United States V. LM U.S. Corp Acquisition Inc. and Ross Aviation, LLC; Proposed Final Judgment and Competitive Impact Statement, 46452-46462 [2014-18744]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 79, Number 153 (Friday, August 8, 2014)]
[Notices]
[Pages 46452-46462]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18744]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States V. LM U.S. Corp Acquisition Inc. and Ross Aviation, 
LLC; 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.

[[Page 46453]]

LM U.S. Corp Acquisition Inc. and Ross Aviation, LLC, Civil Action No. 
1:14-cv-01291. On July 30, 2014, the United States filed a Complaint 
alleging that the proposed acquisition by LM U.S. Corp Acquisition Inc. 
(doing business as Landmark Aviation ``Landmark'') of the fixed base 
operator (``FBO'') assets of Ross Aviation, LLC (``Ross'') at 
Scottsdale Municipal Airport (``SDL'') in Arizona would violate Section 
7 of the Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed 
the same time as the Complaint, requires Landmark to sell the FBO 
assets it is acquiring from Ross at SDL.
    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 William H. Stallings, Chief, Transportation, 
Energy, and Agriculture Section, Antitrust Division, Department of 
Justice, Washington, DC 20530, (telephone: 202-514-9323).

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the District of Columbia

    United States of America, U.S. Department of Justice, Antitrust 
Division, 450 Fifth Street NW., Suite 8000, Washington, DC 20530, 
Plaintiff, v. LM U.S. Corp Acquisition Inc., 1500 City West Blvd., 
Suite 600, Houston, TX 77042 and Ross Aviation, LLC, 3033 East First 
Avenue, Suite 815, Denver, CO 80206 Defendants.

Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014

COMPLAINT

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to enjoin the proposed acquisition by LM U.S. Corp Acquisition 
Inc. (with affiliated companies doing business as Landmark Aviation, 
``Landmark'') of Ross Aviation, LLC (``Ross'') (collectively, 
``Defendants'') and to obtain other equitable relief. The United States 
alleges as follows:

I. NATURE OF THE ACTION

    1. On April 19, 2014, Landmark and Ross signed an agreement for 
Landmark to acquire Ross's United States fixed base operators 
(``FBOs'') for approximately $330 million. FBOs provide flight support 
services--including fueling, ramp and hangar rentals, office space 
rentals, and other services--to general aviation customers. Landmark is 
the third largest fixed base operator in the United States and operates 
over 40 FBOs at airports around the country. Ross operates FBOs at 19 
airports in the United States. Both Landmark and Ross operate FBOs at 
the Scottsdale Municipal Airport (``SDL'').
    2. Landmark and Ross are the only two FBOs operating at SDL. They 
compete directly on price and quality of FBO services for general 
aviation customers. Thus, the proposed acquisition would eliminate this 
head-to-head competition and create an FBO monopoly at SDL. The 
proposed acquisition would also give Landmark the ability to raise 
prices and lower the quality of services at SDL for general aviation 
customers. Unless the transaction is enjoined, the proposed acquisition 
is likely to lessen competition substantially in the market for FBO 
services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C. 
Sec.  18.

II. JURISDICTION AND VENUE

    3. The United States brings this action under Section 15 of the 
Clayton Act, as amended, 15 U.S.C. Sec.  25, to prevent and restrain 
Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. Sec.  
18.
    4. Defendants are engaged in interstate commerce and in activities 
substantially affecting interstate commerce. Landmark and Ross provide 
FBO services to aircraft landing throughout the United States. This 
Court has subject matter jurisdiction over this action and jurisdiction 
over the parties pursuant to 15 U.S.C. Sec.  25, and 28 U.S.C. 
Sec. Sec.  1331, 1337(a), and 1345.
    5. Defendants have consented to venue and personal jurisdiction in 
this District.

III. DEFENDANTS AND THE PROPOSED TRANSACTION

    6. LM U.S. Corp Acquisition Inc. is a Delaware corporation with its 
principal place of business in Houston, Texas. LM U.S. Corp Acquisition 
Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P. 
and CP V Landmark, L.P., which are both limited partnerships within the 
Carlyle Group, control all the companies doing business as Landmark 
Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle 
Partners V, L.P. (collectively, ``Landmark'') are all limited 
partnerships within the Carlyle Group with the same or similar 
investors. Landmark owns and operates more than 40 FBO facilities in 
the United States, including its FBO operation at SDL, which it 
operates as Landmark Aviation-SDL.
    7. Ross is a Delaware limited liability company with its principal 
place of business in Denver, Colorado. Ross owns and operates 19 FBO 
facilities in the United States, including its FBO operation at SDL, 
which it operates as Scottsdale AirCenter.
    8. On April 19, 2014, Landmark and Ross executed a Transaction 
Agreement under which Landmark will acquire all of Ross's FBO assets 
for approximately $330 million.

