United States v. GS Caltex Corp. et al.; Proposed Final Judgments and Competitive Impact Statement, 60306-60327 [2018-25461]

Download as PDF 60306 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices of Justice, 450 5th Street NW, Suite 8000, Washington, DC 20530. DEPARTMENT OF JUSTICE Antitrust Division amozie on DSK3GDR082PROD with NOTICES2 United States v. GS Caltex Corp. et al.; Proposed Final Judgments and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)–(h), that proposed Final Judgments, Stipulations, and a Competitive Impact Statement have been filed with the United States District Court for the Southern District of Ohio in United States v. GS Caltex et al., Case No. 2:18–cv–01456–ALM– CMV. On November 14, 2018, the United States filed a Complaint alleging that between 2005 and 2016, GS Caltex Corporation (‘‘GS Caltex’’), Hanjin Transportation Co., Ltd. (‘‘Hanjin’’), and SK Energy Co., Ltd. (‘‘SK Energy’’), along with unnamed co-conspirators, conspired to rig bids for Posts, Camps & Stations (PC&S) and Army and Air Force Exchange Service (AAFES) fuel supply contracts with the U.S. military in South Korea, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. A proposed Final Judgment for each Defendant, filed at the same time as the Complaint, requires GS Caltex, Hanjin, and SK Energy to pay the United States, respectively, $57,500,000, $6,182,000, and $90,384,872. In addition, each Defendant has agreed to cooperate with further civil investigative and judicial proceedings and to institute an antitrust compliance program. Copies of the Complaint, proposed Final Judgments, and Competitive Impact Statement are available for inspection on the Antitrust Division’s website at http://www.justice.gov/atr and at the Office of the Clerk of the United States District Court for the Southern District of Ohio. 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 Antitrust Division’s website, filed with the Court, and, under certain circumstances, published in the Federal Register. Comments should be directed to Kathleen S. O’Neill, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, Department VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Patricia A. Brink, Director of Civil Enforcement. United States District Court for the Southern District of Ohio Eastern Division United States Of America, Plaintiff, v. GS Caltex Corporation, GS Tower, 508, Nonhyeon-ro, Gangnam-gu, Seoul, South Korea Hanjin Transportation Co., Ltd., 20th Floor Hanjin New Bldg. 63, Namdaemun-ro, Jung-gu, Seoul, South Korea and SK Energy Co., Ltd., SK Bldg., 26, Jong-ro, Jongno-gu, Seoul, South Korea, Defendants. Case No. 2:18–cv–01456–ALM–CMV Complaint: Violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 Judge: Algenon L. Marbley COMPLAINT The United States of America, acting under the direction of the Acting Attorney General of the United States, brings this civil antitrust action to obtain equitable monetary relief and recover damages from GS Caltex Corporation, Hanjin Transportation Co., Ltd., and SK Energy Co., Ltd., for conspiring to rig bids and fix prices, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, on the supply of fuel to the U.S. military for its operations in South Korea. I. INTRODUCTION 1. Since the end of the Korean War, the U.S. armed forces have maintained a significant presence in South Korea, protecting American interests in the region and safeguarding peace for the Korean people. To perform this important mission, American service members depend on fuel to power their bases and military vehicles. The U.S. military procures this fuel from oil refiners located in South Korea through a competitive bidding process. 2. For at least a decade, rather than engage in fair and honest competition, Defendants and their co-conspirators defrauded the U.S. military by fixing prices and rigging bids for the contracts to supply this fuel. Defendants met and communicated in secret with other large South Korean oil refiners and logistics companies, and pre-determined which conspirator would win each contract. Defendants and their co-conspirators then fraudulently submitted collusive bids to the U.S. military. Through this scheme, Defendants reaped vastly higher profit margins on the fuel they supplied to the U.S. military than on the PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 fuel they sold to the South Korean military and to private parties. 3. As a result of this conduct, Defendants and their co-conspirators illegally overcharged American taxpayers by well over $100 million. This conspiracy unreasonably restrained trade and commerce, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Defendants have agreed to plead guilty to an information charging a criminal violation of Section 1 of the Sherman Act for this unlawful conduct, and in this civil action, the United States seeks compensation for the injuries it incurred as a result of this conspiracy. II. DEFENDANTS 4. GS Caltex Corporation (‘‘GS Caltex’’) is an oil company headquartered in Seoul, South Korea. GS Caltex is a joint venture between GS Energy, a South Korean corporation, and Chevron Corp., a Delaware corporation; each owns a 50 percent interest in GS Caltex. GS Caltex refines and supplies gasoline, diesel, kerosene, and other petroleum products for sale internationally. During the conspiracy, GS Caltex supplied fuel to U.S. military installations in South Korea. 5. Hanjin Transportation Co., Ltd. (‘‘Hanjin’’) is a global transportation and logistics company based in Seoul, South Korea. Hanjin is a member of Hanjin Group, a South Korean conglomerate with U.S. subsidiaries, including Hanjin International America. Beginning in 2009, Hanjin partnered with oil companies, including a co-conspirator oil company (‘‘Company A’’), to supply fuel to U.S. military installations in South Korea. 6. SK Energy Co., Ltd. (‘‘SK Energy’’) is an oil company headquartered in Seoul, South Korea. SK Energy is a wholly-owned subsidiary of SK Innovation Co., Ltd., a South Korean company with U.S. subsidiaries, including SK Energy Americas Inc. SK Energy refines and supplies gasoline, diesel, kerosene, and other petroleum products for sale internationally. During the conspiracy, SK Energy supplied fuel to U.S. military installations in South Korea. 