United States and State of New York v. Twin America, LLC, et al.; Public Comment and Response on Proposed Final Judgment, 47517-47525 [2015-19495]
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International Trade Commission
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identified by means of brackets. All
written submissions, except for
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Commission in this investigation and
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Summaries of Written Submissions:
The Commission intends to publish
summaries of the positions of interested
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submission can be found.
By order of the Commission.
Issued: August 4, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015–19436 Filed 8–6–15; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Antitrust Division
United States and State of New York v.
Twin America, LLC, et al.; Public
Comment and Response on Proposed
Final Judgment
Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(b)–(h),
the United States hereby publishes
below the comment received on the
proposed Final Judgment in United
States and State of New York v. Twin
America, LLC, et al., Civil Action No.
12-cv-8989 (ALC) (GWG) (S.D.N.Y.),
together with the Response of the
United States to Public Comment.
Copies of the comment and the
United States’ Response are available for
inspection at the Department of Justice
Antitrust Division, 450 Fifth Street NW.,
Suite 1010, Washington, DC 20530
(telephone: 202–514–2481), on the
Department of Justice’s Web site at
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Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Notices
https://www.justice.gov/atr/case/us-andstate-new-york-v-twin-america-llc-et-al,
and at the Office of the Clerk of the
United States District Court for the
Southern District of New York, Daniel
Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York,
NY 10007. Copies of any of these
materials may also be obtained upon
request and payment of a copying fee.
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
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RESPONSE OF PLAINTIFF UNITED
STATES TO PUBLIC COMMENT ON
THE PROPOSED FINAL JUDGMENT
Pursuant to the requirements of the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h) (‘‘Tunney Act’’), the
United States hereby files the single
public comment received concerning
the proposed Final Judgment in this
case and the United States’ response to
the comment. After careful
consideration of the submitted
comment, the United States continues to
believe that the proposed Final
Judgment provides an effective and
appropriate remedy for the violations
alleged in the Complaint. The United
States will move the Court for entry of
the proposed Final Judgment after the
public comment and this Response have
been published in the Federal Register
pursuant to 15 U.S.C. 16(d).
I. PROCEDURAL HISTORY
On March 17, 2009, Defendants Coach
USA, Inc. (through subsidiary
International Bus Services, Inc.) and
CitySights LLC (through subsidiary City
Sights Twin, LLC) formed Twin
America, LLC (‘‘Twin America’’), a joint
venture that combined their hop-on,
hop-off bus tour operations in New York
City.
Defendants subsequently applied to
the federal Surface Transportation
Board (‘‘STB’’) for approval of the Twin
America transaction, which would have
conferred antitrust immunity. After
more than two years of proceedings, the
STB rejected the joint venture as
anticompetitive. However, while
Defendants ceased operating the
nominal interstate service that had
formed the basis for the STB’s
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jurisdiction, they continued operating
their hop-on, hop-off bus tour
operations in New York City.
In December 2012, the United States
and the State of New York (collectively,
‘‘Plaintiffs’’) filed this civil antitrust
action, 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). The Complaint
sought to remedy the harm to
competition and disgorge the ill-gotten
gains Defendants had obtained from
operating Twin America in violation of
the antitrust laws.
In December 2014, the parties
adjourned a February 2015 trial date to
facilitate settlement discussions. These
discussions culminated in the proposed
Final Judgment, which was filed on
March 16, 2015 (Dkt. No. 127–1).1 As
required by the Tunney Act, the United
States published the proposed Final
Judgment and Competitive Impact
Statement in the Federal Register on
March 27, 2015, 80 FR 16427 (Mar. 27,
2015), and caused to be published
summaries of the terms of the proposed
Final Judgment and Competitive Impact
Statement, together with directions for
the submission of written comments
relating to the proposed Final Judgment,
in The Washington Post and the New
York Daily News for seven days (March
24 through March 30, 2015). The 60-day
period for public comments ended on
May 29, 2015. The United States
received one comment, which is
described below and attached hereto as
Exhibit 1.
II. THE PROPOSED SETTLEMENT
The Complaint alleged that the
formation of Twin America had the
purpose and effect of creating a
monopoly in the hop-on, hop-off bus
tour market in New York City. The joint
venture eliminated substantial head-tohead competition between Coach and
City Sights that had benefitted
consumers in the form of discounts,
increased product offerings, and service
improvements. The joint venture also
enabled Defendants to increase hop-on,
hop-off bus tour prices by
1 In October 2014, this Court approved
Defendants’ settlement of related class action
lawsuits. 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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approximately 10%, resulting in
immediate and continuing harm to
consumers.
The Complaint alleged that entry of
new firms into the market or expansion
of existing firms was unlikely to
counteract the competitive harm caused
by the formation and operation of Twin
America. According to the Complaint,
the primary barrier to entry was the
difficulty of obtaining hop-on, hop-off
bus stop authorizations from the New
York City Department of Transportation
(‘‘NYCDOT’’). Bus stop authorizations
are required by NYCDOT for each
location a tour operator wishes to load
and unload passengers. Defendants
obtained a robust portfolio of bus stop
authorizations from NYCDOT several
years ago, including authorizations at or
very close to virtually all of Manhattan’s
major tourist attractions. Recent
entrants, by contrast, were consistently
unable to obtain competitive bus stop
authorizations from NYCDOT at top
tourist attractions because NYCDOT
allocated such authorizations on a ‘‘first
come, first served’’ basis and most
competitive bus stop locations were
already at capacity or otherwise
unavailable. As a result, more than five
years after Twin America’s formation,
the joint venture still dominated the
market and Defendants had sustained
their anticompetitive price increases.
