United States and State of New York v. Twin America, LLC, et al.; Proposed Final Judgment and Competitive Impact Statement, 16427-16436 [2015-07055]
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United States and State of New York v.
Twin America, LLC, et al.; Proposed
Final Judgment and Competitive
Impact Statement
Notice is hereby given pursuant to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h), that a proposed
Final Judgment, Stipulation and
Competitive Impact Statement have
been filed with the United States
District Court for the Southern District
of New York in United States and State
of New York v. Twin America, LLC, et
al., Civil Action No. 12–cv–8989 (ALC)
(GWG). On December 11, 2012, the
United States and the State of New York
filed a Complaint. The United States
alleged that the formation of Twin
America, LLC by Coach USA, Inc. and
CitySights LLC violated Section 7 of the
Clayton Act (15 U.S.C. 18) and Section
1 of the Sherman Act (15 U.S.C. 1). The
proposed Final Judgment, filed on
March 16, 2015, requires Defendants to
relinquish all of CitySights’s Manhattan
bus stop authorizations granted by the
New York City Department of
Transportation (NYC DOT) to NYC
DOT, and to pay $7.5 million in
disgorgement.
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 Southern District of New
York. 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.
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
United States of America, and State of New
York, Plaintiffs, v. Twin America, LLC, et al.,
Defendants.
Civil Action No. 12–cv–8989 (ALC) (GWG).
ECF CASE.
COMPETITIVE IMPACT STATEMENT
Pursuant to Section 2(b) of the
Antitrust Procedures and Penalties Act
(‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C.
16(b)–(h), Plaintiff United States of
America (‘‘United States’’) 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
On March 17, 2009, Defendants Coach
USA, Inc. (through subsidiary
International Bus Services, Inc. (‘‘IBS’’))
and CitySights LLC (through subsidiary
City Sights Twin, LLC) formed Twin
America, LLC (‘‘Twin America’’), a joint
venture that combined the companies’
hop-on, hop-off bus tour businesses in
New York City. The United States and
the State of New York (collectively,
‘‘Plaintiffs’’) filed a civil antitrust
Complaint on December 11, 2012,
alleging that the formation of Twin
America substantially lessened
competition in the market for hop-on,
hop-off bus tours in New York City in
violation of Section 7 of the Clayton Act
(15 U.S.C. 18), and also violated Section
1 of the Sherman Act (15 U.S.C. 1),
Section 340 of the Donnelly Act (N.Y.
Gen. Bus. Law § 340), and Section
63(12) of the New York Executive Law
(N.Y. Exec. Law § 63(12)).1 The
1 The Tunney Act applies to ‘‘proposal[s] for a
consent judgment submitted by the United States
for entry in any civil proceeding brought by or on
behalf of the United States under the antitrust laws
[of the United States].’’ 15 U.S.C. 16(b). Therefore,
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Complaint sought to remedy harm to
competition and disgorge Defendants’
ill-gotten gains.
The Parties completed discovery and
dispositive motions practice and trial
was scheduled to begin on February 23,
2015. On December 10, 2014, the Parties
informed the Court that they had
reached an agreement in principle to
settle the litigation and the trial date
was adjourned while the Parties
finalized the settlement.
Concurrent with the filing of this
Competitive Impact Statement, Plaintiffs
have filed a proposed Stipulation and
Order, a proposed Final Judgment, and
an Explanation of Consent Decree
Procedures. The proposed Final
Judgment is designed to remedy the
competitive concerns resulting from
Defendants’ formation of Twin America
and deprive Defendants of ill-gotten
gains. As explained more fully below,
the proposed Final Judgment requires
Defendants to relinquish the complete
set of City Sights’s Manhattan bus stop
authorizations to the New York City
Department of Transportation
(NYCDOT) and to pay $7.5 million in
disgorgement, among other remedial
actions.2
Plaintiffs and Defendants have
stipulated that Defendants are bound by
the terms of the proposed Final
Judgment and 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 Transaction
Coach USA, Inc. (‘‘Coach’’), a
Delaware corporation with its principal
place of business in Paramus, New
Jersey, operated hop-on, hop-off bus
tours in New York City under the ‘‘Gray
Line New York’’ brand. Coach acquired
the Gray Line business in 1998, and, by
the early 2000s, was the dominant
the proposed Final Judgment’s settlement of
Plaintiff State of New York’s claims under N.Y.
Gen. Bus. Law § 340 and N.Y. Exec. Law § 63(12)
are not subject to the Tunney Act.
2 Defendant Coach USA and the United States
have also reached a settlement relating to costs and
expenses incurred by the United States associated
with discovery into allegations that Coach did not
meet its document preservation obligations. This
settlement, which is being filed concurrently with
the filing of the proposed Final Judgment, is not
subject to Tunney Act review.
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provider of hop-on, hop-off bus tours in
New York City.
CitySights LLC (‘‘City Sights’’), a New
York limited liability company with its
principal place of business in New
York, New York, began operating hopon, hop-off bus tours under the
‘‘CitySights NY’’ brand in 2005.
Between 2005 and 2009, City Sights
steadily grew its business and
established itself as Gray Line’s only
meaningful competitor. By the end of
2008, City Sights had almost equaled
Gray Line in market share and was
poised for further growth.
The impact of increasing competition
from City Sights generated concern at
the highest levels of Coach and its
corporate parent, Stagecoach Group plc
(‘‘Stagecoach’’), and led them to seek a
business combination with City Sights.
On March 17, 2009, following several
months of negotiations, Coach (through
subsidiary IBS) and City Sights (through
subsidiary City Sights Twin, LLC)
executed a joint venture agreement
creating Twin America, a Delaware
limited liability company with its
principal place of business in New York
City. Twin America combined
Defendants’ New York City hop-on,
hop-off bus tour operations and ended
all competition between Gray Line and
City Sights. Twin America continued to
operate both the Gray Line and City
Sights brands under common ownership
and control.
The formation of Twin America was
not subject to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as
amended, 15 U.S.C. 18a (the ‘‘HSR
Act’’), which requires companies to
notify and provide information to the
Department of Justice and the Federal
Trade Commission before
consummating certain transactions.
Neither the United States nor the State
of New York was aware of the
transaction until after it had been
consummated. Upon learning of the
transaction, the Antitrust Bureau of the
New York State Attorney General’s
Office (‘‘NYSAG’’) opened an
investigation, and on July 31 and
August 3, 2009, served subpoenas on
Defendants seeking information about
Twin America’s formation.
B. The STB’s Rejection of the Joint
Venture
Within weeks of receiving the
NYSAG’s subpoenas, on August 19,
2009, Defendants applied to the federal
Surface Transportation Board (‘‘STB’’)
for approval of Twin America. Pursuant
to 49 U.S.C. 14303, the STB must
approve certain transactions involving
passenger motor carriers prior to
consummation. Following their
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application, Defendants asserted that
review of Twin America was within the
STB’s exclusive jurisdiction because
STB approval would immunize the
transaction from antitrust law.3
On February 8, 2011, following the
collection of fact and expert evidence,
the STB rejected the Twin America joint
venture. The STB expressed ‘‘concern[]
that the Board’s processes may have
been manipulated to avoid the inquiry
by NYSAG’’ and concluded that ‘‘[t]he
transaction produce[d] an unacceptably
high market concentration that can lead
to, and has in fact led to, unchecked rate
increases, and that holds the potential
for other harmful effects of excessive
market power.’’ 4 Defendants moved for
reconsideration, but in January 2012,
the STB affirmed its prior finding. The
STB gave Defendants the option of
unwinding Twin America or spinning
off Twin America’s nominal interstate
services, which the STB identified as
the basis for its jurisdiction. On
February 8, 2012, Defendants chose to
spin off the interstate services, which
removed the matter from STB
jurisdiction but did nothing to address
the joint venture’s anticompetitive
effects in the New York City hop-on,
hop-off bus tour market. Plaintiffs filed
the above-captioned lawsuit on
December 11, 2012.
C. The Competitive Effects of the
Transaction in the Market for Hop-On,
Hop-Off Bus Tours in New York City
1. Relevant Market
The evidence demonstrates that a
significant number of customers would
not substitute to other tours or
attractions in response to a small but
significant and non-transitory increase
in the price (SSNIP) of hop-on, hop-off
bus tours. These bus tours combine
transportation and sightseeing into a
unique product that is not reasonably
interchangeable with other tours or
attractions. In addition to providing an
informative and entertaining tour of
New York City’s most popular
attractions and neighborhoods, hop-on,
hop-off bus tours provide customers
with the ability to ‘‘hop off’’ the bus to
visit attractions of interest and ‘‘hop on’’
a later bus to continue their tour using
the same ticket. As a result of this
feature, customers are provided an
affordable and reliable means to travel
around New York City and the ability to
3 A party to a transaction approved by the STB
is ‘‘exempt from the antitrust laws and from all
other law . . . as necessary to let that person carry
out the transaction.’’ 49 U.S.C. 14303(f).
4 Stagecoach Group PLC and Coach USA, Inc., et
al., Acquisition of Control—Twin America LLC, STB
Docket No. MC–F–21035 (Feb. 8, 2011) at 7.
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customize their sightseeing itineraries to
the attractions and neighborhoods that
interest them. Defendants’ documents
and business practices illustrate that
they have long recognized hop-on, hopoff bus tours in New York City to be a
distinct market and do not view other
types of tours as a significant constraint,
a view shared by numerous other New
York City sightseeing tours and
attractions.
The direct evidence of
anticompetitive effects following the
formation of Twin America provides
further support for the conclusion that
hop-on, hop-off bus tours in New York
City constitute a relevant antitrust
market. Defendants implemented a
substantial price increase around the
time of Twin America’s early 2009
formation, raising the fares of City
Sights’s and Gray Line’s downtown,
uptown, and all loops tours, for
example, by approximately 10 percent.
These price increases, which
Defendants have sustained for six years
(and supplemented with further
increases), are higher than the 5 percent
SSNIP that is often used under the
Horizontal Merger Guidelines to define
a market. Defining a relevant antitrust
market generally involves answering the
question of whether a hypothetical
monopolist would find it profitable to
impose a SSNIP. The evidence that
Coach and City Sights significantly
increased price as a result of the market
power conferred by the joint venture
directly answers this question: it is clear
that a hypothetical monopolist would
find it profitable to impose a SSNIP
because an actual near-monopolist
(Twin America) did, in fact, find it
profitable to raise price significantly for
an extended period of time.
Hop-on, hop-off bus tours in New
York City therefore constitute a relevant
market and line of commence under
Section 7 of the Clayton Act, Section 1
of the Sherman Act, and Section 340 of
the Donnelly Act.
2. Competitive Effects
The formation of Twin America
resulted in actual and immediate harm
to consumers as it enabled Defendants
to increase hop-on, hop-off bus tour
prices by approximately 10 percent. The
evidence demonstrates that at the time
Coach and Stagecoach were negotiating
a business combination with City
Sights, Coach and Stagecoach
consistently planned for and assumed
that the merged firm would implement
a 10 percent fare increase on Gray Line
and City Sights tours and that Coach
shared this assumption with City Sights.
Coach ultimately increased Gray Line’s
hop-on, hop-off bus tour fares by
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approximately 10 percent shortly before
executing the joint venture and
Defendants increased City Sights’s fares
to match the Gray Line increase shortly
after consummation. Defendants
sustained the Gray Line and City Sights
fare increases in the years following
Twin America’s formation and raised
prices further in 2013.
In years prior to the joint venture,
Coach and City Sights were each other’s
main rival and consumers benefited
from the improved products and
services that resulted from the fierce
and direct competition between them.
This head-to-head competition, which
intensified over time, was eliminated
when Defendants merged their hop-on,
hop-off bus tour operations. In addition,
the formation of Twin America
substantially increased concentration in
an already highly concentrated market.
Concentration is typically measured by
the Herfindahl-Hirschman Index
(‘‘HHI’’). The more concentrated a
market, and the more a transaction
would increase concentration in a
market, the more likely it is that a
transaction would result in a
meaningful reduction in competition.
Markets in which the HHI is in excess
of 2500 points are considered highly
concentrated, and a transaction that
increases concentration by more than
200 points in such a market is presumed
likely to enhance market power. In the
year prior to the joint venture’s
formation, Gray Line had an
approximately 63 percent market share,
City Sights had an approximately 37
percent share, and a third firm had a
less than one percent share, resulting in
an HHI of 5271. The formation of Twin
America created an effective monopoly
with an approximately 99 percent
market share and increased the market’s
HHI by 4599 to 9870. Based on the preand post-transaction market
concentration measures, Twin
America’s formation is presumed likely
to enhance market power.