IV. TRADE AND COMMERCE

A. The Relevant Market

    9. FBO services include the sale of jet aviation fuel (``Jet A 
fuel'') and aviation gasoline (``avgas''), as well as related support 
services, to general aviation customers. FBOs usually do not charge 
separately for services such as conference rooms, pilot lounges, flight 
planning, and transportation. Instead, they recover the cost of these 
ancillary services in the price that they charge for fuel. FBOs often 
charge separately for hangar and office rentals, aircraft storage, tie-
down and ground services, deicing, and catering.
    10. The largest source of revenue for an FBO is fuel sales. FBOs 
sell Jet A fuel for jet aircraft, turboprops and helicopters, and avgas 
for smaller, piston-operated planes.
    11. General aviation customers cannot obtain fuel, hangar, ramp or 
related services at SDL, except through the FBOs authorized to sell 
such products and services by the local airport authority. 
Consequently, general aviation customers landing at SDL have no option 
other than to use Landmark and Ross FBOs for these services. Obtaining 
FBO services at another airport would not provide an economically 
practical alternative for

[[Page 46454]]

these general aviation customers because they purposely select SDL due 
to its proximity to Scottsdale. Thus, a small but significant post-
acquisition increase in the prices for fuel, hangar space, and other 
FBO services at SDL would not cause general aviation customers to 
switch to other airports in sufficient quantities to make such a price 
increase unprofitable.
    12. Accordingly, the provision of FBO services to general aviation 
customers is a relevant product market and SDL is a relevant geographic 
market (i.e., a line of commerce and a section of the country) under 
Section 7 of the Clayton Act, 15 U.S.C. Sec.  18.

B. Anticompetitive Effects

    13. The market for FBO services at SDL is highly concentrated, with 
only two providers--Landmark and Ross. If Landmark acquires the Ross 
FBO facility, it will have a monopoly in the market for FBO services at 
SDL.
    14. Competition between Landmark's and Ross's FBO facilities 
currently limits the ability of each to raise prices for FBO services. 
This head-to-head competition also forces each company to offer better 
service to customers. The proposed acquisition would eliminate the 
competitive constraint each imposes on the other.
    15. Thus, the proposed acquisition would lead to a monopoly at SDL, 
which, in turn, would likely result in higher prices for FBO services 
and a lower quality of service for customers in violation of Section 7 
of the Clayton Act, 15 U.S.C. Sec.  18.
    16. Successful entry into the provision of FBO services at SDL by a 
new competitor would not be timely, likely, or sufficient to deter the 
anticompetitive effects resulting from this transaction. Entry 
sufficient to replace the market impact of Ross would be unlikely for 
several reasons. First, Landmark and Ross both hold long-term leases 
from SDL for their FBO Facilities. Additionally, the new FBO provider 
would need to get the approval of the airport authority, obtain 
permits, and construct facilities prior to beginning its operations at 
SDL. This process would require extensive lead time to complete and 
there is no guarantee that the new provider would be able to obtain the 
necessary approvals and permits. Thus, timely and successful entry at 
SDL by a new provider of FBO services would be unlikely to occur in 
response to a small but significant and non-transitory post-merger 
price increase.

V. VIOLATION ALLEGED

    17. The United States hereby incorporates paragraphs 1 through 16.
    18. Unless enjoined, Landmark's proposed acquisition of Ross is 
likely to substantially lessen competition and restrain trade for FBO 
services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C. 
Sec.  18, in the following ways:
    a. actual and potential competition between Landmark and Ross for 
FBO services at SDL will be eliminated;
    b. competition for FBO services at SDL will be eliminated; and
    c. prices for FBO services for general aviation customers at SDL 
will likely increase and quality of service will likely decrease.

VI. REQUEST FOR RELIEF

    19. The United States requests that:
    a. Landmark's proposed acquisition of Ross's FBO facility at SDL be 
adjudged and decreed to be unlawful and in violation of Section 7 of 
the Clayton Act, 15 U.S.C. Sec.  18;
    b. Defendants and all persons acting on their behalf be 
preliminarily and permanently enjoined and restrained from consummating 
the proposed transaction or from entering into or carrying out any 
contract, agreement, plan, or understanding, the effect of which would 
be to combine Landmark's and Ross's FBO facilities and assets at SDL;
    c. the United States be awarded its costs for this action; and
    d. the United States receive such other and further relief as the 
Court deems just and proper.
    Dated this 30th day of July, 2014.

