United States v. Star Atlantic Waste Holdings, L.P., Veolia Environnement S.A. and Veolia ES Solid Waste, Inc., 70812-70824 [2012-28730]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Notices]
[Pages 70812-70824]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28730]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Star Atlantic Waste Holdings, L.P., Veolia 
Environnement S.A. and Veolia ES Solid Waste, Inc.

Proposed Final Judgment and Competitive Impact Statement
    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. Star Atlantic Waste Holdings, L.P., Veolia 
Environnement S.A. and Veolia ES Solid Waste, Inc., Civil Action No. 
1:12-cv-01847-RWR. On November 15, 2012, the United States filed a 
Complaint alleging that the proposed acquisition by Star Atlantic Waste 
Holdings, L.P. of Veolia Environnement S.A.'s U.S. subsidiary, Veolia 
ES Solid Waste, Inc., would violate Section 7 of the Clayton Act, 15 
U.S.C. 18. The proposed Final Judgment, filed at the same time as the 
Complaint, requires the defendants to divest three specified transfer 
stations in northern New Jersey; a landfill and two transfer stations 
in central Georgia; and three commercial waste collection routes in the 
Macon, Georgia metropolitan area.
    Copies of the Complaint, proposed Final Judgment and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth 
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), 
on the Department of Justice's Web site at https://www.usdoj.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 U.S. Department of Justice, 
Antitrust Division's Internet Web site, filed with the Court and, under 
certain circumstances, published in the Federal Register. Comments 
should be directed to Maribeth Petrizzi, Chief, Litigation II Section, 
Antitrust Division, Department of Justice, 450 Fifth Street NW., Suite 
8700, Washington, DC 20530 (telephone: 202-307-0924).

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, United States Department of Justice, 
Antitrust Division, 450 Fifth Street, N.W., Suite 8700, Washington, 
D.C. 20530, Plaintiff, v. STAR ATLANTIC WASTE HOLDINGS, L.P., 277 
Park Avenue, 45th Floor, New York, NY 10172, VEOLIA ENVIRONNEMENT 
S.A., 36/38 avenue Kl[eacute]ber, Paris, 75116 France, and VEOLIA ES 
SOLID WASTE, INC., 200 E. Randolph Street, Suite 7900, Chicago, IL 
60601, Defendants

Case No. 1:12-cv-01847

Complaint

    Plaintiff, the United States of America (``United States''), acting 
under the direction of the Attorney General of the United States, 
brings this civil antitrust action against defendants Star Atlantic 
Waste Holdings, L.P. (``Star Atlantic'') and Veolia Environnement S.A. 
to enjoin Star Atlantic's proposed acquisition of Veolia Environnment 
S.A.'s U.S. subsidiary, Veolia ES Solid Waste, Inc. (``Veolia''). 
Plaintiff complains and alleges as follows:

I. NATURE OF THE ACTION

    1. Pursuant to a share purchase agreement dated July 18, 2012, Star 
Atlantic proposes to acquire all of the outstanding shares of Veolia's 
common stock. Defendants Star Atlantic and Veolia currently compete to 
provide small container commercial waste collection and municipal solid 
waste (``MSW'') disposal in certain geographic areas in the United 
States. The proposed transaction would substantially lessen competition 
for small container commercial waste collection services as a result of 
Star Atlantic's acquisition of Veolia in the Macon, Georgia area. The 
proposed transaction also would substantially lessen competition for 
MSW disposal service as a result of Star Atlantic's acquisition of 
Veolia's MSW disposal assets in Northern New Jersey and Central 
Georgia.
    2. Defendants Star Atlantic and Veolia are two of only a few 
significant providers of small container commercial waste collection 
services in the Macon Metropolitan Area and MSW disposal services in 
Northern New Jersey and Central Georgia. Unless the acquisition is 
enjoined, consumers of small container commercial waste collection and/
or MSW disposal services in these areas likely will pay higher prices 
and receive fewer services as a consequence

[[Page 70813]]

of the elimination of vigorous competition between Star Atlantic and 
Veolia. Accordingly, Star Atlantic's acquisition of Veolia would 
violate Section 7 of the Clayton Act, 15 U.S.C. Sec.  18.

II. THE DEFENDANTS AND THE TRANSACTION

    3. Star Atlantic is a Delaware limited partnership with its 
headquarters in New York, New York. Star Atlantic provides collection, 
transfer, recycling, and disposal services in Alabama, Florida, 
Georgia, Mississippi, North Carolina, South Carolina and Tennessee 
through its subsidiary Advanced Disposal Services, Inc., and in 
Massachusetts, Vermont, New York, New Jersey, Pennsylvania, Maryland, 
and West Virginia through its subsidiary, Interstate Waste Services, 
Inc. In 2011, Star Atlantic had estimated total revenues of $563 
million.
    4. Veolia Environnement S.A. is a French corporation, with a 
wholly-owned subsidiary, Veolia ES Solid Waste, Inc., that offers 
collection, transfer, recycling, and disposal services in Florida, 
Georgia, Alabama, Kentucky, Missouri, Illinois, Minnesota, Wisconsin, 
Michigan, Indiana, Pennsylvania, and New Jersey. In 2011, Veolia ES 
Solid Waste, Inc. had estimated total revenues of $818 million.
    5. On July 18, 2012, defendants Star Atlantic and Veolia entered 
into a share purchase agreement pursuant to which Star Atlantic 
proposes to acquire all of the outstanding shares of Veolia's common 
stock in a transaction valued at $1.9 billion.

III. JURISDICTION AND VENUE

    6. The United States brings this action under Section 15 of the 
Clayton Act, 15 U.S.C. Sec.  25, as amended, to prevent and restrain 
defendants from violating Section 7 of the Clayton Act, 15 U.S.C. Sec.  
18.
    7. Defendants Star Atlantic and Veolia collect MSW from 
residential, commercial, and industrial customers, and they own and 
operate transfer stations and landfills that process and dispose of 
MSW. In their small container commercial waste collection and MSW 
disposal businesses, Star Atlantic and Veolia make sales and purchases 
in interstate commerce, ship waste in the flow of interstate commerce, 
and engage in activities substantially affecting interstate commerce. 
The Court has jurisdiction over this action and over the parties 
pursuant to 15 U.S.C. Sec.  22, and 28 U.S.C. Sec. Sec.  1331 and 1337.
    8. Defendants have consented to venue and personal jurisdiction in 
the District of Columbia. Venue is therefore proper in this district 
under Section 12 of the Clayton Act, 15 U.S.C. Sec.  22, and 28 U.S.C. 
Sec.  1391(c).

