United States v. Bemis Company, Inc., et al.; Public Comments and Response on Proposed Final Judgment, 33637-33641 [2010-14121]

Download as PDF Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Notices If additional information is required, please contact, Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530. Dated: June 8, 2010. Lynn Bryant, Department Clearance Officer, United States Department of Justice. [FR Doc. 2010–14119 Filed 6–11–10; 8:45 am] BILLING CODE 4410–18–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [OMB Number 1117–0042] Agency Information Collection Activities: Proposed Collection; Comments Requested: National Clandestine Laboratory Seizure Report 30-Day notice of information collection under review. emcdonald on DSK2BSOYB1PROD with NOTICES ACTION: The Department of Justice (DOJ), Drug Enforcement Administration (DEA) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the Federal Register Volume 75, Number 72, page 19658 on April 15, 2010, allowing for a 60 day comment period. The purpose of this notice is to allow for an additional 30 days for public comment until July 14, 2010. This process is conducted in accordance with 5 CFR 1320.10. Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395–5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points: • Evaluate whether the proposed collection of information is necessary for the proper performance of the VerDate Mar<15>2010 16:40 Jun 11, 2010 Jkt 220001 functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of Information Collection 1117–0042 (1) Type of Information Collection: Extension of a currently approved collection. (2) Title of the Form/Collection: National Clandestine Laboratory Seizure Report. (3) Agency form number, if any and the applicable component of the Department sponsoring the collection: Form number: EPIC Form 143. Component: El Paso Intelligence Center, Drug Enforcement Administration, U.S. Department of Justice. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: State, Local or Tribal Government. Other: None. Abstract: Records in this system are used to provide clandestine laboratory seizure information to the El Paso Intelligence Center, Drug Enforcement Administration, and other Law enforcement agencies, in the discharge of their law enforcement duties and responsibilities. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: There are one thousand twenty-seven (1027) total respondents for this information collection. Three thousand seven hundred fifty-four (3754) responded using paper at 1 hour a response and five thousand four hundred seven (5407) responded electronically at 1 hour a response, for nine thousand one hundred sixty-one (9161) annual responses. (6) An estimate of the total public burden (in hours) associated with the collection: It is estimated that there are 9161 annual burden hours associated with this collection. PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 33637 If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530. Dated: June 8, 2010. Lynn Bryant, Department Clearance Officer, PRA, U.S. Department of Justice. [FR Doc. 2010–14117 Filed 6–11–10; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Antitrust Division United States v. Bemis Company, Inc., et al.; Public Comments and Response on Proposed Final Judgment Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)–(h), the United States hereby publishes below the comments received on the proposed Final Judgment in United States v. Bemis Co. et al., Civil Action No. 1:10–CV–00295–CKK, which were filed in the United States District Court for the District of Columbia on June 7, 2010, together with the response of the United States to the comments. Copies of the comments and the response are available for inspection at the Department of Justice Antitrust Division, 450 Fifth Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202–514–2481), on the Department of Justice’s Web site at http://www.usdoj.gov/atr, and at the Office of the Clerk of the United States District Court for the District of Columbia, 333 Constitution Avenue, NW., Washington, DC 20001. Copies of any of these materials may be obtained upon request and payment of a copying fee. J. Robert Kramer II, Director of Operations and Civil Enforcement. United States District Court for the District of Columbia United States of America, Plaintiff, v. Bemis Company, Inc., and Rio Tinto PLC, and Alcan Corporation, Defendants. Case No.: 1:10–CV–00295. Judge: Kollar-Kotelly, Colleen. Deck Type: Antitrust. Date Stamp: Response of Plaintiff United States to Public Comments on the Proposed Final Judgment Pursuant to the requirements of the Antitrust Procedures and Penalties Act, E:\FR\FM\14JNN1.SGM 14JNN1 33638 Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES 15 U.S.C. 16(b)–(h) (‘‘APPA’’ or ‘‘Tunney Act’’), the United States hereby responds to the public comments received regarding the proposed Final Judgment in this case. After careful consideration of the comments, the United States continues to believe that the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violations alleged in the Complaint. The United States will move the Court for entry of the proposed Final Judgment after the public comments and this response have been published in the Federal Register, pursuant to 15 U.S.C. 16(d). On February 24, 2010, the United States filed the Complaint in this matter alleging that the proposed acquisition of the Alcan Packaging Food Americas business of Rio Tinto plc (‘‘Rio Tinto’’) by Bemis Company, Inc. (‘‘Bemis’’) would violate Section 7 of the Clayton Act, 15 U.S.C. 18. Simultaneously with the filing of the Complaint, the United States filed a proposed Final Judgment and a Hold Separate Stipulation and Order (‘‘HSSO’’) signed by plaintiff and the defendants, consenting to the entry of the proposed Final Judgment after compliance with the requirements of the Tunney Act, 15 U.S.C. 16. Pursuant to those requirements, the United States filed its Competitive Impact Statement (‘‘CIS’’) in this Court, also on February 24, 2010; published the proposed Final Judgment and CIS in the Federal Register on March 4, 2010, see United States v. Bemis Company, Inc. et al., 75 FR 9929; and published summaries of the terms of the proposed Final Judgment and CIS, together with directions for the submission of written comments relating to the proposed Final Judgment, in The Washington Post for seven days beginning on March 10, 2010 and ending on March 16, 2010. The 60day period for public comments ended on May 15, 2010; three comments were received as described below and attached hereto. I. The Investigation and Proposed Resolution On July 5, 2009, Bemis and Rio Tinto entered into an agreement for Bemis to acquire the Alcan Packaging Food Americas business (‘‘Alcan’’) from Rio Tinto. For the next seven months, the United States Department of Justice (‘‘Department’’) conducted an extensive, detailed investigation into the likely competitive effects of the Bemis/Rio Tinto transaction. As part of this investigation, the Department obtained substantial documents and information from the merging parties and issued 21 Civil Investigative Demands to third parties. In all, the Department received VerDate Mar<15>2010 16:40 Jun 11, 2010 Jkt 220001 and considered more than 35 boxes of hard copy material and over 682,000 electronic documents. The Department also conducted over 44 primary interviews and multiple follow-up interviews with customers, competitors, and other individuals with knowledge of the flexible-packaging industry. The investigative staff carefully analyzed the information provided and thoroughly considered all of the issues presented. The Department considered the potential competitive effects of the transaction on the development, production, and sale of flexible packaging sold in North America, and concluded that Bemis’s acquisition of Alcan likely would substantially lessen competition in the development, production, and sale of flexiblepackaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale and flexible-packaging shrink bags for fresh meat in the United States and Canada. As