7. Other persons, not named as defendants in this action, participated as co-conspirators in the offense alleged in this Complaint and performed acts and made statements in furtherance thereof. These co-conspirators include, among others, a logistics firm (‘‘Company B’’) and an oil company (‘‘Company C’’) that jointly supplied fuel to the U.S. military. 8. Whenever this Complaint refers to any act, deed, or transaction of any E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 business entity, it means that the business entity engaged in the act, deed, or transaction by or through its officers, directors, employees, agents, or other representatives while they were actively engaged in the management, direction, control, or transaction of its business or affairs. III. JURISDICTION AND VENUE 9. The United States brings this action under Section 4 of the Sherman Act, 15 U.S.C. § 4, and Section 4A of the Clayton Act, 15 U.S.C. § 15a, seeking equitable relief, including equitable monetary remedies, and damages from Defendants’ violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. 10. This Court has subject matter jurisdiction over this action under 15 U.S.C. §§ 4 and 15a and 28 U.S.C. §§ 1331 and 1337. 11. Defendants have consented to venue and personal jurisdiction in this district for the purpose of this Complaint. 12. Defendants entered into contracts with the U.S. military to supply and deliver fuel to U.S. military installations in South Korea. Under the terms of these contracts, Defendants agreed that the laws of the United States would govern all contractual disputes and that U.S. administrative bodies and courts would have exclusive jurisdiction to resolve all such disputes. To be eligible to enter into these contracts, Defendants registered in databases located in the United States. For certain contracts, Defendants submitted bids to U.S. Department of Defense offices in the United States. After being awarded these contracts, Defendants submitted invoices to and received payments from U.S. Department of Defense offices in Columbus, Ohio, which included use of wires and mails located in the United States. 13. Through its contracts with the U.S. military, Defendants’ activities had a direct, substantial, and reasonably foreseeable effect on interstate commerce, import trade or commerce, and commerce with foreign nations. Defendants’ conspiracy had a substantial and intended effect in the United States. Defendants caused U.S. Department of Defense agencies to pay non-competitive prices for the supply of fuel to U.S. military installations. Defendants also caused a U.S. Department of Defense agency located in the Southern District of Ohio to transfer U.S. dollars to their foreign bank accounts. IV. BACKGROUND 14. From at least March 2005 and continuing until at least October 2016 VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 (‘‘the Relevant Period’’), the U.S. military procured fuel for its installations in South Korea through competitive solicitation processes. Oil companies, either independently or in conjunction with a logistics company, submitted bids in response to these solicitations. 15. The conduct at issue relates to two types of contracts to supply fuel to the U.S. military for use in South Korea: Post, Camps, and Stations (‘‘PC&S’’) contracts and Army and Air Force Exchange Services (‘‘AAFES’’) contracts. 16. PC&S contracts are issued and administered by the Defense Logistics Agency (‘‘DLA’’), a combat support agency in the U.S. Department of Defense. DLA, formerly known as the Defense Energy Support Center, is headquartered in Fort Belvoir, Virginia. The fuel procured under PC&S contracts is used for military vehicles and to heat U.S. military buildings. During the Relevant Period, PC&S contracts ran for a term of three or four years. DLA issued PC&S solicitations listing the fuel requirements for installations across South Korea, with each delivery location identified by a separate line item. Bidders offered a price for each line item on which they chose to bid. DLA awarded contracts to the bidders offering the lowest price for each line item. The Defense Finance and Accounting Service (‘‘DFAS’’), a finance and accounting agency of the U.S. Department of Defense, wired payments to the PC&S contract awardees from its office in Columbus, Ohio. 17. AAFES is an agency of the Department of Defense headquartered in Dallas, Texas. AAFES operates official retail stores (known as ‘‘exchanges’’) on U.S. Army and Air Force installations worldwide, which U.S. military personnel and their families use to purchase everyday goods and services, including gasoline for use in their personal vehicles. AAFES procures fuel for these stores via contracts awarded through a competitive solicitation process. The term of AAFES contracts is typically two years, but may be extended for additional years. In 2008, AAFES issued a solicitation that listed the fuel requirements for installations in South Korea. Unlike DLA, AAFES awarded the entire 2008 contract to the bidder offering the lowest price across all the listed locations. V. DEFENDANTS’ UNLAWFUL CONDUCT 18. From at least March 2005 and continuing until at least October 2016, Defendants and their co-conspirators engaged in a series of meetings, telephone conversations, e-mails, and PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 60307 other communications to rig bids and fix prices for the supply of fuel to U.S. military installations in South Korea. 2006 PC&S and 2008 AAFES Contracts 19. GS Caltex, SK Energy, and Companies B and C conspired to rig bids and fix prices on the 2006 PC&S contracts, which were issued in response to solicitation SP0600–05–R– 0063, supplemental solicitation SP0600–05–0063–0001, and their amendments. The term of the 2006 PC&S contracts covered the supply of fuel from February 2006 through July 2009. 