IV. TRADE AND COMMERCE

A. The Relevant Service Markets

1. Small Container Commercial Waste Collection

    9. Waste collection firms, or ``haulers,'' collect MSW from 
residential, commercial, and industrial establishments and transport 
the waste to a disposal site, such as a transfer station, landfill, or 
incinerator, for processing and disposal. Private waste haulers 
typically contract directly with customers for the collection of waste 
generated by commercial accounts. MSW generated by residential 
customers, on the other hand, often is collected either by local 
governments or by private haulers pursuant to contracts bid by, or 
franchises granted by, municipal authorities.
    10. ``Small container commercial waste collection'' means the 
business of collecting MSW from commercial and industrial accounts, 
usually in dumpsters (i.e., a small container with one to ten cubic 
yards of storage capacity), and transporting or ``hauling'' such waste 
to a disposal site by use of a front-end or rear-end load truck. 
Typical small container commercial waste collection customers include 
office and apartment buildings and retail establishments (e.g., stores 
and restaurants). As used herein, ``small container commercial waste 
collection'' does not include the collection of roll-off containers or 
residential collection service.
    11. Small container commercial waste collection service differs in 
many important respects from the collection of residential or other 
types of waste. An individual commercial customer typically generates 
substantially more MSW than a residential customer. To handle this high 
volume of MSW efficiently, haulers often provide commercial customers 
with small containers, also called dumpsters, for storing the waste. 
Haulers organize their commercial accounts into routes, and collect and 
transport the MSW generated by these accounts in front-end load 
(``FEL'') trucks uniquely well-suited for commercial waste collection. 
Less frequently, haulers may use more maneuverable, but less efficient, 
rear-end load (``REL'') trucks, especially in those areas in which a 
collection route includes narrow alleyways or streets. FEL trucks are 
unable to navigate narrow passageways easily and cannot efficiently 
collect the waste located in them.
    12. On a typical small container commercial waste collection route, 
an operator drives a FEL vehicle to the customer's container, engages a 
mechanism that grasps and lifts the container over the front of the 
truck, and empties the container into the vehicle's storage section 
where the waste is compacted and stored. The operator continues along 
the route, collecting MSW from each of the commercial accounts, until 
the vehicle is full. The operator then drives the FEL truck to a 
disposal facility, such as a transfer station, landfill, or 
incinerator, and empties the contents of the vehicle. Depending on the 
number of locations and the amount of waste collected on the route, the 
operator may make one or more trips to the disposal facility in the 
servicing of the route.
    13. In contrast to a small container commercial waste collection 
route, a residential waste collection route is significantly more 
labor-intensive. The customer's MSW is stored in much smaller 
containers (e.g., garbage bags or trash cans) and, instead of FEL 
trucks, waste collection firms routinely use REL or side-load trucks 
manned by larger crews (usually, two-person or three-person teams). On 
residential routes, crews generally hand-load the customer's MSW, 
typically by tossing garbage bags and emptying trash cans into the 
vehicle's storage section. Because of the differences in the collection 
processes, residential customers and commercial customers usually are 
organized into separate routes.
    14. Likewise, other types of collection activities, such as the use 
of roll-off containers (typically used for construction debris) and the 
collection of liquid or hazardous waste, are rarely combined with small 
container commercial waste collection. This separation of routes is due 
to differences in the hauling equipment required, the volume of waste 
collected, health and safety concerns, and the ultimate disposal option 
used.
    15. The differences in the types and volume of MSW collected and in 
the equipment used in collection services distinguish small container 
commercial waste collection from all other types of waste collection 
activities. Absent competition from other small container commercial 
waste collection firms, a small container commercial waste collection 
service provider profitably could increase its charges without losing 
significant sales or revenues to firms engaged in the provision of 
other

[[Page 70814]]

types of waste collection services. Thus, small container commercial 
waste collection is a line of commerce, or relevant service, for 
purposes of analyzing the effects of the acquisition under Section 7 of 
the Clayton Act, 15 U.S.C. Sec.  18.

2. Disposal of Municipal Solid Waste

    16. ``MSW'' means municipal solid waste, a term of art used to 
describe solid putrescible waste generated by households and commercial 
establishments such as retail stores, offices, restaurants, warehouses, 
and non-manufacturing activities in industrial facilities. MSW does not 
include special handling waste (e.g., waste from manufacturing 
processes, regulated medical waste, sewage, and sludge), hazardous 
waste, or waste generated by construction or demolition sites. MSW has 
physical characteristics that readily distinguish it from other liquid 
or solid waste.
    17. In order to be disposed of lawfully, MSW must be disposed in a 
landfill or an incinerator, and such facilities must be located on 
approved sites and operated under prescribed procedures. Federal, 
state, and local safety, environmental, zoning, and permit laws and 
regulations dictate critical aspects of storage, handling, 
transportation, processing, and disposal of MSW in each market. In less 
densely populated areas of the country, MSW often is disposed of 
directly into landfills that are permitted and regulated by the state. 
Landfill permit restrictions often impose limitations on the type and 
amount of waste that can be deposited. In many urban and suburban 
areas, landfills are scarce due to high population density and the 
limited availability of suitable land. Accordingly, MSW generated in 
such areas often is burned in an incinerator or taken to a transfer 
station. A transfer station is an intermediate disposal site for the 
processing and temporary storage of MSW before transfer, in bulk, to 
more distant landfills or incinerators for final disposal. Anyone who 
fails to dispose of MSW in a lawful manner can be subject to severe 
civil and criminal penalties.
    18. Because of the strict laws and regulations that govern the 
disposal of MSW, there are no good substitutes for MSW disposal in 
landfills or incinerators, or at transfer stations located near the 
source of the waste. Absent competition from other providers of MSW 
disposal services, a firm providing MSW disposal services profitably 
could increase its charges to haulers of MSW without losing significant 
sales to any other firm. Thus, disposal of MSW is a line of commerce, 
or relevant service, for purposes of analyzing the effects of the 
acquisition under Section 7 of the Clayton Act, 15 U.S.C. Sec.  18.

B. Relevant Geographic Markets

1. Small Container Commercial Waste Collection

    19. Small container commercial waste collection is generally 
provided in highly localized areas because, to operate efficiently and 
profitably, a hauler must have sufficient density (i.e., a large number 
of commercial accounts that are reasonably close together) in its small 
container commercial waste collection operations. If a hauler has to 
drive significant distances between customers, it earns less money for 
the time the truck is operating. For the same reason, the accounts must 
be near the operator's base of operations. It is economically 
impractical for a small container commercial waste collection firm to 
service metropolitan areas from a distant base, which requires that the 
FEL truck travel long distances just to arrive at its route. Haulers, 
therefore, generally establish garages and related facilities within 
each major local area served.
    20. In Bibb, Jones, Peach, Monroe, and Crawford Counties in Georgia 
(the ``Macon Metropolitan Area''), a local small container commercial 
waste collection firm, absent competition from other small container 
commercial waste collection firms, profitably could increase charges to 
local customers without losing significant sales to more distant 
competitors. Accordingly, the Macon Metropolitan Area is a section of 
the country, or relevant geographic market, for purposes of analyzing 
the effects of the acquisition under Section 7 of the Clayton Act, 15 
U.S.C. Sec.  18.

2. Disposal of Municipal Solid Waste

    21. MSW is transported by collection trucks to landfills and 
transfer stations, and the price and availability of disposal sites 
close to a hauler's routes is a major factor that determines a hauler's 
competitiveness and profitability. The cost of transporting MSW to a 
disposal site often is a substantial component of the cost of disposal. 
The cost advantage of local disposal sites limits the areas where MSW 
can be transported economically and disposed of by haulers and creates 
localized markets for MSW disposal services.
    22. In Bergen and Passaic Counties in New Jersey (``Northern New 
Jersey'') and in Bibb, Jones, Peach, Monroe, Crawford, Twiggs, Taylor, 
Macon, and Houston Counties in Georgia (``Central Georgia''), the high 
costs of transporting MSW, and the substantial travel time to other 
disposal facilities based on distance, natural barriers, and congested 
roadways, limit the distance that haulers of MSW generated in those 
areas can travel economically to dispose of their waste. The firms that 
compete for the disposal of MSW generated in each of these areas own 
landfills or transfer stations located within the area. In each area, 
absent competition from other local MSW disposal operators, a firm 
providing MSW disposal services profitably could increase its charges 
for the disposal of MSW generated in the area without losing 
significant sales to more distant disposal sites. Accordingly, Northern 
New Jersey and Central Georgia are relevant geographic markets for 
purposes of analyzing the competitive effects of the acquisition under 
Section 7 of the Clayton Act, 18 U.S.C. Sec.  15.

C. Anticompetitive Effects of the Proposed Acquisition

    23. The acquisition of Veolia by Star Atlantic would remove a 
significant competitor in small container commercial waste collection 
or the disposal of MSW in already highly concentrated and difficult-to-
enter markets. In each of these markets, the resulting significant 
increase in concentration, loss of competition, and absence of any 
reasonable prospect of significant new entry or expansion by market 
incumbents likely will result in higher prices for the collection of 
small container commercial waste or the disposal of MSW.