explained more fully in the Complaint and CIS, the acquisition of Alcan by Bemis would have substantially increased concentration and lessened competition in the development, production, and sale of flexible-packaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale and flexiblepackaging shrink bags for fresh meat in the United States and Canada. The acquisition effectively would have reduced the number of suppliers of flexible-packaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale from two to one, would have eliminated competition between Bemis and Alcan with respect to those products, and would have increased the likelihood that Bemis would unilaterally increase prices to a significant number of customers. The acquisition also would have reduced the number of suppliers of flexiblepackaging shrink bags for fresh meat from three to two, would have eliminated the competition between Bemis and Alcan with respect to that product, and would have facilitated coordination between Bemis and the remaining supplier of shrink bags for fresh meat. The Department therefore filed its Complaint alleging competitive harm in the development, production, and sale of the aforementioned product markets in the United States and Canada, and sought a remedy that would ensure that such harm is prevented. The proposed Final Judgment requires the divestiture of sufficient assets to prevent the increase in concentration that likely would have PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 resulted from the acquisition of Alcan by Bemis. II. Summary of Public Comments and the United States’s Response During the 60-day comment period, the United States received comments from three individuals: (1) A Concerned Menasha Citizen (unsigned); (2) Ms. Sheri Lemmers; and (3) Mr. Stuart Springstube. The comments, which are attached to this response, raise a single, overarching concern: That the former Alcan plant in Menasha, Wisconsin (the ‘‘Menasha facility’’) should not be ‘‘split’’ between Bemis and the acquirer of the divested business, as required by the proposed Final Judgment. The proposed Final Judgment requires the divestiture of the Menasha facility in order to preserve competition in the markets for flexible-packaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale. However, the Menasha facility contains a stand-alone wax-coating operation in addition to its production facilities for flexible-packaging for natural cheese. The terms of the proposed Final Judgment allow Bemis to move the waxcoating operation from Menasha to another of Bemis’s plants and allow Bemis access to the Menasha facility for a limited period of time post-divestiture in order to effectuate that transfer. The United States has reviewed the comments submitted and has determined that the proposed Final Judgment remains in the public interest. A. Summary of Public Comments The commenters argue that the waxcoating operations should not be removed from the Menasha facility because it will be detrimental both to that operation and to the operations that remain in the plant. See Concerned Comment at 2; Lemmers Comment at 1; Springstube Comment. In addition, the commenters claim that the presence of competing companies in the plant has, and will continue to cause, the following problems: (1) Former coworkers are now competitors and cannot communicate freely with each other, see Lemmers Comment at 1; Concerned Comment at I; Springstube Comment; and (2) managers for the competing entities are fighting over supplies and tools needed by each company to do its work.1 Concerned Comment at I; Lemmers Comment at 1. 1 One commenter is also concerned about the scheduling and leave policies that Bemis has instituted since taking over the Menasha plant. See Lemmers Comment at 1–2. These concerns are beyond the scope of the Department’s investigation into the potential competitive harms associated with Bemis’s purchase of Alcan. E:\FR\FM\14JNN1.SGM 14JNN1 Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES B. The United States’s Response The concerns expressed in the comments do not provide a basis to alter the proposed Final Judgment. The Menasha plant is a key component of the proposed divestiture package. It represents a critical base of knowledge and expertise that is necessary for the acquirer of the divested business to compete successfully with Bemis in the markets for flexible-packaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale. However, the wax-coating operation at the Menasha facility is unrelated to the production of flexible packaging for natural cheese. The Department investigated whether removing the wax-coating operation from Menasha would adversely affect the viability of the plant. The Department reviewed blueprints of the Menasha facility, visited and toured the plant, interviewed plant management, reviewed Bemis’s plans for phased removal of the wax-coating operation from Menasha, and reviewed the plant’s operational and financial documents. After careful consideration of this information, the Department determined that, because the wax-coating operation is largely confined to a discrete area of the plant, it could be moved by Bemis to another facility with minimal disturbance to the overall operation of the plant. The Department also determined that the plant would remain a competitive and profitable business entity without the wax-coating operation. Finally, the Department determined that the acquirer of the divested business, as the sole owner of the Menasha facility and Bemis’s landlord, would be well-positioned to manage Bemis’s exit from the plant.2 This is not to imply, however, that Bemis will be able to remove the waxcoating operation from the Menasha facility without making any changes to the plant or its operations. Certain accommodations, as reflected in the language of the proposed Final Judgment, must be made in order to preserve future competition between Bemis and the acquirer of the divested business and limit the interaction of the two businesses while the wax-coating operation is being removed. For example, while the proposed Final 2 One of the commenters also expressed a concern that Bemis would take over the wax-coating operation only to destroy it. See Concerned Comment at 1. This concern is not well founded. Bemis specifically asked to retain the wax-coating operation and is moving it at great expense. Thus, while the wax-coating operation no longer will exist at the Menasha plant, the Department has no reason to believe that Bemis will not continue to produce and sell wax-coated products at its own facilities. VerDate Mar<15>2010 16:40 Jun 11, 2010 Jkt 220001 Judgment allows Bemis to occupy the portions of the facility utilized for the wax-coating operation, it also requires that removal of that operation be completed within three years of the closing of the transaction.3 The proposed Final Judgment also requires that, within three months of the closing of the transaction, Bemis create physical barriers in the Menasha facility to separate its business activities from those of the acquirer of the divested business while removal of the waxcoating operation is occurring. It appears that Bemis’s very compliance with the requirements of the proposed Final Judgment have given rise to the commenters’ concerns about diminished working relationships within the Menasha plant. However, the Department continues to believe that compliance with those requirements is necessary to preserve current and future competition between Bemis and the acquirer of the divested business. III. Standard of Judicial Review The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment ‘‘is in the public interest.’’ 15 U.S.C. 16(e)(l). In making that determination in accordance with the statute, the court is required to consider: (A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and (B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial. 15 U.S.C. 16(e)(1)(A)–(B). In considering these statutory factors, the court’s inquiry is necessarily a limited one as the government is entitled to ‘‘broad discretion to settle with the defendant within the reaches of the public interest.’’ United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. 3 The three-year time frame was determined to be necessary in order to allow Bemis to continue to supply wax-coated products to customers during the transition. PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 33639 SBC Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v. InBev N. V./S.A., 2009–2 Trade Cas. (CCH) ¶ 76,736, No. 08–1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting that the court’s review of a consent judgment is limited and only inquires ‘‘into whether the government’s determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanisms to enforce the Final Judgment are clear and manageable’’). As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA, a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government’s complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458–62. With respect to the adequacy of the relief secured by the decree, a court may not ‘‘engage in an unrestricted evaluation of what relief would best serve the public.’’ United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460–62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3 Courts have held that: [t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court’s role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is ‘‘within the reaches of the public interest.’’ More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree. Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).4 In determining whether a proposed settlement is in the public interest, the 4 Cf. BNS, 858 F.2d at 464 (holding that the court’s ‘‘ultimate authority under the [APPA] is limited to approving or disapproving the consent decree’’); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to ‘‘look at the overall picture not hypercritically, nor with a microscope, but with an artist’s reducing glass’’). See generally Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the ’reaches of the public interest’’). E:\FR\FM\14JNN1.SGM 14JNN1 33640 Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES court ‘‘must accord deference to the government’s predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.’’ SBC Commc’ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 (noting the need for courts to be ‘‘deferential to the government’s predictions as to the effect of the proposed remedies’’); United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States’ prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case). Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. ‘‘[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ’within the reaches of public interest.’’ United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff’d sub nom. Maryland v. United States, 460 U.S. 1001(1983); see also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). Therefore, the United States ‘‘need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.’’ SBC Commc’ns, 489 F. Supp. 2d at 17. Moreover, in its 2004 amendments to the Tunney Act,5 Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, stating ‘‘[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.’’ 15 U.S.C. 16(e)(2). The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: ‘‘[t]he court is nowhere compelled to go to trial or to engage in extended 5 The 2004 amendments substituted the word ‘‘shall’’ for ‘‘may’’ when directing the courts to consider the enumerated factors and amended the list of factors to focus on competitive considerations and address potentially ambiguous judgment terms. Compare 15 U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc’ns, 489 F. Supp. 2d at 11 (concluding that the 2004 amendments ‘‘effected minimal changes’’ to Tunney Act review). VerDate Mar<15>2010 16:40 Jun 11, 2010 Jkt 220001 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 Senator Tunney). Rather, the procedure for the public-interest determination is left to the discretion of the court, with the recognition that the court’s ‘‘scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.’’ SBC Commc’ns, 489 F. Supp.2d at 11.6 IV. Conclusion The issues raised in the public comments were among the many considered during the United States’s extensive and thorough investigation. Pursuant to this investigation, the United States has determined that the Menasha facility will remain a competitive and profitable business entity competing in the development, production, and sale of flexiblepackaging rollstock for chunk, sliced, and shredded natural cheese packaged for retail sale. The United States also has determined that the proposed Final Judgment as drafted provides an effective and appropriate remedy for the antitrust violations alleged in the Complaint, and is therefore in the public interest. The United States will move this Court to enter the proposed Final Judgment after the comments and this response are published in the Federal Register. Dated: June 7, 2010. Respectfully submitted: Rachel Adcox, United States Department of Justice, Antitrust Division, Litigation II Section, 450 5th Street, N.W., Suite 8700, Washington, DC 20530, (202) 616–3302, rachel.adcox@usdoj.gov. Certificate of Service I, Rachel J. Adcox, hereby certify that on June 7, 2010, I caused a copy of the foregoing Response of Plaintiff United States to Public Comments on the 6 See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone’’); United States v. Mid-Am. Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should * * * carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.’’); S. Rep. No. 93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.’’) PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 Proposed Final Judgment to be served upon defendants Bemis Company, Inc., Rio Tinto plc, and Alcan Corporation by mailing the documents electronically to the duly authorized legal representatives of defendants as follows: Counsel for Defendant Bemis Company, Inc.: Stephen M. Axinn, Esq., John D. Harkrider, Esq., Axinn, Veltrop & Harkrider LLP, 114 West 47th Street, New York, NY 10036, (212) 728–2200, sma@avhlaw.com, jdh@avhlaw.com. Counsel for Defendants Rio Tinto plc and Aican Corporation: Steven L. Holley, Esq., Bradley P. Smith, Esq., Sullivan & Cromwell LLP, 125 Broad Street, New York, NY 10004, (212) 558–4737, holleys@sullcrom.com, smithbr@sullcrom.com. I further certify that on June 7, 2010, I caused a copy of the foregoing to be delivered electronically and via U.S. mail, postage prepaid, to the following person: Mr. Stuart Springstube, N6960 County Rd-A, Weyauwega, WI 54983, Sspringstube@mwwb.net. Rachel J. Adcox, Esq., United States Department of Justice, Antitrust Division, Litigation II Section, 450 Fifth Street, N.W., Suite 8700, Washington, D.C. 20530, (202) 616–3302. March 27, 2010 Maribeth Petrizzi, Chief Litigation II Section. Antitrust Division, U.S. Department of Justice, 450 Fifth Street, N.W., Suite 8700, Washington, D.C. 20530. To: Maribeth Petrizzi RE: Bemis/Alcan Acquisition The proposal that the DOJ has allowed with the Bemis/Alcan acquisition is and will continue to be detrimental to the community of Menasha. It will also have an impact on the cheese industry. The turmoil that is running through the Menasha Plant is devastating the business. Bemis has walked in the doors and caused great chaos in the plant. The people chosen to go with Bemis are all unsure of their future and worry about what plans are for the future of the wax business. At the present time those employees feel Bemis will destroy the business in due time. Remedy Company is also unsure of their future. Bemis is doing everything in their power to take business that does not involve the cheese business and they are out to destroy what is left of Remedy Company. Remedy Company is taking a stance that everything in the mill is theirs and that they will need it to continue business. On the other hand Bemis is being left with nothing. Simply trying to start up offices has become mission impossible. They will not provide essential items such as office furniture and computers. The hourly machine workers in this plant have created relationships over long periods