Respectfully submitted,
For Plaintiff United States:

/s/--------------------------------------------------------------------
William J. Baer (D.C. BAR  324723)
Assistant Attorney General for Antitrust

/s/--------------------------------------------------------------------
David I. Gelfand
Deputy Assistant Attorney General

/s/--------------------------------------------------------------------
Patricia A. Brink
Director of Civil Enforcement

/s/--------------------------------------------------------------------
William H. Stallings (D.C. BAR 444924)
Chief, Transportation, Energy & Agriculture Section

/s/--------------------------------------------------------------------
Caroline E. Laise
Assistant Chief Transportation, Energy & Agriculture Section

/s/--------------------------------------------------------------------
Michelle A. Pionkowski*
Laura B. Collins
Attorneys, Antitrust Division, U.S. Department of Justice, 450 Fifth 
Street NW., Suite 8000, Washington, DC 20530, Telephone: (202) 598-
2954, Facsimile: (202) 307-2784, E-mail: 
Michelle.Pionkowski@usdoj.gov

Attorneys for the United States

*Attorney of Record

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. LM U.S. Corp Acquisition 
Inc., and Ross Aviation, LLC, Defendants.
Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014

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 proposed Final Judgment submitted for 
entry in this civil antitrust proceeding.

I. NATURE AND PURPOSE OF THE PROCEEDING

    Defendant LM U.S. Corp Acquisition Inc. (with affiliated companies 
doing business as Landmark Aviation, ``Landmark'') and Defendant Ross 
Aviation, LLC (``Ross'') (collectively, ``Defendants'') entered into an 
Agreement, dated April 19, 2014, pursuant to which Landmark will 
acquire the fixed base operators (``FBO'') of Ross Aviation for 
approximately $330 million. The United States filed a civil antitrust 
Complaint on July 30, 2014, seeking to enjoin the proposed acquisition. 
The Complaint alleges that the likely effect of this acquisition would 
be to combine the only providers of FBO services at Scottsdale 
Municipal Airport (``SDL''), thereby creating a monopoly in violation 
of Section 7 of the Clayton Act, 15 U.S.C. Sec.  18. This loss of 
competition likely would result in both (1) higher prices for fuel and 
other FBO services and (2) a reduction in the quality of FBO services 
offered at SDL.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate'') 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 sell Ross's FBO assets at SDL, which currently operate as a wholly 
owned subsidiary: Ross Scottsdale LLC (the ``Divestiture Assets''). 
Under the terms of the Hold Separate Stipulation and Order, Defendant 
Landmark will take certain steps to ensure that the Divestiture Assets 
are operated as a competitively independent, economically viable and

[[Page 46455]]

ongoing business concern that will remain independent and uninfluenced 
by the consummation of the acquisition, and that competition is 
maintained during the pendency of the ordered divestiture.
    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

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

A. The Defendants and the Proposed Transaction

    LM U.S. Corp Acquisition Inc. is a Delaware corporation with its 
principal place of business in Houston, Texas. LM U.S. Corp Acquisition 
Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P. 
and CP V Landmark, L.P., which are both limited partnerships within the 
Carlyle Group, control all the companies doing business as Landmark 
Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle 
Partners V, L.P. (collectively, ``Landmark'') are all limited 
partnerships within the Carlyle Group with the same or similar 
investors. Landmark owns and operates more than 40 FBO facilities in 
the United States, including its FBO operation at SDL, which it 
operates as Landmark Aviation-SDL.
    Ross Aviation, LLC (``Ross'') is a Delaware limited liability 
company with its principal place of business in Denver, Colorado. Ross 
is a subsidiary of Genossenschaft Constanter, a Swiss company. Ross 
owns and operates 19 FBO facilities in the United States, including its 
FBO operation at SDL, which it operates as Scottsdale AirCenter.
    The proposed transaction, as initially agreed to by Defendants on 
April 19, 2014, would result in Landmark's acquisition of Ross's United 
States FBO locations for $330 million. SDL is the only airport at which 
Landmark and Ross currently compete in the provision of FBO services. 
Defendants are the only two full-service FBOs operating at SDL, and 
successful entry into the provision of FBO services at SDL by a new 
competitor would not be timely, likely, or sufficient to deter the 
anticompetitive effects resulting from this transaction. This 
acquisition is the subject of the Complaint and proposed Final Judgment 
filed by the United States on July 30, 2014.