1. Small Container Commercial Waste Collection Service in the Macon 
Metropolitan Area

    24. In the Macon Metropolitan Area, the proposed acquisition would 
reduce from four to three the number of significant competitors in the 
collection of small container commercial waste. Annual revenue from 
small container commercial waste collection in the Macon Metropolitan 
Area is approximately $7.1 million. After the acquisition, Star 
Atlantic would have approximately 80 percent of the total number of 
small container commercial waste collection routes in the market. Using 
a standard measure of market concentration called the ``HHI'' (defined 
and explained in Appendix A), incorporating market shares based on 
small container commercial waste collection routes, the post-merger HHI 
for small container commercial waste collection in the Macon 
Metropolitan Area would be approximately 6,595, an

[[Page 70815]]

increase of 1,714 points over the pre-merger HHI of 4,881.

2. MSW Disposal in Central Georgia

    25. In Central Georgia, the proposed acquisition would reduce from 
four to three the number of significant competitors for the disposal of 
MSW. After the acquisition, defendants would have approximately 77 
percent of the MSW disposal market based on waste tonnages accepted by 
the landfills in 2011. The post-merger HHI for MSW disposal service in 
Central Georgia would be approximately 6,093, an increase of 2,942 
points over the premerger HHI of 3,151.

3. MSW Disposal in Northern New Jersey

    26. In Northern New Jersey, the proposed acquisition would reduce 
from four to three the number of significant competitors for the 
disposal of MSW. Annual revenue from MSW disposal in this market is 
approximately $65 million. After the acquisition, defendants would have 
approximately 40 percent of the MSW disposal market. Using market 
shares based on 2011 tonnages as a measure of concentration, the post-
merger HHI for MSW disposal service would be approximately 2,701, an 
increase of 719 points over the pre-merger HHI of 1,982.

D. Entry into Small Container Commercial Waste Collection in the Macon 
Metropolitan Area

    27. Significant new entry into small container commercial waste 
collection is difficult and time-consuming in the Macon Metropolitan 
Area. A new entrant into small container commercial waste collection 
cannot provide a significant competitive constraint on the prices 
charged by market incumbents until it achieves minimum efficient scale 
and operating efficiencies comparable to existing firms. In order to 
obtain a comparable operating efficiency, a new firm must achieve route 
densities similar to those of firms already competing in the market. 
However, the incumbent's ability to engage in price discrimination and 
to enter into long-term contracts with collection customers is often 
effective in preventing new entrants from winning a large enough base 
of customers to achieve efficient routes in sufficient time to 
constrain the post-acquisition firm from significantly raising prices. 
Differences in the service provided by an incumbent hauler to each 
customer permit the incumbent easily to meet competition from new 
entrants by pricing its services lower to any individual customer that 
wants to switch to the new entrant. Incumbent firms frequently also use 
three- to five-year contracts, which may automatically renew or contain 
large liquidated damage provisions for contract termination. Such 
contracts make it more difficult for a customer to switch to a new 
hauler in order to obtain lower prices for its collection service. By 
making it more difficult for new haulers to obtain customers, these 
practices increase the cost and time required by an entrant to form an 
efficient route, reducing the likelihood that the entrant ultimately 
will be successful.

E. Entry into MSW Disposal in Northern New Jersey and Central Georgia

    28. Significant new entry into the disposal of MSW in Northern New 
Jersey and Central Georgia would be difficult and time-consuming. 
Obtaining a permit to construct a new disposal facility or to expand an 
existing one is a costly and time-consuming process that typically 
takes many years to conclude. First, suitable land is scarce. Second, 
even when land is available, local public opposition often increases 
the time and uncertainty of successfully permitting a facility. Last, 
it is also difficult to overcome environmental concerns and satisfy 
other governmental requirements.
    29. Where it is not practical to construct and permit a landfill, 
it is necessary to use a transfer station to facilitate the use of more 
distant disposal options. Many of the problems associated with the 
permitting and construction of a landfill likewise make it difficult to 
permit and construct a transfer station.
    30. In Northern New Jersey and Central Georgia, entry by 
constructing and permitting a new MSW disposal facility would be costly 
and time-consuming, and unlikely to prevent market incumbents from 
significantly raising prices for the disposal of MSW following the 
acquisition.

V. VIOLATIONS ALLEGED

    31. Star Atlantic's proposed acquisition of Veolia's outstanding 
shares likely would lessen competition substantially for small 
container commercial waste collection services in the Macon 
Metropolitan Area and for MSW disposal services in Northern New Jersey 
and Central Georgia, in violation of Section 7 of the Clayton Act, 15 
U.S.C. Sec.  18.
    32. Unless enjoined, the proposed acquisition likely would have the 
following anticompetitive effects relating to small container 
commercial waste collection services, among others:
    (a) actual and potential competition between Star Atlantic and 
Veolia would be eliminated;
    (b) competition likely would be lessened substantially; and
    (c) prices likely would increase.
    33. Unless enjoined, the proposed acquisition likely would have the 
following anticompetitive effects relating to MSW disposal, among 
others:
    (a) actual and potential competition between Star Atlantic and 
Veolia would be eliminated;
    (b) competition likely would be lessened substantially; and
    (c) prices likely would increase.

VI. REQUESTED RELIEF

    34. Plaintiff requests that this Court:
    (a) adjudge and decree that Star Atlantic's acquisition of Veolia 
would be unlawful and violate Section 7 of the Clayton Act, 15 U.S.C. 
Sec.  18;
    (b) permanently enjoin and restrain defendants and all persons 
acting on their behalf from consummating the proposed acquisition of 
Veolia by Star Atlantic, or from entering into or carrying out any 
other contract, agreement, plan, or understanding, the effect of which 
would be to combine Star Atlantic with Veolia;
    (c) award the United States such other and further relief as the 
Court deems just and proper; and
    (d) award the United States its costs for this action.

FOR PLAINTIFF UNITED STATES OF AMERICA:

/s/--------------------------------------------------------------------
Joseph F. Wayland,

Acting Assistant Attorney General

/s/--------------------------------------------------------------------
Renata B. Hesse (D.C. Bar 466107)

Deputy Assistant Attorney General

/s/--------------------------------------------------------------------
Patricia A. Brink

Director of Civil Enforcement
/s/--------------------------------------------------------------------
Maribeth Petrizzi (D.C. Bar 435204)

Chief, Litigation II Section

/s/--------------------------------------------------------------------
Dorothy B. Fountain (D.C. Bar 439469)

Assistant Chief, Litigation II Section

/s/--------------------------------------------------------------------

Michael K. Hammaker, (D.C. Bar 233684)

 Kerrie J. Freeborn (D.C. Bar 503143) Dando B. Cellini 

Frederick H. ParmenterAttorneys, United States Department of 
Justice, Antitrust Division, 450 Fifth Street, N.W., Suite 8700, 
Washington, D.C. 20530, (202) 307-0938

Dated: November 15, 2012

APPENDIX A

    The term ``HHI'' means the Herfindahl-Hirschman Index, a

[[Page 70816]]

commonly accepted measure of market concentration. The HHI is 
calculated by squaring the market share of each firm competing in the 
market and then summing the resulting numbers. For example, for a 
market consisting of four firms with shares of 30, 30, 20, and 20 
percent, the HHI is 2,600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 2,600). The 
HHI takes into account the relative size distribution of the firms in a 
market. It approaches zero when a market is occupied by a large number 
of firms of relatively equal size and reaches its maximum of 10,000 
points when a market is controlled by a single firm. The HHI increases 
both as the number of firms in the market decreases and as the 
disparity in size between those firms increases.
    Markets in which the HHI is between 1,500 and 2,500 points are 
considered to be moderately concentrated, and markets in which the HHI 
is in excess of 2,500 points are considered to be highly concentrated. 
See U.S. Department of Justice & FTC, Horizontal Merger Guidelines 
Sec.  5.3 (2010). Transactions that increase the HHI by more than 200 
points in highly concentrated markets presumptively raise antitrust 
concerns under the Horizontal Merger Guidelines issued by the 
Department of Justice and the Federal Trade Commission. See id.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. STAR ATLANTIC WASTE 
HOLDINGS, L.P., VEOLIA ENVIRONNEMENT S.A. and VEOLIA ES SOLID WASTE, 
INC.,
    Defendants

