, Saint Paul, MN 55018;
2. all other real property, including fee simple interests and real
property leasehold interests and renewal rights thereto, and
improvements to real property, together with all buildings, facilities,
and other structures;
3. all tangible personal property, including fixed assets, office
equipment and furniture, computer hardware, and supplies;
4. all contracts, contractual rights, and customer relationships,
and all other agreements, commitments, and understandings, including
supply agreements, teaming agreements, and all outstanding offers or
solicitations to enter into a similar arrangement;
5. all licenses, permits, certifications, approvals, consents,
registrations, waivers, and authorizations, and all pending
applications or renewals;
6. all records and data, including (a) customer lists, accounts,
sales, and credits records, (b) manuals and technical information that
S&P and IHSM provide to their own employees, customers, suppliers,
agents, or licensees, and (c) records and research data concerning
historic and current research and development activities;
7. all intellectual property owned, licensed, or sublicensed,
either as licensor or licensee, including (a) patents, patent
applications, and inventions and discoveries that may be patentable,
(b) registered and unregistered copyrights and copyright applications,
and (c) registered and unregistered trademarks, trade dress, service
marks, trade names, and trademark applications; and
8. all other intangible property, including (a) commercial names
and d/b/a names, (b) technical information, (c) design tools and
simulation capabilities, (d) computer software and related
documentation, know-how, trade secrets, quality assurance and control
procedures, and (e) rights in internet websites and internet domain
names.
D. ``Divestiture Date'' means the date on which the Divestiture
Assets are divested to News Corp. pursuant to this Final Judgment.
E. ``GasBuddy'' means GasBuddy, LLC, a Delaware limited liability
company with its headquarters in Boston, Massachusetts, its successors
and assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships, and joint ventures, and their directors, officers,
managers, agents, and employees.
F. ``IHSM'' means Defendant IHS Markit Ltd., a Bermuda corporation
with its headquarters in London, United Kingdom, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships, and joint ventures, and their directors, officers,
managers, agents, and employees.
G. ``Including'' means including, but not limited to.
H. ``OPIS LLC'' means Defendant Oil Price Information Services,
LLC, a Maryland limited liability company with its headquarters in
Rockville, Maryland, its successors and assigns, and their directors,
officers, managers, agents, and employees.
I. ``Relevant Personnel'' means all full-time, part-time, or
contract employees of IHSM, wherever located, who work in OPIS or CMM,
or whose job responsibilities relate primarily to the operation or
management of the Divestiture Business, at any time between November
30, 2020, and the Divestiture Date. The United States, in its sole
discretion, will resolve any disagreement regarding which employees are
Relevant Personnel.
J. ``News Corp.'' means News Corporation, a Delaware corporation
with its headquarters in New York, New York, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships, and joint ventures, and their directors, officers,
managers, agents, and employees.
K. ``Regulatory Approvals'' means (1) any approvals or clearances
under antitrust, competition, or other U.S. or international laws that
are required for the Transaction to proceed; and (2) any approvals or
clearances under antitrust, competition, or other U.S. or international
laws that are required for News Corp.'s acquisition of the Divestiture
Assets to proceed.
L. ``S&P'' means Defendant S&P Global Inc., a New York corporation
with its headquarters in New York, New York, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships, and joint ventures, and their directors, officers,
managers, agents, and employees.
M. ``Transaction'' means the proposed merger between S&P and IHSM.
[[Page 244]]
III. Applicability
A. This Final Judgment applies to Defendants, as defined above, and
all other persons, in active concert or participation with any
Defendant, who receive actual notice of this Final Judgment.
B. If, prior to complying with Section IV and Section V of this
Final Judgment, S&P and IHSM sell or otherwise dispose of all or
substantially all of their assets or of business units that include the
Divestiture Assets, S&P and IHSM must require any purchaser to be bound
by the provisions of this Final Judgment.
IV. Divestiture
A. S&P and IHSM are ordered and directed, within 30 calendar days
after the Court's entry of the Asset Preservation and Hold Separate
Stipulation and Order in this matter, to divest the Divestiture Assets
in a manner consistent with this Final Judgment to News Corp. The
United States, in its sole discretion, may agree to one or more
extensions of this time period not to exceed 90 calendar days in total
and will notify the Court of any extensions.
B. If S&P and IHSM have not received all Regulatory Approvals
within 30 calendar days after the Court's entry of the Stipulation and
Order in this matter, the time period provided in Paragraph IV.A. will
be extended until 30 calendar days after all Regulatory Approvals are
received. This extension allowed for securing Regulatory Approvals may
be no longer than 120 calendar days past the time period provided in
Paragraph IV.A., unless the United States, in its sole discretion,
consents to an additional extension.
C. S&P and IHSM must use best efforts to divest the Divestiture
Assets as expeditiously as possible. S&P and IHSM must take no action
that would jeopardize the completion of the divestiture ordered by the
Court, including any action to impede the permitting, operation, or
divestiture of the Divestiture Assets.
D. Unless the United States otherwise consents in writing,
divestiture pursuant to this Final Judgment must include the entire
Divestiture Assets and must be accomplished in such a way as to satisfy
the United States, in its sole discretion, that the Divestiture Assets
can and will be used by News Corp. as part of a viable, ongoing
business providing commodity price assessments and related news and
analysis and that the divestiture to News Corp. will remedy the
competitive harm alleged in the Complaint.
E. The divestiture must be accomplished in a manner that satisfies
the United States, in its sole discretion, that none of the terms of
any agreement between News Corp. and S&P and IHSM give S&P and IHSM the
ability unreasonably to raise News Corp.'s costs, to lower News Corp.'s
efficiency, or otherwise interfere in the ability of News Corp. to
compete effectively in providing commodity price assessments and
related news and analysis.
F. S&P and IHSM must cooperate with and assist News Corp. in
identifying and, at the option of News Corp., hiring all Relevant
Personnel, including:
1. Within 10 business days following the filing of the Complaint in
this matter, S&P and IHSM must identify all Relevant Personnel to News
Corp. and the United States, including by providing organization charts
covering all Relevant Personnel.
2. Within 10 business days following receipt of a request by News
Corp. or the United States, S&P and IHSM must provide to News Corp. and
the United States additional information relating to Relevant
Personnel, including name, job title, reporting relationships, past
experience, responsibilities, training and educational histories,
relevant certifications, and job performance evaluations. S&P and IHSM
must also provide to News Corp. and the United States current and
accrued compensation and benefits of Relevant Personnel, including most
recent bonuses paid, aggregate annual compensation, current target or
guaranteed bonus, if any, any retention agreement or incentives, and
any other payments due, compensation or benefited accrued, or promises
made to the Relevant Personnel. If S&P and IHSM are barred by any
applicable law from providing any of this information, S&P and IHSM
must provide, within 10 business days following receipt of the request,
the requested information to the full extent permitted by law and also
must provide a written explanation of S&P's and IHSM's inability to
provide the remaining information, including specifically identifying
the provisions of the applicable laws.
3. At the request of News Corp., S&P and IHSM must promptly make
Relevant Personnel available for private interviews with News Corp.
during normal business hours at a mutually agreeable location.