20. Between early 2005 and mid-2006, GS Caltex, SK Energy, and other conspirators met multiple times and exchanged phone calls and e-mails to allocate the line items in the solicitations for the 2006 PC&S contracts. For each line item allocated to a different co-conspirator, the other conspirators agreed not to bid or to bid high enough to ensure that they would not win that item. Through these communications, these conspirators agreed to inflate their bids to produce higher profit margins. DLA awarded the 2006 PC&S line items according to the allocations made by the conspiracy. 21. As part of their discussions related to the 2006 PC&S contracts, GS Caltex and other conspirators agreed not to compete with SK Energy in bidding for the 2008 AAFES contract. In 2008, GS Caltex and other conspirators honored their agreement: GS Caltex bid significantly above the bid submitted by SK Energy for the AAFES contract, while Companies B and C declined to bid even after AAFES explicitly requested their participation in the bidding. The initial term of the 2008 AAFES contract ran from July 2008 to July 2010; the contract was later extended through July 2013. As envisioned by the conspiracy, AAFES awarded the 2008 contract to SK Energy. 2009 PC&S Contracts 22. Continuing their conspiracy, Defendants and other co-conspirators conspired to rig bids and fix prices for the 2009 PC&S contracts, which were issued in response to solicitation SP0600–08–R–0233. Hanjin and Company A joined the conspiracy for the purpose of bidding on the solicitation for the 2009 PC&S contracts. Hanjin and Company A partnered to bid jointly on the 2009 PC&S contracts, with Company A providing the fuel and Hanjin providing transportation and logistics. The term of the 2009 PC&S contracts covered the supply of fuel from October 2009 through August 2013. E:\FR\FM\23NON2.SGM 23NON2 60308 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices 23. Between late 2008 and mid-2009, Defendants and other co-conspirators met multiple times and exchanged phone calls and e-mails to allocate the line items in the solicitation for the 2009 PC&S contracts. As in 2006, these conspirators agreed to bid high so as to not win line items allocated to other coconspirators. The original conspirators agreed to allocate to Hanjin and Company A certain line items that had previously been allocated to the original conspirators. 24. With one exception, DLA awarded the 2009 PC&S contracts in line with the allocations made by the Defendants and other co-conspirators. Companies B and C accidentally won one line item that the conspiracy had allocated to GS Caltex. To remedy this misallocation, Company B and GS Caltex agreed that GS Caltex, rather than Company C, would supply Company B with the fuel procured under this line item. amozie on DSK3GDR082PROD with NOTICES2 2013 PC&S Contracts 25. Similar to 2006 and 2009, Defendants and other co-conspirators conspired to rig bids and fix prices for the 2013 PC&S contracts, which were issued in response to solicitation SP0600–12–R–0332. The term of the 2013 PC&S Contract covered the supply of fuel from August 2013 through July 2016. 26. Defendants and other coconspirators communicated via phone calls and e-mails to allocate and set the price for each line item in the solicitation for the 2013 PC&S contracts. Defendants and other co-conspirators believed that they had an agreement as to their bidding strategy and pricing for the 2013 PC&S contracts. As a result of this agreement, they bid higher prices than they would have in a competitive process. 27. However, Hanjin and Company A submitted bids for the 2013 PC&S contracts below the prices set by the other co-conspirators. Although lower than the pricing agreed upon by the conspirators, Hanjin and Company A still submitted bids above a competitive, non-collusive price, knowing that they would likely win the contracts because the other conspirators would bid even higher prices. 28. As a result of their bidding strategy, Hanjin and Company A jointly won nearly all the line items in the 2013 PC&S contracts. As in 2009, Company A was to provide the fuel for these line items, and Hanjin was to provide transportation and logistics. GS Caltex and other co-conspirators won a few, small line items; SK Energy won none. DLA made inflated payments under the VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 2013 PC&S contracts through October 2016. 29. After the award of the 2013 PC&S contracts, Hanjin, Company A, and GS Caltex reached an understanding that GS Caltex, rather than Company A, would supply Hanjin with fuel for certain line items. Under this side agreement, Hanjin paid a much lower price to GS Caltex for fuel than the price it previously had agreed to pay Company A to acquire fuel for those line items. However, the price that Hanjin paid to GS Caltex exceeded a competitive price for fuel. VI. VIOLATIONS ALLEGED 30. The United States incorporates by reference the allegations in paragraphs 1 through 29. 31. The conduct of Defendants and their co-conspirators unreasonably restrained trade and harmed competition for the supply of fuel to the U.S. military in South Korea in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. 32. The United States was injured as a result of the unlawful conduct because it paid more for the supply of fuel than it would have had the Defendants and their co-conspirators engaged in fair competition. VIII. REQUEST FOR RELIEF 33. The United States requests that this Court: (a) adjudge that Defendants’ and their co-conspirators’ conduct constitutes an unreasonable restraint of interstate commerce, import trade or commerce, and commerce with foreign nations in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1; (b) award the United States damages to which it is entitled for the losses incurred as the result of Defendants’ and their co-conspirators’ conduct; (c) award the United States equitable disgorgement of the ill-gotten gains obtained by Defendants; (d) award the United States its costs of this action; and (e) award the United States other relief that the Court deems just and proper. Deputy Assistant Attorney General. lllllllllllllllllllll Patricia A. Brink, Director of Civil Enforcement. lllllllllllllllllllll Kathleen S. O’Neill, Chief, Transportation, Energy & Agriculture Section. lllllllllllllllllllll Robert A. Lepore, Assistant Chief, Transportation, Energy & Agriculture Section. lllllllllllllllllllll J. Richard Doidge Julie Elmer Jeremy Evans John A. Holler Caroline Anderson Jonathan Silberman Patrick Kuhlmann Attorneys for the United States U.S. Department of Justice, Antitrust Division, 450 5th Street NW, Suite 8000, Washington, DC 20530, Tel.: (202) 514–8944, Fax: (202) 616–2441, E-mail: Dick.Doidge@ usdoj.gov. Dated: November 14, 2018 Respectfully submitted, FOR PLAINTIFF UNITED STATES OF AMERICA Benjamin C. Glassman, United States Attorney By: lllllllllllllllllllll Andrew M. Malek (Ohio Bar #0061442) Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, Columbus, Ohio 43215, Tel: (614) 469–5715, Fax: (614) 469–2769, E-mail: Andrew.Malek@usdoj.gov. United States District Court for the Southern District of Ohio Eastern Division United States of America, Plaintiff, v. GS Caltex Corporation, Defendant. Case No. 2:18–cv–01456–ALM–CMV PROPOSED FINAL JUDGMENT AS TO DEFENDANT GS CALTEX CORPORATION WHEREAS Plaintiff, United States of America, filed its Complaint on November 14, 2018, the United States and Defendant GS Caltex Corporation (‘‘GS Caltex’’), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law; Dated: November 14, 2018 WHEREAS, on such date as may be Respectfully submitted, determined by the Court, GS Caltex will FOR PLAINTIFF UNITED STATES OF plead guilty pursuant to Fed. R. Crim. AMERICA: P. 11(c)(1)(C) (the ‘‘Plea Agreement’’) to lllllllllllllllllllll an Information to be filed in United Makan Delrahim, States v. GS Caltex Corporation [to be Assistant Attorney General for Antitrust. assigned] (S.D.Ohio) (the ‘‘Criminal lllllllllllllllllllll Action’’) that will allege a violation of Andrew C. Finch, Section 1 of the Sherman Act, 15 Principal Deputy Assistant Attorney General. U.S.C. § 1, relating to the same events lllllllllllllllllllll giving rise to the allegations described in the Complaint; Bernard A. Nigro Jr., PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; NOW, THEREFORE, before the taking of any testimony and without trial or final adjudication of any issue of fact or law herein, and upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED: I. JURISDICTION This Court has jurisdiction of the subject matter of this action and each of the parties consenting hereto. The Complaint states a claim upon which relief may be granted to the United States against GS Caltex under Section 1 of the Sherman Act, 15 U.S.C. § 1. II. APPLICABILITY This Final Judgment applies to GS Caltex, 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. amozie on DSK3GDR082PROD with NOTICES2 III. PAYMENT GS Caltex shall pay to the United States within ten (10) business days of the entry of this Final Judgment the amount of fifty-seven million, five hundred thousand dollars ($57,500,000), less the amount paid (excluding any interest) pursuant to the settlement agreement attached hereto as Attachment 1, to satisfy all civil antitrust claims alleged against GS Caltex by the United States in the Complaint. Payment of the amount ordered hereby shall be made by wire transfer of funds or cashier’s check. If the payment is made by wire transfer, GS Caltex shall contact Janie Ingalls of the Antitrust Division’s Antitrust Documents Group at (202) 514–2481 for instructions before making the transfer. If the payment is made by cashier’s check, the check shall be made payable to the United States Department of Justice and delivered to: Janie Ingalls, United States Department of Justice Antitrust Division, Antitrust Documents Group, 450 5th Street, NW, Suite 1024, Washington, D.C. 20530. In the event of a default in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of default to the date of payment. IV. COOPERATION GS Caltex shall cooperate fully with the United States regarding any matter about which GS Caltex has knowledge or information relating to any ongoing civil investigation, litigation, or other proceeding arising out of any ongoing VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 federal investigation of the subject matter discussed in the Complaint (hereinafter, any such investigation, litigation, or proceeding shall be referred to as a ‘‘Civil Federal Proceeding’’). The United States agrees that any cooperation provided in connection with the Plea Agreement and/or pursuant to the settlement agreement attached hereto as Attachment 1 will be considered cooperation for purposes of this Final Judgment, and the United States will use its reasonable best efforts, where appropriate, to coordinate any requests for cooperation in connection with the Civil Federal Proceeding with requests for cooperation in connection with the Plea Agreement and the settlement agreement attached hereto as Attachment 1, so as to avoid unnecessary duplication and expense. GS Caltex’s cooperation shall include, but not be limited to, the following: (a) Upon request, completely and truthfully disclosing and producing, to the offices of the United States and at no expense to the United States, copies of all non-privileged information, documents, materials, and records in its possession (and for any foreign-language information, documents, materials, or records, copies must be produced with an English translation), regardless of their geographic location, about which the United States may inquire in connection with any Civil Federal Proceeding, including but not limited to all information about activities of GS Caltex and present and former officers, directors, employees, and agents of GS Caltex; (b) Making available in the United States, at no expense to the United States, its present officers, directors, employees, and agents to provide information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; (c) Using its best efforts to make available in the United States, at no expense to the United States, its former officers, directors, employees, and agents to provide information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 60309 (d) Providing testimony or information necessary to identify or establish the original