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3. Entry
Entry and expansion into the relevant
market has not been, and is not likely
to be, timely or sufficient to counteract
the joint venture’s anticompetitive
effects. For more than three years
following Twin America’s formation,
there was no new entry or expansion in
the New York City hop-on, hop-off bus
tour market and Defendants sustained
their early 2009 price increases. Entry
that has occurred since 2012 has also
failed to roll back Defendants’ price
increases and has been insufficient to
constrain Twin America’s exercise of
market power.
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The most significant barrier to entry
in the hop-on, hop-off bus tour market
is the requirement that an entrant obtain
authorizations from the New York City
Department of Transportation
(‘‘NYCDOT’’) for each location where it
wishes to stop to load and unload
passengers on its tour. Both Gray Line
and City Sights have long held large
portfolios of bus stop authorizations that
enable them to stop at or in close
proximity to virtually all of New York
City’s top attractions and
neighborhoods, providing Defendants
with a distinct competitive advantage
over other operators in the market. Gray
Line and City Sights obtained these bus
stop authorizations without difficulty
years before their joint venture because
NYCDOT awarded the bus stops on a
‘‘first come, first served’’ basis. Recent
entrants, by contrast, have faced
persistent difficulties securing bus stop
authorizations at or sufficiently near key
tourist attractions to be competitive
with Twin America as NYCDOT has
denied the overwhelming majority of
bus stops applied for since Twin
America’s formation. Most of the stops
sought by the entrants—particularly
those at or in close proximity to top
tourist attractions—are now at capacity
or are otherwise unavailable, leaving
Twin America with the dominant share
of competitively-meaningful stops. The
chronic denial of bus stop
authorizations has blocked some firms
from entering the market altogether and
prevented those that have entered from
replicating the scale and strength of
either City Sights or Gray Line prior to
the joint venture. Without needed bus
stops, some entrants stop at key
attractions on an unauthorized basis,
creating the risk of an enforcement
action that could curtail their operations
at any time.
4. Efficiencies
The formation of Twin America has
not resulted in, and is unlikely to result
in, cognizable, merger-specific
efficiencies that have been passed
through to consumers on a sufficient
scale to offset Twin America’s
anticompetitive effects.
III. EXPLANATION OF THE
PROPOSED FINAL JUDGMENT
A. Divestiture
The proposed Final Judgment
remedies the competitive harm alleged
in the Complaint by requiring Twin
America to relinquish to the NYCDOT
the complete set of City Sights bus stop
authorizations in Manhattan so that
other firms are better positioned to
obtain the bus stop authorizations
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needed to compete more effectively
with Twin America.
Here, the most intractable barrier to
entry is the inability of new firms to
obtain bus stop authorizations from
NYCDOT at or in sufficient proximity to
New York City’s top attractions and
neighborhoods. The divestiture
significantly eases this entry barrier by
increasing NYCDOT’s inventory of bus
stops and freeing up capacity at
locations throughout Manhattan,
including the locations most sought by
recent entrants. Notably, City Sights’s
set of approximately 50 bus stop
authorizations includes highly-coveted
stops surrounding key tourist attractions
such as Times Square, the Empire State
Building, and Battery Park that are
critical to operating a competitive hopon, hop-off bus tour. By relinquishing
the City Sights bus stop authorizations
to NYCDOT, the city agency charged
with managing bus stop authorizations,
the proposed Final Judgment increases
availability of stops, especially at key
attractions, that rival firms can use to
compete against Twin America.
The proposed Final Judgment requires
Defendants to complete the
relinquishment of the City Sights bus
stop authorizations by May 1, 2015,
prior to the start of the busy summer
tourist season. Twin America will
continue to hold Gray Line’s preexisting bus stop authorizations for its
own hop-on, hop-off service.
The proposed Final Judgment
prohibits Defendants from applying for
or obtaining bus stop authorizations for
hop-on, hop-off bus tours at the
locations of the divested City Sights bus
stop authorizations for a period of five
years. However, after May 1, 2016, if
NYCDOT revokes a bus stop
authorization currently granted to a
Twin America affiliate other than City
Sights, the proposed Final Judgment
allows Defendants to apply for a bus
stop authorization at the location of a
divested City Sights bus stop
authorization that is at or in close
proximity to the bus stop authorization
that NYCDOT has revoked.
B. Disgorgement
The proposed Final Judgment also
requires Defendants to disgorge $7.5
million in profits obtained as a result of
their unlawful formation of Twin
America. Disgorgement is an equitable
remedy that seeks to ‘‘depriv[e] violators
of the fruits of their illegal conduct’’ by
‘‘forc[ing] a defendant to give up the
amount by which he was unjustly
enriched.’’ SEC v. Contorinis, 743 F.3d
296, 301 (2d Cir. 2014) (internal
quotation marks omitted). By preventing
unjust enrichment, disgorgement has
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the forward-looking ‘‘effect of deterring
subsequent fraud.’’ SEC v. Cavanagh,
445 F.3d 105, 117 (2d Cir. 2006).
Disgorgement is a ‘‘distinctly publicregarding remedy,’’ FTC v. Bronson
Partners, LLC, 654 F.3d 359, 372 (2d
Cir. 2011), whose ‘‘emphasis [is] on
public protection, as opposed to simple
compensatory relief,’’ Cavanagh, 445
F.3d at 117.
‘‘Unless a statute in so many words,
or by a necessary and inescapable
inference, restricts the court’s
jurisdiction in equity,’’ a district court’s
ability to exercise the full powers of
equity jurisdiction, including
disgorgement, ‘‘is not to be denied or
limited.’’ Porter v. Warner Holding Co.,
328 U.S. 395, 398 (1946); see also
Mitchell v. Robert De Mario Jewelry,
Inc., 361 U.S. 288, 289, 291–92 (1960)
(‘‘When Congress entrusts to an equity
court the enforcement of prohibitions
contained in a regulatory enactment, it
must be taken to have acted cognizant
of the historic power of equity to
provide complete relief in light of the
statutory purposes.’’). The Second
Circuit has long affirmed the ability of
district courts to award disgorgement in
government enforcement actions
redressing statutory violations. See SEC
v. Commonwealth Chem. Sec., Inc., 574
F.2d 90, 102–03 (2d Cir. 1978)
(Friendly, J.); Bronson Partners, 654
F.3d at 365–67, 372–74. This Court has
also specifically recognized the
government’s ability to seek
disgorgement in antitrust suits brought
under the Sherman Act. See United
States v. Keyspan Corp., 763 F. Supp. 2d
633, 638–41 (S.D.N.Y. 2011) (Pauley, J.)
(holding that an award of disgorgement
‘‘comports with established principles
of antitrust law’’). Although Keyspan
considered the availability of
disgorgement under the Sherman Act,
its analysis also applies to the Clayton
Act, as both Acts similarly authorize the
United States to bring suits ‘‘in equity
to prevent and restrain such violations.’’
Compare Sherman Act, 15 U.S.C. 4
(2012) with Clayton Act, 15 U.S.C. 25
(2012). See also People v. Ernst & Young
LLP, 980 N.Y.S.2d 456, 457 (N.Y. App.
Div. 2014) (affirming authority of New
York Attorney General to obtain
disgorgement under New York law).
As in Keyspan, there are specific
‘‘exigencies of [this] case’’ that justify a
disgorgement award. Keyspan, 765 F.
Supp. 2d at 640. Unlike the majority of
Section 7 challenges brought by the
United States, which are brought prior
to the closing of the challenged
transaction, this case involves a
consummated joint venture that resulted
in actual and substantial consumer
harm. As alleged in the Complaint,
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Defendants not only increased prices by
approximately 10 percent in connection
with the joint venture’s formation, they
reaped these illegal profits for years
while forestalling antitrust enforcement.
By awarding disgorgement of
Defendants’ ill-gotten gain, the proposed
Final Judgment will prevent Defendants
from being unjustly enriched by their
conduct and deter Defendants and
others from engaging in similar conduct
in the future.
In determining the appropriate
disgorgement amount, Plaintiffs
accounted for the fact that Defendants
have agreed to pay $19 million to settle
related private class action lawsuits that
were brought after Plaintiffs filed this
action.5 Because Plaintiffs’ reasonable
approximation of profits connected to
Defendants’ antitrust law violations
exceeds $19 million, Plaintiffs
determined that disgorgement of an
additional amount was appropriate. The
$7.5 million in disgorgement provided
under the proposed Final Judgment will
be divided equally between the United
States and the State of New York.
C. Antitrust Compliance and Inspection
Sections IX and XI of the proposed
Final Judgment establish procedures to
ensure that Defendants comply with the
terms of the Final Judgment and the
antitrust laws. Section IX grants the
United States or the State of New York
access, upon reasonable notice, to
Defendants’ records and documents
relating to matters contained in the
Final Judgment. Defendants must also
make their personnel available for
interviews or depositions regarding
such matters. In addition, upon request,
Defendants must prepare written reports
or responses to written interrogatories
relating to matters contained in the
Final Judgment.
To ensure future compliance with the
antitrust laws, Section XI of the
proposed Final Judgment requires
Defendants Coach and Twin America to
maintain an antitrust compliance
program for each company’s officers and
directors with responsibility for any
operations in the United States, as well
as any other employee with pricing or
decision-making responsibility for the
provision of hop-on, hop-off tour bus
tours in New York City. The antitrust
compliance program will provide these
personnel with annual training on the
meaning and requirements of the
antitrust laws and shall be delivered by
an attorney with experience in the field
5 See Order and Final Judgment Approving In Re
NYC Bus Tour Antitrust Litigation Class Action
Settlement, In re NYC Bus Tour Antitrust Litigation,
No. 13–CV–0711 (ALC) (GWG) (S.D.N.Y. Oct. 21,
2014) (Dkt. No. 122).
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of antitrust law. Section XI also requires
Defendants Coach and Twin America to
designate an Antitrust Compliance
Officer to oversee the antitrust
compliance program. The Antitrust
Compliance Officer must communicate
annually to all employees that they may
disclose to the Antitrust Compliance
Officer, without reprisal, information
concerning any potential violation of
the antitrust laws.
D. Notification of Future Transactions
Section X of the proposed Final
Judgment requires Defendants to
provide advance notification of any
future acquisition of any assets or of any
interest, including any financial,
security, loan, equity or management
interest, in a person providing hop-on,
hop-off bus tours in New York City
during the term of the Final Judgment
regardless of whether the transaction
meets the reporting thresholds set forth
in the HSR Act. The proposed Final
Judgment further provides for waiting
periods and opportunities for the United
States or the State of New York to obtain
additional information analogous to the
provisions of the HSR Act.
E. Stipulation and Order Provisions
Defendants have entered into a
Stipulation and Order, which was filed
simultaneously with the Court, to
ensure that the City Sights bus stop
authorizations are maintained until
Defendants have relinquished them to
NYCDOT.
IV. REMEDIES AVAILABLE TO
POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15
U.S.C. 15, provides that any person who
has been injured as a result of conduct
prohibited by the antitrust laws may
bring suit in federal court to recover
three times the damages the person has
suffered, as well as costs and reasonable
attorneys’ fees. Entry of the proposed
Final Judgment 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. 16(a), the proposed Final
Judgment has no prima facie effect in
any subsequent private lawsuit that may
be brought against the Defendants.6
6 As previously noted, a related private class
action lawsuit seeking damages from Defendants
was settled in October 2014. See Order and Final
Judgment Approving In Re NYC Bus Tour Antitrust
Litigation Class Action Settlement, In re NYC Bus
Tour Antitrust Litigation, No. 13–CV–0711 (ALC)
(GWG) (S.D.N.Y. Oct. 21, 2014) (Dkt. No. 122).
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V. PROCEDURES AVAILABLE FOR
MODIFICATION OF THE PROPOSED
FINAL JUDGMENT
The Parties 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 &
Agriculture Section, Antitrust Division,
United States Department of Justice, 450
Fifth Street 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
against Defendants. The proposed Final
Judgment, however, avoids the time,
expense, and uncertainty of a full trial
on the merits. The United States also
considered whether the City Sights bus
stop authorizations could be transferred
on a standalone basis or with other
assets to an upfront buyer, but
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determined that such a transaction was
not feasible in light of current NYCDOT
regulations and policies governing bus
stop authorizations. The United States is
satisfied that the remedies set forth in
the proposed Final Judgment will
sufficiently restore the competition lost
when Defendants formed their joint
venture and will appropriately deprive
Defendants of ill-gotten gains.