4. S&P and IHSM must not interfere with any effort by News Corp. to
employ any Relevant Personnel. Interference includes offering to
increase the compensation or improve the benefits of Relevant Personnel
unless (a) the offer is part of a company-wide increase in compensation
or improvement in benefits that was announced prior to November 30,
2020 or (b) the offer is approved by the United States in its sole
discretion. S&P's and IHSM's obligations under this Paragraph IV.H.4.
will expire 180 calendar days after the Divestiture Date.
5. For Relevant Personnel who elect employment with News Corp.
within 180 calendar days of the Divestiture Date, S&P and IHSM must
waive all non-compete and non-disclosure agreements; vest and pay to
the Relevant Personnel (or to News Corp. for payment to the employee)
on a prorated basis any bonuses, incentives, other salary, benefits or
other compensation fully or partially accrued at the time of the
transfer of the employee to News Corp.; vest any unvested pension and
other equity rights; and provide all other benefits that those Relevant
Personnel otherwise would have been provided had the Relevant Personnel
continued employment with S&P and IHSM, including but not limited to
any retention bonuses or payments. S&P and IHSM may maintain reasonable
restrictions on disclosure by Relevant Personnel of S&P's and IHSM's
proprietary non-public information that is unrelated to the Divestiture
Assets or the provision of commodity price assessments and related news
and analysis and not otherwise required to be disclosed by this Final
Judgment.
6. For a period of 12 months from the Divestiture Date, S&P and
IHSM may not solicit to rehire Relevant Personnel who were hired by
News Corp. within 180 days of the Divestiture Date unless (a) an
individual is terminated or laid off by News Corp. or (b) News Corp.
agrees in writing that S&P and IHSM may solicit to rehire that
individual. Nothing in this Paragraph IV.H.6. prohibits S&P and IHSM
from advertising employment openings using general solicitations or
advertisements and rehiring Relevant Personnel who apply for an
employment opening through a general solicitation or advertisement.
G. S&P and IHSM must warrant to News Corp. that (1) the Divestiture
Assets will be operational and without material defect on the date of
their transfer to News Corp.; (2) there are no material defects in the
environmental, zoning, or other permits relating to the operation of
the Divestiture Assets; and (3) S&P and IHSM have disclosed all
encumbrances on any part of the Divestiture Assets, including on
intangible property. Following the sale of the Divestiture Assets, S&P
and IHSM must not undertake, directly or indirectly, challenges to the
environmental, zoning, or other permits
[[Page 245]]
relating to the operation of the Divestiture Assets.
H. S&P and IHSM must assign, subcontract, or otherwise transfer all
contracts, agreements, and customer relationships (or portions of such
contracts, agreements, and customer relationships) included in the
Divestiture Assets, including all supply and sales contracts, to News
Corp.; provided, however, that for any contract or agreement that
requires the consent of another party to assign, subcontract, or
otherwise transfer, S&P and IHSM must use best efforts to accomplish
the assignment, subcontracting, or transfer. S&P and IHSM must not
interfere with any negotiations between News Corp. and a contracting
party.
I. S&P and IHSM must use best efforts to assist News Corp. to
obtain all necessary licenses, registrations, and permits to operate
the Divestiture Business. Until News Corp. obtains the necessary
licenses, registrations, and permits, S&P and IHSM must provide News
Corp. with the benefit of S&P's and IHSM's licenses, registrations, and
permits to the full extent permissible by law; provided, however, that
S&P and IHSM need not assist News Corp. to obtain licenses,
registrations, or permits to operate as benchmark administrators.
J. At the option of News Corp., and subject to approval by the
United States in its sole discretion, on or before the Divestiture
Date, S&P and IHSM must enter into a contract to provide transition
services for back office, human resources, accounting, employee health
and safety, and information technology services and support for a
period of up to 180 days on terms and conditions reasonably related to
market conditions for the provision of the transition services. Any
amendment to or modification of any provision of a contract to provide
transition services is subject to approval by the United States, in its
sole discretion. The United States, in its sole discretion, may approve
one or more extensions of any contract for transition services, for a
total of up to an additional 180 days. If News Corp. seeks an extension
of the term of any contract for transition services, Defendants must
notify the United States in writing at least 90 days prior to the date
the contract expires. News Corp. may terminate a contract for
transition services, or any portion of a contract for transition
services, without cost or penalty at any time upon commercially
reasonable written notice. The employee(s) of S&P and IHSM tasked with
providing transition services must not share any competitively
sensitive information of News Corp. with any other employee of S&P and
IHSM.
K. If any term of an agreement between S&P and IHSM and News Corp.,
including an agreement to effectuate the divestiture required by this
Final Judgment, varies from a term of this Final Judgment, to the
extent that S&P and IHSM, OPIS LLC, and News Corp. cannot fully comply
with both, this Final Judgment determines S&P's, IHSM's, OPIS LLC's and
News Corp.'s obligations.
V. Appointment of Divestiture Trustee
A. If S&P and IHSM have not divested the Divestiture Assets within
the period specified in Paragraphs IV. A. and IV.B., S&P and IHSM must
immediately notify the United States of that fact in writing. Upon
application of the United States, which S&P and IHSM may not oppose,
the Court will appoint a divestiture trustee selected by the United
States and approved by the Court to effect the divestiture of the
Divestiture Assets to News Corp.
B. After the appointment of a divestiture trustee by the Court,
only the divestiture trustee will have the right to sell the
Divestiture Assets. The divestiture trustee will have the power and
authority to accomplish the divestiture to News Corp., at a price and
on terms obtainable through reasonable effort by the divestiture
trustee, subject to the provisions of Sections IV and V of this Final
Judgment, and will have other powers as the Court deems appropriate.
The divestiture trustee must sell the Divestiture Assets as quickly as
possible.
C. The divestiture trustee must notify the United States, S&P, and
IHSM at least 7 calendar days before completion of the sale of the
Divestiture Assets to News Corp. S&P and IHSM may not object to a sale
to News Corp. by the divestiture trustee on any ground other than
malfeasance by the divestiture trustee.
D. The divestiture trustee will serve at the cost and expense of
S&P and IHSM pursuant to a written agreement, on terms and conditions,
including confidentiality requirements and conflict of interest
certifications, approved by the United States, in its sole discretion.
E. The divestiture trustee may hire at the cost and expense of S&P
and IHSM any agents or consultants, including investment bankers,
attorneys, and accountants, that are reasonably necessary in the
divestiture trustee's judgment to assist with the divestiture trustee's
duties. These agents or consultants will be accountable solely to the
divestiture trustee and will serve on terms and conditions, including
confidentiality requirements and conflict-of-interest certifications,
approved by the United States in its sole discretion.
F. The compensation of the divestiture trustee and agents or
consultants hired by the divestiture trustee must be reasonable in
light of the value of the Divestiture Assets and based on a fee
arrangement that provides the divestiture trustee with incentives based
on the price and terms of the divestiture and the speed with which it
is accomplished. If the divestiture trustee and S&P and IHSM are unable
to reach agreement on the divestiture trustee's compensation or other
terms and conditions of engagement within 14 calendar days of the
appointment of the divestiture trustee by the Court, the United States,
in its sole discretion, may take appropriate action, including by
making a recommendation to the Court. Within three business days of
hiring an agent or consultant, the divestiture trustee must provide
written notice of the hiring and rate of compensation to S&P and IHSM
and the United States.