of time in this E:\FR\FM\14JNN1.SGM 14JNN1 emcdonald on DSK2BSOYB1PROD with NOTICES Federal Register / Vol. 75, No. 113 / Monday, June 14, 2010 / Notices facility and they are being asked not to talk to an old friend. Living in America gives us the right to freedom of speech, but Bemis and the DOJ is trying to take that away. Give the people of the plant some dignity and sympathy, you are destroying a successful plant that through the years has brought business into the community of Menasha, and to the local cheese manufactures of the surrounding area. The City of Menasha spent millions of dollars five years ago to bring more and new equipment into the Menasha facility. The city funded part of the expense to reroute the city street to make Menasha Plant a growth of opportunity. The community of Menasha found this to be a great addition to their city. It brought jobs to the area, revenue to local businesses, and a sense of pride back to their community. Bemis and the DOJ has taken all of that away. It was not only in the best interest of the employees at Alcan but it was in the best interest of Menasha to keep this plant going. I hope that the DOJ takes a closer look at the destruction that Bemis has caused. Look at what this will do to the surrounding area and how it will affect the City of Menasha. This acquisition did not have to take place as it did. Bemis could have chosen to leave Menasha Plant alone and let them strive to be a small but competitive business. Leave the employees in tack and let the business make or break on its own. Bemis has toured the plant and taken everything they desired from it, they have taken knowledgeable people and trades and will survive. Now it seems as though their final goal is too bury Remedy Company and soon after the wax business will come to an end. Sincerely, A Concerned Menasha Citizen March 26, 2010 Maribeth Petrizzi Chief Litigation II Section Antitrust Division U.S. Department of Justice 450 Fifth Street, N.W., Suite 8700 Washington, D.C. 20530 Dear Maribeth Petrizzi, I am writing in concern of the Bemis/Alcan acquisition, and currently work within the Menasha Plant where complete chaos takes place on a daily basis. It was the employees understanding that this transition is not to interrupt the work on either side of the sale. Unfortunately everyday is a battle zone, management is very cut throat on daily work supplies and tools that are needed by each side to conduct business as usual. There are supervisors and managers hoarding things just so others can not use them. There is bitterness throughout the plant and unrespectable and unprofessional talk among everyone. This plant has been very successful over the years and that is due to the loyalty and companionship that coworkers have with each other. Since Bemis has taken over this building it has mined long time friendships and reputations of mangers and supervisors that were once respected. We have a Plant Manager and an Operations Manager on opposite sides of the fence now and it leads to baffles on a daily basis. VerDate Mar<15>2010 16:40 Jun 11, 2010 Jkt 220001 Employees have lost a lot since this purchase was allowed, customers are disappointed that Bemis has the advantage, and the community of Menasha, Wisconsin is losing a great plant that brings money into their community. I am disappointed in the decision that the Department of Justice came to. This plant should not be divided and can only survive as one. Relocating departments from this mill is detrimental to the success of the remaining Menasha Plant. Bemis seems to be doing everything in their power to make sure that Menasha no longer will exist. Back in November of 2009 Bemis came in and met with potential employees and said that we were very valuable employees to them, that they cared about us. I would like to know when the caring comes into play. They are currently forcing some of the people that they have chosen to stay with them to work 12 hours a day seven days a week. They also do not allow for personal days during this time nor will they excuse any doctor’s appointments that you may have scheduled. Many of these employees do not have regular scheduled shifts and it is very difficult to schedule appointments, as you well know some doctors require you to schedule appointments anywhere from three to six months in advance. Bemis claims they care about your health and want you to be healthy but yet I can not be a half hour late for work or I will disciplined with an occasion. Five occasions are allowed within a year’s timeframe and it takes you a year from the date of a call in to get that occasion back. Life today is busy and fast paced, people need to live life and enjoy it. Yet I can not understand how I am to enjoy my life working seven days a week twelve hours a day and expect to function normally. Granted this system is not suppose to remain for long, but who has given them a timeline for how long they can abuse employees. We are humans, not animals! It is offensive to work for such an employer that cares nothing about life and family. I am in hopes that this hostile takeover ends in peace and that the DOJ reconsiders their proposal. This plant has always been a success story for the company and community and now it has turned into a bloody battle field. I believe that it is in the best interest of everyone including the DOJ to reconsider the ruling that was made. How would you like to walk into a war zone everyday wondering who is going to belittle you and who was going to be respectable to you? It’s a question that employees should not even have to think about. Sincerely, Sheri Lemmers March 27, 2010 Maribeth Petrizzi U.S. Department of Justice, 450 Fifth Street, N.W., Suite 8700, Washington, D.C. 20530. Dear Friend, This letter is in regards’ to your decision in the Bemis acquisition of Alcan. I am a employee of the Alcan plant in Menasha and the decision to split our plant into two separate plants is a death sentence for many of us maybe all of us. Our plant was an PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 33641 example of how an America plant can be successful. Put now we are being forced to be split the plant and compete against our self. Bemis should have been allowed to have the whole plant or non of it. I am not great at writing letters if you would give me ten minutes of your time I could explain this better. PLEASE call me. I strongly encourage you to change your decision, I need this job not an unemployment check. Let Bemis have the Menasha plant. Sincerely, Stuart S. Springstube [FR Doc. 2010–14121 Filed 6–11–10; 8:45 am] BILLING CODE 4410–11–M DEPARTMENT OF LABOR Employment and Training Administration Announcement of the Career Videos for America’s Job Seekers Challenge; Correction AGENCY: Employment and Training Administration, Department of Labor. ACTION: Notice; correction. SUMMARY: The Department of Labor published a document in the Federal Register of May 18, 2010, announcing the Career Videos for America’s Job Seekers Challenge. The dates for all phases of this Video Challenge have been extended. This document contains corrections to the dates published on that date on page 27824, columns two and three. SUPPLEMENTARY INFORMATION: In the Federal Register of May 18, 2010, page 27824, column two under SUPPLEMENTARY INFORMATION, first paragraph, beginning with line 15, the corrected dates should read: Phase 1 will run from May 10 to August 20, 2010. In this phase, the general public, associations, and/or employers can submit their occupational video for one of the 15 occupational categories to http:// www.dolvideochallenge.ideascale.com. The submitted occupational videos should pertain to one of the following occupations: 1. Biofuels Processing Technicians; 2. Boilermakers; 3. Carpenters; 4. Computer Support Specialists; 5. Energy Auditors; 6. Heating, Air Conditioning, and Refrigeration Mechanics and Installers/ Testing Adjusting and Balancing (TAB) Technicians; 7. Licensed Practical and Licensed Vocational Nurse; 8. Medical Assistants; 9. Medical and Clinical Lab Technicians including Cytotechnologists; E:\FR\FM\14JNN1.SGM 14JNN1