VII. STANDARD OF REVIEW UNDER
THE APPA FOR THE PROPOSED
FINAL JUDGMENT
The Clayton and Sherman Acts, as
amended by the APPA, require that
proposed consent judgments in antitrust
cases brought by the United States be
subject to a sixty-day comment period,
after which the court shall determine
whether entry of the proposed Final
Judgment ‘‘is in the public interest.’’ 15
U.S.C. 16(e)(1); see also United States v.
Int’l Bus. Mach. Corp., 163 F.3d 737,
740 (2d Cir. 1998). In making a ‘‘public
interest’’ 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. 16(e)(1)(A) & (B); see generally
Keyspan, 763 F. Supp. 2d at 637–38
(discussing Tunney Act standards);
United States v. SBC Commc’ns, Inc.,
489 F. Supp. 2d 1 (D.D.C. 2007)
(similar). 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); accord United States v.
Alex. Brown & Sons, Inc., 963 F. Supp.
235, 238 (S.D.N.Y. 1997) (quoting
Microsoft, 56 F.3d at 1460), aff’d sub
nom. United States v. Bleznak, 153 F.3d
16 (2d Cir. 1998); Keyspan, 763 F. Supp.
2d at 637 (same).
Under the APPA a court considers,
among other things, the relationship
between the remedy secured and the
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16431
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, the court’s function is ‘‘not to
determine whether the proposed
[d]ecree results in the balance of rights
and liabilities that is the one that will
best serve society, but only to ensure
that the resulting settlement is within
the reaches of the public interest.’’
Keyspan, 763 F. Supp. 2d at 637
(quoting Alex. Brown & Sons, 963 F.
Supp. at 238) (internal quotations
omitted). In making this determination,
‘‘[t]he [c]ourt is not permitted to reject
the proposed remedies merely because
the court believes other remedies are
preferable. [Rather], the relevant inquiry
is whether there is a factual foundation
for the government’s decision such that
its conclusions regarding the proposed
settlement are reasonable.’’ Keyspan, at
637–38 (quoting United States v.
Abitibi-Consolidated Inc., 584 F. Supp.
2d 162, 165 (D.D.C. 2008)); see also
United States v. Apple, Inc., 889 F.
Supp. 2d 623, 631 (S.D.N.Y. 2012) (Cote,
J.); Alex. Brown & Sons, 963 F. Supp. at
238.7 The government’s predictions
about the efficacy of its remedies are
entitled to deference. Apple, 889 F.
Supp. 2d at 631 (citation omitted).8
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
7 See also United States v. Bechtel Corp., 648 F.2d
660, 666 (9th Cir. 1981) (‘‘The 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.’’); 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’ ’’).
8 See Microsoft, 56 F.3d at 1461 (noting the need
for courts to be ‘‘deferential to the government’s
predictions as to the effect of the proposed
remedies’’); United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003)
(noting that the court should grant due respect to
the United States’ prediction as to the effect of
proposed remedies, its perception of the market
structure, and its views of the nature of the case).
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v. United States, 460 U.S. 1001 (1983);
see also United States v. U.S. Airways
Group, Inc., 38 F. Supp. 3d 69, 76
(D.D.C. 2014) (noting that room must be
made for the government to grant
concessions in the negotiation process
for settlements); 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 Keyspan, 763 F.
Supp. 2d at 638 (‘‘A court must limit its
review to the issues in the complaint.’’)
(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. 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. 16(e)(2); see also
U.S. Airways, 38 F. Supp. 3d at 76
(indicating that a court is not required
to hold an evidentiary hearing or to
permit intervenors as part of its review
under the Tunney Act). 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
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Jkt 235001
of Sen. Tunney). Rather, the procedure
for the public interest determination is
left to the discretion of the court, with
the recognition that the court’s ‘‘scope
of review remains sharply proscribed by
precedent and the nature of Tunney Act
proceedings.’’ SBC Commc’ns, 489 F.
Supp. 2d at 11.9 A court can make its
public interest determination based on
the competitive impact statement and
response to public comments alone.
U.S. Airways, 38 F. Supp. 3d at 76.
STIPULATION AND ORDER
REGARDING PROPOSED FINAL
JUDGMENT
It is hereby stipulated and agreed by
and between the undersigned parties,
subject to approval and entry by the
Court, that:
I. DEFINITIONS
As used in this Stipulation and Order
Regarding Proposed Final Judgment:
A. ‘‘Coach’’ means Coach USA, Inc.,
a Delaware corporation with its
VIII. DETERMINATIVE DOCUMENTS
principal place of business in Paramus,
There are no determinative materials
New Jersey, and International Bus
or documents within the meaning of the Services, Inc., a New York corporation
APPA that were considered by the
with its principal place of business in
United States in formulating the
Hoboken, New Jersey, and their
proposed Final Judgment.
successors and assigns, and any
subsidiaries, divisions, groups,
Dated: March 16, 2015
affiliates, partnerships and joint
Respectfully submitted,
lll/s/llllll llllllllll ventures under its control, and their
directors, officers, managers, agents, and
Sarah L. Wagner, Andrew S. Garver, David E.
employees.
Altschuler, William H. Jones II, Michele
B. ‘‘CitySights’’ means CitySights LLC
B. Cano,
and City Sights Twin, LLC, New York
U.S. Department of Justice, Antitrust
limited liability companies with their
Division, Transportation, Energy &
principal places of business in New
Agriculture Section, 450 Fifth Street
NW., Suite 8000, Washington, DC 20530, York, New York, and their successors
Telephone: (202) 305–8915,
and assigns, and any subsidiaries,
Sarah.Wagner@usdoj.gov,
divisions, groups, affiliates,
Andrew.Garver@usdoj.gov,
partnerships and joint ventures under
David.Altschuler@usdoj.gov,
its control, and their directors, officers,
Bill.Jones2@usdoj.gov, Michele.Cano@
managers, agents, and employees.
usdoj.gov.
C. ‘‘CitySights Bus Stop
Benjamin Sirota,
Authorizations’’ means all of the
U.S. Department of Justice, Antitrust
Manhattan bus stop authorizations
Division, New York Office, 26 Federal
granted by the New York City
Plaza, Room 3630, New York, NY 10278,
Department of Transportation
Telephone: (212) 335–8056,
(NYCDOT) identified in Appendix A to
Benjamin.Sirota@usdoj.gov.
the proposed Final Judgment, which
Attorneys for Plaintiff United States
comprises all of the bus stop
authorizations granted to and currently
UNITED STATES DISTRICT COURT
held by CitySights to provide hop-on,
FOR THE SOUTHERN DISTRICT OF
hop-off bus tours in the Borough of
NEW YORK
Manhattan, New York City.
United States of America, and State of New
D. ‘‘Twin America’’ means Twin
York, Plaintiffs, v. Twin America, LLC, et al.,
America, LLC, a Delaware limited
Defendants.
liability company with its principal
Civil Action No. 12–cv–8989 (ALC) (GWG).
place of business in New York, New
ECF Case.
York, and its successors and assigns,
and any subsidiaries, divisions, groups,
9 See United States v. Enova Corp., 107 F. Supp.
affiliates, partnerships and joint
2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney
ventures under its control, and their
Act expressly allows the court to make its public
directors, officers, managers, agents, and
interest determination on the basis of the
competitive impact statement and response to
employees.
comments alone’’); United States v. Mid-Am.
E. ‘‘Defendants’’ means Coach USA,
Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade
Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977) Inc., International Bus Services, Inc.,
CitySights LLC, City Sights Twin, LLC,
(‘‘Absent a showing of corrupt failure of the
government to discharge its duty, the Court, in
and Twin America, LLC.
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.’’).
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II. OBJECTIVES
The proposed Final Judgment filed in
this case is meant to ensure Defendants’
prompt divestiture of the CitySights Bus
Stop Authorizations by relinquishing
them to NYCDOT in order to restore
competition that Plaintiffs allege was
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substantially lessened. If approved by
the Court, the proposed Final Judgment
would fully resolve the claims alleged
in Plaintiffs’ Complaint. This
Stipulation and Order ensures that,
prior to such divestiture, the CitySights
Bus Stop Authorizations are maintained
until such divestiture has been
accomplished.
III. JURISDICTION AND VENUE
The Court has jurisdiction over the
subject matter of this action and over
each of the parties hereto, and venue of
this action is proper in the United States
District Court for the Southern District
of New York.
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IV. COMPLIANCE WITH AND ENTRY
OF FINAL JUDGMENT
A. The parties stipulate that a Final
Judgment in the form attached hereto as
Exhibit A may be filed with and entered
by the Court, upon the motion of any
party or upon the Court’s own motion,
at any time after compliance with the
requirements of the Antitrust
Procedures and Penalties Act (‘‘APPA’’),
15 U.S.C. 16, and without further notice
to any party or other proceedings,
provided that the Plaintiffs have not
withdrawn their consent, which they
may do at any time before the entry of
the proposed Final Judgment by serving
notice thereof on Defendants and by
filing that notice with the Court.
Defendants agree to arrange, at their
expense, publication as quickly as
possible of the newspaper notice
required by the APPA, which shall be
drafted by the United States in its sole
discretion. The publication shall be
arranged no later than three (3) business
days after Defendants’ receipt from the
United States of the text of the notice
and the identity of the newspaper
within which the publication shall be
made. Defendants shall promptly send
to the United States (1) confirmation
that publication of the newspaper notice
has been arranged, and (2) the
certification of the publication prepared
by the newspaper within which the
notice was published.
B. Defendants shall abide by and
comply with the provisions of the
proposed Final Judgment, pending the
Judgment’s entry by the Court, or until
expiration of time for all appeals of any
Court ruling declining entry of the
proposed Final Judgment, and shall,
from the date of the signing of this
Stipulation by the parties, comply with
all the terms and provisions of the
proposed Final Judgment. Plaintiffs
shall have the full rights and
enforcement powers in the proposed
Final Judgment as though the same were
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Jkt 235001
in full force and effect as an order of the
Court.
C. This Stipulation shall apply with
equal force and effect to any amended
proposed Final Judgment agreed upon
in writing by the parties and submitted
to the Court.
D. In the event (1) the Plaintiffs have
withdrawn their consent, as provided in
Section IV(A) above, or (2) the proposed
Final Judgment is not entered pursuant
to this Stipulation, the time has expired
for all appeals of any Court ruling
declining entry of the proposed Final
Judgment, and the Court has not
otherwise ordered continued
compliance with the terms and
provisions of the proposed Final
Judgment, then the parties are released
from all further obligations under this
Stipulation, and the making of this
Stipulation shall be without prejudice to
any party in this or any other
proceeding.
E. Defendants represent that the
divestiture and payments ordered in the
proposed Final Judgment can and will
be made, and that Defendants will later
raise no claim of mistake, hardship or
difficulty of compliance as grounds for
asking the Court to modify any of the
provisions contained therein.
V. MAINTENANCE OF CITYSIGHTS
BUS STOP AUTHORIZATIONS
Until the divestiture required by the
Final Judgment has been accomplished:
A. Defendants shall not, except as part
of a divestiture approved by the
Plaintiffs in accordance with the terms
of the proposed Final Judgment, revoke,
sell, lease, assign, transfer, pledge or
otherwise dispose of any of the
CitySights Bus Stop Authorizations.
B. Defendants shall take no action that
would jeopardize, delay, or impede the
divestiture of the CitySights Bus Stop
Authorizations.
VI. DURATION OF MAINTENANCE
OBLIGATIONS
Defendants’ obligations under Section
V of this Stipulation and Order shall
remain in effect until (1) consummation
of the divestiture required by the
proposed Final Judgment or (2) until
further order of the Court or as
otherwise provided in Section IV.D
hereof. If Plaintiffs voluntarily dismiss
the Complaint in this matter,
Defendants are released from all further
obligations under this Stipulation and
Order.
VII. STAY OF LITIGATION
Entry of this Stipulation and Order
shall stay all deadlines established by
the Amended Pretrial Scheduling Order
(Doc. 125).
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16433
ORDER
It is SO ORDERED this ll day of
llll 2015.
Judge Andrew L. Carter, Jr.
United States District Judge.
Respectfully submitted on llll,
2015:
lll/s/llllll
Sarah Wagner,
U.S. Department of Justice, Antitrust
Division, Transportation, Energy &
Agriculture Section, 450 Fifth Street, NW.,
Suite 8000, Washington, DC 20530, (202)
305–8915, sarah.wagner@usdoj.gov.
Attorney for Plaintiff United States
lll/s/llllll
Michael P. A. Cohen,
Paul Hastings LLP, 875 15th Street, NW,
Washington, DC 20005, (202) 551–1880,
michaelcohen@paulhastings.com.