)Case No. 1:12-cv-01847

COMPETITIVE IMPACT STATEMENT

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

I. NATURE AND PURPOSE OF THE PROCEEDING

    Pursuant to a share purchase agreement dated July 18, 2012, Star 
Atlantic Waste Holdings, L.P. (``Star Atlantic'') proposes to acquire 
all of the outstanding shares of common stock of Veolia Environnement 
S.A.'s U.S. subsidiary, Veolia ES Solid Waste, Inc. (``Veolia'') in a 
transaction valued at approximately $1.9 billion.
    The United States filed a civil antitrust Complaint on November 15, 
2012, seeking to enjoin the proposed acquisition. The Complaint alleges 
that the proposed acquisition likely would substantially lessen 
competition for small container commercial waste collection service in 
the area of Macon, Georgia and for municipal solid waste (``MSW'') 
disposal service in Northern New Jersey and Central Georgia in 
violation of Section 7 of the Clayton Act. This loss of competition 
would result in consumers paying higher prices and receiving fewer 
services for the collection and disposal of MSW.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order and proposed Final 
Judgment, which are designed to eliminate the anticompetitive effects 
of the acquisition. Under the proposed Final Judgment, which is 
explained more fully below, defendants are required to divest specified 
small container commercial waste collection and MSW disposal assets. 
Under the terms of the Hold Separate Stipulation and Order, Star 
Atlantic and Veolia are required to take certain steps to ensure that 
the assets to be divested will be preserved and held separate from 
other assets and businesses.
    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA. 
Entry of the proposed Final Judgment would terminate this action, 
except that the Court would retain jurisdiction to construe, modify, or 
enforce the provisions of the Final Judgment and to punish violations 
thereof.

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

A. The Defendants

    Star Atlantic is a Delaware limited partnership with its 
headquarters in New York, New York. Star Atlantic provides collection, 
transfer, recycling, and disposal services in Alabama, Florida, 
Georgia, Mississippi, North Carolina, South Carolina and Tennessee 
through its subsidiary Advanced Disposal Services, Inc., and in 
Massachusetts, Vermont, New York, New Jersey, Pennsylvania, Maryland, 
and West Virginia through its subsidiary, Interstate Waste Services, 
Inc. In 2011, Star Atlantic had estimated total revenues of $563 
million.
    Veolia Environnement S.A. is a French corporation, with a wholly-
owned subsidiary, Veolia ES Solid Waste, Inc., that offers collection, 
transfer, recycling, and disposal services in Florida, Georgia, 
Alabama, Kentucky, Missouri, Illinois, Minnesota, Wisconsin, Michigan, 
Indiana, Pennsylvania, and New Jersey. In 2011, Veolia ES Solid Waste, 
Inc. had estimated total revenues of $818 million.

B. The Competitive Effects of the Transaction

    MSW is solid, putrescible waste generated by households and 
commercial establishments. Waste collection firms, or haulers, contract 
to collect MSW from residential and commercial customers and transport 
the waste to private and public MSW disposal facilities (e.g., transfer 
stations and landfills), which, for a fee, process and legally dispose 
of the waste. Small container commercial waste collection is one 
component of MSW collection, which also includes residential and other 
waste collection. Star Atlantic and Veolia compete in the collection of 
small container commercial waste and the disposal of MSW.

1. The Effect of the Transaction on Competition in Small Container 
Commercial Waste Collection in the Macon Metropolitan Area

    Small container commercial waste collection service is the 
collection of MSW from commercial businesses such as office and 
apartment buildings and retail establishments (e.g., stores and 
restaurants) for shipment to, and disposal at, an approved disposal 
facility. Because of the type and volume of waste generated by 
commercial accounts and the frequency of service required, haulers 
organize commercial accounts into routes, and generally use specialized 
equipment to store, collect, and transport MSW from these accounts to 
approved MSW disposal sites. This equipment (e.g., one to ten-cubic-
yard containers for MSW storage, and front-end load vehicles commonly 
used for collection and transportation of MSW) is uniquely well-suited 
for providing small container commercial waste collection service. 
Providers of other types of waste collection services (e.g., 
residential and roll-off services) are not good substitutes for small 
container commercial waste collection firms. In these types of waste 
collection efforts, firms use different waste storage equipment (e.g., 
garbage cans or semi-stationary roll-off containers) and different 
vehicles (e.g., rear-load, side-load, or roll-off trucks), which, for a 
variety of reasons, cannot be conveniently or efficiently used to 
store, collect, or transport MSW generated by commercial accounts and, 
hence, are rarely used on small container commercial waste collection 
routes. In the event of a small but significant

[[Page 70817]]

increase in price for small container commercial waste collection 
services, customers would not switch to any other alternative. Thus, 
the Complaint alleges that the provision of small container commercial 
waste collection services constitutes a line of commerce, or relevant 
service, for purposes of analyzing the effects of the transaction.
    The Complaint alleges that the provision of small container 
commercial waste collection service takes place in compact, highly 
localized geographic markets. It is expensive to transport MSW long 
distances between collection customers or to disposal sites. To 
minimize transportation costs and maximize the scale, density, and 
efficiency of their MSW collection operations, small container 
commercial waste collection firms concentrate their customers and 
collection routes in small areas. Firms with operations concentrated in 
a distant area cannot easily compete against firms whose routes and 
customers are locally based. Distance may significantly limit a remote 
firm's ability to provide commercial waste collection service as 
frequently or conveniently as that offered by local firms with nearby 
routes. Also, local small container commercial waste collection firms 
have significant cost advantages over other firms, and can profitably 
increase their charges to local small container commercial waste 
collection customers without losing significant sales to firms outside 
the area.
    Applying this analysis, the Complaint alleges that in Bibb, Jones, 
Peach, Monroe and Crawford Counties in Georgia (the ``Macon 
Metropolitan Area''), a local small container commercial waste 
collection monopolist, absent competition from other small container 
commercial waste collection firms, profitably could increase charges to 
local customers without losing significant sales to more distant 
competitors. Accordingly, the Macon Metropolitan Area is a section of 
the country or a relevant geographic market for the purpose of 
assessing the competitive effects of a combination of Star Atlantic and 
Veolia in the provision of small container commercial waste collection 
services.
    There are significant entry barriers into small container 
commercial waste collection. A new entrant into small container 
commercial waste collection services must achieve a minimum efficient 
scale and operating efficiencies comparable to those of existing firms 
in order to provide a significant competitive constraint on the prices 
charged by market incumbents. In order to obtain comparable operating 
efficiencies, a new firm must achieve route density similar to existing 
firms. However, the incumbent's ability to price discriminate and to 
enter into long-term contracts with existing small container commercial 
waste collection firms can leave too few customers available to the 
entrant to create an efficient route in a sufficiently confined 
geographic area. The incumbent firm can selectively and temporarily 
charge an unbeatably low price to specified customers targeted by new 
entrants. Long-term contracts often run for three to five years and may 
automatically renew or contain large liquidated damage provisions for 
contract termination. Such terms make it more costly or difficult for a 
customer to switch to a new small container commercial waste collection 
firm and obtain lower prices for its collection service. Because of 
these factors, a new entrant may find it difficult to compete by 
offering its services at pre-entry price levels comparable to the 
incumbent and may find an increase in the cost and time required to 
form an efficient route, thereby limiting a new entrant's ability to 
build an efficient route and reducing the likelihood that the entrant 
will ultimately succeed.
    The need for route density, the use of long-term contracts with 
restrictive terms, and the ability of existing firms to price 
discriminate raise significant barriers to entry by new firms, which 
likely will be forced to compete at lower than pre-entry price levels. 
In the past, such barriers have made entry and expansion difficult by 
new or smaller-sized competitors in small container commercial waste 
collection markets.
    In the Macon Metropolitan Area, the proposed acquisition would 
reduce from four to three the number of significant competitors in the 
collection of small container commercial waste. Annual revenue from 
small container commercial waste collection in the Macon Metropolitan 
Area is approximately $7.1 million. After the acquisition, Star 
Atlantic would have approximately 80 percent of the total number of 
small container commercial waste collection routes in the market.