Agencies

[Federal Register Volume 75, Number 113 (Monday, June 14, 2010)]
[Notices]
[Pages 33637-33641]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14121]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Bemis Company, Inc., et al.; Public Comments and 
Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comments 
received on the proposed Final Judgment in United States v. Bemis Co. 
et al., Civil Action No. 1:10-CV-00295-CKK, which were filed in the 
United States District Court for the District of Columbia on June 7, 
2010, together with the response of the United States to the comments.
    Copies of the comments and the response are available for 
inspection at the Department of Justice Antitrust Division, 450 Fifth 
Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site at http://www.usdoj.gov/atr, and at the Office of the Clerk of the United States District Court 
for the District of Columbia, 333 Constitution Avenue, NW., Washington, 
DC 20001. Copies of any of these materials may be obtained upon request 
and payment of a copying fee.

J. Robert Kramer II,
Director of Operations and Civil Enforcement.

United States District Court for the District of Columbia United States 
of America, Plaintiff, v. Bemis Company, Inc., and Rio Tinto PLC, and 
Alcan Corporation, Defendants.

Case No.: 1:10-CV-00295.
Judge: Kollar-Kotelly, Colleen.
Deck Type: Antitrust.
Date Stamp:

Response of Plaintiff United States to Public Comments on the Proposed 
Final Judgment

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act,

[[Page 33638]]

15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the United States 
hereby responds to the public comments received regarding the proposed 
Final Judgment in this case. After careful consideration of the 
comments, the United States continues to believe that the proposed 
Final Judgment will provide an effective and appropriate remedy for the 
antitrust violations alleged in the Complaint. The United States will 
move the Court for entry of the proposed Final Judgment after the 
public comments and this response have been published in the Federal 
Register, pursuant to 15 U.S.C. 16(d).
    On February 24, 2010, the United States filed the Complaint in this 
matter alleging that the proposed acquisition of the Alcan Packaging 
Food Americas business of Rio Tinto plc (``Rio Tinto'') by Bemis 
Company, Inc. (``Bemis'') would violate Section 7 of the Clayton Act, 
15 U.S.C. 18. Simultaneously with the filing of the Complaint, the 
United States filed a proposed Final Judgment and a Hold Separate 
Stipulation and Order (``HSSO'') signed by plaintiff and the 
defendants, consenting to the entry of the proposed Final Judgment 
after compliance with the requirements of the Tunney Act, 15 U.S.C. 16. 
Pursuant to those requirements, the United States filed its Competitive 
Impact Statement (``CIS'') in this Court, also on February 24, 2010; 
published the proposed Final Judgment and CIS in the Federal Register 
on March 4, 2010, see United States v. Bemis Company, Inc. et al., 75 
FR 9929; and published summaries of the terms of the proposed Final 
Judgment and CIS, together with directions for the submission of 
written comments relating to the proposed Final Judgment, in The 
Washington Post for seven days beginning on March 10, 2010 and ending 
on March 16, 2010. The 60-day period for public comments ended on May 
15, 2010; three comments were received as described below and attached 
hereto.

I. The Investigation and Proposed Resolution

    On July 5, 2009, Bemis and Rio Tinto entered into an agreement for 
Bemis to acquire the Alcan Packaging Food Americas business (``Alcan'') 
from Rio Tinto. For the next seven months, the United States Department 
of Justice (``Department'') conducted an extensive, detailed 
investigation into the likely competitive effects of the Bemis/Rio 
Tinto transaction. As part of this investigation, the Department 
obtained substantial documents and information from the merging parties 
and issued 21 Civil Investigative Demands to third parties. In all, the 
Department received and considered more than 35 boxes of hard copy 
material and over 682,000 electronic documents. The Department also 
conducted over 44 primary interviews and multiple follow-up interviews 
with customers, competitors, and other individuals with knowledge of 
the flexible-packaging industry. The investigative staff carefully 
analyzed the information provided and thoroughly considered all of the 
issues presented. The Department considered the potential competitive 
effects of the transaction on the development, production, and sale of 
flexible packaging sold in North America, and concluded that Bemis's 
acquisition of Alcan likely would substantially lessen competition in 
the development, production, and sale of flexible-packaging rollstock 
for chunk, sliced, and shredded natural cheese packaged for retail sale 
and flexible-packaging shrink bags for fresh meat in the United States 
and Canada.
    As explained more fully in the Complaint and CIS, the acquisition 
of Alcan by Bemis would have substantially increased concentration and 
lessened competition in the development, production, and sale of 
flexible-packaging rollstock for chunk, sliced, and shredded natural 
cheese packaged for retail sale and flexible-packaging shrink bags for 
fresh meat in the United States and Canada. The acquisition effectively 
would have reduced the number of suppliers of flexible-packaging 
rollstock for chunk, sliced, and shredded natural cheese packaged for 
retail sale from two to one, would have eliminated competition between 
Bemis and Alcan with respect to those products, and would have 
increased the likelihood that Bemis would unilaterally increase prices 
to a significant number of customers. The acquisition also would have 
reduced the number of suppliers of flexible-packaging shrink bags for 
fresh meat from three to two, would have eliminated the competition 
between Bemis and Alcan with respect to that product, and would have 
facilitated coordination between Bemis and the remaining supplier of 
shrink bags for fresh meat. The Department therefore filed its 
Complaint alleging competitive harm in the development, production, and 
sale of the aforementioned product markets in the United States and 
Canada, and sought a remedy that would ensure that such harm is 
prevented. The proposed Final Judgment requires the divestiture of 
sufficient assets to prevent the increase in concentration that likely 
would have resulted from the acquisition of Alcan by Bemis.