G. The divestiture trustee must account for all monies derived from
the sale of the Divestiture Assets sold by the divestiture trustee and
all costs and expenses incurred. Within 30 calendar days of the
Divestiture Date, the divestiture trustee must submit that accounting
to the Court for approval. After approval by the Court of the
divestiture trustee's accounting, including fees for unpaid services
and those of agents or consultants hired by the divestiture trustee,
all remaining money must be paid to S&P and IHSM and the trust will
then be terminated.
H. S&P and IHSM must use best efforts to assist the divestiture
trustee to accomplish the required divestiture to News Corp. Subject to
reasonable protection for trade secrets, other confidential research,
development, or commercial information, or any applicable privileges,
S&P and IHSM must provide the divestiture trustee and agents or
consultants retained by the divestiture trustee with full and complete
access to all personnel, books, records, and facilities of the
Divestiture Assets. S&P and IHSM also must provide or develop financial
and other information relevant to the Divestiture Assets that the
divestiture trustee may reasonably request. S&P and IHSM must not take
any action to interfere with or to impede the divestiture trustee's
accomplishment of the divestiture to News Corp.
I. The divestiture trustee must maintain complete records of all
efforts
[[Page 246]]
made to sell the Divestiture Assets to News Corp., including by filing
monthly reports with the United States setting forth the divestiture
trustee's efforts to accomplish the divestiture ordered by this Final
Judgment.
J. If the divestiture trustee has not accomplished the divestiture
ordered by this Final Judgment within 180 days of appointment, the
divestiture trustee must promptly provide the United States with a
report setting forth: (1) The divestiture trustee's efforts to
accomplish the required divestiture; (2) the reasons, in the
divestiture trustee's judgment, why the required divestiture has not
been accomplished; and (3) the divestiture trustee's recommendations
for completing the divestiture. Following receipt of that report, the
United States may make additional recommendations to the Court. The
Court thereafter may enter such orders as it deems appropriate to carry
out the purpose of this Final Judgment, which may include extending the
trust and the term of the divestiture trustee's appointment by a period
requested by the United States.
K. The divestiture trustee will serve until divestiture of all
Divestiture Assets to News Corp. is completed or for a term otherwise
ordered by the Court.
L. If the United States determines that the divestiture trustee is
not acting diligently or in a reasonably cost-effective manner, the
United States may recommend that the Court appoint a substitute
divestiture trustee.
VI. Financing
S&P and IHSM may not finance all or any part of News Corp.'s
purchase of all or part of the Divestiture Assets.
VII. Asset Preservation and Hold Separate Obligations
Defendants must take all steps necessary to comply with the Asset
Preservation and Hold Separate Stipulation and Order entered by the
Court.
VIII. Affidavits
A. Within 20 calendar days of the filing of the Complaint in this
matter, and every 30 calendar days thereafter until the divestiture
required by this Final Judgment has been completed, S&P and IHSM must
deliver to the United States an affidavit, signed by each S&P's and
IHSM's Chief Financial Officer and General Counsel, describing in
reasonable detail the fact and manner of S&P's and IHSM's compliance
with this Final Judgment. The United States, in its sole discretion,
may approve different signatories for the affidavits.
B. S&P and IHSM must keep all records of any efforts made to divest
the Divestiture Assets until one year after the Divestiture Date.
C. Within 20 calendar days of the filing of the Complaint in this
matter, S&P and IHSM must deliver to the United States an affidavit
signed by S&P's and IHSM's Chief Financial Officer and General Counsel,
that describes in reasonable detail all actions S&P and IHSM have taken
and all steps that S&P and IHSM have implemented on an ongoing basis to
comply with Section VII of this Final Judgment. The United States, in
its sole discretion, may approve different signatories for the
affidavits.
D. If S&P or IHSM makes any changes to actions and steps described
in affidavits provided pursuant to Paragraph VIII.D., S&P or IHSM, as
applicable, must, within 15 calendar days after any change is
implemented, deliver to the United States an affidavit describing those
changes.
E. S&P and IHSM must keep all records of any efforts made to comply
with Section VII until one year after the Divestiture Date.
IX. Required Conduct
Prior to the Divestiture Date, and no later than five business days
after the Court's entry of the Stipulation and Order in this matter,
S&P and IHSM must notify GasBuddy in writing that, effective on the
date of completion of the Transaction, OPIS LLC (1) waives the
exclusivity obligation in the license grant in Section 2(a) of the Data
License, so as to render the license of GasBuddy retail data to OPIS
LLC non-exclusive; and (2) waives the GasBuddy restrictive covenants,
including the non-compete provision enumerated in Section 4(c) of the
Data License. Before such written notice is provided to GasBuddy, the
form and content of the written notice must be approved by the United
States, in its sole discretion.
X. Prohibited Conduct
A. Without the prior written consent of the United States, in its
sole discretion, S&P and IHSM will not (1) enter into, enforce, renew,
or extend the term of any exclusive licenses for the provision to S&P
and IHSM of GasBuddy's data; or (2) enter into, enforce, renew, or
extend the term of any non-compete provisions relating to GasBuddy's
data.
B. Without the prior written consent of the United States, in its
sole discretion, OPIS LLC will not (1) enter into, enforce, renew, or
extend the term of any exclusive licenses for the provision to OPIS LLC
of GasBuddy's data or U.S. retail gas price data of any other third-
party provider; or (2) enter into, enforce, renew, or extend the term
of any non-compete provisions relating to GasBuddy's data or U.S.
retail gas price data of any other third-party provider.
XI. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment or of related orders such as the Asset Preservation and
Hold Separate Stipulation and Order or of determining whether this
Final Judgment should be modified or vacated, upon written request of
an authorized representative of the Assistant Attorney General for the
Antitrust Division, and reasonable notice to Defendants, Defendants
must permit, from time to time and subject to legally recognized
privileges, authorized representatives, including agents retained by
the United States:
1. To have access during Defendants' office hours to inspect and
copy, or at the option of the United States, to require Defendants to
provide electronic copies of all books, ledgers, accounts, records,
data, and documents in the possession, custody, or control of
Defendants relating to any matters contained in this Final Judgment;
and
2. to interview, either informally or on the record, Defendants'
officers, employees, or agents, who may have their individual counsel
present, relating to any matters contained in this Final Judgment. The
interviews must be subject to the reasonable convenience of the
interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the
Assistant Attorney General for the Antitrust Division, Defendants must
submit written reports or respond to written interrogatories, under
oath if requested, relating to any matters contained in this Final
Judgment.
C. No information or documents obtained pursuant to this Section
may be divulged by the United States to any person other than an
authorized representative of the executive branch of the United States,
except in the course of legal proceedings to which the United States is
a party, including grand jury proceedings, for the purpose of securing
compliance with this Final Judgment, or as otherwise required by law.
D. In the event of a request by a third party for disclosure of
information under the Freedom of Information Act, 5 U.S.C. 552, the
Antitrust Division will act in accordance with that statute, and the
Department of Justice regulations at 28 CFR part 16, including the
provision
[[Page 247]]
on confidential commercial information, at 28 CFR 16.7. Defendants
submitting information to the Antitrust Division should designate the
confidential commercial information portions of all applicable
documents and information under 28 CFR 16.7. Designations of
confidentiality expire ten years after submission, ``unless the
submitter requests and provides justification for a longer designation
period.'' See 28 CFR 16.7(b).