location, authenticity, or other basis for admission into evidence of documents or physical evidence produced by GS Caltex in any Civil Federal Proceeding as requested by the United States; and (e) Completely and truthfully responding to all other inquiries of the United States in connection with any Civil Federal Proceeding. However, notwithstanding any provision of this Final Judgment, GS Caltex is not required to: (1) Request of its current or former officers, directors, employees, or agents that they forgo seeking the advice of an attorney nor that they act contrary to that advice; (2) take any action against its officers, directors, employees, or agents for following their attorney’s advice; or (3) waive any claim of privilege or work product protection. The obligations of GS Caltex to cooperate fully with the United States as described in this Section shall cease upon the conclusion of all Civil Federal Proceedings (which may include Civil Federal Proceedings related to the conduct of third parties), including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such Civil Federal Proceeding, at which point the United States will provide written notice to GS Caltex that its obligations under this Section have expired. V. ANTITRUST COMPLIANCE PROGRAM A. Within thirty (30) days after entry of this Final Judgment, GS Caltex shall appoint an Antitrust Compliance Officer and identify to the United States his or her name, business address, telephone number, and email address. Within forty-five (45) days of a vacancy in the Antitrust Compliance Officer position, GS Caltex shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer’s name, business address, telephone number, and email address. GS Caltex’s initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall institute an antitrust compliance program for the company’s employees and directors with responsibility for bidding for any contract with the United States. The antitrust compliance program shall provide at least two hours of training annually on the antitrust laws of the United States, such training to be delivered by an attorney with E:\FR\FM\23NON2.SGM 23NON2 60310 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices relevant experience in the field of United States 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 Paragraph V.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 United States antitrust laws. E. Each Antitrust Compliance Offer shall provide to the United States 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 GS Caltex’s compliance with Section V of this Final Judgment. amozie on DSK3GDR082PROD with NOTICES2 VI. RETENTION OF JURISDICTION This Court retains jurisdiction to enable any of the parties 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 or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions. VII. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including the right to seek an order of contempt from the Court. GS Caltex agrees that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and GS Caltex waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. GS Caltex agrees that they may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that GS Caltex has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against GS Caltex, whether litigated or resolved prior to litigation, GS Caltex agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts’ fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. States Department of Justice and the United States Attorney’s Office for the Southern District of Ohio, on behalf of the Defense Logistics Agency (DLA) and the Army and Air Force Exchange Service (AAFES) (collectively the ‘‘United States’’), GS Caltex Corporation (GS Caltex), and Relator [REDACTED] (hereafter collectively referred to as ‘‘the Parties’’), through their authorized representatives. RECITALS A. GS Caltex is a South Korea-based energy company that produces various petroleum products that it sells to South Korean and international customers, including the United States Department of Defense (DoD). B. On February 28, 2018, Relator, a resident and citizen of South Korea, filed a qui tam action in the United States District Court for the Southern District of Ohio captioned United States ex rel. [REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant to the qui tam provisions of the False VIII. EXPIRATION OF FINAL Claims Act, 31 U.S.C. § 3730(b) (the JUDGMENT Civil FCA Action). Relator contends that Unless this Court grants an extension, GS Caltex conspired with other South Korean entities to rig bids on DoD this Final Judgment shall expire seven contracts to supply fuel to U.S. military (7) years from the date of its entry, bases throughout South Korea beginning except that after five (5) years from the in 2005 and continuing until 2016, date of its entry, this Final Judgment including DLA Post, Camps, and may be terminated upon notice by the United States to the Court and GS Caltex Stations contracts and/or contract amendments (‘‘PC&S contracts’’) that the continuation of the Final executed in 2006, 2009, 2011, and 2013, Judgment no longer is necessary or in and AAFES contracts executed in 2008. the public interest. C. On such date as may be determined by the Court, GS Caltex will plead guilty IX. PUBLIC INTEREST pursuant to Fed. R. Crim. P. 11(c)(1)(C) DETERMINATION (the ‘‘Plea Agreement’’) to an Entry of this Final Judgment is in the Information to be filed in United States public interest. The parties have v. GS Caltex Corporation, Criminal complied with the requirements of the Action No. [to be assigned] (S.D. Ohio) Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies (the ‘‘Criminal Action’’) that will allege that GS Caltex participated in a available to the public of this Final combination and conspiracy beginning Judgment, the Competitive Impact at least in or around March 2005 and Statement, and any comments thereon continuing until at least in or around and the United States’ responses to October 2016, to suppress and eliminate comments. Based upon the record competition on certain contracts before the Court, which includes the solicited by