2. The Effects of the Transaction on Competition in the Disposal of 
Municipal Solid Waste in Northern New Jersey and Central Georgia

    A number of federal, state, and local safety, environmental, 
zoning, and permit laws and regulations dictate critical aspects of 
storage, handling, transportation, processing and disposal of MSW. In 
order to be disposed of lawfully, MSW must be disposed in a landfill or 
an incinerator permitted to accept MSW, and such facilities must be 
located on approved sites and operated under prescribed procedures. 
Federal, state, and local safety, environmental, zoning, and permit 
laws and regulations dictate critical aspects of storage, handling, 
transportation, processing, and disposal of MSW in each market. In less 
densely populated areas of the country, MSW often is disposed of 
directly into landfills that are permitted and regulated by the state. 
Landfill permit restrictions often impose limitations on the type and 
amount of waste that can be deposited. In many urban and suburban 
areas, landfills are scarce due to high population density and the 
limited availability of suitable land. Accordingly, MSW generated in 
such areas often is burned in an incinerator or taken to a transfer 
station. A transfer station is an intermediate disposal site for the 
processing and temporary storage of MSW before transfer, in bulk, to 
more distant landfills or incinerators for final disposal. Anyone who 
fails to dispose of MSW in a lawful manner can be subject to severe 
civil and criminal penalties.
    Because of the strict laws and regulations that govern the disposal 
of MSW, there are no good substitutes for MSW disposal in landfills or 
incinerators, or at transfer stations located near the source of the 
waste. A local monopolist providing MSW disposal services, absent 
competition from other providers of MSW disposal services, profitably 
could increase its charges to haulers of MSW by a small but significant 
amount without losing significant sales to any other firm. Thus the 
disposal of MSW constitutes a line of commerce, or relevant service, 
for purposes of analyzing the effects of the acquisition. MSW is 
transported by collection trucks to landfills and transfer stations, 
and the price and availability of disposal sites close to a hauler's 
routes is a major factor that determines a hauler's competitiveness and 
profitability. The cost of transporting MSW to a disposal site often is 
a substantial component of the cost of disposal. The cost advantage of 
local disposal sites limits the areas where MSW can be transported 
economically and disposed of by haulers and creates localized markets 
for MSW disposal services.
    In Bergen and Passaic Counties in New Jersey (``Northern New 
Jersey'') and in Bibb, Jones, Peach, Monroe, Crawford, Twiggs, Taylor, 
Macon, and Houston Counties in Georgia (``Central Georgia''), the high 
costs of transporting MSW, and the substantial travel time to other 
disposal facilities based on distance, natural barriers, and congested

[[Page 70818]]

roadways, limit the distance that haulers of MSW generated in those 
areas can travel economically to dispose of their waste. The firms that 
compete for the disposal of MSW generated in each of those areas own 
landfills or transfer stations located within the area. In the event 
that all of the owners of those local disposal facilities imposed a 
small but significant increase in the price of MSW disposal, haulers of 
MSW generated in each area could not profitably turn to more distant 
disposal facilities. Firms that compete for the disposal of MSW 
generated in each area, absent competition from other local MSW 
disposal operators, profitably could increase their charges for 
disposal of MSW generated in the area without losing significant sales 
to more distant disposal sites. Accordingly, Northern New Jersey and 
Central Georgia are relevant geographic markets for purposes of 
analyzing the competitive effects of the acquisition under Section 7 of 
the Clayton Act, 18 U.S.C. Sec.  15.
    There are significant barriers to entry in MSW disposal. Obtaining 
a permit to construct a new disposal facility or to expand an existing 
one is a costly and time-consuming process that typically takes many 
years to conclude. Local public opposition often increases the time and 
uncertainty of successfully permitting a facility. It is also difficult 
to overcome environmental concerns and satisfy other governmental 
requirements. Likewise, many of the problems associated with the 
permitting and construction of a landfill make it difficult to permit 
and construct a transfer station. In Northern New Jersey and Central 
Georgia, entry by a new MSW disposal facility would be costly and time-
consuming, and unlikely to prevent market incumbents from significantly 
raising prices for the disposal of MSW following the acquisition.
    In Northern New Jersey, the proposed acquisition would reduce from 
four to three the number of significant competitors for the disposal of 
MSW. Annual revenue from MSW disposal in this market is approximately 
$65 million. After the acquisition, defendants would have approximately 
40 percent of the MSW disposal market. In Central Georgia, the proposed 
acquisition would reduce from four to three the number of significant 
competitors for the disposal of MSW. After the acquisition, defendants 
would have approximately 77 percent of the MSW disposal market based on 
waste tonnages accepted by the landfills in 2011.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The divestiture requirements of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in small 
container commercial waste collection service in the Macon Metropolitan 
Area and MSW disposal service in Northern New Jersey and Central 
Georgia. The requirements will remove sufficient small container 
commercial waste collection and/or MSW disposal assets from the merged 
firm's control and place them in the hands of a firm that is 
independent of the merged firm and capable of preserving the 
competition that otherwise would have been lost as a result of the 
acquisition.
    The proposed Final Judgment requires defendants, within 90 days 
after the filing of the Complaint, or five (5) days after notice of the 
entry of the Final Judgment by the Court, whichever is later, to 
divest, as a viable ongoing business or businesses: (a) small container 
commercial waste collection assets (routes, trucks, containers, and 
customer lists) in the Macon Metropolitan Area; and (b) MSW disposal 
assets (landfills, transfer stations, material recovery facilities,\1\ 
leasehold rights, garages and offices, trucks and vehicles, scales, 
permits and intangible assets such as customer lists and contracts) in 
Northern New Jersey and in Central Georgia. The assets must be divested 
to purchasers approved by the United States and in such a way as to 
satisfy the United States that they can and will be operated by the 
purchaser or purchasers as part of a viable, ongoing business or 
businesses that can compete effectively in each relevant market. 
Defendants must take all reasonable steps necessary to accomplish the 
divestitures quickly and shall cooperate with prospective purchasers.
---------------------------------------------------------------------------

    \1\ A material recovery facility is a facility permitted to 
accept and recover those recyclable portions of a commercial waste 
stream, such as paper, plastic, and glass.
---------------------------------------------------------------------------

    In the event that defendants do not accomplish the divestitures 
within the period prescribed in the proposed Final Judgment, the Final 
Judgment provides that the Court will appoint a trustee selected by the 
United States to effect the divestitures. If a trustee is appointed, 
the proposed Final Judgment provides that defendants will pay all costs 
and expenses of the trustee. The trustee's commission will be 
structured so as to provide an incentive for the trustee based on the 
price obtained and the speed with which the divestitures are 
accomplished. After his or her appointment becomes effective, the 
trustee will file monthly reports with the Court and the United States, 
setting forth his or her efforts to accomplish the divestitures. At the 
end of six months, if the divestitures have not been accomplished, the 
trustee and the United States will make recommendations to the Court, 
which shall enter such orders as appropriate in order to carry out the 
purpose of the trust, including extending the trust or the term of the 
trustee's appointment.
    To eliminate the anticompetitive effects of the acquisition in the 
market for small container commercial waste collection service in the 
Macon Metropolitan Area, defendants must divest: (1) Veolia's small 
container commercial waste collection routes 801 and 802 and, at the 
acquirer's option, the Veolia hauling facility in Byron, Georgia and 
(2) Veolia's small container commercial waste collection route 710 and, 
at the acquirer's option, the Veolia hauling facility in Thomaston, 
Georgia.
    To eliminate the anticompetitive effects of the acquisition in the 
market for MSW disposal service in Northern New Jersey and Central 
Georgia, defendants must divest: (1) Veolia's two transfer stations in 
Paterson, New Jersey and its transfer station in Totowa, New Jersey, 
and (2) Veolia's two transfer stations in Byron, Georgia and Thomaston, 
Georgia and the Veolia landfill in Mauk, Georgia.
    The proposed Final Judgment provides that divestiture of the 
divestiture assets may be made to one or more acquirers, so long as the 
Northern New Jersey disposal assets are divested to a single acquirer 
and the Central Georgia disposal assets and the Macon Metropolitan Area 
waste collection assets are divested to a single acquirer. In Central 
Georgia and the Macon Metropolitan Area, this provision is intended to 
encourage the continued operation of an efficient, vertically 
integrated competitor whose participation in each market would 
replicate closely the competition existing prior to the acquisition. In 
Northern New Jersey, buyers of MSW disposal and recycling services 
generally prefer to have a single supplier of both, and owners of 
transfer stations that also can recycle have an advantage over those 
that cannot. The single acquirer provision for the Northern New Jersey 
disposal assets ensures that the acquirer will be able to offer 
customers MSW disposal services through each of the three divested 
transfer stations, as well as recycling services through the material 
recovery facility associated with the Veolia River Street transfer 
station, one of the three