II. Summary of Public Comments and the United States's Response

    During the 60-day comment period, the United States received 
comments from three individuals: (1) A Concerned Menasha Citizen 
(unsigned); (2) Ms. Sheri Lemmers; and (3) Mr. Stuart Springstube. The 
comments, which are attached to this response, raise a single, 
overarching concern: That the former Alcan plant in Menasha, Wisconsin 
(the ``Menasha facility'') should not be ``split'' between Bemis and 
the acquirer of the divested business, as required by the proposed 
Final Judgment.
    The proposed Final Judgment requires the divestiture of the Menasha 
facility in order to preserve competition in the markets for flexible-
packaging rollstock for chunk, sliced, and shredded natural cheese 
packaged for retail sale. However, the Menasha facility contains a 
stand-alone wax-coating operation in addition to its production 
facilities for flexible-packaging for natural cheese. The terms of the 
proposed Final Judgment allow Bemis to move the waxcoating operation 
from Menasha to another of Bemis's plants and allow Bemis access to the 
Menasha facility for a limited period of time post-divestiture in order 
to effectuate that transfer.
    The United States has reviewed the comments submitted and has 
determined that the proposed Final Judgment remains in the public 
interest.

A. Summary of Public Comments

    The commenters argue that the wax-coating operations should not be 
removed from the Menasha facility because it will be detrimental both 
to that operation and to the operations that remain in the plant. See 
Concerned Comment at 2; Lemmers Comment at 1; Springstube Comment. In 
addition, the commenters claim that the presence of competing companies 
in the plant has, and will continue to cause, the following problems: 
(1) Former co-workers are now competitors and cannot communicate freely 
with each other, see Lemmers Comment at 1; Concerned Comment at I; 
Springstube Comment; and (2) managers for the competing entities are 
fighting over supplies and tools needed by each company to do its 
work.\1\ Concerned Comment at I; Lemmers Comment at 1.
---------------------------------------------------------------------------

    \1\ One commenter is also concerned about the scheduling and 
leave policies that Bemis has instituted since taking over the 
Menasha plant. See Lemmers Comment at 1-2. These concerns are beyond 
the scope of the Department's investigation into the potential 
competitive harms associated with Bemis's purchase of Alcan.

---------------------------------------------------------------------------

[[Page 33639]]

B. The United States's Response

    The concerns expressed in the comments do not provide a basis to 
alter the proposed Final Judgment. The Menasha plant is a key component 
of the proposed divestiture package. It represents a critical base of 
knowledge and expertise that is necessary for the acquirer of the 
divested business to compete successfully with Bemis in the markets for 
flexible-packaging rollstock for chunk, sliced, and shredded natural 
cheese packaged for retail sale. However, the wax-coating operation at 
the Menasha facility is unrelated to the production of flexible 
packaging for natural cheese.
    The Department investigated whether removing the wax-coating 
operation from Menasha would adversely affect the viability of the 
plant. The Department reviewed blueprints of the Menasha facility, 
visited and toured the plant, interviewed plant management, reviewed 
Bemis's plans for phased removal of the wax-coating operation from 
Menasha, and reviewed the plant's operational and financial documents. 
After careful consideration of this information, the Department 
determined that, because the wax-coating operation is largely confined 
to a discrete area of the plant, it could be moved by Bemis to another 
facility with minimal disturbance to the overall operation of the 
plant. The Department also determined that the plant would remain a 
competitive and profitable business entity without the wax-coating 
operation. Finally, the Department determined that the acquirer of the 
divested business, as the sole owner of the Menasha facility and 
Bemis's landlord, would be well-positioned to manage Bemis's exit from 
the plant.\2\
---------------------------------------------------------------------------

    \2\ One of the commenters also expressed a concern that Bemis 
would take over the wax-coating operation only to destroy it. See 
Concerned Comment at 1. This concern is not well founded. Bemis 
specifically asked to retain the wax-coating operation and is moving 
it at great expense. Thus, while the wax-coating operation no longer 
will exist at the Menasha plant, the Department has no reason to 
believe that Bemis will not continue to produce and sell wax-coated 
products at its own facilities.
---------------------------------------------------------------------------

    This is not to imply, however, that Bemis will be able to remove 
the wax-coating operation from the Menasha facility without making any 
changes to the plant or its operations. Certain accommodations, as 
reflected in the language of the proposed Final Judgment, must be made 
in order to preserve future competition between Bemis and the acquirer 
of the divested business and limit the interaction of the two 
businesses while the wax-coating operation is being removed. For 
example, while the proposed Final Judgment allows Bemis to occupy the 
portions of the facility utilized for the wax-coating operation, it 
also requires that removal of that operation be completed within three 
years of the closing of the transaction.\3\ The proposed Final Judgment 
also requires that, within three months of the closing of the 
transaction, Bemis create physical barriers in the Menasha facility to 
separate its business activities from those of the acquirer of the 
divested business while removal of the wax-coating operation is 
occurring.
---------------------------------------------------------------------------

    \3\ The three-year time frame was determined to be necessary in 
order to allow Bemis to continue to supply wax-coated products to 
customers during the transition.
---------------------------------------------------------------------------

    It appears that Bemis's very compliance with the requirements of 
the proposed Final Judgment have given rise to the commenters' concerns 
about diminished working relationships within the Menasha plant. 
However, the Department continues to believe that compliance with those 
requirements is necessary to preserve current and future competition 
between Bemis and the acquirer of the divested business.