B. The Competitive Effects of the Transaction on the FBO Services 
Market

1. The Relevant Market
    The Complaint alleges that the proposed transaction would eliminate 
competition in the provision of FBO services at SDL in violation of 
Section 7 of the Clayton Act, 15 U.S.C. Sec.  18. FBOs are facilities 
located at airports that provide fuel and related support services to 
general aviation customers. General aviation customers include charter, 
private, and corporate aircraft operators, as distinguished from 
scheduled commercial passenger and cargo airline operators and military 
flying.
    Fuel sales are the largest source of revenues for FBOs. FBOs often 
do not charge separately for services such as conference rooms, pilot 
lounges, newspapers, or baggage handling. Instead, they recover the 
cost of these services through fuel revenues. FBOs also derive income 
from hangar and office rentals, aircraft storage, tie-down and ground 
services, and deicing.
    General aviation customers cannot obtain fuel, hangar, ramp, and 
related services at SDL except through an FBO authorized to sell such 
services by the local airport authority. Consequently general aviation 
customers departing from or landing at SDL have no option other than to 
use Landmark and Ross FBOs for these services. Obtaining FBO services 
at other airports in the Scottsdale region would not provide an 
economically practical alternative for these general aviation customers 
because many general aviation customers select SDL over other airports 
in the area for its proximity to Scottsdale. General aviation customers 
at SDL would not switch to other airports in the Scottsdale region in 
sufficient numbers to prevent anticompetitive price increases for fuel 
and other FBO services at SDL.
2. The Proposed Merger Would Produce Anticompetitive Effects
    Landmark and Ross are the only two providers for FBO services at 
SDL. Competition between them currently limits the ability of each to 
raise prices for FBO services. This head-to-head competition also 
forces each company to offer better service to general aviation 
customers at SDL. The proposed acquisition would eliminate the 
competitive constraint each provider imposes upon the other and lead to 
a monopoly at SDL. This would result in higher prices for fuel and 
other FBO services and a lower quality of services in violation of 
Section 7 of the Clayton Act, 15 U.S.C. Sec.  18.
    Successful entry into the provision of FBO services at SDL by a new 
competitor would not be timely, likely, or sufficient to deter the 
anticompetitive effects resulting from this transaction. Entry 
sufficient to replace the market impact of Ross would be unlikely for 
several reasons. Landmark and Ross both hold long-term leases from SDL 
for their FBO Facilities. Additionally, the new FBO provider would need 
to get the approval of the airport authority, obtain permits, and 
construct facilities prior to beginning its operations at SDL. This 
process would require extensive lead time to complete and there is no 
guarantee that the new provider would be able to obtain the necessary 
approvals and permits. Thus, timely and successful entry at SDL by a 
new provider of FBO services would be unlikely to occur in response to 
a small but significant and non-transitory post-merger price increase.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

A. Divestiture of Ross's FBO at SDL

    The divestiture requirement of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in the market 
for FBO services provided to general aviation customers at SDL by 
establishing a new, independent, and economically viable competitor. 
The proposed Final Judgment requires the Defendants to divest, as a 
viable ongoing business, the Divestiture Assets. The Divestiture Assets 
must be divested to Signature Flight Support Corporation 
(``Signature'') or to another acquirer in such a way as to satisfy the 
United States in its sole discretion that the operations can and will 
be operated by the purchaser as a viable, ongoing business that can 
compete effectively in the relevant market. Defendants must take all 
reasonable steps necessary to accomplish the divestiture quickly. In 
order to provide greater certainty and efficiency in the divestiture 
process, the United States has approved Defendants' proposed Acquirer, 
Signature Flight Support Corporation (``Signature''). If Defendants do 
not sell the assets to Signature, they shall cooperate with prospective 
purchasers to accomplish the divestiture expeditiously.
    In antitrust cases involving acquisitions in which the United 
States requests a divestiture remedy, the United States seeks to 
require completion of the divestiture within the

[[Page 46456]]