[[Page 70819]]

stations to be divested. The ability of the acquirer to offer customers 
both MSW disposal and recycling services will allow it to operate more 
effectively and replicate closely the competition existing in Northern 
New Jersey prior to the acquisition.
    In addition, Star Atlantic, for the duration of its contracts with 
any of its current small container commercial waste collection service 
customers in the Macon Metropolitan Area, shall not initiate new 
contracts or lengthen or alter any material term of such contracts, 
except when a customer seeks a contractual change without prompting or 
encouragement from Star Atlantic. This provision is intended to prevent 
Star Atlantic from using its acquisition of Veolia as a justification 
for extending the contracts of its small container commercial waste 
customers in the Macon Metropolitan Area, thereby precluding 
competition in a large segment of this market.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Section 4 of the Clayton Act, 15 U.S.C. Sec.  15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
Sec.  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 sixty days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 
sixty days of the date of publication of this Competitive Impact 
Statement in the Federal Register, or the last date of publication in a 
newspaper of the summary of this Competitive Impact Statement, 
whichever is later. All comments received during this period will be 
considered by the United States Department of Justice, which remains 
free to withdraw its consent to the proposed Final Judgment at any time 
prior to the Court's entry of judgment. The comments and the response 
of the United States will be filed with the Court. In addition, 
comments will be posted on the U.S. Department of Justice, Antitrust 
Division's internet Web site, and, under certain circumstances, 
published in the Federal Register. Written comments should be submitted 
to: Maribeth Petrizzi, Chief, Litigation II Section, Antitrust 
Division, United States Department of Justice, 450 Fifth Street NW., 
Suite 8700, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against Defendants. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions preventing Star Atlantic's 
acquisition of Veolia. The United States is satisfied, however, that 
the divestiture of the assets described in the proposed Final Judgment 
will preserve competition for small container commercial waste 
collection service in the Macon Metropolitan Area and for MSW disposal 
service in Northern New Jersey and Central Georgia. Thus, the proposed 
Final Judgment would achieve all or substantially all of the relief the 
United States would have obtained through litigation, but would avoid 
the time, expense, and uncertainty of a full trial on the merits of the 
Complaint.

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

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-day comment period, after which the court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. Sec.  16(e)(1). In making that 
determination, the court, in accordance with the statute as amended in 
2004, is required to consider:
    (A) the competitive impact of such judgment, including termination 
of alleged violations, provisions for enforcement and modification, 
duration of relief sought, anticipated effects of alternative remedies 
actually considered, whether its terms are ambiguous, and any other 
competitive considerations bearing upon the adequacy of such judgment 
that the court deems necessary to a determination of whether the 
consent judgment is in the public interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and individuals 
alleging specific injury from the violations set forth in the complaint 
including consideration of the public benefit, if any, to be derived 
from a determination of the issues at trial.

15 U.S.C. Sec.  16(e)(1)(A) & (B).

    In considering these statutory factors, the court's inquiry is 
necessarily a limited one as the government is entitled to ``broad 
discretion to settle with the defendant within the reaches of the 
public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461 
(D.C. Cir. 1995); see generally United States v. SBC Commc'ns, Inc., 
489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard 
under the Tunney Act); United States v. InBev N.V./S.A., 2009-2 Trade 
Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787, No. 08-1965 (JR), 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.'').\2\
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
Sec.  16(e) (2004) with 15 U.S.C. Sec.  16(e)(1) (2006); see also 
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 
amendments ``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    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

[[Page 70820]]

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).\3\ In 
determining whether a proposed settlement is in the public interest, a 
district court ``must accord deference to the government's predictions 
about the efficacy of its remedies, and may not require that the 
remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F. 
Supp. 2d at 17; see also 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's prediction as 
to the effect of proposed remedies, its perception of the market 
structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \3\ 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). To meet this standard, the United States 
``need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 
489 F. Supp. 2d at 17.
    Moreover, the court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States has 
alleged in its Complaint, and does not authorize the court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also InBev, 2009 
U.S. Dist. LEXIS 84787, at *20 (``the `public interest' is not to be 
measured by comparing the violations alleged in the complaint against 
those the court believes could have, or even should have, been 
alleged'') (citations omitted). Because the ``court's authority to 
review the decree depends entirely on the government's exercising its 
prosecutorial discretion by bringing a case in the first place,'' it 
follows that ``the court is only authorized to review the decree 
itself,'' and not to ``effectively redraft the complaint'' to inquire 
into other matters that the United States did not pursue. Microsoft, 56 
F.3d at 1459-60. As this Court recently confirmed in SBC 
Communications, courts ``cannot look beyond the complaint in making the 
public interest determination unless the complaint is drafted so 
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. 
Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction that ``[n]othing in 
this section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. Sec.  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.\4\
---------------------------------------------------------------------------

    \4\ 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.'').
---------------------------------------------------------------------------

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: November 15, 2012
Respectfully submitted,
----/s/--------------------
Michael K. Hammaker
U.S. Department of Justice
Antitrust Division, Litigation II Section
450 Fifth Street NW., Suite 8700
Washington, D.C. 20530
(202) 307-0938
michael.hammaker@usdoj.gov

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. STAR ATLANTIC WASTE 
HOLDINGS, L.P., VEOLIA ENVIRONNEMENT S.A. and VEOLIA ES SOLID WASTE, 
INC., Defendants
 Case No. 1:12-cv-01847

PROPOSED FINAL JUDGMENT

    WHEREAS, plaintiff, the United States of America, having filed its 
Complaint on November 15, 2012, and plaintiff and defendants, Star 
Atlantic Waste Holdings, L.P. (``Star Atlantic'') and Veolia 
Environnement S.A. (``Veolia''), by their respective attorneys, having 
consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law herein, and without this Final 
Judgment constituting any evidence against or an admission by any party 
with respect to any issue of law or fact herein;
    AND WHEREAS, defendants have agreed to be bound by the provisions 
of

[[Page 70821]]

this Final Judgment pending its approval by the Court;
    AND WHEREAS, the essence of this Final Judgment is the prompt and 
certain divestiture of the Divestiture Assets to assure that 
competition is not substantially lessened;
    AND WHEREAS, the United States requires certain divestitures to be 
made for the purpose of remedying the loss of competition alleged in 
the Complaint;
    AND WHEREAS, defendants have represented to the United States that 
the divestitures required below can and will be made, and that 
defendants will later raise no claim of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture or other 
injunctive provisions contained below;
    NOW, THEREFORE, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is hereby ORDERED, ADJUDGED, AND DECREED:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of this action. The Complaint states a claim 
upon which relief may be granted against defendants under Section 7 of 
the Clayton Act, as amended, 15 U.S.C. Sec.  18.