The proposed Final Judgment
addresses the harm alleged in the
Complaint by requiring Twin America
to divest all of City Sights’s bus stop
authorizations in Manhattan to
NYCDOT, the city agency charged with
managing bus stop authorizations. The
divestiture significantly eases the
primary entry barrier alleged in the
Complaint by increasing NYCDOT’s
inventory of bus stops, including for the
locations most sought by recent
entrants. City Sights’s set of
approximately 50 bus stops 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.
The proposed Final Judgment also
prohibits Defendants from applying for
or obtaining any bus stop authorizations
for hop-on, hop-off bus tours at the
locations of the divested City Sights bus
stop authorizations for five years,
subject to limited exceptions. In
compliance with the proposed Final
Judgment, Defendants relinquished the
City Sights bus stop authorizations to
NYCDOT on April 30, 2015.
The proposed Final Judgment also
requires Defendants to pay $7.5 million
in disgorgement to the United States
and State of New York, which is on top
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of the payments made by Defendants to
settle the class action.
III. STANDARD OF JUDICIAL REVIEW
UNDER THE TUNNEY ACT
The Tunney Act requires that
proposed consent judgments in antitrust
cases brought by the United States be
subject to a 60-day public 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. Apple, Inc., 889 F.
Supp. 2d 623, 630 (S.D.N.Y. 2012);
United States v. Morgan Stanley, 881 F.
Supp. 2d 563, 566 (S.D.N.Y. 2012). In
making that determination, the court, in
accordance with the statute as amended
in 2004, is required to consider:
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(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); see also Apple, 889
F. Supp. 2d at 630–31; Morgan Stanley,
881 F. Supp. 2d at 566–67.
In considering these statutory factors,
the court’s inquiry is necessarily a
limited one. Apple, 889 F. Supp. 2d at
631; Morgan Stanley, 881 F. Supp. 2d at
567; United States v. Keyspan Corp.,
763 F. Supp. 2d 633, 637 (S.D.N.Y.
2011). A court should consider, among
other things, the relationship between
the remedy secured and the specific
allegations set forth in the Complaint,
whether the decree is sufficiently clear,
whether the enforcement mechanisms
are sufficient, and whether the decree
may positively harm third parties.
Apple, 889 F. Supp. 2d at 631; United
States v. Microsoft Corp., 56 F.3d 1448,
1458–62 (D.C. Cir. 1995). However, ‘‘[a]
court must limit its review to the issues
in the complaint and give ‘due respect
to the [Government’s] perception of . . .
its case[.]’ ’’ Morgan Stanley, 881 F.
Supp. 2d at 567 (quoting Microsoft, 56
F.3d at 1461); see also Keyspan, 763 F.
Supp. 2d at 638 (same); Apple, 889 F.
Supp. 2d at 631 (‘‘In most cases, the
court is not permitted to reach beyond
the complaint to evaluate claims that
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the government did not make.’’)
(internal quotation omitted).
‘‘The role of the court is not to
determine whether the decree results in
the array of rights and liabilities ‘that
will best serve society, but only to
ensure that the resulting settlement is
within the reaches of the public
interest.’’’ Apple, 889 F. Supp. 2d at 631
(quoting Keyspan, 763 F. Supp. 2d at
637) (emphasis in original); see also
Morgan Stanley, 881 F. Supp. 2d at 567;
Microsoft, 56 F.3d at 1460; United States
v. BNS, Inc., 858 F.2d 456, 462 (9th Cir.
1988) (explaining court may not ‘‘engage
in an unrestricted evaluation of what
relief would best serve the public’’);
United States v. Bechtel Corp., 648 F.2d
660, 666 (9th Cir. 1981) (noting that
‘‘court is required to determine not
whether a particular decree is the one
that will best serve society, but whether
the settlement is within the reaches of
the public interest’’) (citations omitted).
In determining whether a proposed
settlement is in the public interest, ‘‘the
court should be ‘deferential to the
government’s predictions as to the effect
of the proposed remedies.’ ’’ Apple, 889
F. Supp. 2d at 631 (quoting Microsoft,
56 F.3d at 1461); see also United States
v. US Airways Grp., Inc., 38 F. Supp. 3d
69, 76 (D.D.C. 2014) (‘‘must accord
deference to the government’s
predictions about the efficacy of its
remedies’’) (quoting United States v.
SBC Commc’ns, Inc., 489 F. Supp. 2d 1,
17 (D.D.C. 2007)); 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 view of the nature of the case’’).
A court ‘‘is not permitted to reject the
proposed remedies merely because the
court believes other remedies are
preferable.’’ Keyspan, 763 F. Supp. 2d at
637; see also Apple, 889 F. Supp. 2d at
631 (same); United States v. Am. Tel. &
Tel. Co., 552 F. Supp. 131, 151 (D.D.C.
1982) (stating that ‘‘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 the public interest’’)
(citations and internal quotations
omitted); United States v. Alcan
Aluminum Ltd., 605 F. Supp. 619, 622
(W.D. Ky. 1985) (approving consent
decree even though the court would
have imposed greater remedy).
The relevant inquiry ‘‘is whether the
Government has established an ample
‘factual foundation for [its] decisions
such that its conclusions regarding the
proposed settlement are reasonable.’ ’’
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Apple, 889 F. Supp. 2d at 631 (quoting
Keyspan, 763 F. Supp. 2d at 637–38);
see also Microsoft, 56 F.3d at 1461
(assessing 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.’ ’’); SBC
Commc’ns, 489 F. Supp. 2d at 17
(explaining that courts ‘‘may not require
that the remedies perfectly match the
alleged violations’’). Accordingly, 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; see
also Apple, 889 F. Supp. 2d at 631.