shortest period of time reasonable under the circumstances. Section 
IV(A) of the proposed Final Judgment requires the Defendants to 
complete the divestiture within ten (10) days after the Court signs the 
Hold Separate Stipulation and Order. The proposed Final Judgment also 
provides that this time period may be extended one or more times by the 
United States in its sole discretion for a period not to exceed ninety 
(90) calendar days, and shall notify the Court in such circumstances. A 
prompt divestiture has the benefits of restoring competition lost as a 
result of the acquisition and reducing the possibility that the value 
of the assets will be diminished. Section V(B) of the Hold Separate 
Stipulation and Order specifies that the divestiture assets will be 
maintained as a viable business and that Landmark employees will not 
gain access to customer or supplier lists specific to the divestiture 
assets prior to divestiture.
    Section IV(B) of the proposed Final Judgment requires the 
Defendants to furnish information to prospective acquirers in an 
attempt to sell the divestiture assets. In this instance, the United 
States has already approved Signature as an appropriate acquirer for 
the divestiture assets. If Defendants sell the divestiture assets to 
Signature, no additional time will be needed for the United States to 
approve the acquirer, and Defendants will not need to furnish 
information to prospective acquirers.
    In the event that Defendants do not accomplish the divestiture 
within the periods prescribed in the proposed Final Judgment, Section V 
of the proposed Final Judgment provides that the Court will appoint a 
Divestiture Trustee selected by the United States to effect the sale of 
the Divestiture Assets. If a Divestiture Trustee is appointed, the 
proposed Final Judgment provides that Defendants will pay all costs and 
expenses of the Divestiture Trustee. The Divestiture Trustee's 
commission will be structured so as to incentivize the Divestiture 
Trustee to complete the divestiture as quickly as possible while trying 
to obtain the highest possible price for the Divestiture Assets. After 
his or her appointment becomes effective, the Divestiture Trustee will 
file monthly reports with the Court and the United States which set 
forth his or her efforts to accomplish the divestiture. At the end of 
six (6) months, if the divestiture has not been accomplished, the 
Divestiture 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 Divestiture Trustee's appointment.
    The divestiture provisions of the proposed Final Judgment will 
eliminate the anticompetitive effects of the acquisition in the 
provision of FBO services at SDL.

B. Notification

    Section XI of the proposed Final Judgment requires Landmark to 
provide advance notification of certain future acquisitions from 
entities providing FBO services that would not otherwise be reportable 
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The 
notification provision of the proposed Final Judgment is intended to 
inform the Division of transactions that raise competitive concerns 
similar to those remedied here, and if necessary, to seek to enjoin any 
transaction pursuant to Section 7 of the Clayton Act, 15 U.S.C. Sec.  
18.
    The proposed Final Judgment provides that Landmark shall not 
directly or indirectly acquire any leases from, assets of, or interests 
in any entity providing FBO services at an airport in the United States 
where Landmark is providing FBO services, without prior notification to 
the United States. Notification is not required if the value of the 
assets, interests, or leases is $20 million or less, or if there is 
another full service FBO facility at the airport that is not involved 
in the transaction. The proposed Final Judgment requires that 
notification shall be provided within five (5) business days of 
entering into a definitive assumption or acquisition agreement and at 
least thirty (30) calendar days prior to acquiring any such interest. 
If Landmark formally requests approval for a lease transfer from an 
airport authority in writing prior to entering into an agreement, 
Landmark shall report this request to the Antitrust Division within two 
(2) days; however, the thirty (30) day waiting period shall not begin 
until the Antitrust Division receives the Notification and Report Form.

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 (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States 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:

William H. Stallings
Chief, Transportation, Energy, and Agriculture Section
Antitrust Division
United States Department of Justice
450 5th St. NW
Suite 8000
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

[[Page 46457]]

against Defendants. The United States could have continued the 
litigation and sought preliminary and permanent injunctions against 
Landmark's acquisition of Ross's FBO assets at SDL. The United States 
is satisfied, however, that the divestiture of assets described in the 
proposed Final Judgment will preserve competition for the provision of 
FBO services at SDL. Thus, the proposed Final Judgment would achieve 
all or substantially all of the relief the United States would have 
obtained through litigation, but avoids the time, expense, and 
uncertainty of a full trial on the merits 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., No. 08-1965 (JR), 2009-2 Trade Cas. (CCH) ] 
76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 2009) 
(noting that the court's review of a consent judgment is limited and 
only inquires ``into whether the government's determination that the 
proposed remedies will cure the antitrust violations alleged in the 
complaint was reasonable, and whether the mechanism to enforce the 
final judgment are clear and manageable.'').\1\
---------------------------------------------------------------------------

    \1\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for 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). 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 decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. 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).\2\ 
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' 
prediction as to the effect of proposed remedies, its perception of the 
market structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \2\ 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.''). Because the ``court's authority to review the decree 
depends entirely on the government's

[[Page 46458]]

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 Sen. John 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.\3\
---------------------------------------------------------------------------

    \3\ 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., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, at *22 (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, 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: July 30, 2014

Respectfully submitted,
/s/--------------------------------------------------------------------
Laura B. Collins
Michelle A. Pionkowski *
Trial Attorneys
U.S. Department of Justice
Antitrust Division
Transportation, Energy, and Agriculture
450 5th St. NW., Suite 8000
Washington, DC 20530
* Attorney of Record