E. If at the time that Defendants furnish information or documents
to the United States pursuant to this Section, Defendants represent and
identify in writing information or documents for which a claim of
protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules
of Civil Procedure, and Defendants mark each pertinent page of such
material, ``Subject to claim of protection under Rule 26(c)(1)(G) of
the Federal Rules of Civil Procedure,'' the United States must give
Defendants ten (10) calendar days' notice before divulging the material
in any legal proceeding (other than a grand jury proceeding).
XII. No Reacquisition
S&P and IHSM may not reacquire any part of or any interest in the
Divestiture Assets during the term of this Final Judgment without prior
authorization of the United States.
XIII. Retention of Jurisdiction
The Court retains jurisdiction to enable any party to this Final
Judgment to apply to the Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIV. 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. Defendants agree that in a civil contempt
action, a motion to show cause, or a similar action brought by the
United States relating to an alleged violation of this Final Judgment,
the United States may establish a violation of this Final Judgment and
the appropriateness of a remedy therefor by a preponderance of the
evidence, and Defendants waive any argument that a different standard
of proof should apply.
B. This Final Judgment should be interpreted to give full effect to
the procompetitive purposes of the antitrust laws and to restore the
competition the United States alleges was harmed by the challenged
conduct. Defendants agree 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 an enforcement proceeding in which the Court finds that
Defendants have violated this Final Judgment, the United States may
apply to the Court for an extension of this Final Judgment, together
with other relief that may be appropriate. In connection with a
successful effort by the United States to enforce this Final Judgment
against a Defendant, whether litigated or resolved before litigation,
that Defendant agrees to reimburse the United States for the fees and
expenses of its attorneys, as well as all other costs including
experts' fees, incurred in connection with that effort to enforce this
Final Judgment, including in the investigation of the potential
violation.
D. For a period of four years following the expiration of this
Final Judgment, if the United States has evidence that a Defendant
violated this Final Judgment before it expired, the United States may
file an action against that Defendant in this Court requesting that the
Court order: (1) Defendant to comply with the terms of this Final
Judgment for an additional term of at least four years following the
filing of the enforcement action; (2) all appropriate contempt
remedies; (3) additional relief needed to ensure the Defendant complies
with the terms of this Final Judgment; and (4) fees or expenses as
called for by this Section XIV.
XV. Expiration of Final Judgment
Unless the Court grants an extension, this Final Judgment will
expire 10 years from the date of its entry, except that after five
years from the date of its entry, this Final Judgment may be terminated
upon notice by the United States to the Court and Defendants that the
divestiture has been completed and continuation of this Final Judgment
is no longer necessary or in the public interest.
XVI. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16, including by making available to the
public copies of this Final Judgment and the Competitive Impact
Statement, public comments thereon, and any response to comments by the
United States. Based upon the record before the Court, which includes
the Competitive Impact Statement and, if applicable, any comments and
response to comments filed with the Court, entry of this Final Judgment
is in the public interest.
Date:------------------------------------------------------------------
[Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16]
-----------------------------------------------------------------------
United States District Judge
United States District Court
District of Columbia
United States of America, Plaintiff, v. S&P Global Inc., IHS
Markit Ltd., and Oil Price Information Services, LLC, Defendants.
Civil Action No.: 1:21-cv-3003-JEB
COMPETITIVE IMPACT STATEMENT
In accordance with the Antitrust Procedures and Penalties Act, 15
U.S.C. 16(b)-(h) (the ``APPA'' or ``Tunney Act''), the United States of
America files this Competitive Impact Statement related to the proposed
Final Judgment filed in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On November 29, 2020, S&P Global Inc. (``S&P'') and IHS Markit Ltd.
(``IHSM'') entered into a merger agreement to combine in an all-stock
transaction that values IHSM at approximately $44 billion. Separately,
in January 2016, IHSM's Oil Price and Information Services LLC (``OPIS
LLC'') division entered into a 20-year exclusive data license and non-
compete agreement (``Data License'') with GasBuddy LLC (``GasBuddy''),
an operator of a popular crowd-sourced retail gas price information app
that has long provided OPIS LLC with pricing data for resale to
commercial customers (e.g., retail gas station operators).
The United States filed a civil antitrust Complaint on November 12,
2021, seeking to enjoin both: (1) The consummation of the proposed
merger; and (2) the enforcement of the exclusivity and non-compete
provisions contained in the Data License. The Complaint alleges that
the likely effect of this merger would be to substantially lessen
competition for spot-level price reporting agency (``PRA'') services
for refined petroleum products, coal, and petrochemicals in the United
States, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The
Complaint also alleges that the Data License
[[Page 248]]
unreasonably restrains trade in the market for the sale of retail gas
price data in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
At the same time the Complaint was filed, the United States filed a
proposed Final Judgment and an Asset Preservation and Hold Separate
Stipulation and Order (``Stipulation and Order''), which are designed
to remedy the loss of competition and the unreasonable restraint on
trade alleged in the Complaint.
Under the proposed Final Judgment, which is explained more fully
below, S&P and IHSM are required to divest three IHSM PRA businesses:
(1) OPIS LLC, which focuses on refined petroleum products; (2) Coal,
Metals, and Mining (``CMM''), which focuses predominately on coal; and
(3) PetrochemWire (``PCW''), which focuses on petrochemicals. S&P and
IHSM have agreed to divest OPIS LLC, CMM, and PCW to News Corporation
(``News Corp.''), a global media conglomerate that operates a financial
data company, Dow Jones & Company, Inc. (``Dow Jones'').
In addition, under the proposed Final Judgment, S&P and IHSM must
waive the exclusivity and non-compete provisions of the Data License
between OPIS LLC and GasBuddy. S&P, IHSM, and OPIS LLC are also
prohibited, without the prior written consent of the United States,
from entering into, enforcing, renewing, or extending the term of any
similar exclusive or non-compete provisions.
Under the terms of the Stipulation and Order, until the divestiture
is completed, S&P and IHSM must take certain steps to ensure that OPIS
LLC, CMM, and PCW remain independent, economically viable, competitive,
and saleable. In addition, the management, sales, and operations of
these businesses must be held entirely separate, distinct, and apart
from S&P's and IHSM's other operations. The purpose of these terms in
the Stipulation and Order is to ensure that competition is maintained
during the pendency of the required divestiture.
The Stipulation and Order also requires Defendants to abide by and
comply with the provisions of the proposed Final Judgment until the
proposed Final Judgment is entered by the Court or until expiration of
time for all appeals of any Court ruling declining entry of the
proposed Final Judgment. On November 16, 2021, the Court entered the
Stipulation and Order.
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment will terminate this action, except that the
Court will retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof.
II. Description of Events Giving Rise to the Alleged Violations
A. The Defendants and the Proposed Merger
S&P is a global financial data conglomerate headquartered in New
York, New York and is comprised of four divisions: S&P Global Ratings,
S&P Global Market Intelligence, S&P Dow Jones Indices, and S&P Platts.
It reported global 2020 revenues of $7.44 billion. It provides PRA
services through its S&P Platts division, which reported global 2020
revenues of $878 million and accounts for roughly 12% of S&P's revenue.