the DoD to supply ultra-low Competitive Impact Statement and any sulfur diesel and gasoline to numerous comments and response to comments U.S. Army, Navy, Marine, and Air Force filed with the Court, entry of this Final installations in Korea, known as PC&S Judgment is in the public interest. contracts, in violation of the Sherman Dated: lllllllllllllllll Antitrust Act, 15 U.S.C. § 1. lllllllllllllllllllll D. GS Caltex will execute a Stipulation with the Antitrust Division United States District Judge of the United States Department of Justice in which GS Caltex will consent ATTACHMENT 1 to the entry of a Final Judgment to be SETTLEMENT AGREEMENT filed in United States v. GS Caltex Corporation, Civil Action No. [to be This Settlement Agreement assigned] (S.D. Ohio) (the Civil Antitrust (Agreement) is entered into among the Action) that will settle any and all civil United States of America, acting through the Civil Division of the United antitrust claims of the United States PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 against GS Caltex arising from any act or offense committed before the date of the Stipulation that was undertaken in furtherance of an attempted or completed antitrust conspiracy involving PC&S and/or AAFES fuel supply contracts with the U.S. military in South Korea during the period 2005 through 2016. E. The United States contends that it has certain civil claims against GS Caltex arising from a conspiracy with other South Korean entities to rig bids on DoD contracts to supply fuel to U.S. military bases throughout South Korea executed between 2005 and 2013, including DLA PC&S contracts and AAFES contracts, as well as the conduct described in the Plea Agreement in the Criminal Action. The conduct referenced in this Paragraph, as well as the conduct, actions, and claims alleged by Relator in the Civil FCA Action is referred to below as the Covered Conduct. F. With the exception of any admissions that are made by GS Caltex in connection with the Plea Agreement in the Criminal Action, this Settlement Agreement is neither an admission of liability by GS Caltex nor a concession by the United States or Relator that their claims are not well founded. G. Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the proceeds of this Settlement Agreement and to Relator’s reasonable expenses, attorneys’ fees and costs. To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the above claims, and in consideration of the mutual promises and obligations of this Settlement Agreement, the Parties agree and covenant as follows: TERMS AND CONDITIONS 1.a. GS Caltex shall pay to the United States $42,621,000 (FCA Settlement Amount), of which $28,414,474 is restitution. Relator’s right pursuant to 31 U.S.C. § 3730(d) to reasonable expenses, attorneys’ fees and costs will be addressed separately by Relator, Relator’s counsel and GS Caltex. 1.b. Interest at an annual rate of three (3) percent shall accrue on the FCA Settlement Amount beginning on the Effective Date of this Agreement and continuing until the date that both of the following events have occurred: (i) the Plea Agreement is accepted by the Court in the Criminal Action; and (ii) the proposed Final Judgment is entered by the Court in the Civil Antitrust Action (Accrued Interest). 1.c. The total FCA payment due from GS Caltex shall be the FCA Settlement Amount plus any Accrued Interest VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 (Total FCA Settlement Amount). GS Caltex shall pay the Total FCA Settlement Amount by electronic funds transfer no later than seven (7) business days after both events identified above in Paragraph 1.b. have occurred (Payment Due Date). The Civil Division of the United States Department of Justice shall provide to counsel for GS Caltex written payment instructions and confirmation of the Total FCA Settlement Amount no later than five (5) business days before the Payment Due Date. If GS Caltex does not pay the Total FCA Settlement Amount on or before the Payment Due Date, interest at an annual rate of nine (9) percent shall accrue on the Total FCA Settlement Amount beginning on the first calendar day after the Payment Due Date and shall continue to accrue until paid. 1.d. If GS Caltex’s Plea Agreement in the Criminal Action is not accepted by the Court or the Court does not enter the Final Judgment in the Civil Antitrust Action, this Agreement shall be null and void at the option of either the United States or GS Caltex. If either the United States or GS Caltex exercises this option, which option shall be exercised by notifying all Parties, through counsel, in writing within five (5) business days of the Court’s decision, the Parties will not object and this Agreement will be rescinded. If this Agreement is rescinded, GS Caltex will not plead, argue or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel or similar theories, to any civil or administrative claims, actions or proceedings arising from the Covered Conduct that are brought by the United States within ninety (90) calendar days of rescission, except to the extent such defenses were available on the day on which Relator’s qui tam complaint in the Civil FCA Action was filed. 2. Subject to the exceptions in Paragraph 3 (concerning excluded claims) below, and conditioned upon GS Caltex’s full payment of the Total FCA Settlement Amount, the United States releases GS Caltex together with its current and former parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; current or former corporate owners; and the corporate successors and assigns of any of them from any civil or administrative monetary claim the United States has for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729–3733; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801–3812; Contract Disputes Act, 41 U.S.C. §§ 7101–7109; or the common law theories of breach of contract, payment by mistake, unjust PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 60311 enrichment, and fraud, or under any statute creating causes of action for civil damages or civil penalties which the Civil Division of the United States Department of Justice has authority to assert and compromise pursuant to 28 C.F.R. Part O, Subpart I, § 0.45(d). 