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
which the defendants divest the Divestiture Assets.
    B. ``Star Atlantic'' means defendant Star Atlantic Waste Holdings, 
L.P., a Delaware limited partnership 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.
    C. ``Veolia'' means defendant Veolia Environnement S.A., a French 
corporation with its headquarters in Paris, France, and its wholly 
owned subsidiary, Veolia ES Solid Waste, Inc., their successors and 
assigns, and their subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    D. ``Disposal'' means the business of disposing of waste into 
approved disposal sites, including the use of transfer stations to 
facilitate shipment of waste to other disposal sites.
    E. ``Divestiture Assets'' means the Relevant Disposal Assets and 
the Relevant Collection Assets.
    F. ``Route'' means a group of customers receiving regularly 
scheduled small container commercial waste collection service and all 
tangible and intangible assets relating to the route, as of October 1, 
2012 (except for de minimis changes, such as customers lost or gained 
in the ordinary course of business), including capital equipment, 
trucks and other vehicles; containers; supplies; and if requested by 
the Acquirer, the real property and improvements to real property 
(e.g., garages and buildings that support the route) as specified in 
Paragraph II(L) below, customer lists; customer and other contracts; 
leasehold interests; permits/licenses and accounts receivable.
    G. ``MSW'' means municipal solid waste, a term of art used to 
describe solid putrescible waste generated by households and commercial 
establishments. MSW does not include special handling waste (e.g., 
waste from manufacturing processes, regulated medical waste, sewage, 
and sludge), hazardous waste, or waste generated by construction or 
demolition sites.
    H. ``Small container commercial waste collection service'' means 
the business of collecting MSW from commercial and industrial accounts, 
usually in ``dumpsters'' (i.e. a small container with one to ten cubic 
yards of storage capacity), and transporting or ``hauling'' such waste 
to a disposal site by use of a front- or rear-end loader truck.
    I. ``Northern New Jersey'' means Bergen and Passaic Counties in New 
Jersey.
    J. ``Central Georgia'' means Bibb, Crawford, Peach, Jones, Monroe, 
Twiggs, Taylor, Macon and Houston Counties in Georgia.
    K. ``Macon Metropolitan Area'' means Bibb, Jones, Peach, Monroe, 
and Crawford Counties in Georgia.
    L. ``Relevant Disposal Assets'' means, with respect to each 
transfer station and landfill listed and described herein, all of 
defendants' rights, titles and interests in any tangible asset related 
to each transfer station and landfill listed, including all fee simple 
or ownership rights to offices, garages, related facilities, including 
material recovery facilities, capital equipment, trucks and other 
vehicles, scales, power supply equipment, and supplies; and all of 
defendants' rights, titles and interests in any related intangible 
assets, including all leasehold interests and renewal rights thereto, 
permits, customer lists, contracts, and accounts, or options to 
purchase any adjoining property. Relevant Disposal Assets, as used 
herein, includes each of the following:

1. Northern New Jersey Disposal Assets

    (a) Veolia's River Street transfer station located at 178 River 
Street, Paterson, New Jersey 07544;
    (b) Veolia's Fulton Street transfer station located at 30-25 Fulton 
Street, Paterson, New Jersey 07544; and
    (c) Veolia's Totowa transfer station located at 301 Maltese Drive, 
Totowa, New Jersey 07512.

2. Central Georgia Disposal Assets

    (a) Veolia's Peach County transfer station located at 750 Dunbar 
Road, Byron, Georgia 31008;
    (b) Veolia's Taylor County landfill located at County Road 33, 
Stewart Road, Mauk, Georgia 31058; and
    (c) Veolia's Upson County transfer station located at 2616 
Waymanville Road, Thomaston, Georgia 30286.
    M. ``Relevant Collection Assets'' means the small container 
commercial waste collection routes and other assets listed below:

Macon Metropolitan Area Collection Assets

    1. Veolia's small container commercial waste collection routes 801 
and 802 and, at the Acquirer's option, the hauling facility located at 
750 Dunbar Road, Byron, Georgia 31008; and
    2. Veolia's small container commercial waste collection route 710 
and, at the Acquirer's option, the hauling facility located at 2616 
Waymanville Road, Thomaston, Georgia 30286.

III. Applicability

    A. This Final Judgment applies to Star Atlantic and Veolia, as 
defined above, and all other persons in active concert or participation 
with any of them who receive actual notice of this Final Judgment by 
personal service or otherwise.
    B. If, prior to complying with Sections IV and V of this Final 
Judgment, defendants sell or otherwise dispose of all or substantially 
all of their assets or of lesser business units that include the 
defendants' Divestiture Assets, they shall require the purchaser to be 
bound by the provisions of this Final Judgment. Defendants need not 
obtain such an agreement from the Acquirer of the assets divested 
pursuant to the Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within ninety (90) calendar 
days after the filing of the Complaint in this matter, or five (5) 
calendar days after notice of the entry of this Final Judgment by the 
Court, whichever is

[[Page 70822]]

later, to divest all Divestiture Assets in a manner consistent with 
this Final Judgment to an Acquirer(s) acceptable to the United States 
in its sole discretion. The United States, in its sole discretion, may 
agree to one or more extensions of this time period of up to sixty (60) 
calendar days in total, and shall notify the Court in such 
circumstances. Defendants agree to use their best efforts to accomplish 
the divestitures ordered by this Final Judgment as expeditiously as 
possible.
    B. In accomplishing the divestitures ordered by this Final 
Judgment, defendants promptly shall make known, by usual and customary 
means, the availability of the Divestiture Assets. Defendants shall 
inform any person making an inquiry regarding a possible purchase of 
the Divestiture Assets that they are being divested pursuant to this 
Final Judgment and provide that person with a copy of this Final 
Judgment. Defendants shall also offer to furnish to all prospective 
Acquirers, subject to customary confidentiality assurances, all 
information and documents relating to the Divestiture Assets 
customarily provided in a due diligence process except such information 
or documents subject to the attorney-client privilege or work-product 
doctrine. Defendants shall make available such information to the 
United States at the same time that such information is made available 
to any other person.
    C. Defendants shall provide the Acquirer(s) and the United States 
information relating to the personnel involved in the operation and 
management of the Divestiture Assets to enable the Acquirer(s) to make 
offers of employment. Defendants shall not interfere with any 
negotiations by the Acquirer(s) to employ or contract with any 
defendant employee whose primary responsibility is the operation or 
management of the Divestiture Assets.
    D. Defendants shall permit prospective Acquirers of the Divestiture 
Assets to have reasonable access to personnel and to make inspections 
of the physical facilities of the Divestiture Assets; access to any and 
all environmental, zoning, and other permit documents and information; 
and access to any and all financial, operational, or other documents 
and information customarily provided as part of a due diligence 
process.
    E. Defendants shall warrant to the Acquirers of the Divestiture 
Assets that each asset will be operational on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets.
    G. Defendants shall warrant to each Acquirer that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset, and that following the 
divestiture of the Divestiture Assets, defendants will not undertake, 
directly or indirectly, any challenges to the environmental, zoning, or 
other permits relating to the operation of the Divestiture Assets.
    H. Unless the United States otherwise consents in writing, the 
divestitures pursuant to Section IV, or by trustee appointed pursuant 
to Section V of this Final Judgment, shall be accomplished in such a 
way as to satisfy the United States, in its sole discretion, that the 
Divestiture Assets can and will be used by the Acquirer(s) as part of a 
viable, ongoing disposal or hauling business in each relevant area. 
Divestiture of the Divestiture Assets may be made to one or more 
Acquirers, provided that the Northern New Jersey Disposal Assets are 
divested to a single Acquirer, that the Central Georgia Disposal Assets 
and the Macon Metropolitan Area Collection Assets are divested to a 
single Acquirer, and that in each instance it is demonstrated to the 
sole satisfaction of the United States that the Divestiture Assets will 
remain viable and the divestiture of such assets will achieve the 
purposes of this Final Judgment and remedy the competitive harm alleged 
in the Complaint. The divestitures, whether pursuant to Section IV or 
Section V of this Final Judgment:
    (1) shall be made to an Acquirer(s) that, in the United States's 
sole judgment, has the intent and capability (including the necessary 
managerial, operational, technical, and financial capability) of 
competing effectively in the relevant disposal and/or hauling business; 
and
    (2) shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement between an 
Acquirer(s) and defendants gives defendants the ability unreasonably to 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere in the ability of the Acquirer(s) to compete 
effectively.