IHSM is a global financial data conglomerate headquartered in
London, England and is comprised of four divisions: Financial Services,
Transportation, Consolidated Markets & Solutions, and Resources. It
reported global 2020 revenues of $4.29 billion. It provides PRA
services primarily through its OPIS LLC, CMM, and PCW businesses, which
are housed within IHSM's Resources division. OPIS LLC, CMM, and PCW
reported global 2020 revenues of approximately $140 million and
accounts for roughly 3% of IHSM's revenue.
OPIS LLC, currently an IHSM subsidiary, provides PRA services
primarily related to refined petroleum products. OPIS LLC will be
acquired by News Corp. pursuant to the divestiture required by the
proposed Final Judgment.
Pursuant to a merger agreement dated November 29, 2020, S&P intends
to merge with IHSM in an all-stock transaction that values IHSM at
approximately $44 billion.
B. The Competitive Effects of the Proposed Merger
The Complaint alleges that the likely effect of this merger would
be to substantially lessen competition for spot-level PRA services for
refined petroleum products, coal, and petrochemicals in the United
States.
1. Relevant Product Markets
PRAs provide commodity price assessments, news, and analysis that
are critical to the proper functioning of numerous commodity markets.
Some commodities, like corn or wheat, are traded on exchanges, which
make price information readily accessible. But for many commodities--
including many energy commodities like refined petroleum products
(e.g., gasoline and jet fuel), coal, and petrochemicals--trading is
done off-exchange in private transactions with no reporting
obligations. It is in these opaque markets where PRA price assessments
are used as a proxy for the prevailing market price.
To produce these price assessments, PRAs collect information from
commodity suppliers and participants in commodities transactions and
then apply proprietary methodologies and editorial judgment. PRAs focus
on providing daily price assessments, and often make the assessments
available to subscribers via a data feed.
In most cases, PRAs assess prices at a given time for a specific
commodity at a specific geographic location (e.g., jet fuel in Los
Angeles). In addition, most PRAs focus on assessing prices for spot (or
bulk) transactions, which happen at the top of the supply chain (e.g.,
at the refinery gate where the commodity is created).
PRA customers are located worldwide and span a wide range of
industries. While major oil and gas companies, commodities traders, and
large energy consumers generate the majority of PRA revenues, there are
many smaller customers that participate in, or are affected by,
commodity markets.
S&P, through its Platts division, and IHSM, through its OPIS LLC,
CMM, and PCW businesses, both provide PRA services for refined
petroleum products (e.g., gasoline and jet fuel), coal, and
petrochemicals. More specifically, both companies provide spot-level
price assessments, and related news and analysis, for dozens of the
same types of refined petroleum products, coal, and petrochemicals,
across dozens of the same geographic locations across the United States
and the world.
PRA services for any particular type of refined petroleum product,
coal, or petrochemical are not a reasonable substitute for PRA services
for any of other type of refined petroleum product, coal, or
petrochemical. Similarly, PRA services for a particular commodity at
one geographic location are not a reasonable substitute for PRA
services for the same commodity at a different geographic location.
Despite the lack of substitutability between PRA services for
different commodities within each category, or for the same commodity
at different geographic locations, spot-level PRA services for U.S.-
located (i) refined petroleum products, (ii) coal, and (iii)
petrochemicals can be analyzed in the aggregate because each is offered
under
[[Page 249]]
similar competitive conditions. Spot-level PRA services for U.S.-
located refined petroleum products, coal, and petrochemicals are each
lines of commerce, or relevant product markets, for the purposes of
analyzing the effects of the proposed merger under Section 7 of the
Clayton Act, 15 U.S.C. 18.
2. Relevant Geographic Market
Commodity market participants looking for spot-level PRA services
for U.S.-located refined petroleum products, coal, or petrochemicals
cannot reasonably turn to a PRA without significant U.S. operations and
an established reputation for accurately reporting commodity prices and
developments. To provide customers with trustworthy trading details and
market intelligence that reflect current trading conditions, PRAs must
have a large number of U.S.-based analysts (referred to as ``price
reporters'' in the industry) with close connections to the relevant
players, and a detailed understanding of supply and demand dynamics, in
the major U.S. trading hubs. In addition, PRA customers value
established PRA providers that have a proven track record of accurately
covering a given U.S. commodity market.
A hypothetical monopolist of spot-level PRA services for refined
petroleum products, coal, or petrochemicals in the United States could
profitably impose a small but significant non-transitory increase in
price for its services without losing sufficient sales to render the
price increase unprofitable. Accordingly, there are three relevant
markets for the purposes of analyzing the effects of the proposed
merger under Section 7 of the Clayton Act, 15 U.S.C. 18: (1) Spot-level
PRA services for refined petroleum products in the United States; (2)
spot-level PRA services for coal in the United States; and (3) spot-
level PRA services for petrochemicals in the United States.
3. Competitive Effects
Today, S&P and IHSM compete vigorously in each of the relevant
markets, resulting in lower prices and increased quality and innovation
for PRA customers. In each of the relevant markets, S&P and IHSM are
two of a few companies providing PRA services. In spot-level PRA
services for both refined petroleum products and coal in the United
States, S&P and IHSM are two of the three companies that generate the
vast majority of revenues in the two markets. In spot-level PRA
services for petrochemicals in the United States, S&P and IHSM are two
of the four companies that generate the vast majority of revenues.
For many price assessments (e.g., the spot price for jet fuel in
Los Angeles), one PRA will become the market standard, or benchmark,
after an initial period where PRAs vie for market adoption. Once market
adoption occurs, that PRA's price assessment becomes embedded in the
market ecosystem, as it is frequently referenced in price indexation
formulas in supply contracts and in the relevant derivative contracts
traded on major derivatives exchanges that are used by market
participants to hedge their positions.
Competition among PRAs plays out in various forms. As referenced
above, PRAs initially vie to become the benchmark price assessment for
many commodities. Because benchmark price assessments can generate
substantial subscription revenues, PRAs compete fiercely on price,
quality, and innovation dimensions to gain benchmark status. The
ongoing energy transition to more renewable energy sources like
biofuels will likely create many new benchmark opportunities in the
near future. Established PRAs (e.g., those operated by S&P and IHSM)
are often best placed to compete for new benchmark opportunities.
Even after one PRA has been chosen as the benchmark, substantial
competition remains between the PRAs covering that commodity, including
competition (i) among the non-benchmark PRAs to serve as a secondary
source for many customers, who use the secondary source as a ``second
look'' to check the accuracy of the benchmark provider, and (ii)
between the secondary source and the benchmark provider along both
price and quality dimensions, resulting from the disciplining effect of
this second-look, accuracy check.
While it is rare, some commodity markets have switched their
benchmark from one PRA to another because of price and/or quality
concerns. So, as one industry observer put it, ``[d]espite the enormous
difficulties of displacing an incumbent and the extreme rarity of
switches, rival PRAs have to nonetheless invest heavily in marketing
and in business development staff in order to be considered as a
credible alternative during those rare moments when the incumbent
stumbles.'' \2\
---------------------------------------------------------------------------
\2\ Owain Johnson, The Price Reporters: A Guide to PRAs and
Commodity Benchmarks (Routledge 2018) at 34.
---------------------------------------------------------------------------
By eliminating the substantial head-to-head competition that exists
today between S&P and IHSM, the proposed merger would result in higher
prices and decreased quality and innovation for PRA customers.