3. Notwithstanding the release given in paragraph 2 of this Agreement, or any other term of this Agreement, the following claims of the United States are specifically reserved and are not released: a. Any liability arising under Title 26, U.S. Code (Internal Revenue Code); b. Any criminal liability, except to the extent detailed in the Plea Agreement; c. Except as explicitly stated in this Agreement, any administrative liability, including the suspension and debarment rights of any federal agency; d. Any liability to the United States (or its agencies) for any conduct other than the Covered Conduct; e. Any liability based upon obligations created by this Agreement; f. Any liability of individuals; g. Any liability for express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services; h. Any liability for failure to deliver goods or services due; and i. Any liability for personal injury or property damage or for other consequential damages arising from the Covered Conduct. 4. Relator and his heirs, successors, attorneys, agents, and assigns shall not object to this Agreement but agree and confirm that this Agreement is fair, adequate, and reasonable under all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). The determination of Relator’s share, if any, of the FCA Settlement Amount pursuant to 31 U.S.C. § 3730(d) is a matter that shall be handled separately by and between the Relator and the United States, without any direct involvement or input from GS Caltex. In connection with this Agreement and this Civil FCA Action, Relator, on behalf of himself and his heirs, successors, attorneys, agents, and assigns agrees that neither this Agreement, nor any intervention by the United States in the Civil FCA Action in order to dismiss the Civil FCA Action, nor any dismissal of the Civil FCA Action, shall waive or otherwise affect the ability of the United States to contend that provisions in the False Claims Act, including 31 U.S.C. § 3730(d)(3), bar Relator from sharing in the proceeds of this Agreement, except that the United States will not contend that Relator is barred from sharing in the proceeds of this Agreement pursuant to E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 60312 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices 31 U.S.C. § 3730(e)(4). Moreover, the United States and Relator, on behalf of himself and his heirs, successors, attorneys, agents, and assigns agree that they each retain all of their rights pursuant to the False Claims Act on the issue of the share percentage, if any, that Relator should receive of any proceeds of the settlement of his claims, and that no agreements concerning Relator share have been reached to date. 5. Relator, for himself, and for his heirs, successors, attorneys, agents, and assigns, releases GS Caltex, together with its predecessors, successors, assigns, shareholders, subsidiaries, businesses, affiliates, divisions, sister companies, owners, directors, officers, agents, employees, and counsel, from any action, in law or in equity, suits, debts, liens, contracts, agreements, covenants, promises, liability, obligations, claims, demands, rights of subrogation, contribution and indemnity, damages, loss, cost or expenses, direct or indirect, of any kind or nature whatsoever (including without limitation any civil monetary claim Relator has on behalf of the United States for the Covered Conduct under the False Claims Act. 31 U.S.C. §§ 3729– 3733), known or unknown, fixed or contingent, foreign (including Korean), state or federal, under common law, statute or regulation, liquidated or unliquidated, claimed or concealed, and without regard to the date of occurrence, which Relator ever had, now has, may assert, or may in the future claim to have, against GS Caltex by reason of any act, cause, matter, or thing whatsoever from the beginning of time to the date hereof. Relator represents and warrants that he and his counsel are the exclusive owner of the rights, claims, and causes of action herein released and none of them have previously assigned, reassigned, or transferred or purported to assign, reassign or transfer, through bankruptcy or by any other means, any or any portion of any claim, demand, action, cause of action, or other right released or discharged under this Agreement except between themselves and their counsel. Notwithstanding the foregoing, or any other terms of this Agreement, this Agreement does not resolve or release Relator’s right pursuant to 31 U.S.C. § 3730(d) to reasonable expenses necessarily incurred, plus reasonable attorneys’ fees and costs relating to the Covered Conduct, the amount of which will be addressed separately by Relator, Relator’s counsel, and GS Caltex. 6. GS Caltex waives and shall not assert any defenses GS Caltex may have to any criminal prosecution or administrative action relating to the VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action. 7. GS Caltex fully and finally releases the United States, its agencies, officers, agents, employees, and servants, from any claims (including attorney’s fees, costs, and expenses of every kind and however denominated) that GS Caltex has asserted, could have asserted, or may assert in the future against the United States, its agencies, officers, agents, employees, and servants, related to the Covered Conduct and the United States’ investigation and prosecution thereof. 