In its 2004 amendments to the
Tunney Act,2 Congress made clear its
intent to preserve the practical benefits
of using 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 Apple, 889 F. Supp. 2d at 631
(‘‘The Tunney Act allows, but does not
require, the court to conduct an
evidentiary hearing and to permit third
parties to intervene.’’). 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. ‘‘A court can make its
public interest determination based on
the competitive impact statement and
response to public comments alone.’’
US Airways, 38 F. Supp. 3d at 76.
IV. UNITED STATES’ RESPONSE TO
PUBLIC COMMENT
The United States received one public
comment, from Taxi Tours, Inc., doing
business as BigBus (‘‘Big Bus’’). Big Bus
entered the New York City hop-on, hopoff bus tour market in 2014 by acquiring
an existing player, Big Taxi. The
comment makes four principal points:
(1) There should be additional remedies
to facilitate competitors’ ticket sales; (2)
there should be a more specific process
governing the allocation of bus stop
authorizations; (3) the judgment should
apply to Defendants’ future affiliated
2 The 2004 amendments substituted ‘‘shall’’ for
‘‘may’’ in directing relevant factors for courts to
consider and amended the list of factors to focus on
competitive considerations and to address
potentially ambiguous judgment terms. Compare 15
U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006);
see also SBC Commc’ns, 489 F. Supp. 2d at 11
(concluding that the 2004 amendments ‘‘effected
minimal changes’’ to Tunney Act review).
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entities; and (4) there should be a
process for third parties to report
violations of the Final Judgment. The
United States respectfully responds to
each point below.
1. Divestiture of the City Sights bus
stops is sufficient to remedy the harm
alleged in the Complaint
Big Bus’s comment asserts that
Defendants prevent competitors from
selling tickets for hop-on, hop-off bus
tours at or near certain key tourist
attractions and proposes that the
settlement be amended to ensure equal
access to vendors to market and sell
tickets from Defendants’ competitors.
Big Bus also expresses concerns
regarding the conduct of City Experts,
an affiliate of Defendants that offers
tourists a variety of tours and attractions
from concierge desks it operates at
certain New York City hotels. Big Bus
contends that because City Experts sells
Defendants’ hop-on, hop-off bus tours as
part of its bundled tourism packages but
not the hop-on, hop-off bus tours of
Defendants’ competitors, it ‘‘prevents
the Defendants’ competitors from
effectively competing at the hotel and
retail level.’’ Big Bus also complains
that Twin America’s employees prevent
Big Bus staff from selling tickets by
verbally and physically attacking them.
Pursuant to the Tunney Act, review of
a proposed Final Judgment is limited to
the relationship of the remedy to the
violations alleged in the Complaint. See
Microsoft, 56 F.3d at 1459–61; Morgan
Stanley, 881 F. Supp. 2d at 567;
Keyspan, 763 F. Supp. 2d at 637–38;
Apple, 889 F. Supp. 2d at 631. As
described above, the Complaint alleged
that the formation and operation of
Twin America substantially lessened
competition in the hop-on, hop-off bus
tour market in New York City and
identified potential entrants’ inability to
obtain bus stop authorizations at or
sufficiently near top tourist attractions
as the primary entry barrier. The
proposed settlement addresses this
entry barrier by requiring Twin America
to divest all of the approximately 50
City Sights bus stop authorizations in
Manhattan, including highly desirable
stops at or near key tourist attractions
that rivals have been consistently
unable to obtain. By relinquishing all of
the City Sights bus stops to NYCDOT,
the proposed Final Judgment increases
the available inventory of bus stops for
which rivals can obtain the
authorizations needed to effectively
compete with Twin America.
The Complaint did not allege that the
conduct of Defendants’ street sellers, its
City Experts affiliate, or Defendants’
sales practices otherwise served as a
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meaningful barrier to competition in the
hop-on, hop-off bus tour market. Nor
did the Complaint allege that the
formation of the joint venture had an
impact on these practices. Thus, the
suggested additional provisions are
unnecessary to address the competitive
harm set forth in the Complaint.
2. NYCDOT administers bus stop
authorizations
Big Bus argues that the proposed
settlement should establish certain rules
and processes related to the allocation
and use of hop-on, hop-off bus stops.
First, Big Bus asserts that the Final
Judgment ‘‘should define a fair and
monitored process of reassignment/
reallocation of the divested [City Sights
bus stop] authorizations to ensure that
all competitors in the relevant market
have an equal opportunity to apply for
the divested stop authorizations.’’ Big
Bus also claims that the Final Judgment
should address how hop-on, hop-off bus
stop authorizations would be handled in
the event that Defendants acquired an
existing hop-on, hop-off bus tour
business.
Procedures relating to the assignment
and allocation of bus stop
authorizations are within the
jurisdiction of NYCDOT, the New York
City agency charged with regulating and
managing bus stops. See, e.g., NYC
Charter § 2903 (giving NYCDOT control
of and responsibility for ‘‘all those
functions and operations of the city
relating to transportation’’); NYC
Charter § 2903(a)(14) (empowering
NYCDOT to enforce rules and
regulations regarding vehicular traffic
and the parking, standing, or stopping of
vehicles on the city’s streets); 34 RCNY
§ 4–10 (governing the operations of
buses in the city and providing that bus
operators, subject to certain exceptions,
cannot ‘‘pick up or discharge passengers
on a street except at a bus stop
designated by the Commissioner [of
NYCDOT] in writing.’’). Pursuant to this
authority, NYCDOT is best positioned to
determine how to distribute the City
Sights bus stops that have been
relinquished pursuant to the proposed
Final Judgment, taking into account the
relevant factors just as it does with
respect to bus stop allocations and
authorizations generally.
Given the established NYCDOT role
in bus stop authorizations and
allocations, the United States concluded
that the facts of this case did not call for
the proposed Final Judgment to
establish any additional regulations or
processes relating to the assignment or
allocation of bus stop authorizations.