Accordingly, the proposed merger likely would substantially lessen
competition in spot-level PRA services for refined petroleum products,
coal, and petrochemicals in the United States.
4. Entry and Expansion
Entry into spot-level PRA services for refined petroleum products,
coal, or petrochemicals in the United States is unlikely to be timely,
likely, or sufficient to prevent the proposed merger's anticompetitive
effects. As S&P and IHSM executives have recognized, barriers to entry
into spot-level PRA services for refined petroleum products, coal, or
petrochemicals in the United States are high. These barriers to entry
include (i) the large sunk costs and significant other expenditures
necessary to begin providing commodity price assessments, news, and
analysis; (ii) significant time and expense to build a reputation for
accurately covering commodity markets; and (iii) the difficulty of
displacing a benchmark PRA provider once that PRA's price assessment
becomes the benchmark and gets embedded in supply and derivative
contracts. Unsurprisingly, given all of these barriers, no significant
PRA has entered in over 20 years.
C. Competitive Effects of the Exclusive Data License and Non-Compete
Agreement
The Complaint alleges that the Data License unreasonably restrains
trade in the sale of retail gas price data.
In addition to offering spot-level PRA services, OPIS LLC also
collects and resells information related to retail gas prices, largely
in the United States. Since 2009, GasBuddy has been one of OPIS LLC's
two main sources of retail gas price data. OPIS LLC resells these data
to customers like retail gas station operators or oil refiners, that
use the data for competitive benchmarking and to inform supply and
demand decisions.
In 2012, OPIS LLC learned that ``GasBuddy [saw] a big opportunity
in pursuing data sales,'' and GasBuddy notified OPIS LLC in ``October
[2012] that they [would] cease providing retail prices to [OPIS LLC]
effective Jan. 1 [2013].'' OPIS LLC saw GasBuddy's plan as a
significant threat to its retail gas price information business because
it would greatly reduce the number of real-time gas prices that OPIS
LLC could provide, and it would also ``greatly intensify competition in
the retail pricing space.'' In response, OPIS LLC made a ``tactical
plan'' to ``buy[ ] GasBuddy'' to thwart this potential competition.
In March 2013, UCG Holdings LP (``UCG'')--OPIS LLC's then-owner--
[[Page 250]]
followed through with this plan and bought GasBuddy in a transaction
that was below the reportability thresholds of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, 15 U.S.C. 18a.
In 2016, UCG sold OPIS LLC to IHSM, but retained its ownership of
GasBuddy. In order to maximize the value of OPIS LLC and prevent
GasBuddy from competing with OPIS LLC under IHSM's ownership, UCG had
OPIS LLC and GasBuddy enter into the Data License, which (1) gave OPIS
LLC exclusive, worldwide rights to GasBuddy's data for 20 years; (2)
required OPIS LLC to pay no licensing fees for the data; and (3)
subjected GasBuddy to a non-compete provision that restrained it from
competing with OPIS LLC or any other firm in the sale of retail gas
price data to commercial customers. OPIS LLC summarized the Data
License simply as a ``long-term agreement where we are the sole
distributor of GasBuddy data and they can't even sell it themselves.''
Retail gas price data providers compete to serve commercial
customers on both price and quality, and the Data License has
prevented--and continues to prevent--GasBuddy from launching a
competing retail gas price data service. But for the non-compete
agreement, GasBuddy would be free to enter the retail gas price data
market and compete with OPIS LLC. The non-compete provision imposed on
GasBuddy is a horizontal restraint that stifles competition. The Data
License, therefore, has resulted, and continues to result, in higher
prices and lower quality in the retail gas price data market.
Furthermore, the non-compete provision imposed on GasBuddy was not
reasonably necessary to a separate, legitimate transaction or
collaboration. For example, the 20-year term of the non-compete was
overbroad in its duration. That is, the noncompete was longer than
necessary to effectuate and transfer any intellectual property,
goodwill, or customer relationships associated with UCG's 2016 sale of
OPIS LLC. Nothing about IHSM's 2016 acquisition of OPIS LLC justified a
ban on competition between GasBuddy and OPIS LLC until 2036. To the
contrary, the non-compete simply inflated the value of OPIS LLC and now
protects only IHSM's desire to be free from competition in the market
for the sale of retail gas price data.
The Data License, therefore, unreasonably restrains trade in
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
III. Explanation of the Proposed Final Judgment
The proposed Final Judgment remedies the anticompetitive effects of
the proposed merger by requiring S&P and IHSM to divest OPIS LLC, CMM,
and PCW to preserve competition in the markets for spot-level PRA
services for refined petroleum products, coal, and petrochemicals in
the United States. The United States has evaluated News Corp. and
deemed it a suitable acquirer of the businesses, with the incentive,
acumen, experience, and financial ability to successfully operate and
grow the businesses.
The proposed Final Judgment also addresses the anticompetitive
effects of the Data License by requiring S&P and IHSM to waive the
exclusivity and non-compete provisions in the agreement with GasBuddy.
S&P, IHSM, and OPIS LLC are also prohibited, without the prior written
consent of the United States, from entering into, enforcing, renewing,
or extending the term of any similar provisions. The waiver of the
exclusivity and non-compete provisions in the Data License will allow
GasBuddy to compete in the market for sale of retail gas price data.
A. Divestiture
Paragraph IV.A of the proposed Final Judgment requires S&P and IHSM
to divest the OPIS LLC, CMM, and PCW businesses to News Corp. The
divestiture must be completed within 30 calendar days after the entry
of the Stipulation and Order by the Court, unless (1) the United
States, in its sole discretion, agrees to one or more extensions not to
exceed 90 calendar days in total; or (2) S&P and IHSM have not received
all of the regulatory approvals required for their proposed merger, in
which case the deadline for completion of the divestiture will be
within 30 calendar days of the receipt of all required approvals. The
assets must be divested in such a way as to satisfy the United States,
in its sole discretion, that the assets can and will be operated by
News Corp. as a viable, ongoing business that can compete effectively
to provide spot-level PRA services for refined petroleum products,
coal, and petrochemicals in the United States. S&P and IHSM must take
all reasonable steps necessary to accomplish the divestiture quickly
and must cooperate with News Corp.
B. Divestiture Assets
The proposed Final Judgment requires S&P and IHSM to divest the
OPIS, CMM, and PCW businesses. Specifically, defendants must divest all
of S&P's and IHSM's rights, titles, and interests in and to all
property and assets, tangible and intangible, wherever located, (1)
owned by OPIS LLC, CMM, and PCW, or (2) primarily related to or used in
connection with, or necessary to the operation of, OPIS LLC, CMM, and
PCW (collectively, the ``Divestiture Assets''). The United States, in
its sole discretion, will resolve any disagreement regarding which
property and assets, tangible and intangible, are Divestiture Assets.
C. Personnel
The proposed Final Judgment contains provisions intended to
facilitate News Corp.'s efforts to hire certain employees.
Specifically, Paragraph IV.F of the proposed Final Judgment requires
S&P and IHSM to provide News Corp. and the United States with
organization charts and information relating to these employees and to
make them available for interviews. It also provides that S&P and IHSM
must not interfere with any negotiations by News Corp. to hire these
employees.