Attorney for Defendants Twin America, LLC,
CitySights LLC and City Sights Twin, LLC
lll/s/llllll
Eric J. Stock,
Bureau Chief, Antitrust
James Yoon,
Assistant Attorney General, Office of the
Attorney General, Antitrust Bureau, 120
Broadway, 26th Floor, New York, NY 10271–
0332, (212) 416–8262, Eric.Stock@ag.ny.gov,
James.Yoon@ag.ny.gov.
Attorneys for Plaintiff State of New York
lll/s/llllll
Thomas O. Barnett,
Covington & Burling LLP, 850 10th Street,
NW, Washington, DC 20001, (202) 662–5407,
tbarnett@cov.com.
Attorney for Defendants Coach USA, Inc. and
International Bus Services, Inc.
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
United States of America, and State of New
York, Plaintiffs, v. Twin America, LLC, et al.
Defendants.
Civil Action No. 12–cv–8989 (ALC) (GWG).
ECF Case.
[Proposed] Final Judgment
WHEREAS, Plaintiffs United States of
America and the State of New York
(collectively ‘‘Plaintiffs’’) filed their
Complaint on December 11, 2012,
Plaintiffs and Defendants Coach USA,
Inc., International Bus Services, Inc.,
CitySights LLC, City Sights Twin, LLC,
and Twin America, LLC (collectively
‘‘Defendants’’), 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
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Judgment pending its approval by the
Court;
AND WHEREAS, the essence of this
Final Judgment is the execution of
prompt and certain divestitures by
Defendants to restore competition that
Plaintiffs allege was substantially
lessened, and the payment of equitable
monetary relief;
AND WHEREAS, Plaintiffs require
Defendants to make certain divestitures
for the purpose of remedying the loss of
competition alleged in the Complaint,
and to pay equitable monetary relief;
AND WHEREAS, Defendants have
represented to Plaintiffs that the
divestitures and the other relief 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
provisions contained below;
NOW THEREFORE, before any trial
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.
18), Section 1 of the Sherman Act (15
U.S.C. 1), Section 340 of the Donnelly
Act (N.Y. Gen. Bus. Law § 340), and
Section 63(12) of the New York
Executive Law (N.Y. Exec. Law
§ 63(12)).
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II. Definitions
As used in this Final Judgment:
A. ‘‘Coach’’ means Coach USA, Inc.,
a Delaware corporation with its
principal place of business in Paramus,
New Jersey, and International Bus
Services, Inc., a New York corporation
with its principal place of business in
Hoboken, New Jersey, and their
successors and assigns, and any
subsidiaries, divisions, groups,
affiliates, partnerships and joint
ventures under their control, and their
directors, officers, managers, agents, and
employees.
B. ‘‘CitySights’’ means CitySights LLC
and City Sights Twin, LLC, New York
limited liability companies with their
principal places of business in New
York, New York, and their successors
and assigns, and any subsidiaries,
divisions, groups, affiliates,
partnerships and joint ventures under
their control, and their directors,
officers, managers, agents, and
employees.
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C. ‘‘CitySights Bus Stop
Authorizations’’ means all of the
Manhattan bus stop authorizations
granted by the New York City
Department of Transportation identified
in Appendix A, which comprises all of
the bus stop authorizations granted to
and currently held by CitySights to
provide hop-on, hop-off bus tours in the
borough of Manhattan, New York City.
D. ‘‘Twin America’’ means Twin
America, LLC, a Delaware limited
liability company with its principal
place of business in New York, New
York, and its successors and assigns,
and any subsidiaries, divisions, groups,
affiliates, partnerships and joint
ventures under its control, and their
directors, officers, managers, agents, and
employees.
E. ‘‘Defendants’’ means Coach USA,
Inc., International Bus Services, Inc.,
CitySights LLC, City Sights Twin, LLC,
and Twin America, LLC.
F. ‘‘NYCDOT’’ means the New York
City Department of Transportation.
G. ‘‘Person’’ means any natural person
or legal entity.
III. Applicability
This Final Judgment applies to Coach,
CitySights, and Twin America, 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.
IV. Disgorgement
Defendants shall pay $7.5 million in
disgorgement to Plaintiffs for
Defendants’ alleged violations of
Section 7 of the Clayton Act, as
amended (15 U.S.C. 18), Section 1 of the
Sherman Act (15 U.S.C. 1), Section 340
of the Donnelly Act (N.Y. Gen. Bus. Law
§ 340), and Section 63(12) of the New
York Executive Law (N.Y. Exec. Law
§ 63(12)). The $7.5 million disgorgement
payment shall be divided equally
between the United States and the State
of New York.
V. Payment of Disgorgement
A. Defendants’ payment of
disgorgement shall be made in three (3)
installments. Within 30 days of the
entry of this Final Judgment, Defendants
must pay $2.5 million in disgorgement
to Plaintiffs, divided equally between
the United States and the State of New
York. Within nine (9) months after entry
of this Final Judgment, Defendants must
pay another $2.5 million in
disgorgement to Plaintiffs, divided
equally between the United States and
the State of New York. Within 16
months after entry of this Final
Judgment, Defendants must pay the
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Fmt 4703
Sfmt 4703
remaining $2.5 million in disgorgement
to Plaintiffs, divided equally between
the United States and the State of New
York.
B. The payments to the United States
specified in this Final Judgment must be
made by wire transfer. Before making
any transfer to the United States, a
defendant must contact Janie Ingalls of
the Antitrust Division’s Antitrust
Documents Group at (202) 512–2481 for
wire-transfer instructions.
The payments to the State of New
York specified in this Final Judgment
must be made by wire transfer. Before
making any transfer to the State of New
York, Defendants must contact Dorcey
Bennett (Dorcey.Bennet@ag.ny.gov) of
the State of New York’s Budget & Fiscal
Management Bureau for wire-transfer
instructions and cc: to James Yoon
(James.Yoon@ag.ny.gov).
C. In the event of a default in
payment, interest at the rate of 18
percent per annum will accrue thereon
from the date of default to the date of
payment.
VI. Divestitures
A. Defendants are ordered and
directed, by May 1, 2015, to divest the
CitySights Bus Stop Authorizations by
relinquishing them to the NYCDOT in a
manner consistent with this Final
Judgment. The Plaintiffs, in their sole
discretion, may agree to one or more
extensions of this time period not to
exceed 30 calendar days in total, and
shall notify the Court in such
circumstances.
B. Defendants shall not take any
action that will jeopardize, delay, or
impede in any way the divestiture of the
CitySights Bus Stop Authorizations.
C. Unless the Plaintiffs otherwise
consent in writing, the divestiture
pursuant to Section VI of this Final
Judgment shall include the entire
CitySights Bus Stop Authorizations in
the borough of Manhattan, New York
City. For the avoidance of doubt,
nothing in this Final Judgment requires
Defendants to divest any bus stop
authorizations granted to affiliates of
Twin America other than CitySights,
including any authorizations for shared
use bus stops.
D. Defendants shall not take any
action to impede in any way the
reallocation or reassignment of the
CitySights Bus Stop Authorizations by
NYCDOT to any other person.
VII. Maintenance of CitySights Bus Stop
Authorizations
Until the divestiture required by this
Final Judgment has been accomplished,
Defendants shall take all steps necessary
to comply with the Stipulation and
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Order Regarding Proposed Final
Judgment entered by this Court.
Defendants shall take no action that
would jeopardize, delay, or impede the
divestiture of the CitySights Bus Stop
Authorizations ordered by this Court.
mstockstill on DSK4VPTVN1PROD with NOTICES
VIII. Affidavits
A. Within seven (7) calendar days of
the Court entering the Stipulation and
Order Regarding Proposed Final
Judgment in this matter, and every
thirty (30) calendar days thereafter until
the divestiture has been completed
under Section VI, Defendants shall
deliver to Plaintiffs an affidavit that
describes in reasonable detail all actions
Defendants have taken to comply with
Section VI of this Final Judgment.
Defendants shall deliver to Plaintiffs 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.
B. Defendants shall keep all records of
all efforts made to maintain and divest
the CitySights Bus Stop Authorizations
until one year after such divestiture has
been completed.
IX. Compliance Inspection
A. For the purposes of determining or
securing compliance with this Final
Judgment, or of any related orders, or of
determining whether the Final
Judgment should be modified or
vacated, and subject to any legally
recognized privilege, from time to time
Plaintiffs’ authorized representatives,
upon written request and on reasonable
notice to Defendants, shall be permitted
to:
(1) Access during Defendants’ office
hours to inspect and copy, or at the
option of the United States or State of
New York, 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) 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 either
Plaintiff, Defendants shall submit
written reports or responses to written
interrogatories, under oath if requested,
relating to any of the matters contained
VerDate Sep<11>2014
20:59 Mar 26, 2015
Jkt 235001
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
Plaintiffs to any person other than an
authorized representative of the
executive branch of the United States or
the Attorney General’s Office of the
State of New York, except in the course
of legal proceedings to which the United
States or the State of New York is a
party (including grand jury
proceedings), or for the purpose of
securing compliance with this Final
Judgment, for law enforcement
purposes, or as otherwise required by
law.
D. If at the time information or
documents are furnished by Defendants
to Plaintiffs, 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
Plaintiffs shall give Defendants ten (10)
calendar days notice prior to divulging
such material in any legal proceeding
(other than a grand jury proceeding).
X. Notification
Unless such transaction is otherwise
subject to the reporting and waiting
period requirements of the Hart-ScottRodino Antitrust Improvements Act of
1976, as amended, 15 U.S.C. 18a (the
‘‘HSR Act’’), Defendants, without
providing advance notification to the
Plaintiffs, shall not directly or indirectly
acquire any assets of or any interest,
including any financial, security, loan,
equity or management interest, in a
person providing hop-on, hop-off bus
tours in New York City during the term
of this Final Judgment.
Such notification shall be provided to
the Plaintiffs 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 4 through 8 of the
instructions must be provided only
about hop-on, hop-off bus tours in New
York City. Notification shall be
provided 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, and any management or
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Sfmt 4703
16435
strategic plans discussing the proposed
transaction. If within the 30-day period
after notification, representatives of
either Plaintiff make a written request
for additional information, Defendants
shall not consummate the proposed
transaction or agreement until thirty
(30) calendar days after substantially
complying with such request for
information. Early termination of the
waiting periods in this paragraph may
be requested and, where appropriate,
granted in the same manner as is
applicable under the requirements and
provisions of the HSR Act and rules
promulgated thereunder. 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.
XI. Antitrust Compliance Program
A. Within thirty (30) days after entry
of this Final Judgment, Coach and Twin
America shall each appoint an Antitrust
Compliance Officer and identify to
Plaintiffs his or her name, business
address, and telephone number.
B. Each Antitrust Compliance Officer
shall institute an antitrust compliance
program for the company’s officers and
directors with responsibility for any
operations in the U.S., and any
employee with pricing or decisionmaking responsibility for any aspect of
the provision of hop-on, hop-off bus
tours in New York City. The antitrust
compliance program shall provide at
least two hours of training annually on
the antitrust laws, such training to be
delivered by an attorney with relevant
experience in the field of antitrust law.
C. Each Antitrust Compliance Officer
shall obtain, within six months after
entry of this Final Judgment, and on an
annual basis thereafter, on or before
each anniversary of the entry of this
Final Judgment, from each person
subject to Section XI.B of this Final
Judgment, and thereafter maintaining, a
certification that each such person has
received the required two hours of
annual antitrust training.
D. Each Antitrust Compliance Officer
shall communicate annually to all
employees that they may disclose to the
Antitrust Compliance Officer, without
reprisal, information concerning any
potential violation of the antitrust laws.
E. Each Antitrust Compliance Offer
shall provide to Plaintiffs within six
months after entry of this Final
Judgment, and on an annual basis
thereafter, on or before each anniversary
of the entry of this Final Judgment, a
written statement as to the fact and
manner of the Defendant’s compliance
with Section XI of this Final Judgment.
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Federal Register / Vol. 80, No. 59 / Friday, March 27, 2015 / Notices
United States District Judge
XII. No Reacquisition
For a period of five years from the
date of entry of this Final Judgment,
Defendants may not apply for or obtain
any bus stop authorizations for hop-on,
hop-off bus tours at the locations of the
divested CitySights Bus Stop
Authorizations, except that, after May 1,
2016, if the NYCDOT revokes a bus stop
authorization currently granted to an
affiliate of Twin America other than
City Sights, Defendants may apply for or
obtain a bus stop authorization at the
location of a divested CitySights Bus
Stop Authorization that is at or in close
proximity to the location of the bus stop
authorization NYCDOT has revoked.