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3. The proposed settlement already
covers affiliated entities
Big Bus’s comment raises a concern
that two provisions of the proposed
Final Judgment—having to do with
notification to the government of certain
transactions (Section X) and
‘‘reacquisition’’ of stops (Section XII)—
would not apply to affiliated entities
that Defendants might form after entry
of the Final Judgment. Big Bus is
incorrect. The proposed Final Judgment
applies to Defendant entities as well as
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’’ (emphasis added).
Therefore, any entities that Defendants
form or acquire after entry of the Final
Judgment will also be subject to it.
4. Third parties may report violations
of the Final Judgment to the United
States or State of New York
Finally, Big Bus argues that Section
XIII of the proposed Final Judgment,
which provides that the Court retains
jurisdiction for ten years to monitor and
enforce the terms of the Final Judgment,
should also set forth ‘‘a process whereby
third parties may directly report
violations of the Final Judgment by the
Defendants.’’ The United States does not
believe this is necessary. Third parties
can already report such violations to the
Antitrust Division of the Department of
Justice or the Antitrust Bureau of the
New York Attorney General’s Office.
Plaintiffs will take the appropriate steps
to respond to any reported violations,
including by applying to the Court to
enforce compliance or punish violations
pursuant to Section XIII of the proposed
Final Judgment.
V. CONCLUSION
After carefully reviewing the public
comment submitted by Big Bus, the
United States has determined that the
proposed Final Judgment, as drafted,
provides an effective and appropriate
remedy for the antitrust violation
alleged in the Complaint and is
therefore in the public interest. The
United States will move this Court to
enter the proposed Final Judgment after
the public comment and this Response
have been published in the Federal
Register.
Dated: July 28, 2015
Respectfully submitted,
/s/ lllllllllllllllllll
Sarah Oldfield
David E. Altschuler
U.S. Department of Justice, Antitrust
Division, Transportation, Energy &
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Agriculture Section, 450 Fifth Street NW.,
Suite 8000, Washington, DC 20530,
Telephone: (202) 305–8915,
Sarah.Oldfield@usdoj.gov,
David.Altschuler@usdoj.gov.
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Benjamin Sirota
U.S. Department of Justice, Antitrust
Division, New York Office, 26 Federal Plaza,
Room 3630, New York, NY 10278,
PO 00000
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Telephone: (212) 335–8056,
Benjamin.Sirota@usdoj.gov.
Attorneys for Plaintiff United States
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May 22, 2015
U.S. Department of Justice
Attn.: William H. Stallings, Chief, Transportation, Energy and Agriculture Section, Antitrust
Division
450 5th Street, N.W., Suite 8000
Washington, D.C. 20530
RE: United States and State of New York v. Twin America, LLC, Coach USA, Inc.,
International Bus Services, Inc., Citysights LLC, City Sights Twin, LLC
United States District Court for the Southern District ofNew York, 1:12-cv-08989ALC-GWG
Dear Mr. Stallings:
On behalf of Taxi Tours, Inc., dba BigBus ("Big Bus"), we offer the following comments
pursuant to 15U.S.C. § 16(d)with regard to the Proposed Final Judgment (the "PFJ") in the
above-captioned matter.
A Background On Big Bus And Its Interest In This Matter
Big Bus offers "hop-on, hop-off' services in New York City. Big Bus is a competitor of Twin
America, LLC, Coach USA, Inc., International Bus Services, Inc., Citysights LLC, and City
Sights Twin, LLC (collectively, the "Defendants"), in the relevant market. As such, BigBus has
a direct, vested interest in that market and in the efficacy of the PFJ.
B. The PF J should ensure that equal access is given to ticket vendors in strategic
areas to market and sell tickets for competitors of the Defendants.
The PFJ focuses almost exclusively on the divested bus stop authorizations. However, the
Defendants relinquishing the CitySights bus stop authorizations in Manhattan will not remedy
the monopoly illegally maintained by the Defendants.
The Defendants exercise their monopoly also by means of preventing competitors from selling
their tourist services in certain key areas in Manhattan, such as in the vicinity of landmark
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buildings, which are strategic for the sale of tourist services. For instance, the street vendors
Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Notices
47523
around the Empire State Building market and sell exclusively the Defendants' tickets and
prevent competitors from doing the same.
Even after the Defendants relinquish the CitySights bus stop authorizations in Manhattan to the
New York City Department of Transportation ("NYCDOT"), they will still enjoy an unfair
competitive advantage over their competitors in the relevant market due to the strategic barrier to
entry which creates a monopoly in the ticket distribution in key tourist sites. The PFJ should
ensure that equal access is given to ticket vendors in strategic areas to market and sell tickets for
competitors of the Defendants.
Furthermore, in the relevant market the Defendants operate with affiliates, including, but not
limited to, City Experts, LLC ("City Experts"), a company offering tourist services such as
selling tickets to Broadway shows, transportation services through Manhattan and to New York's
major airports, dining cruises, and, most importantly, sightseeing bus tours.
Through City Experts, the Defendants conduct a bundling practice by selling combinations of
products offered by the Defendants and affiliate entities to consumers through a single point of
sale, which has a tendency to restrain competitive access.
Big Bus offers its services by advertising sightseeing tours, among others, in hotels and retail
stores in strategic areas in New York City. City Experts serves as an outsourced concierge desk
for mid-market hotels. City Experts' representatives target those businesses, outbid competition
by overpaying for the licenses, and lock them into exclusive contracts with City Experts.
Obtaining exclusive licenses to serve as a concierge service creates the exclusive advantage of
offering the Defendants' products and services before any competitor can reach the consumers.
City Experts monopolizes the local agent trade network and with its business conduct it deters
entry.