United States District Court For the District Of Columbia

    United States of America, Plaintiff, v. LM U.S. Corp Acquisition 
Inc., and Ross Aviation, LLC, Defendants.
Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014

PROPOSED FINAL JUDGMENT

    WHEREAS, Plaintiff, United States of America, filed its Complaint 
on July 30, 2014, the United States and Defendants, Defendant LM U.S. 
Corp Acquisition Inc. and Defendant Ross Aviation, LLC by their 
respective attorneys, have consented to the entry of this Final 
Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    AND WHEREAS, Defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    AND WHEREAS, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by the Defendants to 
assure that competition is not substantially lessened;
    AND WHEREAS, the United States requires Defendants to make certain 
divestitures 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 
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 ORDERED, ADJUDGED AND DECREED:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against 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'' means Signature Flight Support Corporation, or 
another entity to whom Defendants divest the Divestiture Assets.
    B. ``Landmark'' means Defendant LM U.S. Corp Acquisition Inc., a 
Delaware corporation with its headquarters in Houston, Texas, CP V 
Landmark L.P., CP V Landmark II, L.P., any party that acquires all or 
substantially all of the assets by which any of the foregoing (in the 
aggregate, with their subsidiaries taken as a whole) performs FBO 
Services, Carlyle Partners V, L.P., and their subsidiaries, divisions, 
groups, partnerships, joint ventures, directors, officers, managers, 
and employees.
    C. ``Ross'' means Defendant Ross Aviation, LLC, a Delaware 
corporation with its headquarters in Denver, Colorado, its successors 
and assigns, subsidiaries, divisions, groups, affiliates, partnerships, 
and joint ventures, and their directors, officers, managers, agents, 
and employees. One of Ross's wholly owned subsidiaries, Ross Scottsdale 
LLC, a Delaware limited liability corporation headquartered in 
Scottsdale, Arizona, operates the Divestiture Assets.
    D. ``Signature'' means Signature Flight Support Corporation, a 
Delaware corporation with its headquarters in Orlando, FL, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    E. ``SDL Airport'' means Scottsdale Municipal Airport, located in 
Scottsdale, Arizona.
    F. ``FBO Services'' means any or all services relating to providing 
fixed based operator services, including, but not limited to, selling 
fuel; leasing hanger, ramp, and office space; providing flight support 
services; performing maintenance; providing access to terminal 
facilities; or arranging for ancillary services such as limousines, 
rental cars, or hotels.
    G. ``FBO Facilities'' means any and all tangible and intangible 
assets that comprise the business of providing FBO Services, including, 
but not limited to, all personal property, inventory, office furniture, 
materials, supplies, terminal space, hangars, ramps, general aviation 
fuel tank farms for jet aviation fuel and aviation gas, and related 
fueling and maintenance equipment, and other tangible property and all 
assets used exclusively in connection with the business of providing 
FBO Services; all licenses, permits, and authorizations issued by any 
governmental

[[Page 46459]]

organization relating to the business of providing FBO Services subject 
to licensor's approval or consent; all contracts, teaming arrangements, 
agreements, leases, commitments, certifications, and understandings 
relating to the business of providing FBO Services, including supply 
agreements; all customer lists, contracts, accounts, and credit 
records; all repair and performance records, and all other records 
relating to the business of providing FBO Services; all intangible 
assets used in the development, production, servicing, and sale of FBO 
Services, including, but not limited to, all licenses and sublicenses, 
technical information, computer software and related documentation, 
know-how, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, and 
safety procedures for the handling of materials and substances.
    H. ``Full Service FBO'' means a facility that provides FBO 
Services, including pumping fuel into aircraft, and sells all fuel 
types (Jet A and/or avgas) sold by FBOs at that airport.
    I. ``Divestiture Assets'' means Ross Scottsdale LLC, a Delaware 
limited liability company, including all rights, titles and interests, 
including all fee, leasehold and real property rights in Ross's FBO 
Facilities at SDL Airport.
    J. ``Proposed Transaction'' means Landmark's proposed acquisition 
of certain assets from Ross pursuant to the Transaction Agreement by 
and among Ross Aviation Holdco LLC, Ross Aviation, LLC, and LM U.S. 
Corp Acquisition Inc., dated April 19, 2014.