Nothing in this Final Judgment shall be
construed to prohibit Defendants from
applying for or obtaining from the
NYCDOT bus stop authorizations at
locations other than the locations of the
CitySights Bus Stop Authorizations, nor
to limit the NYCDOT’s ability to alter or
amend Defendants’ bus stop
authorizations.
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, except
that Sections XI and XII shall expire five
years from the date of this Final
Judgment’s entry.
mstockstill on DSK4VPTVN1PROD with NOTICES
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. 16, including making copies
available to the public of this Final
Judgment, the Competitive Impact
Statement, and any comments thereon
and the United States’ responses to
comments. Based upon the record
before the Court, which includes the
Competitive Impact Statement and any
comments and response to comments
filed with the Court, entry of this Final
Judgment is in the public interest.
Dated:
lllllllllllllllllllll
lllllllllllllllllllll
Judge Andrew L. Carter, Jr.
VerDate Sep<11>2014
20:59 Mar 26, 2015
Jkt 235001
Controlled substance
Schedule
[FR Doc. 2015–07055 Filed 3–26–15; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. DEA–392]
Importer of Controlled Substances
Application: Mylan Pharmaceuticals,
Inc.
ACTION:
Notice of application.
Registered bulk manufacturers of
the affected basic classes, and
applicants therefore, may file written
comments on or objections to the
issuance of the proposed registration in
accordance with 21 CFR 1301.34(a) on
or before April 27, 2015. Such persons
may also file a written request for a
hearing on the application pursuant to
21 CFR 1301.43 on or before April 27,
2015.
ADDRESSES: Written comments should
be sent to: Drug Enforcement
Administration, Attention: DEA Federal
Register Representative/ODW, 8701
Morrissette Drive, Springfield, Virginia
22152. Request for hearings should be
sent to: Drug Enforcement
Administration, Attention: Hearing
Clerk/LJ, 8701 Morrissette Drive,
Springfield, Virginia 22152
SUPPLEMENTARY INFORMATION: The
Attorney General has delegated his
authority under the Controlled
Substances Act to the Administrator of
the Drug Enforcement Administration
(DEA), 28 CFR 0.100(b). Authority to
exercise all necessary functions with
respect to the promulgation and
implementation of 21 CFR part 1301,
incident to the registration of
manufacturers, distributors, dispensers,
importers, and exporters of controlled
substances (other than final orders in
connection with suspension, denial, or
revocation of registration) has been
redelegated to the Deputy Assistant
Administrator of the DEA Office of
Diversion Control (‘‘Deputy Assistant
Administrator’’) pursuant to section 7 of
28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR
1301.34(a), this is notice that on October
13, 2014, Mylan Pharmaceuticals, Inc.,
3711 Collins Ferry Road, Morgantown,
West Virginia 26505, applied to be
registered as an importer of the
following basic classes of controlled
substances:
DATES:
Controlled substance
Amphetamine (1100) ..................
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Schedule
II
Lisdexamfetamine (1205) ...........
Methylphenidate (1724) ..............
Pentobarbital (2270) ...................
Oxycodone (9143) ......................
Hydromorphone (9150) ..............
Hydrocodone (9193) ...................
Levorphanol (9220) ....................
Morphine (9300) .........................
Oxymorphone (9652) ..................
Remifentanil (9739) ....................
Fentanyl (9801) ..........................
II
II
II
II
II
II
II
II
II
II
II
The company plans to import the
listed controlled substances in finished
dosage form (FDF) from foreign sources
for analytical testing and clinical trials
in which the foreign FDF will be
compared to the company’s own
domestically-manufactured FDF. This
analysis is required to allow the
company to export domesticallymanufactured FDF to foreign markets.
Dated: March 20, 2015.
Joseph T. Rannazzisi,
Deputy Assistant Administrator.
[FR Doc. 2015–06967 Filed 3–26–15; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
[OMB Number 1140–0031]
Agency Information Collection
Activities: Proposed eCollection
eComments Requested; Records of
Acquisition and Disposition,
Registered Importers of Arms,
Ammunition, and Implements of War
on the U.S. Munitions Imports List
Bureau of Alcohol, Tobacco,
Firearms and Explosives, Department of
Justice.
ACTION: 30-day notice.
AGENCY:
The Department of Justice
(DOJ), Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
This proposed information collection
was previously published in the Federal
Register Volume 80, Number 14, page
3252 on January 22, 2015, allowing for
a 60 day comment period.
DATES: The purpose of this notice is to
allow for an additional 30 days for
public comment until April 27, 2015.
FOR FURTHER INFORMATION CONTACT: If
you have comments, especially on the
estimated public burden or associated
response time, suggestions, or need a
copy of the proposed information
collection instrument with instructions
SUMMARY:
E:\FR\FM\27MRN1.SGM
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]]>Agencies
[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Notices]
[Pages 16427-16436]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07055]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States and State of New York v. Twin America, LLC, et al.;
Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation and Competitive Impact Statement have been filed with the
United States District Court for the Southern District of New York in
United States and State of New York v. Twin America, LLC, et al., Civil
Action No. 12-cv-8989 (ALC) (GWG). On December 11, 2012, the United
States and the State of New York filed a Complaint. The United States
alleged that the formation of Twin America, LLC by Coach USA, Inc. and
CitySights LLC violated Section 7 of the Clayton Act (15 U.S.C. 18) and
Section 1 of the Sherman Act (15 U.S.C. 1). The proposed Final
Judgment, filed on March 16, 2015, requires Defendants to relinquish
all of CitySights's Manhattan bus stop authorizations granted by the
New York City Department of Transportation (NYC DOT) to NYC DOT, and to
pay $7.5 million in disgorgement.
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 Southern District of New York. 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 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 & Agriculture Section, Antitrust Division, U.S. Department of
Justice, 450 Fifth Street NW., Suite 8000, Washington, DC 20530
(telephone: 202-514-9323).
Patricia A. Brink
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
United States of America, and State of New York, Plaintiffs, v.
Twin America, LLC, et al., Defendants.
Civil Action No. 12-cv-8989 (ALC) (GWG).
ECF CASE.
COMPETITIVE IMPACT STATEMENT
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), Plaintiff United
States of America (``United States'') 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
On March 17, 2009, Defendants Coach USA, Inc. (through subsidiary
International Bus Services, Inc. (``IBS'')) and CitySights LLC (through
subsidiary City Sights Twin, LLC) formed Twin America, LLC (``Twin
America''), a joint venture that combined the companies' hop-on, hop-
off bus tour businesses in New York City. The United States and the
State of New York (collectively, ``Plaintiffs'') filed a civil
antitrust Complaint on December 11, 2012, alleging that the formation
of Twin America substantially lessened competition in the market for
hop-on, hop-off bus tours in New York City in violation of Section 7 of
the Clayton Act (15 U.S.C. 18), and also violated Section 1 of the
Sherman Act (15 U.S.C. 1), Section 340 of the Donnelly Act (N.Y. Gen.
Bus. Law Sec. 340), and Section 63(12) of the New York Executive Law
(N.Y. Exec. Law Sec. 63(12)).\1\ The Complaint sought to remedy harm
to competition and disgorge Defendants' ill-gotten gains.
---------------------------------------------------------------------------
\1\ The Tunney Act applies to ``proposal[s] for a consent
judgment submitted by the United States for entry in any civil
proceeding brought by or on behalf of the United States under the
antitrust laws [of the United States].'' 15 U.S.C. 16(b). Therefore,
the proposed Final Judgment's settlement of Plaintiff State of New
York's claims under N.Y. Gen. Bus. Law Sec. 340 and N.Y. Exec. Law
Sec. 63(12) are not subject to the Tunney Act.
---------------------------------------------------------------------------
The Parties completed discovery and dispositive motions practice
and trial was scheduled to begin on February 23, 2015. On December 10,
2014, the Parties informed the Court that they had reached an agreement
in principle to settle the litigation and the trial date was adjourned
while the Parties finalized the settlement.
Concurrent with the filing of this Competitive Impact Statement,
Plaintiffs have filed a proposed Stipulation and Order, a proposed
Final Judgment, and an Explanation of Consent Decree Procedures. The
proposed Final Judgment is designed to remedy the competitive concerns
resulting from Defendants' formation of Twin America and deprive
Defendants of ill-gotten gains. As explained more fully below, the
proposed Final Judgment requires Defendants to relinquish the complete
set of City Sights's Manhattan bus stop authorizations to the New York
City Department of Transportation (NYCDOT) and to pay $7.5 million in
disgorgement, among other remedial actions.\2\
---------------------------------------------------------------------------
\2\ Defendant Coach USA and the United States have also reached
a settlement relating to costs and expenses incurred by the United
States associated with discovery into allegations that Coach did not
meet its document preservation obligations. This settlement, which
is being filed concurrently with the filing of the proposed Final
Judgment, is not subject to Tunney Act review.
---------------------------------------------------------------------------
Plaintiffs and Defendants have stipulated that Defendants are bound
by the terms of the proposed Final Judgment and 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 Transaction
Coach USA, Inc. (``Coach''), a Delaware corporation with its
principal place of business in Paramus, New Jersey, operated hop-on,
hop-off bus tours in New York City under the ``Gray Line New York''
brand. Coach acquired the Gray Line business in 1998, and, by the early
2000s, was the dominant
[[Page 16428]]
provider of hop-on, hop-off bus tours in New York City.
CitySights LLC (``City Sights''), a New York limited liability
company with its principal place of business in New York, New York,
began operating hop-on, hop-off bus tours under the ``CitySights NY''
brand in 2005. Between 2005 and 2009, City Sights steadily grew its
business and established itself as Gray Line's only meaningful
competitor. By the end of 2008, City Sights had almost equaled Gray
Line in market share and was poised for further growth.
The impact of increasing competition from City Sights generated
concern at the highest levels of Coach and its corporate parent,
Stagecoach Group plc (``Stagecoach''), and led them to seek a business
combination with City Sights. On March 17, 2009, following several
months of negotiations, Coach (through subsidiary IBS) and City Sights
(through subsidiary City Sights Twin, LLC) executed a joint venture
agreement creating Twin America, a Delaware limited liability company
with its principal place of business in New York City. Twin America
combined Defendants' New York City hop-on, hop-off bus tour operations
and ended all competition between Gray Line and City Sights. Twin
America continued to operate both the Gray Line and City Sights brands
under common ownership and control.
The formation of Twin America was not subject to the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a
(the ``HSR Act''), which requires companies to notify and provide
information to the Department of Justice and the Federal Trade
Commission before consummating certain transactions. Neither the United
States nor the State of New York was aware of the transaction until
after it had been consummated. Upon learning of the transaction, the
Antitrust Bureau of the New York State Attorney General's Office
(``NYSAG'') opened an investigation, and on July 31 and August 3, 2009,
served subpoenas on Defendants seeking information about Twin America's
formation.
B. The STB's Rejection of the Joint Venture
Within weeks of receiving the NYSAG's subpoenas, on August 19,
2009, Defendants applied to the federal Surface Transportation Board
(``STB'') for approval of Twin America. Pursuant to 49 U.S.C. 14303,
the STB must approve certain transactions involving passenger motor
carriers prior to consummation. Following their application, Defendants
asserted that review of Twin America was within the STB's exclusive
jurisdiction because STB approval would immunize the transaction from
antitrust law.\3\
---------------------------------------------------------------------------
\3\ A party to a transaction approved by the STB is ``exempt
from the antitrust laws and from all other law . . . as necessary to
let that person carry out the transaction.'' 49 U.S.C. 14303(f).
---------------------------------------------------------------------------
On February 8, 2011, following the collection of fact and expert
evidence, the STB rejected the Twin America joint venture. The STB
expressed ``concern[] that the Board's processes may have been
manipulated to avoid the inquiry by NYSAG'' and concluded that ``[t]he
transaction produce[d] an unacceptably high market concentration that
can lead to, and has in fact led to, unchecked rate increases, and that
holds the potential for other harmful effects of excessive market
power.'' \4\ Defendants moved for reconsideration, but in January 2012,
the STB affirmed its prior finding. The STB gave Defendants the option
of unwinding Twin America or spinning off Twin America's nominal
interstate services, which the STB identified as the basis for its
jurisdiction. On February 8, 2012, Defendants chose to spin off the
interstate services, which removed the matter from STB jurisdiction but
did nothing to address the joint venture's anticompetitive effects in
the New York City hop-on, hop-off bus tour market. Plaintiffs filed the
above-captioned lawsuit on December 11, 2012.
---------------------------------------------------------------------------
\4\ Stagecoach Group PLC and Coach USA, Inc., et al.,
Acquisition of Control--Twin America LLC, STB Docket No. MC-F-21035
(Feb. 8, 2011) at 7.