As far as ''hop-on, hop-off' tours are concerned, City Experts offers tickets for tours provided by
Gray Line New York, which is another affiliate of Twin America, LLC. This behavior prevents
the Defendants' competitors from effectively competing at the hotel and retail level, and more in
general it constitutes a barrier to entry into the relevant market for the Defendants' competitors.
Finally, Twin America is attempting to establish a monopoly in Manhattan by allowing its
personnel to attack its competitors' street staff verbally and physically and to damage and
Big Bus to file police reports against Twin America's staff
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subtract private property. The frequency and seriousness of these attacks made it necessary for
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Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Notices
C. Significant Ambiguities In The PFJ Must Be Cured To Avoid Further Litigation
The PFJ does not specifically address the compliance procedures after the PFJ becomes final, nor
does it specify a clear process whereby the Defendants' competitors may apply for the divested
bus stops. These deficiencies create ambiguity and pose the risk of further litigation.
(i) Application Process: Under the terms of the PFJ, once the CitySights bus stop
authorizations are relinquished, they will be available to be assigned to other operators applying
with the NYCDOT. However, the PFJ does not define the process of reassignment or
reallocation of the divested authorizations to allow other operators to apply for and obtain such
divested authorizations. §6.D of the PFJ should define a fair and monitored process of
reassignment/reallocation of the divested authorizations to ensure that all competitors in the
relevant market have an equal opportunity to apply for the divested stop authorizations.
(ii) Notification Obligations for Affiliates: The PFJ provides that the Defendants will have
ongoing reporting obligations and will be required to provide the Government with advance
notice, pursuant to the provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, 15 U.S. C. § 18a, of any future acquisitions in the New York City hop-on hop-off
bus tour services that would otherwise not be reportable by law. However, the PFJ does not
specify what happens ifDefendants purchase another ongoing "hop-on hop-off'business with its
own stop authorizations. The PFJ should specify whether the purchased operation could be
transferred with or without its previously obtained bus stop authorizations, and what regulatory
oversight the transfer would be subject to.
(iii) Shared Stops: §VI of the PFJ requires that the Defendants relinquish the entire
City Sights Bus Stop Authorizations in Manhattan. However, the Defendants share some of the
divested stops with related entities currently lacking proper authorizations to operate a 'hop-on,
hop-off' business. The PFJ should contain a cease-and-desist provision, preventing the
Defendants' related entities without authorization from any current or future unauthorized "hopon, hop-off' operation.
D. Affiliate Entities Created After Entry ofthe PFJ Should Be Subject To The
Same Provisions Applying To The Defendants and Their Current Affiliates.
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(i) Reassignment/Reallocation of CitvSights Bus Stop Authorizations: The PFJ provides
that, for a period of five years after entry of the Final Judgment, the 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. However, the PFJ is silent as to third-party entities
related to the Defendants. The PFJ should specify that any related entities formed or acquired
after entry of the Final Judgment are also prevented from applying for the divested stop
authorizations for the same period of time.
Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Notices
DEPARTMENT OF LABOR
Employment and Training
Administration
Workforce Information Advisory
Council
Employment and Training
Administration, Labor.
ACTION: Notice of Establishment of the
Workforce Information Advisory
Council and Solicitation of Nominations
for Membership.
tkelley on DSK3SPTVN1PROD with NOTICES
AGENCY:
The Department of Labor
(Department) announces the
establishment of the Workforce
Information Advisory Council (WIAC),
invites interested parties to submit
nominations for individuals to serve on
the WIAC, and announces the
procedures for those nominations.
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mail, messenger, and courier service are
accepted by the Office of Workforce
Investment during the hours of 9:00
a.m.–5:00 p.m., Eastern Daylight Time,
Monday through Friday. Due to
security-related procedures,
submissions by regular mail may
experience significant delays.
Facsimile: The Department will not
accept nominations submitted by fax.
FOR FURTHER INFORMATION CONTACT:
Kimberly Vitelli, Division of National
Programs, Tools, and Technical
Assistance, Office of Workforce
Investment (address above); (202) 693–
3045; or use email address for the
WIAC, WIAC@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Authority
Section 15 of the Wagner-Peyser Act,
29 U.S.C. 49l–2, as amended by section
308 of the Workforce Innovation and
Opportunity Act of 2014 (WIOA), Public
Law #113–128 requires the Secretary of
Labor (Secretary) to establish the WIAC.
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BILLING CODE P
SUMMARY:
Nominations for individuals to
serve on the WIAC must be submitted
(postmarked, if sending by mail;
submitted electronically; or received, if
hand delivered) by October 6, 2015.
ADDRESSES: You may submit
nominations and supporting materials
described in this Federal Register
Notice by any one of the following
methods:
Electronically: Submit nominations,
including attachments, by email using
the following address: WIAC@dol.gov
(use subject line ‘‘Nomination—
Workforce Information Advisory
Council’’).
Mail, express delivery, hand delivery,
messenger, or courier service: Submit
one copy of the nominations and
supporting materials to the following
address: Workforce Information
Advisory Council Nominations, Office
of Workforce Investment, U.S.
Department of Labor, 200 Constitution
Ave. NW., Room C–4526, Washington,
DC 20210. Deliveries by hand, express
DATES:
[FR Doc. 2015–19495 Filed 8–6–15; 8:45 am]
47525
]]>Agencies
[Federal Register Volume 80, Number 152 (Friday, August 7, 2015)]
[Notices]
[Pages 47517-47525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19495]
=======================================================================
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DEPARTMENT OF JUSTICE
Antitrust Division
United States and State of New York v. Twin America, LLC, et al.;
Public Comment and Response on Proposed Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below the comment
received on the proposed Final Judgment in United States and State of
New York v. Twin America, LLC, et al., Civil Action No. 12-cv-8989
(ALC) (GWG) (S.D.N.Y.), together with the Response of the United States
to Public Comment.