III. Standard of Judicial Review

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty-day comment 
period, after which the court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' 15 U.S.C. 
16(e)(l). In making that determination in accordance with the statute, 
the court is required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A)-(B). In considering these statutory factors, the 
court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public 
interest standard under the Tunney Act); United States v. InBev N. V./
S.A., 2009-2 Trade Cas. (CCH) ] 76,736, No. 08-1965 (JR), 2009 U.S. 
Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting that the 
court's review of a consent judgment is limited and only inquires 
``into whether the government's determination that the proposed 
remedies will cure the antitrust violations alleged in the complaint 
was reasonable, and whether the mechanisms to enforce the Final 
Judgment are clear and manageable'').
    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA, a court considers, among other 
things, the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3 Courts have held that:

    [t]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

    Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\4\ 
In determining whether a proposed settlement is in the public interest, 
the

[[Page 33640]]

court ``must accord deference to the government's predictions about the 
efficacy of its remedies, and may not require that the remedies 
perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d 
at 17; see also Microsoft, 56 F.3d at 1461 (noting the need for courts 
to be ``deferential to the government's predictions as to the effect of 
the proposed remedies''); United States v. Archer-Daniels-Midland Co., 
272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant 
due respect to the United States' prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case).
---------------------------------------------------------------------------

    \4\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass''). See generally Microsoft, 56 F.3d at 1461 
(discussing whether ``the remedies [obtained in the decree are] so 
inconsonant with the allegations charged as to fall outside of the 
'reaches of the public interest'').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is 'within the 
reaches of public interest.'' United States v. Am. Tel. & Tel. Co., 552 
F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001(1983); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy). Therefore, the United States ``need only 
provide a factual basis for concluding that the settlements are 
reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 489 
F. Supp. 2d at 17.
    Moreover, in its 2004 amendments to the Tunney Act,\5\ Congress 
made clear its intent to preserve the practical benefits of utilizing 
consent decrees in antitrust enforcement, stating ``[n]othing in this 
section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2). The language wrote into the statute 
what Congress intended when it enacted the Tunney Act in 1974, as 
Senator Tunney explained: ``[t]he court is nowhere compelled to go to 
trial or to engage in extended proceedings which might have the effect 
of vitiating the benefits of prompt and less costly settlement through 
the consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement 
of Senator Tunney). Rather, the procedure for the public-interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp.2d at 11.\6\
---------------------------------------------------------------------------

    \5\ The 2004 amendments substituted the word ``shall'' for 
``may'' when directing the courts to consider the enumerated factors 
and amended the list of factors to focus on competitive 
considerations and address potentially ambiguous judgment terms. 
Compare 15 U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see 
also SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 
amendments ``effected minimal changes'' to Tunney Act review).
    \6\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt 
failure of the government to discharge its duty, the Court, in 
making its public interest finding, should * * * carefully consider 
the explanations of the government in the competitive impact 
statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'')
---------------------------------------------------------------------------

IV. Conclusion

    The issues raised in the public comments were among the many 
considered during the United States's extensive and thorough 
investigation. Pursuant to this investigation, the United States has 
determined that the Menasha facility will remain a competitive and 
profitable business entity competing in the development, production, 
and sale of flexible-packaging rollstock for chunk, sliced, and 
shredded natural cheese packaged for retail sale. The United States 
also has determined that the proposed Final Judgment as drafted 
provides an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint, and is therefore in the public 
interest. The United States will move this Court to enter the proposed 
Final Judgment after the comments and this response are published in 
the Federal Register.

Dated: June 7, 2010.

Respectfully submitted:

Rachel Adcox,

United States Department of Justice, Antitrust Division, Litigation 
II Section, 450 5th Street, N.W., Suite 8700,
Washington, DC 20530, (202) 616-3302, rachel.adcox@usdoj.gov.

Certificate of Service

    I, Rachel J. Adcox, hereby certify that on June 7, 2010, I caused a 
copy of the foregoing Response of Plaintiff United States to Public 
Comments on the Proposed Final Judgment to be served upon defendants 
Bemis Company, Inc., Rio Tinto plc, and Alcan Corporation by mailing 
the documents electronically to the duly authorized legal 
representatives of defendants as follows:

    Counsel for Defendant Bemis Company, Inc.:

Stephen M. Axinn, Esq., John D. Harkrider, Esq., Axinn, Veltrop & 
Harkrider LLP, 114 West 47th Street, New York, NY 10036, (212) 728-
2200, sma@avhlaw.com, jdh@avhlaw.com.

    Counsel for Defendants Rio Tinto plc and Aican Corporation:

Steven L. Holley, Esq., Bradley P. Smith, Esq., Sullivan & Cromwell 
LLP, 125 Broad Street, New York, NY 10004, (212) 558-4737, 
holleys@sullcrom.com, smithbr@sullcrom.com.

    I further certify that on June 7, 2010, I caused a copy of the 
foregoing to be delivered electronically and via U.S. mail, postage 
prepaid, to the following person:

Mr. Stuart Springstube, N6960 County Rd-A, Weyauwega, WI 54983, 
Sspringstube@mwwb.net.

Rachel J. Adcox, Esq.,

United States Department of Justice, Antitrust Division, Litigation 
II Section, 450 Fifth Street, N.W., Suite 8700, Washington, D.C. 
20530, (202) 616-3302.

March 27, 2010

Maribeth Petrizzi,

Chief Litigation II Section.
Antitrust Division, U.S. Department of Justice, 450 Fifth Street, 
N.W., Suite 8700, Washington, D.C. 20530.