---------------------------------------------------------------------------
C. The Competitive Effects of the Transaction in the Market for Hop-On,
Hop-Off Bus Tours in New York City
1. Relevant Market
The evidence demonstrates that a significant number of customers
would not substitute to other tours or attractions in response to a
small but significant and non-transitory increase in the price (SSNIP)
of hop-on, hop-off bus tours. These bus tours combine transportation
and sightseeing into a unique product that is not reasonably
interchangeable with other tours or attractions. In addition to
providing an informative and entertaining tour of New York City's most
popular attractions and neighborhoods, hop-on, hop-off bus tours
provide customers with the ability to ``hop off'' the bus to visit
attractions of interest and ``hop on'' a later bus to continue their
tour using the same ticket. As a result of this feature, customers are
provided an affordable and reliable means to travel around New York
City and the ability to customize their sightseeing itineraries to the
attractions and neighborhoods that interest them. Defendants' documents
and business practices illustrate that they have long recognized hop-
on, hop-off bus tours in New York City to be a distinct market and do
not view other types of tours as a significant constraint, a view
shared by numerous other New York City sightseeing tours and
attractions.
The direct evidence of anticompetitive effects following the
formation of Twin America provides further support for the conclusion
that hop-on, hop-off bus tours in New York City constitute a relevant
antitrust market. Defendants implemented a substantial price increase
around the time of Twin America's early 2009 formation, raising the
fares of City Sights's and Gray Line's downtown, uptown, and all loops
tours, for example, by approximately 10 percent. These price increases,
which Defendants have sustained for six years (and supplemented with
further increases), are higher than the 5 percent SSNIP that is often
used under the Horizontal Merger Guidelines to define a market.
Defining a relevant antitrust market generally involves answering the
question of whether a hypothetical monopolist would find it profitable
to impose a SSNIP. The evidence that Coach and City Sights
significantly increased price as a result of the market power conferred
by the joint venture directly answers this question: it is clear that a
hypothetical monopolist would find it profitable to impose a SSNIP
because an actual near-monopolist (Twin America) did, in fact, find it
profitable to raise price significantly for an extended period of time.
Hop-on, hop-off bus tours in New York City therefore constitute a
relevant market and line of commence under Section 7 of the Clayton
Act, Section 1 of the Sherman Act, and Section 340 of the Donnelly Act.
2. Competitive Effects
The formation of Twin America resulted in actual and immediate harm
to consumers as it enabled Defendants to increase hop-on, hop-off bus
tour prices by approximately 10 percent. The evidence demonstrates that
at the time Coach and Stagecoach were negotiating a business
combination with City Sights, Coach and Stagecoach consistently planned
for and assumed that the merged firm would implement a 10 percent fare
increase on Gray Line and City Sights tours and that Coach shared this
assumption with City Sights. Coach ultimately increased Gray Line's
hop-on, hop-off bus tour fares by
[[Page 16429]]
approximately 10 percent shortly before executing the joint venture and
Defendants increased City Sights's fares to match the Gray Line
increase shortly after consummation. Defendants sustained the Gray Line
and City Sights fare increases in the years following Twin America's
formation and raised prices further in 2013.
In years prior to the joint venture, Coach and City Sights were
each other's main rival and consumers benefited from the improved
products and services that resulted from the fierce and direct
competition between them. This head-to-head competition, which
intensified over time, was eliminated when Defendants merged their hop-
on, hop-off bus tour operations. In addition, the formation of Twin
America substantially increased concentration in an already highly
concentrated market. Concentration is typically measured by the
Herfindahl-Hirschman Index (``HHI''). The more concentrated a market,
and the more a transaction would increase concentration in a market,
the more likely it is that a transaction would result in a meaningful
reduction in competition. Markets in which the HHI is in excess of 2500
points are considered highly concentrated, and a transaction that
increases concentration by more than 200 points in such a market is
presumed likely to enhance market power. In the year prior to the joint
venture's formation, Gray Line had an approximately 63 percent market
share, City Sights had an approximately 37 percent share, and a third
firm had a less than one percent share, resulting in an HHI of 5271.
The formation of Twin America created an effective monopoly with an
approximately 99 percent market share and increased the market's HHI by
4599 to 9870. Based on the pre- and post-transaction market
concentration measures, Twin America's formation is presumed likely to
enhance market power.
3. Entry
Entry and expansion into the relevant market has not been, and is
not likely to be, timely or sufficient to counteract the joint
venture's anticompetitive effects. For more than three years following
Twin America's formation, there was no new entry or expansion in the
New York City hop-on, hop-off bus tour market and Defendants sustained
their early 2009 price increases. Entry that has occurred since 2012
has also failed to roll back Defendants' price increases and has been
insufficient to constrain Twin America's exercise of market power.
The most significant barrier to entry in the hop-on, hop-off bus
tour market is the requirement that an entrant obtain authorizations
from the New York City Department of Transportation (``NYCDOT'') for
each location where it wishes to stop to load and unload passengers on
its tour. Both Gray Line and City Sights have long held large
portfolios of bus stop authorizations that enable them to stop at or in
close proximity to virtually all of New York City's top attractions and
neighborhoods, providing Defendants with a distinct competitive
advantage over other operators in the market. Gray Line and City Sights
obtained these bus stop authorizations without difficulty years before
their joint venture because NYCDOT awarded the bus stops on a ``first
come, first served'' basis. Recent entrants, by contrast, have faced
persistent difficulties securing bus stop authorizations at or
sufficiently near key tourist attractions to be competitive with Twin
America as NYCDOT has denied the overwhelming majority of bus stops
applied for since Twin America's formation. Most of the stops sought by
the entrants--particularly those at or in close proximity to top
tourist attractions--are now at capacity or are otherwise unavailable,
leaving Twin America with the dominant share of competitively-
meaningful stops. The chronic denial of bus stop authorizations has
blocked some firms from entering the market altogether and prevented
those that have entered from replicating the scale and strength of
either City Sights or Gray Line prior to the joint venture. Without
needed bus stops, some entrants stop at key attractions on an
unauthorized basis, creating the risk of an enforcement action that
could curtail their operations at any time.
4. Efficiencies
The formation of Twin America has not resulted in, and is unlikely
to result in, cognizable, merger-specific efficiencies that have been
passed through to consumers on a sufficient scale to offset Twin
America's anticompetitive effects.
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
A. Divestiture
The proposed Final Judgment remedies the competitive harm alleged
in the Complaint by requiring Twin America to relinquish to the NYCDOT
the complete set of City Sights bus stop authorizations in Manhattan so
that other firms are better positioned to obtain the bus stop
authorizations needed to compete more effectively with Twin America.
Here, the most intractable barrier to entry is the inability of new
firms to obtain bus stop authorizations from NYCDOT at or in sufficient
proximity to New York City's top attractions and neighborhoods. The
divestiture significantly eases this entry barrier by increasing
NYCDOT's inventory of bus stops and freeing up capacity at locations
throughout Manhattan, including the locations most sought by recent
entrants. Notably, City Sights's set of approximately 50 bus stop
authorizations includes highly-coveted stops surrounding key tourist
attractions such as Times Square, the Empire State Building, and
Battery Park that are critical to operating a competitive hop-on, hop-
off bus tour. By relinquishing the City Sights bus stop authorizations
to NYCDOT, the city agency charged with managing bus stop
authorizations, the proposed Final Judgment increases availability of
stops, especially at key attractions, that rival firms can use to
compete against Twin America.
The proposed Final Judgment requires Defendants to complete the
relinquishment of the City Sights bus stop authorizations by May 1,
2015, prior to the start of the busy summer tourist season. Twin
America will continue to hold Gray Line's pre-existing bus stop
authorizations for its own hop-on, hop-off service.
The proposed Final Judgment prohibits Defendants from applying for
or obtaining bus stop authorizations for hop-on, hop-off bus tours at
the locations of the divested City Sights bus stop authorizations for a
period of five years. However, after May 1, 2016, if NYCDOT revokes a
bus stop authorization currently granted to a Twin America affiliate
other than City Sights, the proposed Final Judgment allows Defendants
to apply for a bus stop authorization at the location of a divested
City Sights bus stop authorization that is at or in close proximity to
the bus stop authorization that NYCDOT has revoked.
B. Disgorgement
The proposed Final Judgment also requires Defendants to disgorge
$7.5 million in profits obtained as a result of their unlawful
formation of Twin America. Disgorgement is an equitable remedy that
seeks to ``depriv[e] violators of the fruits of their illegal conduct''
by ``forc[ing] a defendant to give up the amount by which he was
unjustly enriched.'' SEC v. Contorinis, 743 F.3d 296, 301 (2d Cir.
2014) (internal quotation marks omitted). By preventing unjust
enrichment, disgorgement has
[[Page 16430]]
the forward-looking ``effect of deterring subsequent fraud.'' SEC v.
Cavanagh, 445 F.3d 105, 117 (2d Cir. 2006). Disgorgement is a
``distinctly public-regarding remedy,'' FTC v. Bronson Partners, LLC,
654 F.3d 359, 372 (2d Cir. 2011), whose ``emphasis [is] on public
protection, as opposed to simple compensatory relief,'' Cavanagh, 445
F.3d at 117.
``Unless a statute in so many words, or by a necessary and
inescapable inference, restricts the court's jurisdiction in equity,''
a district court's ability to exercise the full powers of equity
jurisdiction, including disgorgement, ``is not to be denied or
limited.'' Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); see
also Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 289, 291-
92 (1960) (``When Congress entrusts to an equity court the enforcement
of prohibitions contained in a regulatory enactment, it must be taken
to have acted cognizant of the historic power of equity to provide
complete relief in light of the statutory purposes.''). The Second
Circuit has long affirmed the ability of district courts to award
disgorgement in government enforcement actions redressing statutory
violations. See SEC v. Commonwealth Chem. Sec., Inc., 574 F.2d 90, 102-
03 (2d Cir. 1978) (Friendly, J.); Bronson Partners, 654 F.3d at 365-67,
372-74. This Court has also specifically recognized the government's
ability to seek disgorgement in antitrust suits brought under the
Sherman Act. See United States v. Keyspan Corp., 763 F. Supp. 2d 633,
638-41 (S.D.N.Y. 2011) (Pauley, J.) (holding that an award of
disgorgement ``comports with established principles of antitrust
law''). Although Keyspan considered the availability of disgorgement
under the Sherman Act, its analysis also applies to the Clayton Act, as
both Acts similarly authorize the United States to bring suits ``in
equity to prevent and restrain such violations.'' Compare Sherman Act,
15 U.S.C. 4 (2012) with Clayton Act, 15 U.S.C. 25 (2012). See also
People v. Ernst & Young LLP, 980 N.Y.S.2d 456, 457 (N.Y. App. Div.
2014) (affirming authority of New York Attorney General to obtain
disgorgement under New York law).
As in Keyspan, there are specific ``exigencies of [this] case''
that justify a disgorgement award. Keyspan, 765 F. Supp. 2d at 640.
Unlike the majority of Section 7 challenges brought by the United
States, which are brought prior to the closing of the challenged
transaction, this case involves a consummated joint venture that
resulted in actual and substantial consumer harm. As alleged in the
Complaint, Defendants not only increased prices by approximately 10
percent in connection with the joint venture's formation, they reaped
these illegal profits for years while forestalling antitrust
enforcement. By awarding disgorgement of Defendants' ill-gotten gain,
the proposed Final Judgment will prevent Defendants from being unjustly
enriched by their conduct and deter Defendants and others from engaging
in similar conduct in the future.
In determining the appropriate disgorgement amount, Plaintiffs
accounted for the fact that Defendants have agreed to pay $19 million
to settle related private class action lawsuits that were brought after
Plaintiffs filed this action.\5\ Because Plaintiffs' reasonable
approximation of profits connected to Defendants' antitrust law
violations exceeds $19 million, Plaintiffs determined that disgorgement
of an additional amount was appropriate. The $7.5 million in
disgorgement provided under the proposed Final Judgment will be divided
equally between the United States and the State of New York.
---------------------------------------------------------------------------
\5\ See Order and Final Judgment Approving In Re NYC Bus Tour
Antitrust Litigation Class Action Settlement, In re NYC Bus Tour
Antitrust Litigation, No. 13-CV-0711 (ALC) (GWG) (S.D.N.Y. Oct. 21,
2014) (Dkt. No. 122).
---------------------------------------------------------------------------
C. Antitrust Compliance and Inspection
Sections IX and XI of the proposed Final Judgment establish
procedures to ensure that Defendants comply with the terms of the Final
Judgment and the antitrust laws. Section IX grants the United States or
the State of New York access, upon reasonable notice, to Defendants'
records and documents relating to matters contained in the Final
Judgment. Defendants must also make their personnel available for
interviews or depositions regarding such matters. In addition, upon
request, Defendants must prepare written reports or responses to
written interrogatories relating to matters contained in the Final
Judgment.