Copies of the comment and the United States' Response are available
for inspection at the Department of Justice Antitrust Division, 450
Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site at
[[Page 47518]]
https://www.justice.gov/atr/case/us-and-state-new-york-v-twin-america-llc-et-al, and at the Office of the Clerk of the United States District
Court for the Southern District of New York, Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, New York, NY 10007. Copies
of any of these materials may also be obtained upon request and payment
of a copying fee.
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
RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENT ON THE PROPOSED
FINAL JUDGMENT
Pursuant to the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h) (``Tunney Act''), the United States
hereby files the single public comment received concerning the proposed
Final Judgment in this case and the United States' response to the
comment. After careful consideration of the submitted comment, the
United States continues to believe that the proposed Final Judgment
provides an effective and appropriate remedy for the violations alleged
in the Complaint. The United States will move the Court for entry of
the proposed Final Judgment after the public comment and this Response
have been published in the Federal Register pursuant to 15 U.S.C.
16(d).
I. PROCEDURAL HISTORY
On March 17, 2009, Defendants Coach USA, Inc. (through subsidiary
International Bus Services, Inc.) and CitySights LLC (through
subsidiary City Sights Twin, LLC) formed Twin America, LLC (``Twin
America''), a joint venture that combined their hop-on, hop-off bus
tour operations in New York City.
Defendants subsequently applied to the federal Surface
Transportation Board (``STB'') for approval of the Twin America
transaction, which would have conferred antitrust immunity. After more
than two years of proceedings, the STB rejected the joint venture as
anticompetitive. However, while Defendants ceased operating the nominal
interstate service that had formed the basis for the STB's
jurisdiction, they continued operating their hop-on, hop-off bus tour
operations in New York City.
In December 2012, the United States and the State of New York
(collectively, ``Plaintiffs'') filed this civil antitrust action,
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). The Complaint
sought to remedy the harm to competition and disgorge the ill-gotten
gains Defendants had obtained from operating Twin America in violation
of the antitrust laws.
In December 2014, the parties adjourned a February 2015 trial date
to facilitate settlement discussions. These discussions culminated in
the proposed Final Judgment, which was filed on March 16, 2015 (Dkt.
No. 127-1).\1\ As required by the Tunney Act, the United States
published the proposed Final Judgment and Competitive Impact Statement
in the Federal Register on March 27, 2015, 80 FR 16427 (Mar. 27, 2015),
and caused to be published summaries of the terms of the proposed Final
Judgment and Competitive Impact Statement, together with directions for
the submission of written comments relating to the proposed Final
Judgment, in The Washington Post and the New York Daily News for seven
days (March 24 through March 30, 2015). The 60-day period for public
comments ended on May 29, 2015. The United States received one comment,
which is described below and attached hereto as Exhibit 1.
---------------------------------------------------------------------------
\1\ In October 2014, this Court approved Defendants' settlement
of related class action lawsuits. 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).
---------------------------------------------------------------------------
II. THE PROPOSED SETTLEMENT
The Complaint alleged that the formation of Twin America had the
purpose and effect of creating a monopoly in the hop-on, hop-off bus
tour market in New York City. The joint venture eliminated substantial
head-to-head competition between Coach and City Sights that had
benefitted consumers in the form of discounts, increased product
offerings, and service improvements. The joint venture also enabled
Defendants to increase hop-on, hop-off bus tour prices by approximately
10%, resulting in immediate and continuing harm to consumers.
The Complaint alleged that entry of new firms into the market or
expansion of existing firms was unlikely to counteract the competitive
harm caused by the formation and operation of Twin America. According
to the Complaint, the primary barrier to entry was the difficulty of
obtaining hop-on, hop-off bus stop authorizations from the New York
City Department of Transportation (``NYCDOT''). Bus stop authorizations
are required by NYCDOT for each location a tour operator wishes to load
and unload passengers. Defendants obtained a robust portfolio of bus
stop authorizations from NYCDOT several years ago, including
authorizations at or very close to virtually all of Manhattan's major
tourist attractions. Recent entrants, by contrast, were consistently
unable to obtain competitive bus stop authorizations from NYCDOT at top
tourist attractions because NYCDOT allocated such authorizations on a
``first come, first served'' basis and most competitive bus stop
locations were already at capacity or otherwise unavailable. As a
result, more than five years after Twin America's formation, the joint
venture still dominated the market and Defendants had sustained their
anticompetitive price increases.
The proposed Final Judgment addresses the harm alleged in the
Complaint by requiring Twin America to divest all of City Sights's bus
stop authorizations in Manhattan to NYCDOT, the city agency charged
with managing bus stop authorizations. The divestiture significantly
eases the primary entry barrier alleged in the Complaint by increasing
NYCDOT's inventory of bus stops, including for the locations most
sought by recent entrants. City Sights's set of approximately 50 bus
stops 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. The
proposed Final Judgment also prohibits Defendants from applying for or
obtaining any bus stop authorizations for hop-on, hop-off bus tours at
the locations of the divested City Sights bus stop authorizations for
five years, subject to limited exceptions. In compliance with the
proposed Final Judgment, Defendants relinquished the City Sights bus
stop authorizations to NYCDOT on April 30, 2015.
The proposed Final Judgment also requires Defendants to pay $7.5
million in disgorgement to the United States and State of New York,
which is on top
[[Page 47519]]
of the payments made by Defendants to settle the class action.