In addition, for employees who elect employment with News Corp.,
S&P and IHSM must waive all non-compete and non-disclosure agreements,
vest all unvested pension and other equity rights, provide any pay pro
rata, provide all compensation and benefits that those employees have
fully or partially accrued, and provide all other benefits that the
employees would generally be provided had those employees continued
employment with S&P and IHSM, including but not limited to any
retention bonuses or payments.
Paragraph IV.F further provides that S&P and IHSM may not solicit
to rehire any of those employees who were hired by News Corp. within
180 days of the date of the divestiture, unless an employee is
terminated or laid off by News Corp. or News Corp. agrees in writing
that S&P and IHSM may solicit to rehire that individual. The non-
solicitation period runs for 12 months from the date of divestiture for
employees hired within 180 days of the date of the divestiture. A 12-
month non-solicitation period is necessary in this matter because many
OPIS LLC, CMM, and PCW executives, price reporters, and data analysts
are integral to the successful operation of the Divestiture Assets. The
ability of PRAs to gather trustworthy trading details and market
intelligence is dependent largely on the close industry connections,
and the detailed understanding of industry supply and demand dynamics,
of its employees. Ensuring that News Corp. will have a full complement
of
[[Page 251]]
experienced PRA employees during its first year operating the to-be-
divested businesses will position News Corp. to compete effectively
against its PRA competitors. Notably, this non-solicitation provision
does not prohibit S&P and IHSM from advertising employment openings
using general solicitations or advertisements and re-hiring anyone who
applies for an opening through a general solicitation or advertisement.
D. Customer Contracts, Licensing, and Transition Services Agreements
The proposed Final Judgment will facilitate the transfer to News
Corp. of customers and other contractual relationships that are
included within the Divestiture Assets. Paragraph IV.H of the proposed
Final Judgment requires S&P and IHSM to assign, subcontract, or
otherwise transfer all contracts, agreements, and customer
relationships (or portions of such contracts, agreements, and customer
relationships) included in the Divestiture Assets, including all supply
and sales contracts, to News Corp. For any contract or agreement that
requires the consent of another party to assign, subcontract, or
otherwise transfer, S&P and IHSM must use best efforts to accomplish
the assignment, subcontracting, or transfer. S&P and IHSM also must not
interfere with any negotiations between News Corp. and a contracting
party.
Paragraph IV.I of the proposed Final Judgment requires S&P and IHSM
to use best efforts to assist News Corp. to obtain all necessary
licenses, registrations, and permits to operate the Divestiture Assets,
except with respect to S&P's and IHSM's licenses, registrations, or
permits to operate as benchmark administrators, for which News Corp.
intends to use the services of a third-party benchmark administrator.
Until News Corp. obtains the necessary licenses, registrations, and
permits, S&P and IHSM must provide News Corp. with the benefit of S&P's
and IHSM's licenses, registrations, and permits to the full extent
permissible by law.
The proposed Final Judgment requires S&P and IHSM to provide
certain transition services to maintain the viability and
competitiveness of the Divestiture Assets during the transition to News
Corp. Paragraph IV.J of the proposed Final Judgment requires S&P and
IHSM, at News Corp.'s option, to enter into a transition services
agreement for back office, human resources, accounting, employee health
and safety, and information technology services and support for a
period of up to 180 days on terms and conditions reasonably related to
market conditions for the provision of the transition services. Any
amendment to or modification of any provision of a contract to provide
transition services is subject to approval by the United States, in its
sole discretion. The United States, in its sole discretion, may approve
one or more extensions of any contract for transition services, for a
total of up to an additional 180 days. If News Corp. seeks an extension
of the term of any contract for transition services, Defendants must
notify the United States in writing at least 90 days prior to the date
the contract expires. News Corp. may terminate a contract for
transition services, or any portion of a contract for transition
services, without cost or penalty at any time upon commercially
reasonable written notice. The employee(s) of S&P and IHSM tasked with
providing transition services must not share any competitively
sensitive information of News Corp. with any other employee of S&P and
IHSM.
E. Appointment of Divestiture Trustee
If S&P and IHSM do not accomplish the divestiture within the period
prescribed in Paragraphs IV.A and IV.B of the proposed Final Judgment,
Section V of the proposed Final Judgment provides that the Court will
appoint a divestiture trustee selected by the United States to effect
the divestiture. If a divestiture trustee is appointed, the proposed
Final Judgment provides that S&P and IHSM must pay all costs and
expenses of the trustee. The divestiture trustee's commission must be
structured so as to provide an incentive for the trustee based on the
price obtained and the speed with which the divestiture is
accomplished. After the divestiture trustee's appointment becomes
effective, the trustee must provide monthly reports to the United
States setting forth his or her efforts to accomplish the divestiture.
If the divestiture has not been accomplished within 180 days of the
divestiture trustee's appointment, the United States may make
recommendations to the Court, which will enter such orders as
appropriate, in order to carry out the purpose of the Final Judgment,
including by extending the trust or the term of the divestiture
trustee's appointment.
F. Required and Prohibited Conduct Related to the Data License
In order to restore competition in the retail gas price data
market, the proposed Final Judgment requires S&P and IHSM to waive the
exclusivity and non-compete provisions contained in the Data License
and prohibits S&P, IHSM, and OPIS LLC from entering into similar
exclusive licenses or non-compete arrangements. Non-compete provisions
that are broader than necessary to protect a legitimate business
interest--such as the 20-year non-compete on GasBuddy contained in the
Data License--operate as unreasonable horizontal restraints that stifle
competition. The elimination of these provisions in this matter will
allow GasBuddy, the most likely entrant and potential competitor to
OPIS LLC in providing retail gas price data to commercial customers in
the United States, to bring much-needed competition to the space.
Section IX of the proposed Final Judgment requires S&P and IHSM, no
later than five business days after the Court's entry of the
Stipulation and Order, to notify GasBuddy that they waive the
exclusivity and non-compete provisions contained in the Data License.
Paragraph X.A prohibits S&P and IHSM, without the prior written consent
of the United States, in its sole discretion, from entering into,
enforcing, renewing, or extending the term of any exclusive licenses
for, or non-compete provisions relating to, GasBuddy's data. Paragraph
X.B prohibits OPIS LLC, without the prior written consent of the United
States, in its sole discretion, from entering into, enforcing,
renewing, or extending the term of any exclusive licenses for the
provision to OPIS LLC of GasBuddy's data or the U.S. retail gas price
data of any other third party, or non-compete provisions relating to
GasBuddy's data or the U.S. retail gas price data of any other third-
party provider.
G. Enforcement and Expiration of the Proposed Final Judgment
The proposed Final Judgment also contains provisions designed to
promote compliance with and make enforcement of the Final Judgment as
effective as possible. Paragraph XIV.A provides that the United States
retains and reserves all rights to enforce the Final Judgment,
including the right to seek an order of contempt from the Court. Under
the terms of this paragraph, 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 Judgment, 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
with the Final Judgment with the standard of proof
[[Page 252]]
that applies to the underlying offense that the Final Judgment
addresses.
Paragraph XIV.B provides additional clarification regarding the
interpretation of the provisions of the proposed Final Judgment. The
proposed Final Judgment is intended to remedy the loss of competition
the United States alleges would otherwise be harmed by the proposed
merger and the exclusivity and non-compete provisions of the Data
License. Defendants agree that they will abide by the proposed Final
Judgment and that they may be held in contempt of the Court for failing
to comply with any provision of the proposed Final Judgment that is
stated specifically and in reasonable detail, as interpreted in light
of this procompetitive purpose.