To ensure future compliance with the antitrust laws, Section XI of
the proposed Final Judgment requires Defendants Coach and Twin America
to maintain an antitrust compliance program for each company's officers
and directors with responsibility for any operations in the United
States, as well as any other employee with pricing or decision-making
responsibility for the provision of hop-on, hop-off tour bus tours in
New York City. The antitrust compliance program will provide these
personnel with annual training on the meaning and requirements of the
antitrust laws and shall be delivered by an attorney with experience in
the field of antitrust law. Section XI also requires Defendants Coach
and Twin America to designate an Antitrust Compliance Officer to
oversee the antitrust compliance program. The Antitrust Compliance
Officer must communicate annually to all employees that they may
disclose to the Antitrust Compliance Officer, without reprisal,
information concerning any potential violation of the antitrust laws.
D. Notification of Future Transactions
Section X of the proposed Final Judgment requires Defendants to
provide advance notification of any future acquisition of any assets or
of any interest, including any financial, security, loan, equity or
management interest, in a person providing hop-on, hop-off bus tours in
New York City during the term of the Final Judgment regardless of
whether the transaction meets the reporting thresholds set forth in the
HSR Act. The proposed Final Judgment further provides for waiting
periods and opportunities for the United States or the State of New
York to obtain additional information analogous to the provisions of
the HSR Act.
E. Stipulation and Order Provisions
Defendants have entered into a Stipulation and Order, which was
filed simultaneously with the Court, to ensure that the City Sights bus
stop authorizations are maintained until Defendants have relinquished
them to NYCDOT.
IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment 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.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against the
Defendants.\6\
---------------------------------------------------------------------------
\6\ As previously noted, a related private class action lawsuit
seeking damages from Defendants was settled in October 2014. See
Order and Final Judgment Approving In Re NYC Bus Tour Antitrust
Litigation Class Action Settlement, In re NYC Bus Tour Antitrust
Litigation, No. 13-CV-0711 (ALC) (GWG) (S.D.N.Y. Oct. 21, 2014)
(Dkt. No. 122).
---------------------------------------------------------------------------
[[Page 16431]]
V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT
The Parties 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 & Agriculture Section, Antitrust
Division, United States Department of Justice, 450 Fifth Street 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 against Defendants. The
proposed Final Judgment, however, avoids the time, expense, and
uncertainty of a full trial on the merits. The United States also
considered whether the City Sights bus stop authorizations could be
transferred on a standalone basis or with other assets to an upfront
buyer, but determined that such a transaction was not feasible in light
of current NYCDOT regulations and policies governing bus stop
authorizations. The United States is satisfied that the remedies set
forth in the proposed Final Judgment will sufficiently restore the
competition lost when Defendants formed their joint venture and will
appropriately deprive Defendants of ill-gotten gains.
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The Clayton and Sherman Acts, as amended by the APPA, require that
proposed consent judgments in antitrust cases brought by the United
States be subject to a sixty-day comment period, after which the court
shall determine whether entry of the proposed Final Judgment ``is in
the public interest.'' 15 U.S.C. 16(e)(1); see also United States v.
Int'l Bus. Mach. Corp., 163 F.3d 737, 740 (2d Cir. 1998). In making a
``public interest'' 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. 16(e)(1)(A) & (B); see generally Keyspan, 763 F. Supp. 2d at
637-38 (discussing Tunney Act standards); United States v. SBC
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (similar). 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);
accord United States v. Alex. Brown & Sons, Inc., 963 F. Supp. 235, 238
(S.D.N.Y. 1997) (quoting Microsoft, 56 F.3d at 1460), aff'd sub nom.
United States v. Bleznak, 153 F.3d 16 (2d Cir. 1998); Keyspan, 763 F.
Supp. 2d at 637 (same).
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, the court's function is ``not to determine whether the
proposed [d]ecree results in the balance of rights and liabilities that
is the one that will best serve society, but only to ensure that the
resulting settlement is within the reaches of the public interest.''
Keyspan, 763 F. Supp. 2d at 637 (quoting Alex. Brown & Sons, 963 F.
Supp. at 238) (internal quotations omitted). In making this
determination, ``[t]he [c]ourt is not permitted to reject the proposed
remedies merely because the court believes other remedies are
preferable. [Rather], the relevant inquiry is whether there is a
factual foundation for the government's decision such that its
conclusions regarding the proposed settlement are reasonable.''
Keyspan, at 637-38 (quoting United States v. Abitibi-Consolidated Inc.,
584 F. Supp. 2d 162, 165 (D.D.C. 2008)); see also United States v.
Apple, Inc., 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012) (Cote, J.); Alex.
Brown & Sons, 963 F. Supp. at 238.\7\ The government's predictions
about the efficacy of its remedies are entitled to deference. Apple,
889 F. Supp. 2d at 631 (citation omitted).\8\
---------------------------------------------------------------------------
\7\ See also United States v. Bechtel Corp., 648 F.2d 660, 666
(9th Cir. 1981) (``The 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.''); 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' '').
\8\ See 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).
---------------------------------------------------------------------------
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
[[Page 16432]]
v. United States, 460 U.S. 1001 (1983); see also United States v. U.S.
Airways Group, Inc., 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (noting that
room must be made for the government to grant concessions in the
negotiation process for settlements); 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 Keyspan, 763
F. Supp. 2d at 638 (``A court must limit its review to the issues in
the complaint.'') (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. 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. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d
at 76 (indicating that a court is not required to hold an evidentiary
hearing or to permit intervenors as part of its review under the Tunney
Act). 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. 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.\9\ A
court can make its public interest determination based on the
competitive impact statement and response to public comments alone.
U.S. Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------
\9\ 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, *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.'').
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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: March 16, 2015
Respectfully submitted,
___/s/______-----------------------------------------------------------
Sarah L. Wagner, Andrew S. Garver, David E. Altschuler, William H.
Jones II, Michele B. Cano,
U.S. Department of Justice, Antitrust Division, Transportation,
Energy & Agriculture Section, 450 Fifth Street NW., Suite 8000,
Washington, DC 20530, Telephone: (202) 305-8915,
Sarah.Wagner@usdoj.gov, Andrew.Garver@usdoj.gov,
David.Altschuler@usdoj.gov, Bill.Jones2@usdoj.gov,
Michele.Cano@usdoj.gov.
Benjamin Sirota,
U.S. Department of Justice, Antitrust Division, New York Office, 26
Federal Plaza, Room 3630, New York, NY 10278, Telephone: (212) 335-
8056, Benjamin.Sirota@usdoj.gov.
Attorneys for Plaintiff United States
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
United States of America, and State of New York, Plaintiffs, v.
Twin America, LLC, et al., Defendants.
Civil Action No. 12-cv-8989 (ALC) (GWG).
ECF Case.
STIPULATION AND ORDER REGARDING PROPOSED FINAL JUDGMENT
It is hereby stipulated and agreed by and between the undersigned
parties, subject to approval and entry by the Court, that:
I. DEFINITIONS
As used in this Stipulation and Order Regarding Proposed Final
Judgment:
A. ``Coach'' means Coach USA, Inc., a Delaware corporation with its
principal place of business in Paramus, New Jersey, and International
Bus Services, Inc., a New York corporation with its principal place of
business in Hoboken, New Jersey, and their successors and assigns, and
any subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures under its control, and their directors, officers, managers,
agents, and employees.
B. ``CitySights'' means CitySights LLC and City Sights Twin, LLC,
New York limited liability companies with their principal places of
business in New York, New York, and their successors and assigns, and
any subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures under its control, and their directors, officers, managers,
agents, and employees.
C. ``CitySights Bus Stop Authorizations'' means all of the
Manhattan bus stop authorizations granted by the New York City
Department of Transportation (NYCDOT) identified in Appendix A to the
proposed Final Judgment, which comprises all of the bus stop
authorizations granted to and currently held by CitySights to provide
hop-on, hop-off bus tours in the Borough of Manhattan, New York City.
D. ``Twin America'' means Twin America, LLC, a Delaware limited
liability company with its principal place of business in New York, New
York, and its successors and assigns, and any subsidiaries, divisions,
groups, affiliates, partnerships and joint ventures under its control,
and their directors, officers, managers, agents, and employees.
E. ``Defendants'' means Coach USA, Inc., International Bus
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin
America, LLC.
II. OBJECTIVES
The proposed Final Judgment filed in this case is meant to ensure
Defendants' prompt divestiture of the CitySights Bus Stop
Authorizations by relinquishing them to NYCDOT in order to restore
competition that Plaintiffs allege was
[[Page 16433]]
substantially lessened. If approved by the Court, the proposed Final
Judgment would fully resolve the claims alleged in Plaintiffs'
Complaint. This Stipulation and Order ensures that, prior to such
divestiture, the CitySights Bus Stop Authorizations are maintained
until such divestiture has been accomplished.
III. JURISDICTION AND VENUE
The Court has jurisdiction over the subject matter of this action
and over each of the parties hereto, and venue of this action is proper
in the United States District Court for the Southern District of New
York.
IV. COMPLIANCE WITH AND ENTRY OF FINAL JUDGMENT
A. The parties stipulate that a Final Judgment in the form attached
hereto as Exhibit A may be filed with and entered by the Court, upon
the motion of any party or upon the Court's own motion, at any time
after compliance with the requirements of the Antitrust Procedures and
Penalties Act (``APPA''), 15 U.S.C. 16, and without further notice to
any party or other proceedings, provided that the Plaintiffs have not
withdrawn their consent, which they may do at any time before the entry
of the proposed Final Judgment by serving notice thereof on Defendants
and by filing that notice with the Court. Defendants agree to arrange,
at their expense, publication as quickly as possible of the newspaper
notice required by the APPA, which shall be drafted by the United
States in its sole discretion. The publication shall be arranged no
later than three (3) business days after Defendants' receipt from the
United States of the text of the notice and the identity of the
newspaper within which the publication shall be made. Defendants shall
promptly send to the United States (1) confirmation that publication of
the newspaper notice has been arranged, and (2) the certification of
the publication prepared by the newspaper within which the notice was
published.
B. Defendants shall abide by and comply with the provisions of the
proposed Final Judgment, pending the Judgment's entry by the Court, or
until expiration of time for all appeals of any Court ruling declining
entry of the proposed Final Judgment, and shall, from the date of the
signing of this Stipulation by the parties, comply with all the terms
and provisions of the proposed Final Judgment. Plaintiffs shall have
the full rights and enforcement powers in the proposed Final Judgment
as though the same were in full force and effect as an order of the
Court.
C. This Stipulation shall apply with equal force and effect to any
amended proposed Final Judgment agreed upon in writing by the parties
and submitted to the Court.
D. In the event (1) the Plaintiffs have withdrawn their consent, as
provided in Section IV(A) above, or (2) the proposed Final Judgment is
not entered pursuant to this Stipulation, the time has expired for all
appeals of any Court ruling declining entry of the proposed Final
Judgment, and the Court has not otherwise ordered continued compliance
with the terms and provisions of the proposed Final Judgment, then the
parties are released from all further obligations under this
Stipulation, and the making of this Stipulation shall be without
prejudice to any party in this or any other proceeding.
E. Defendants represent that the divestiture and payments ordered
in the proposed Final Judgment can and will be made, and that
Defendants will later raise no claim of mistake, hardship or difficulty
of compliance as grounds for asking the Court to modify any of the
provisions contained therein.
V. MAINTENANCE OF CITYSIGHTS BUS STOP AUTHORIZATIONS
Until the divestiture required by the Final Judgment has been
accomplished:
A. Defendants shall not, except as part of a divestiture approved
by the Plaintiffs in accordance with the terms of the proposed Final
Judgment, revoke, sell, lease, assign, transfer, pledge or otherwise
dispose of any of the CitySights Bus Stop Authorizations.
B. Defendants shall take no action that would jeopardize, delay, or
impede the divestiture of the CitySights Bus Stop Authorizations.
VI. DURATION OF MAINTENANCE OBLIGATIONS
Defendants' obligations under Section V of this Stipulation and
Order shall remain in effect until (1) consummation of the divestiture
required by the proposed Final Judgment or (2) until further order of
the Court or as otherwise provided in Section IV.D hereof. If
Plaintiffs voluntarily dismiss the Complaint in this matter, Defendants
are released from all further obligations under this Stipulation and
Order.
VII. STAY OF LITIGATION
Entry of this Stipulation and Order shall stay all deadlines
established by the Amended Pretrial Scheduling Order (Doc. 125).