V. Appointment of Trustee

    A. If defendants have not divested the Divestiture Assets within 
the time period specified in Paragraph IV(A), defendants shall notify 
the United States of that fact in writing. Upon application of the 
United States, the Court shall appoint a trustee selected by the United 
States and approved by the Court to effect the divestiture of the 
Divestiture Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. The 
trustee shall have the power and authority to accomplish the 
divestiture to an Acquirer(s) acceptable to the United States at such 
price and on such terms as are then obtainable upon reasonable effort 
by the trustee, subject to the provisions of Sections IV, V, and VI of 
this Final Judgment, and shall have such other powers as this Court 
deems appropriate. Subject to Paragraph V(D) of this Final Judgment, 
the trustee may hire at the cost and expense of defendants any 
investment bankers, attorneys, or other agents, who shall be solely 
accountable to the trustee, reasonably necessary in the trustee's 
judgment to assist in the divestiture.
    C. Defendants shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance. Any such objection by 
defendants must be conveyed in writing to the United States and the 
trustee within ten (10) calendar days after the trustee has provided 
the notice required under Section VI.
    D. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the United States approves, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting, including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendants and the trust shall then be 
terminated. The compensation of the trustee and any professionals and 
agents retained by the trustee shall be reasonable in light of the 
value of the Divestiture Assets and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestitures and the speed with which it is accomplished, but 
timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestitures. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information. Defendants shall take no action to interfere 
with or to impede the

[[Page 70823]]

trustee's accomplishment of the divestitures.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent that such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in the Divestiture Assets, and 
shall describe in detail each contact with any such person. The trustee 
shall maintain full records of all efforts made to divest the 
Divestiture Assets.
    G. If the trustee has not accomplished the divestitures ordered 
under this Final Judgment within six (6) months after its appointment, 
the trustee shall promptly file with the Court a report setting forth: 
(1) the trustee's efforts to accomplish the required divestitures, (2) 
the reasons, in the trustee's judgment, why the required divestitures 
have not been accomplished, and (3) the trustee's recommendations. To 
the extent that such report contains information that the trustee deems 
confidential, such report shall not be filed in the public docket of 
the Court. The trustee shall at the same time furnish such report to 
the United States, which shall have the right to make additional 
recommendations consistent with the purpose of the trust. The Court 
thereafter shall enter such orders as it shall deem appropriate to 
carry out the purpose of the Final Judgment, which may, if necessary, 
include extending the trust and the term of the trustee's appointment 
by a period requested by the United States.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by Section IV or 
V of this Final Judgment. If the trustee is responsible, it shall 
similarly notify defendants. The notice shall set forth the details of 
the proposed divestiture and list the name, address, and telephone 
number of each person not previously identified who offered or 
expressed an interest in or desire to acquire any ownership interest in 
the Divestiture Assets, together with full details of the same.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from defendants, 
the proposed Acquirer(s), any other third party, or the trustee if 
applicable, additional information concerning the proposed divestiture, 
the proposed Acquirer(s), and any other potential Acquirer. Defendants 
and the trustee shall furnish any additional information requested 
within fifteen (15) calendar days of the receipt of the request, unless 
the parties shall otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from defendants, the 
proposed Acquirer(s), any third party, and the trustee, whichever is 
later, the United States, in its sole discretion, shall provide written 
notice to defendants and the trustee, if there is one, stating whether 
or not it objects to the proposed divestiture. If the United States 
provides written notice that it does not object, the divestiture may be 
consummated, subject only to defendants' limited right to object to the 
sale under Paragraph V(C) of this Final Judgment. Absent written notice 
that the United States does not object to the proposed Acquirer or upon 
objection by the United States, a divestiture proposed under Section IV 
or Section V shall not be consummated. Upon objection by defendants 
under Paragraph V(C), a divestiture proposed under Section V shall not 
be consummated unless approved by the Court.

VII. Contractual Restrictions

    Defendant Star Atlantic, for the duration of its contracts with any 
of its current small container commercial waste collection service 
customers in the Macon Metropolitan Area, shall not initiate new 
contracts or lengthen or alter any material term of such contracts, 
except when a customer seeks a contractual change without prompting or 
encouragement from Star Atlantic.

VIII. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to Section IV or V of this Final Judgment.

IX. Hold Separate

    Until the divestitures required by this Final Judgment have been 
accomplished, defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestitures 
ordered by this Court.

X. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, and every thirty (30) calendar days thereafter until 
the divestitures have been completed under Section IV or V, defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of their compliance with Section IV or V of this Final Judgment. 
Each such affidavit shall include the name, address, and telephone 
number of each person who, during the preceding thirty (30) days, made 
an offer to acquire, expressed an interest in acquiring, entered into 
negotiations to acquire, or was contacted or made an inquiry about 
acquiring, any interest in the Divestiture Assets, and shall describe 
in detail each contact with any such person during that period. Each 
such affidavit shall also include a description of the efforts 
defendants have taken to solicit buyers for the Divestiture Assets, and 
to provide required information to prospective Acquirers, including the 
limitations, if any, on such information. Assuming the information set 
forth in the affidavit is true and complete, any objection by the 
United States to information provided by defendants, including 
limitation on information, shall be made within fourteen (14) days of 
receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to the United States an 
affidavit that describes in reasonable detail all actions defendants 
have taken and all steps defendants have implemented on an ongoing 
basis to comply with Section IX of this Final Judgment. Defendants 
shall deliver to the United States an affidavit describing any changes 
to the efforts and actions outlined in defendants' earlier affidavits 
filed pursuant to this section within fifteen (15) calendar days after 
the change is implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Assets until one year after such 
divestitures have been completed.

XI. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time duly authorized representatives of the United States 
Department of Justice,

[[Page 70824]]

including consultants and other persons retained by the United States, 
shall, upon written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to defendants, be permitted:
    (1) access during defendants' office hours to inspect and copy, or 
at the option of the United States, to require defendants to provide 
hard copies or electronic copies of, all books, ledgers, accounts, 
records, data and documents in the possession, custody or control of 
defendants, relating to any matters contained in this Final Judgment; 
and
    (2) to interview, either informally or on the record, defendants' 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by defendants.
    B. Upon the written request of an authorized representative the 
Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit such written reports or responses to written 
interrogatories, under oath if requested, relating to any of the 
matters contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(1)(G) of the 
Federal Rules of Civil Procedure, and defendants mark each pertinent 
page of such material, ``Subject to claim of protection under Rule 
26(c)(1)(G) of the Federal Rules of Civil Procedure,'' then the United 
States shall give defendants ten (10) calendar days notice prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding).

XII. No Reacquisition

    During the term of this Final Judgment, defendants may not 
reacquire any part of the Divestiture Assets, nor may any defendant 
participate in any other transaction that would result in a 
combination, merger, or other joining together of any parts of the 
Divestiture Assets with assets of the divesting company.

XIII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

XIV. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry.

XV. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16, including making copies available to 
the public of this Final Judgment, the Competitive Impact Statement, 
and any comments thereon, and the United States's responses to 
comments. Based upon the record before the Court, which includes the 
Competitive Impact Statement and any comments and responses to comments 
filed with the Court, entry of this Final Judgment is in the public 
interest.

Date:------------------------------------------------------------------

Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16

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United States District Judge
[FR Doc. 2012-28730 Filed 11-26-12; 8:45 am]
BILLING CODE 4410-11-P