Paragraph XIV.C provides that if the Court finds in an enforcement
proceeding that a Defendant has violated the Final Judgment, the United
States may apply to the Court for an extension of the Final Judgment,
together with such other relief as may be appropriate. In addition, to
compensate American taxpayers for any costs associated with
investigating and enforcing violations of the Final Judgment, Paragraph
XIV.C provides that, in any successful effort by the United States to
enforce the Final Judgment against a Defendant, whether litigated or
resolved before litigation, the Defendant must reimburse the United
States for attorneys' fees, experts' fees, and other costs incurred in
connection with that effort to enforce this Final Judgment, including
the investigation of the potential violation.
Paragraph XIV.D states that the United States may file an action
against a Defendant for violating the Final Judgment for up to four
years after the Final Judgment has expired or been terminated. This
provision is meant to address circumstances such as when evidence that
a violation of the Final Judgment occurred during the term of the Final
Judgment is not discovered until after the Final Judgment has expired
or been terminated or when there is not sufficient time for the United
States to complete an investigation of an alleged violation until after
the Final Judgment has expired or been terminated. This provision,
therefore, makes clear that, for four years after the Final Judgment
has expired or been terminated, the United States may still challenge a
violation that occurred during the term of the Final Judgment.
Finally, Section XV of the proposed Final Judgment provides that
the Final Judgment will expire ten years from the date of its entry,
except that after five years from the date of its entry, the Final
Judgment may be terminated upon notice by the United States to the
Court and Defendants that the divestiture has been completed and
continuation of the Final Judgment is no longer necessary or in the
public interest.
IV. Remedies Available to Potential Private Plaintiffs
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment neither impairs
nor assists the bringing of any private antitrust damage action. Under
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the
proposed Final Judgment has no prima facie effect in any subsequent
private lawsuit that may be brought against Defendants.
V. Procedures Available for Modification of the Proposed Final Judgment
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within 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 U.S.
Department of Justice, which remains free to withdraw its consent to
the proposed Final Judgment at any time before the Court's entry of the
Final Judgment. The comments and the response of the United States will
be filed with the Court. In addition, the comments and the United
States' responses will be published in the Federal Register unless the
Court agrees that the United States instead may publish them on the
U.S. Department of Justice, Antitrust Division's internet website.
Written comments should be submitted in English to: Owen M.
Kendler, Chief, Financial Services, Fintech, and Banking Section,
Antitrust Division, United States Department of Justice, 450 Fifth St.
NW, Suite 4000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
As an alternative to the proposed Final Judgment, the United States
considered a full trial on the merits against Defendants. The United
States could have continued the litigation and sought preliminary and
permanent injunctions against S&P's merger with IHSM and the
exclusivity and non-compete provisions of the Data License. The United
States is satisfied, however, that the relief required by the proposed
Final Judgment will remedy the anticompetitive effects alleged in the
Complaint, preserving competition for spot-level PRA services for
refined petroleum products, coal, and petrochemicals in the United
States and promoting competition for retail gas price data in the
United States. Thus, the proposed Final Judgment achieves all or
substantially all of the relief the United States would have obtained
through litigation but avoids the time, expense, and uncertainty of a
full trial on the merits.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
Under the Clayton Act and APPA, proposed Final Judgments, or
``consent decrees,'' in antitrust cases brought by the United States
are 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. 16(e)(1). In making that determination,
the Court, in accordance with the statute as amended in 2004, is
required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the
[[Page 253]]
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors,
the Court's inquiry is necessarily a limited one as the government is
entitled to ``broad discretion to settle with the defendant within the
reaches of the public interest.'' United States v. Microsoft Corp., 56
F.3d 1448, 1461 (D.C. Cir. 1995); United States v. U.S. Airways Grp.,
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the
``court's inquiry is limited'' in Tunney Act settlements); United
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS
84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a court's review of a
proposed Final 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 mechanisms to enforce the final judgment are clear and
manageable'').
As the U.S. Court of Appeals for the District of Columbia Circuit
has held, under the APPA a court considers, among other things, the
relationship between the remedy secured and the specific allegations in
the government's Complaint, whether the proposed Final Judgment is
sufficiently clear, whether its enforcement mechanisms are sufficient,
and whether it may positively harm third parties. See Microsoft, 56
F.3d at 1458-62. With respect to the adequacy of the relief secured by
the proposed Final Judgment, a court may not ``make de novo
determination of facts and issues.'' United States v. W. Elec. Co., 993
F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted); see also
Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F.
Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107 F.
Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787, at
*3. Instead, ``[t]he balancing of competing social and political
interests affected by a proposed antitrust decree must be left, in the
first instance, to the discretion of the Attorney General.'' W. Elec.
Co., 993 F.2d at 1577 (quotation marks omitted). ``The court should
also bear in mind the flexibility of the public interest inquiry: the
court's function is not to determine whether the resulting array of
rights and liabilities is the one that will best serve society, but
only to confirm that the resulting settlement is within the reaches of
the public interest.'' Microsoft, 56 F.3d at 1460 (quotation marks
omitted); see also United States v. Deutsche Telekom AG, No. 19-2232
(TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020). More demanding
requirements would ``have enormous practical consequences for the
government's ability to negotiate future settlements,'' contrary to
congressional intent. Microsoft, 56 F.3d at 1456. ``The Tunney Act was
not intended to create a disincentive to the use of the consent
decree.'' Id.
The United States' predictions about the efficacy of the remedy are
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at
1461 (recognizing courts should give ``due respect to the Justice
Department's . . . view of the nature of its case''); United States v.
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In
evaluating objections to settlement agreements under the Tunney Act, a
court must be mindful that [t]he government need not prove that the
settlements will perfectly remedy the alleged antitrust harms[;] it
need only provide a factual basis for concluding that the settlements
are reasonably adequate remedies for the alleged harms.'' (internal
citations omitted)); United States v. Republic Servs., Inc., 723 F.
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to
which the government's proposed remedy is accorded''); United States v.
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A
district court must accord due respect to the government's prediction
as to the effect of proposed remedies, its perception of the market
structure, and its view of the nature of the case.''). The ultimate
question is whether ``the remedies [obtained by the Final Judgment 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 W. Elec. Co., 900 F.2d at 309).
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 (``[T]he
`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.
In its 2004 amendments to the APPA, Congress made clear its intent
to preserve the practical benefits of using judgments proposed by the
United States in antitrust enforcement, Public Law 108-237 Sec. 221,
and added the unambiguous instruction that ``[n]othing in this section
shall be construed to require the court to conduct an evidentiary
hearing or to require the court to permit anyone to intervene.'' 15
U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76
(indicating that a court is not required to hold an evidentiary hearing
or to permit intervenors as part of its review under the Tunney Act).
This language 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). ``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 (citing Enova Corp., 107 F.
Supp. 2d at 17).
VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: December 20, 2021.
Respectfully submitted,
For Plaintiff United States of America:
-----------------------------------------------------------------------
Travis Chapman,
United States Department of Justice, Antitrust Division, 450 5th St.
NW, Suite 7100, Washington, DC 20530, Telephone: 202-598-8229,
Email: [email protected].
[FR Doc. 2021-28484 Filed 1-3-22; 8:45 am]
BILLING CODE 4410-11-P