III. Applicability

    A. This Final Judgment applies to Landmark and Ross, 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 Section 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 
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 this 
Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within ten (10) calendar 
days after the Court signs the Hold Separate Stipulation and Order in 
this matter, to divest the Divestiture Assets in a manner consistent 
with this Final Judgment to an Acquirer acceptable to the United 
States, in its sole discretion. Defendants agree to use their best 
efforts to divest the Divestiture Assets as expeditiously as possible. 
The United States, in its sole discretion, may agree to one or more 
extensions of this time period not to exceed ninety (90) calendar days 
in total, and shall notify the Court in such circumstances.
    B. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Assets. 
Following the sale 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.
    C. In the event Defendants are attempting to divest the Divestiture 
Assets to an Acquirer other than Signature, in accomplishing the 
divestiture 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 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 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 privileges 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.
    D. Defendants shall provide the Acquirer and the United States 
information relating to the personnel involved in the operation, 
management, and sale of the Divestiture Assets to enable the Acquirer 
to make offers of employment. Defendants will not interfere with any 
negotiations by the Acquirer to employ any Defendant employee whose 
primary responsibility is the operation, management, and sale of the 
Divestiture Assets.
    E. 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.
    F. Defendants shall warrant to the Acquirer that each asset will be 
operational on the date of sale.
    G. Defendants shall warrant to the Acquirer that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset.
    H. The foregoing Sections IV.C through IV.G shall not apply in the 
event that the acquirer of the Divestiture Assets is Signature pursuant 
to the Interest Purchase Agreement dated as of May 23, 2014 by and 
among Signature Flight Support Corporation, LM U.S. Corp Acquisition, 
Inc. and, as of the Closing, Ross Aviation, LLC.
    I. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, or by Divestiture Trustee appointed 
pursuant to Section V, of this Final Judgment, shall include the entire 
Divestiture Assets, and 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 as part of a viable, 
ongoing business engaged in providing FBO Services at SDL Airport. The 
divestitures, whether pursuant to Section IV or Section V of this Final 
Judgment,
    (1) shall be made to an Acquirer 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 provision of FBO Services at SDL Airport; 
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 and Defendants give 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 to compete 
effectively.

V. Appointment of Divestiture Trustee

    A. If Defendants have not divested the Divestiture Assets within 
the time period specified in Section IV(A), Defendants shall notify the 
United States of that fact in writing. Upon application of the United 
States, the Court shall appoint a Divestiture 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 Divestiture Trustee becomes 
effective, only the Divestiture Trustee shall have the right to sell 
the Divestiture Assets. The Divestiture Trustee shall have the

[[Page 46460]]

power and authority to accomplish the divestiture to an Acquirer 
acceptable to the United States at such price and on such terms as are 
then obtainable upon reasonable effort by the Divestiture 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 Section V(D) of this Final Judgment, the 
Divestiture Trustee may hire at the cost and expense of Defendants any 
investment bankers, attorneys, or other agents, who shall be solely 
accountable to the Divestiture Trustee, reasonably necessary in the 
Divestiture Trustee's judgment to assist in the divestiture. Any such 
investment bankers, attorneys, or other agents shall serve on such 
terms and conditions as the United States approves including 
confidentiality requirements and conflict of interest certifications.
    C. Defendants shall not object to a sale by the Divestiture Trustee 
on any ground other than the Divestiture Trustee's malfeasance. Any 
such objections by Defendants must be conveyed in writing to the United 
States and the Divestiture Trustee within ten (10) calendar days after 
the Divestiture Trustee has provided the notice required under Section 
VI.
    D. The Divestiture Trustee shall serve at the cost and expense of 
Defendants, on such terms and conditions as the United States approves, 
including confidentiality requirements and conflict of interest 
certifications. The Divestiture Trustee shall account for all monies 
derived from the sale of the assets sold by the Divestiture Trustee and 
all costs and expenses so incurred. After approval by the Court of the 
Divestiture Trustee's accounting, including fees for its services yet 
unpaid and those of any professionals and agents retained by the 
Divestiture Trustee, all remaining money shall be paid to Defendants 
and the trust shall then be terminated. The compensation of the 
Divestiture Trustee and any professionals and agents retained by the 
Divestiture Trustee shall be reasonable in light of the value of the 
Divestiture Assets and based on a fee arrangement providing the 
Divestiture Trustee with an incentive based on the price and terms of 
the divestiture and the speed with which it is accomplished, but 
timeliness is paramount. If the Divestiture Trustee and Landmark are 
unable to reach agreement on the Divestiture Trustee's or any agents' 
or consultants' compensation or other terms and conditions of 
engagement within fourteen (14) calendar days of appointment of the 
Divestiture Trustee, the United States may, in its sole discretion, 
take appropriate action, including making a recommendation to the 
Court.
    E. Defendants shall use their best efforts to assist the 
Divestiture Trustee in accomplishing the required divestiture. The 
Divestiture Trustee and any consultants, accountants, attorneys, and 
other agents retained by the Divestiture 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 Divestiture 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 Divestiture Trustee's accomplishment of the divestiture.
    F. After its appointment, the Divestiture Trustee shall file 
monthly reports with the United States and, as appropriate, the Court 
setting forth the Divestiture Trustee's efforts to accomplish the 
divestiture ordered under this Final Judgment. To the extent such 
reports contain information that the Divestiture 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 Divestiture Trustee shall maintain 
full records of all efforts made to divest the Divestiture Assets.
    G. If the Divestiture Trustee has not accomplished the divestiture 
ordered under this Final Judgment within six (6) months after its 
appointment, the Divestiture Trustee shall promptly file with the Court 
a report setting forth (1) the Divestiture Trustee's efforts to 
accomplish the required divestiture, (2) the reasons, in the 
Divestiture Trustee's judgment, why the required divestiture has not 
been accomplished, and (3) the Divestiture Trustee's recommendations. 
To the extent such reports contains information that the Divestiture 
Trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. The Divestiture 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 
Divestiture Trustee's appointment by a period requested by the United 
States.
    H. If the United States determines that the Divestiture Trustee has 
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute 
Divestiture Trustee.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, Defendants or the Divestiture 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 Divestiture 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, any other third party, or the Divestiture 
Trustee, if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer, and any other potential Acquirer. 
Defendants and the Divestiture 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, any third party, and the Divestiture Trustee, 
whichever is later, the United States shall provide written notice to 
Defendants and the Divestiture 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 Section V(C) of this Final Judgment. Absent written 
notice that the United States does not object to the proposed Acquirer 
or upon