ORDER
It is SO ORDERED this __ day of ____ 2015.
Judge Andrew L. Carter, Jr.
United States District Judge.
Respectfully submitted on ____, 2015:
___/s/______
Sarah Wagner,
U.S. Department of Justice, Antitrust Division, Transportation,
Energy & Agriculture Section, 450 Fifth Street, NW., Suite 8000,
Washington, DC 20530, (202) 305-8915, sarah.wagner@usdoj.gov.
Attorney for Plaintiff United States
___/s/______
Michael P. A. Cohen,
Paul Hastings LLP, 875 15th Street, NW, Washington, DC 20005, (202)
551-1880, michaelcohen@paulhastings.com.
Attorney for Defendants Twin America, LLC, CitySights LLC and City
Sights Twin, LLC
___/s/______
Eric J. Stock,
Bureau Chief, Antitrust
James Yoon,
Assistant Attorney General, Office of the Attorney General,
Antitrust Bureau, 120 Broadway, 26th Floor, New York, NY 10271-0332,
(212) 416-8262, Eric.Stock@ag.ny.gov, James.Yoon@ag.ny.gov.
Attorneys for Plaintiff State of New York
___/s/______
Thomas O. Barnett,
Covington & Burling LLP, 850 10th Street, NW, Washington, DC 20001,
(202) 662-5407, tbarnett@cov.com.
Attorney for Defendants Coach USA, Inc. and International Bus
Services, Inc.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
United States of America, and State of New York, Plaintiffs, v.
Twin America, LLC, et al. Defendants.
Civil Action No. 12-cv-8989 (ALC) (GWG).
ECF Case.
[Proposed] Final Judgment
WHEREAS, Plaintiffs United States of America and the State of New
York (collectively ``Plaintiffs'') filed their Complaint on December
11, 2012, Plaintiffs and Defendants Coach USA, Inc., International Bus
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin
America, LLC (collectively ``Defendants''), 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
[[Page 16434]]
Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the execution of
prompt and certain divestitures by Defendants to restore competition
that Plaintiffs allege was substantially lessened, and the payment of
equitable monetary relief;
AND WHEREAS, Plaintiffs require Defendants to make certain
divestitures for the purpose of remedying the loss of competition
alleged in the Complaint, and to pay equitable monetary relief;
AND WHEREAS, Defendants have represented to Plaintiffs that the
divestitures and the other relief 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 provisions
contained below;
NOW THEREFORE, before any trial 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. 18), Section 1 of the Sherman Act (15 U.S.C.
1), Section 340 of the Donnelly Act (N.Y. Gen. Bus. Law Sec. 340), and
Section 63(12) of the New York Executive Law (N.Y. Exec. Law Sec.
63(12)).
II. Definitions
As used in this Final Judgment:
A. ``Coach'' means Coach USA, Inc., a Delaware corporation with its
principal place of business in Paramus, New Jersey, and International
Bus Services, Inc., a New York corporation with its principal place of
business in Hoboken, New Jersey, and their successors and assigns, and
any subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures under their control, and their directors, officers, managers,
agents, and employees.
B. ``CitySights'' means CitySights LLC and City Sights Twin, LLC,
New York limited liability companies with their principal places of
business in New York, New York, and their successors and assigns, and
any subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures under their control, and their directors, officers, managers,
agents, and employees.
C. ``CitySights Bus Stop Authorizations'' means all of the
Manhattan bus stop authorizations granted by the New York City
Department of Transportation identified in Appendix A, which comprises
all of the bus stop authorizations granted to and currently held by
CitySights to provide hop-on, hop-off bus tours in the borough of
Manhattan, New York City.
D. ``Twin America'' means Twin America, LLC, a Delaware limited
liability company with its principal place of business in New York, New
York, and its successors and assigns, and any subsidiaries, divisions,
groups, affiliates, partnerships and joint ventures under its control,
and their directors, officers, managers, agents, and employees.
E. ``Defendants'' means Coach USA, Inc., International Bus
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin
America, LLC.
F. ``NYCDOT'' means the New York City Department of Transportation.
G. ``Person'' means any natural person or legal entity.
III. Applicability
This Final Judgment applies to Coach, CitySights, and Twin America,
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.
IV. Disgorgement
Defendants shall pay $7.5 million in disgorgement to Plaintiffs for
Defendants' alleged violations of Section 7 of the Clayton Act, as
amended (15 U.S.C. 18), Section 1 of the Sherman Act (15 U.S.C. 1),
Section 340 of the Donnelly Act (N.Y. Gen. Bus. Law Sec. 340), and
Section 63(12) of the New York Executive Law (N.Y. Exec. Law Sec.
63(12)). The $7.5 million disgorgement payment shall be divided equally
between the United States and the State of New York.
V. Payment of Disgorgement
A. Defendants' payment of disgorgement shall be made in three (3)
installments. Within 30 days of the entry of this Final Judgment,
Defendants must pay $2.5 million in disgorgement to Plaintiffs, divided
equally between the United States and the State of New York. Within
nine (9) months after entry of this Final Judgment, Defendants must pay
another $2.5 million in disgorgement to Plaintiffs, divided equally
between the United States and the State of New York. Within 16 months
after entry of this Final Judgment, Defendants must pay the remaining
$2.5 million in disgorgement to Plaintiffs, divided equally between the
United States and the State of New York.
B. The payments to the United States specified in this Final
Judgment must be made by wire transfer. Before making any transfer to
the United States, a defendant must contact Janie Ingalls of the
Antitrust Division's Antitrust Documents Group at (202) 512-2481 for
wire-transfer instructions.
The payments to the State of New York specified in this Final
Judgment must be made by wire transfer. Before making any transfer to
the State of New York, Defendants must contact Dorcey Bennett
(Dorcey.Bennet@ag.ny.gov) of the State of New York's Budget & Fiscal
Management Bureau for wire-transfer instructions and cc: to James Yoon
(James.Yoon@ag.ny.gov).
C. In the event of a default in payment, interest at the rate of 18
percent per annum will accrue thereon from the date of default to the
date of payment.
VI. Divestitures
A. Defendants are ordered and directed, by May 1, 2015, to divest
the CitySights Bus Stop Authorizations by relinquishing them to the
NYCDOT in a manner consistent with this Final Judgment. The Plaintiffs,
in their sole discretion, may agree to one or more extensions of this
time period not to exceed 30 calendar days in total, and shall notify
the Court in such circumstances.
B. Defendants shall not take any action that will jeopardize,
delay, or impede in any way the divestiture of the CitySights Bus Stop
Authorizations.
C. Unless the Plaintiffs otherwise consent in writing, the
divestiture pursuant to Section VI of this Final Judgment shall include
the entire CitySights Bus Stop Authorizations in the borough of
Manhattan, New York City. For the avoidance of doubt, nothing in this
Final Judgment requires Defendants to divest any bus stop
authorizations granted to affiliates of Twin America other than
CitySights, including any authorizations for shared use bus stops.
D. Defendants shall not take any action to impede in any way the
reallocation or reassignment of the CitySights Bus Stop Authorizations
by NYCDOT to any other person.
VII. Maintenance of CitySights Bus Stop Authorizations
Until the divestiture required by this Final Judgment has been
accomplished, Defendants shall take all steps necessary to comply with
the Stipulation and
[[Page 16435]]
Order Regarding Proposed Final Judgment entered by this Court.
Defendants shall take no action that would jeopardize, delay, or impede
the divestiture of the CitySights Bus Stop Authorizations ordered by
this Court.
VIII. Affidavits
A. Within seven (7) calendar days of the Court entering the
Stipulation and Order Regarding Proposed Final Judgment in this matter,
and every thirty (30) calendar days thereafter until the divestiture
has been completed under Section VI, Defendants shall deliver to
Plaintiffs an affidavit that describes in reasonable detail all actions
Defendants have taken to comply with Section VI of this Final Judgment.
Defendants shall deliver to Plaintiffs 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.
B. Defendants shall keep all records of all efforts made to
maintain and divest the CitySights Bus Stop Authorizations until one
year after such divestiture has been completed.
IX. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of any related orders, or of determining whether the
Final Judgment should be modified or vacated, and subject to any
legally recognized privilege, from time to time Plaintiffs' authorized
representatives, upon written request and on reasonable notice to
Defendants, shall be permitted to:
(1) Access during Defendants' office hours to inspect and copy, or
at the option of the United States or State of New York, 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) 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
either Plaintiff, Defendants shall submit 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 Plaintiffs to any person other
than an authorized representative of the executive branch of the United
States or the Attorney General's Office of the State of New York,
except in the course of legal proceedings to which the United States or
the State of New York is a party (including grand jury proceedings), or
for the purpose of securing compliance with this Final Judgment, for
law enforcement purposes, or as otherwise required by law.
D. If at the time information or documents are furnished by
Defendants to Plaintiffs, 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 Plaintiffs shall give
Defendants ten (10) calendar days notice prior to divulging such
material in any legal proceeding (other than a grand jury proceeding).
X. 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. 18a (the ``HSR Act''),
Defendants, without providing advance notification to the Plaintiffs,
shall not directly or indirectly acquire any assets of or any interest,
including any financial, security, loan, equity or management interest,
in a person providing hop-on, hop-off bus tours in New York City during
the term of this Final Judgment.
Such notification shall be provided to the Plaintiffs 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 4 through 8 of the instructions must be provided
only about hop-on, hop-off bus tours in New York City. Notification
shall be provided 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, and any
management or strategic plans discussing the proposed transaction. If
within the 30-day period after notification, representatives of either
Plaintiff make a written request for additional information, Defendants
shall not consummate the proposed transaction or agreement until thirty
(30) calendar days after substantially complying with such request for
information. Early termination of the waiting periods in this paragraph
may be requested and, where appropriate, granted in the same manner as
is applicable under the requirements and provisions of the HSR Act and
rules promulgated thereunder. 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.
XI. Antitrust Compliance Program
A. Within thirty (30) days after entry of this Final Judgment,
Coach and Twin America shall each appoint an Antitrust Compliance
Officer and identify to Plaintiffs his or her name, business address,
and telephone number.
B. Each Antitrust Compliance Officer shall institute an antitrust
compliance program for the company's officers and directors with
responsibility for any operations in the U.S., and any employee with
pricing or decision-making responsibility for any aspect of the
provision of hop-on, hop-off bus tours in New York City. The antitrust
compliance program shall provide at least two hours of training
annually on the antitrust laws, such training to be delivered by an
attorney with relevant experience in the field of antitrust law.
C. Each Antitrust Compliance Officer shall obtain, within six
months after entry of this Final Judgment, and on an annual basis
thereafter, on or before each anniversary of the entry of this Final
Judgment, from each person subject to Section XI.B of this Final
Judgment, and thereafter maintaining, a certification that each such
person has received the required two hours of annual antitrust
training.
D. Each Antitrust Compliance Officer shall communicate annually to
all employees that they may disclose to the Antitrust Compliance
Officer, without reprisal, information concerning any potential
violation of the antitrust laws.
E. Each Antitrust Compliance Offer shall provide to Plaintiffs
within six months after entry of this Final Judgment, and on an annual
basis thereafter, on or before each anniversary of the entry of this
Final Judgment, a written statement as to the fact and manner of the
Defendant's compliance with Section XI of this Final Judgment.
[[Page 16436]]
XII. No Reacquisition
For a period of five years from the date of entry of this Final
Judgment, Defendants may not apply for or obtain any bus stop
authorizations for hop-on, hop-off bus tours at the locations of the
divested CitySights Bus Stop Authorizations, except that, after May 1,
2016, if the NYCDOT revokes a bus stop authorization currently granted
to an affiliate of Twin America other than City Sights, Defendants may
apply for or obtain a bus stop authorization at the location of a
divested CitySights Bus Stop Authorization that is at or in close
proximity to the location of the bus stop authorization NYCDOT has
revoked. Nothing in this Final Judgment shall be construed to prohibit
Defendants from applying for or obtaining from the NYCDOT bus stop
authorizations at locations other than the locations of the CitySights
Bus Stop Authorizations, nor to limit the NYCDOT's ability to alter or
amend Defendants' bus stop authorizations.
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, except that Sections XI
and XII shall expire five years from the date of this Final Judgment's
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. 16, including making copies available to the
public of this Final Judgment, the Competitive Impact Statement, and
any comments thereon and the United States' responses to comments.
Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and response to comments filed with
the Court, entry of this Final Judgment is in the public interest.
Dated:
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Judge Andrew L. Carter, Jr.
United States District Judge
[FR Doc. 2015-07055 Filed 3-26-15; 8:45 am]
BILLING CODE P