III. STANDARD OF JUDICIAL REVIEW UNDER THE TUNNEY ACT
The Tunney Act requires that proposed consent judgments in
antitrust cases brought by the United States be subject to a 60-day
public 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. Apple, Inc., 889 F. Supp. 2d
623, 630 (S.D.N.Y. 2012); United States v. Morgan Stanley, 881 F. Supp.
2d 563, 566 (S.D.N.Y. 2012). In making that determination, the court,
in accordance with the statute as amended in 2004, is required to
consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1); see also Apple, 889 F. Supp. 2d at 630-31; Morgan
Stanley, 881 F. Supp. 2d at 566-67.
In considering these statutory factors, the court's inquiry is
necessarily a limited one. Apple, 889 F. Supp. 2d at 631; Morgan
Stanley, 881 F. Supp. 2d at 567; United States v. Keyspan Corp., 763 F.
Supp. 2d 633, 637 (S.D.N.Y. 2011). A court should consider, among other
things, the relationship between the remedy secured and the specific
allegations set forth in the Complaint, whether the decree is
sufficiently clear, whether the enforcement mechanisms are sufficient,
and whether the decree may positively harm third parties. Apple, 889 F.
Supp. 2d at 631; United States v. Microsoft Corp., 56 F.3d 1448, 1458-
62 (D.C. Cir. 1995). However, ``[a] court must limit its review to the
issues in the complaint and give `due respect to the [Government's]
perception of . . . its case[.]' '' Morgan Stanley, 881 F. Supp. 2d at
567 (quoting Microsoft, 56 F.3d at 1461); see also Keyspan, 763 F.
Supp. 2d at 638 (same); Apple, 889 F. Supp. 2d at 631 (``In most cases,
the court is not permitted to reach beyond the complaint to evaluate
claims that the government did not make.'') (internal quotation
omitted).
``The role of the court is not to determine whether the decree
results in the array of rights and liabilities `that will best serve
society, but only to ensure that the resulting settlement is within the
reaches of the public interest.''' Apple, 889 F. Supp. 2d at 631
(quoting Keyspan, 763 F. Supp. 2d at 637) (emphasis in original); see
also Morgan Stanley, 881 F. Supp. 2d at 567; Microsoft, 56 F.3d at
1460; United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988)
(explaining court may not ``engage in an unrestricted evaluation of
what relief would best serve the public''); United States v. Bechtel
Corp., 648 F.2d 660, 666 (9th Cir. 1981) (noting that ``court is
required to determine not whether a particular decree is the one that
will best serve society, but whether the settlement is within the
reaches of the public interest'') (citations omitted).
In determining whether a proposed settlement is in the public
interest, ``the court should be `deferential to the government's
predictions as to the effect of the proposed remedies.' '' Apple, 889
F. Supp. 2d at 631 (quoting Microsoft, 56 F.3d at 1461); see also
United States v. US Airways Grp., Inc., 38 F. Supp. 3d 69, 76 (D.D.C.
2014) (``must accord deference to the government's predictions about
the efficacy of its remedies'') (quoting United States v. SBC Commc'ns,
Inc., 489 F. Supp. 2d 1, 17 (D.D.C. 2007)); 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 view of the nature of the case'').
A court ``is not permitted to reject the proposed remedies merely
because the court believes other remedies are preferable.'' Keyspan,
763 F. Supp. 2d at 637; see also Apple, 889 F. Supp. 2d at 631 (same);
United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C.
1982) (stating that ``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 the
public interest'') (citations and internal quotations omitted); United
States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985)
(approving consent decree even though the court would have imposed
greater remedy).
The relevant inquiry ``is whether the Government has established an
ample `factual foundation for [its] decisions such that its conclusions
regarding the proposed settlement are reasonable.' '' Apple, 889 F.
Supp. 2d at 631 (quoting Keyspan, 763 F. Supp. 2d at 637-38); see also
Microsoft, 56 F.3d at 1461 (assessing 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.' ''); SBC
Commc'ns, 489 F. Supp. 2d at 17 (explaining that courts ``may not
require that the remedies perfectly match the alleged violations'').
Accordingly, 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; see also
Apple, 889 F. Supp. 2d at 631.
In its 2004 amendments to the Tunney Act,\2\ Congress made clear
its intent to preserve the practical benefits of using 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 Apple, 889 F. Supp. 2d at
631 (``The Tunney Act allows, but does not require, the court to
conduct an evidentiary hearing and to permit third parties to
intervene.''). 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. ``A court can make its public interest determination based on
the competitive impact statement and response to public comments
alone.'' US Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------
\2\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for courts to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns,
489 F. Supp. 2d at 11 (concluding that the 2004 amendments
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------
IV. UNITED STATES' RESPONSE TO PUBLIC COMMENT
The United States received one public comment, from Taxi Tours,
Inc., doing business as BigBus (``Big Bus''). Big Bus entered the New
York City hop-on, hop-off bus tour market in 2014 by acquiring an
existing player, Big Taxi. The comment makes four principal points: (1)
There should be additional remedies to facilitate competitors' ticket
sales; (2) there should be a more specific process governing the
allocation of bus stop authorizations; (3) the judgment should apply to
Defendants' future affiliated
[[Page 47520]]
entities; and (4) there should be a process for third parties to report
violations of the Final Judgment. The United States respectfully
responds to each point below.
1. Divestiture of the City Sights bus stops is sufficient to remedy the
harm alleged in the Complaint
Big Bus's comment asserts that Defendants prevent competitors from
selling tickets for hop-on, hop-off bus tours at or near certain key
tourist attractions and proposes that the settlement be amended to
ensure equal access to vendors to market and sell tickets from
Defendants' competitors. Big Bus also expresses concerns regarding the
conduct of City Experts, an affiliate of Defendants that offers
tourists a variety of tours and attractions from concierge desks it
operates at certain New York City hotels. Big Bus contends that because
City Experts sells Defendants' hop-on, hop-off bus tours as part of its
bundled tourism packages but not the hop-on, hop-off bus tours of
Defendants' competitors, it ``prevents the Defendants' competitors from
effectively competing at the hotel and retail level.'' Big Bus also
complains that Twin America's employees prevent Big Bus staff from
selling tickets by verbally and physically attacking them.