[[Page 46461]]

objection by the United States, a divestiture proposed under Section IV 
or Section V shall not be consummated. Upon objection by Defendants 
under Section V(C), a divestiture proposed under Section V shall not be 
consummated unless approved by the Court.

VII. Financing

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

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has 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 divestiture 
ordered by this Court.

IX. 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 divestiture has been completed under Section IV or V, Defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of its 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) calendar 
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) 
calendar 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 VIII 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 
divestiture has been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of any related orders such as any Hold Separate 
Order, or of determining whether the Final Judgment should be modified 
or vacated, and subject to any legally recognized privilege, from time 
to time authorized representatives of the United States Department of 
Justice, 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 copy 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 of the 
Assistant Attorney General in charge of the Antitrust Division, 
Defendants shall submit written reports or response 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).

XI. Notification

    Unless such transaction is otherwise subject to the reporting and 
waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. Sec.  18a (the ``HSR 
Act''), Defendant Landmark, without providing advance notification to 
the Antitrust Division, shall not directly or indirectly assume a lease 
from, acquire assets of, or acquire interest in any entity engaged in 
provision of FBO Services at an airport where Landmark is already 
providing FBO Services in the United States during the term of this 
Final Judgment, unless the assumption or acquisition (1) is valued at 
less than $20 million dollars or (2) at least one Full Service FBO, not 
involved in the transaction, provides FBO Services at the airport where 
the assumption or acquisition will take place.
    Such notification shall be provided to the Antitrust Division in 
the same format as and per the instructions relating to the 
Notification and Report Form set forth in the Appendix to Part 803 of 
Title 16 of the Code of Federal Regulations as amended, except that the 
information requested in Items 5 through 8 of the instructions must be 
provided only about the provision of FBO Services. Notification shall 
be provided within five (5) business days of entering into a definitive 
assumption or acquisition agreement and at least thirty (30) calendar 
days prior to acquiring any such interest, and shall include, beyond 
what may be required by the applicable instructions, the names of the 
principal representatives of the parties to the agreement who 
negotiated the agreement. Should Landmark contact an airport authority 
formally requesting approval of a lease transfer in a transaction that 
would require the notification described in this paragraph prior to 
entering into a

[[Page 46462]]

definitive acquisition agreement, Landmark shall report that 
communication to the Division within two (2) business days, though the 
thirty (30) day waiting period shall not begin until the Division 
receives the information provided in the Notification and Report Form.
    Early termination of the waiting period in this paragraph may be 
requested and may be granted by the Antitrust Division in its sole 
discretion. This Section shall be broadly construed and any ambiguity 
or uncertainty regarding the filing of notice under this Section shall 
be resolved in favor of filing notice.

XII. No Reacquisition

    Defendants may not reacquire any part of the Divestiture Assets 
during the term of this Final Judgment.

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 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 response to comments filed with 
the Court, entry of this Final Judgment is in the public interest.

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

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

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United States District Judge

[FR Doc. 2014-18744 Filed 8-7-14; 8:45 am]
BILLING CODE 4410-11-P