To: Maribeth Petrizzi
RE: Bemis/Alcan Acquisition

    The proposal that the DOJ has allowed with the Bemis/Alcan 
acquisition is and will continue to be detrimental to the community 
of Menasha. It will also have an impact on the cheese industry. The 
turmoil that is running through the Menasha Plant is devastating the 
business. Bemis has walked in the doors and caused great chaos in 
the plant. The people chosen to go with Bemis are all unsure of 
their future and worry about what plans are for the future of the 
wax business. At the present time those employees feel Bemis will 
destroy the business in due time. Remedy Company is also unsure of 
their future. Bemis is doing everything in their power to take 
business that does not involve the cheese business and they are out 
to destroy what is left of Remedy Company. Remedy Company is taking 
a stance that everything in the mill is theirs and that they will 
need it to continue business. On the other hand Bemis is being left 
with nothing. Simply trying to start up offices has become mission 
impossible. They will not provide essential items such as office 
furniture and computers. The hourly machine workers in this plant 
have created relationships over long periods of time in this

[[Page 33641]]

facility and they are being asked not to talk to an old friend. 
Living in America gives us the right to freedom of speech, but Bemis 
and the DOJ is trying to take that away. Give the people of the 
plant some dignity and sympathy, you are destroying a successful 
plant that through the years has brought business into the community 
of Menasha, and to the local cheese manufactures of the surrounding 
area.
    The City of Menasha spent millions of dollars five years ago to 
bring more and new equipment into the Menasha facility. The city 
funded part of the expense to reroute the city street to make 
Menasha Plant a growth of opportunity. The community of Menasha 
found this to be a great addition to their city. It brought jobs to 
the area, revenue to local businesses, and a sense of pride back to 
their community. Bemis and the DOJ has taken all of that away. It 
was not only in the best interest of the employees at Alcan but it 
was in the best interest of Menasha to keep this plant going.
    I hope that the DOJ takes a closer look at the destruction that 
Bemis has caused. Look at what this will do to the surrounding area 
and how it will affect the City of Menasha. This acquisition did not 
have to take place as it did. Bemis could have chosen to leave 
Menasha Plant alone and let them strive to be a small but 
competitive business. Leave the employees in tack and let the 
business make or break on its own. Bemis has toured the plant and 
taken everything they desired from it, they have taken knowledgeable 
people and trades and will survive. Now it seems as though their 
final goal is too bury Remedy Company and soon after the wax 
business will come to an end.

     Sincerely,

A Concerned Menasha Citizen

March 26, 2010

Maribeth Petrizzi
Chief Litigation II Section
Antitrust Division
U.S. Department of Justice
450 Fifth Street, N.W.,
Suite 8700
Washington, D.C. 20530

Dear Maribeth Petrizzi,

    I am writing in concern of the Bemis/Alcan acquisition, and 
currently work within the Menasha Plant where complete chaos takes 
place on a daily basis. It was the employees understanding that this 
transition is not to interrupt the work on either side of the sale. 
Unfortunately everyday is a battle zone, management is very cut 
throat on daily work supplies and tools that are needed by each side 
to conduct business as usual. There are supervisors and managers 
hoarding things just so others can not use them. There is bitterness 
throughout the plant and unrespectable and unprofessional talk among 
everyone. This plant has been very successful over the years and 
that is due to the loyalty and companionship that coworkers have 
with each other. Since Bemis has taken over this building it has 
mined long time friendships and reputations of mangers and 
supervisors that were once respected. We have a Plant Manager and an 
Operations Manager on opposite sides of the fence now and it leads 
to baffles on a daily basis.
    Employees have lost a lot since this purchase was allowed, 
customers are disappointed that Bemis has the advantage, and the 
community of Menasha, Wisconsin is losing a great plant that brings 
money into their community.
    I am disappointed in the decision that the Department of Justice 
came to. This plant should not be divided and can only survive as 
one. Relocating departments from this mill is detrimental to the 
success of the remaining Menasha Plant. Bemis seems to be doing 
everything in their power to make sure that Menasha no longer will 
exist. Back in November of 2009 Bemis came in and met with potential 
employees and said that we were very valuable employees to them, 
that they cared about us. I would like to know when the caring comes 
into play. They are currently forcing some of the people that they 
have chosen to stay with them to work 12 hours a day seven days a 
week. They also do not allow for personal days during this time nor 
will they excuse any doctor's appointments that you may have 
scheduled. Many of these employees do not have regular scheduled 
shifts and it is very difficult to schedule appointments, as you 
well know some doctors require you to schedule appointments anywhere 
from three to six months in advance. Bemis claims they care about 
your health and want you to be healthy but yet I can not be a half 
hour late for work or I will disciplined with an occasion. Five 
occasions are allowed within a year's timeframe and it takes you a 
year from the date of a call in to get that occasion back. Life 
today is busy and fast paced, people need to live life and enjoy it. 
Yet I can not understand how I am to enjoy my life working seven 
days a week twelve hours a day and expect to function normally. 
Granted this system is not suppose to remain for long, but who has 
given them a timeline for how long they can abuse employees. We are 
humans, not animals! It is offensive to work for such an employer 
that cares nothing about life and family.
    I am in hopes that this hostile takeover ends in peace and that 
the DOJ reconsiders their proposal. This plant has always been a 
success story for the company and community and now it has turned 
into a bloody battle field. I believe that it is in the best 
interest of everyone including the DOJ to reconsider the ruling that 
was made. How would you like to walk into a war zone everyday 
wondering who is going to belittle you and who was going to be 
respectable to you? It's a question that employees should not even 
have to think about.

     Sincerely,

Sheri Lemmers

March 27, 2010

Maribeth Petrizzi
U.S. Department of Justice,
450 Fifth Street, N.W., Suite 8700,
Washington, D.C. 20530.

Dear Friend,

    This letter is in regards' to your decision in the Bemis 
acquisition of Alcan. I am a employee of the Alcan plant in Menasha 
and the decision to split our plant into two separate plants is a 
death sentence for many of us maybe all of us. Our plant was an 
example of how an America plant can be successful. Put now we are 
being forced to be split the plant and compete against our self. 
Bemis should have been allowed to have the whole plant or non of it. 
I am not great at writing letters if you would give me ten minutes 
of your time I could explain this better. PLEASE call me. I strongly 
encourage you to change your decision, I need this job not an 
unemployment check. Let Bemis have the Menasha plant.

     Sincerely,
Stuart S. Springstube
[FR Doc. 2010-14121 Filed 6-11-10; 8:45 am]
BILLING CODE 4410-11-M