Pursuant to the Tunney Act, review of a proposed Final Judgment is
limited to the relationship of the remedy to the violations alleged in
the Complaint. See Microsoft, 56 F.3d at 1459-61; Morgan Stanley, 881
F. Supp. 2d at 567; Keyspan, 763 F. Supp. 2d at 637-38; Apple, 889 F.
Supp. 2d at 631. As described above, the Complaint alleged that the
formation and operation of Twin America substantially lessened
competition in the hop-on, hop-off bus tour market in New York City and
identified potential entrants' inability to obtain bus stop
authorizations at or sufficiently near top tourist attractions as the
primary entry barrier. The proposed settlement addresses this entry
barrier by requiring Twin America to divest all of the approximately 50
City Sights bus stop authorizations in Manhattan, including highly
desirable stops at or near key tourist attractions that rivals have
been consistently unable to obtain. By relinquishing all of the City
Sights bus stops to NYCDOT, the proposed Final Judgment increases the
available inventory of bus stops for which rivals can obtain the
authorizations needed to effectively compete with Twin America.
The Complaint did not allege that the conduct of Defendants' street
sellers, its City Experts affiliate, or Defendants' sales practices
otherwise served as a meaningful barrier to competition in the hop-on,
hop-off bus tour market. Nor did the Complaint allege that the
formation of the joint venture had an impact on these practices. Thus,
the suggested additional provisions are unnecessary to address the
competitive harm set forth in the Complaint.
2. NYCDOT administers bus stop authorizations
Big Bus argues that the proposed settlement should establish
certain rules and processes related to the allocation and use of hop-
on, hop-off bus stops. First, Big Bus asserts that the Final Judgment
``should define a fair and monitored process of reassignment/
reallocation of the divested [City Sights bus stop] authorizations to
ensure that all competitors in the relevant market have an equal
opportunity to apply for the divested stop authorizations.'' Big Bus
also claims that the Final Judgment should address how hop-on, hop-off
bus stop authorizations would be handled in the event that Defendants
acquired an existing hop-on, hop-off bus tour business.
Procedures relating to the assignment and allocation of bus stop
authorizations are within the jurisdiction of NYCDOT, the New York City
agency charged with regulating and managing bus stops. See, e.g., NYC
Charter Sec. 2903 (giving NYCDOT control of and responsibility for
``all those functions and operations of the city relating to
transportation''); NYC Charter Sec. 2903(a)(14) (empowering NYCDOT to
enforce rules and regulations regarding vehicular traffic and the
parking, standing, or stopping of vehicles on the city's streets); 34
RCNY Sec. 4-10 (governing the operations of buses in the city and
providing that bus operators, subject to certain exceptions, cannot
``pick up or discharge passengers on a street except at a bus stop
designated by the Commissioner [of NYCDOT] in writing.''). Pursuant to
this authority, NYCDOT is best positioned to determine how to
distribute the City Sights bus stops that have been relinquished
pursuant to the proposed Final Judgment, taking into account the
relevant factors just as it does with respect to bus stop allocations
and authorizations generally.
Given the established NYCDOT role in bus stop authorizations and
allocations, the United States concluded that the facts of this case
did not call for the proposed Final Judgment to establish any
additional regulations or processes relating to the assignment or
allocation of bus stop authorizations.
3. The proposed settlement already covers affiliated entities
Big Bus's comment raises a concern that two provisions of the
proposed Final Judgment--having to do with notification to the
government of certain transactions (Section X) and ``reacquisition'' of
stops (Section XII)--would not apply to affiliated entities that
Defendants might form after entry of the Final Judgment. Big Bus is
incorrect. The proposed Final Judgment applies to Defendant entities as
well as 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'' (emphasis added). Therefore, any entities that Defendants
form or acquire after entry of the Final Judgment will also be subject
to it.
4. Third parties may report violations of the Final Judgment to the
United States or State of New York
Finally, Big Bus argues that Section XIII of the proposed Final
Judgment, which provides that the Court retains jurisdiction for ten
years to monitor and enforce the terms of the Final Judgment, should
also set forth ``a process whereby third parties may directly report
violations of the Final Judgment by the Defendants.'' The United States
does not believe this is necessary. Third parties can already report
such violations to the Antitrust Division of the Department of Justice
or the Antitrust Bureau of the New York Attorney General's Office.
Plaintiffs will take the appropriate steps to respond to any reported
violations, including by applying to the Court to enforce compliance or
punish violations pursuant to Section XIII of the proposed Final
Judgment.
V. CONCLUSION
After carefully reviewing the public comment submitted by Big Bus,
the United States has determined that the proposed Final Judgment, as
drafted, provides an effective and appropriate remedy for the antitrust
violation alleged in the Complaint and is therefore in the public
interest. The United States will move this Court to enter the proposed
Final Judgment after the public comment and this Response have been
published in the Federal Register.
Dated: July 28, 2015
Respectfully submitted,
/s/--------------------------------------------------------------------
Sarah Oldfield
David E. Altschuler
U.S. Department of Justice, Antitrust Division, Transportation,
Energy &
[[Page 47521]]
Agriculture Section, 450 Fifth Street NW., Suite 8000, Washington,
DC 20530, Telephone: (202) 305-8915, Sarah.Oldfield@usdoj.gov,
David.Altschuler@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
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[FR Doc. 2015-19495 Filed 8-6-15; 8:45 am]
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