8. GS Caltex, for itself and on behalf of its predecessors, successors, assigns, shareholders, subsidiaries, businesses, affiliates, divisions, sister companies, owners, directors, officers, agents, employees, and counsel, releases Relator, together with his heirs, successors, attorneys, agents, and assigns from any action, in law or in equity, suits, debts, liens, contracts, agreements, covenants, promises, liability, obligations, claims, demands, rights of subrogation, contribution and indemnity, damages, loss, cost or expenses, direct or indirect, of any kind or nature whatsoever, known or unknown, fixed or contingent, foreign (including Korean), state or federal, under common law, statute or regulation, liquidated or unliquidated, claimed or concealed, and without regard to the date of occurrence, which GS Caltex ever had, now has, may assert, or may in the future claim to have, against Relator by reason of any act, cause, matter, or thing whatsoever from the beginning of time to the date hereof. GS Caltex represents and warrants that it and its counsel are the exclusive owner of the rights, claims, and causes of action herein released and none of them have previously assigned, reassigned, or transferred or purported to assign, reassign or transfer, through bankruptcy or by any other means, any or any portion of any claim, demand, action, cause of action, or other right released or discharged under this Agreement except between themselves and their counsel. Notwithstanding the foregoing, or any other terms of this Agreement, this Agreement does not resolve or release GS Caltex’s right pursuant to 31 U.S.C. § 3730(d) to assert defenses to Relator’s claimed attorneys’ fees, expenses, and costs relating to the Covered Conduct, the amount of which PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 will be addressed separately by Relator, Relator’s counsel, and GS Caltex. 9. a. Unallowable Costs Defined: All costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205–47) incurred by or on behalf of GS Caltex, and its present or former officers, directors, employees, shareholders, and agents in connection with: (1) the matters covered by this Agreement, any related plea agreement, and any related civil antitrust agreement; (2) the United States’ audit(s) and civil and any criminal investigation(s) of the matters covered by this Agreement; (3) GS Caltex’s investigation, defense, and corrective actions undertaken in response to the United States’ audit(s) and civil and any criminal investigation(s) in connection with the matters covered by this Agreement (including attorney’s fees); (4) the negotiation and performance of this Agreement, any related plea agreement, and any related civil antitrust agreement; (5) the payment GS Caltex makes to the United States pursuant to this Agreement and any payments that GS Caltex may make to Relator, including costs and attorneys’ fees, are unallowable costs for government contracting purposes (hereinafter referred to as Unallowable Costs). b. Future Treatment of Unallowable Costs: Unallowable Costs will be separately determined and accounted for by GS Caltex, and GS Caltex shall not charge such Unallowable Costs directly or indirectly to any contract with the United States. c. Treatment of Unallowable Costs Previously Submitted for Payment: Within 90 days of the Effective Date of this Agreement, GS Caltex shall identify and repay by adjustment to future claims for payment or otherwise any Unallowable Costs included in payments previously sought by GS Caltex or any of its subsidiaries or affiliates from the United States. GS Caltex agrees that the United States, at a minimum, shall be entitled to recoup from GS Caltex any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previouslysubmitted requests for payment. The United States, including the Department of Justice and/or the affected agencies, reserves its rights to audit, examine, or re-examine GS Caltex’s books and records and to disagree with any calculations submitted by GS Caltex or any of its subsidiaries or affiliates regarding any Unallowable Costs included in payments previously sought E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices by GS Caltex, or the effect of any such Unallowable Costs on the amount of such payments. 10. GS Caltex agrees to cooperate fully and truthfully with the United States in connection with the Civil FCA Action. The Civil Division of the United States Department of Justice will use reasonable best efforts, where appropriate, to coordinate any requests for cooperation in connection with the Civil FCA Action with requests for cooperation in connection with the Plea Agreement in the Criminal Action and the Civil Antitrust Action, so as to avoid unnecessary duplication and expense. GS Caltex’s ongoing, full, and truthful cooperation shall include, but not be limited to: a. upon request by the United States with reasonable notice, producing at the offices of counsel for the United States in Washington, D.C. and not at the expense of the United States, complete and un-redacted copies of all nonprivileged documents related to the Covered Conduct wherever located in GS Caltex’s possession, custody, or control; b. upon request by the United States with reasonable notice, making current GS Caltex directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong unless another place is mutually agreed upon; c. upon request by the United States with reasonable notice, (i) using best efforts to assist in locating former GS Caltex directors, officers, and employees identified by attorneys and/or investigative agents of the United States, and (ii) using best efforts to make any such former GS Caltex directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong unless another place is mutually agreed upon; and d. upon request by the United States with reasonable notice, making current GS Caltex directors, officers, and employees available, and using best efforts to make former GS Caltex directors, officers, employees available, to testify, consistent with the rights and privileges of such individuals, fully, truthfully, and under oath, without falsely implicating any person or withholding any information, (i) at depositions in the United States, Hong VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Kong, or any other mutually agreed upon place, (ii) at trial in the United States, and (iii) at any other judicial proceedings wherever located related to the Civil FCA Action. 11. This Agreement is intended to be for the benefit of the Parties only. 12. Upon receipt of the payment of the Total FCA Settlement Amount described in Paragraph 1.a-c., above, or receipt of the Total FCA Settlement Amount and any additional interest that accrues if GS Caltex does not pay on or before the Payment Due Date, the United States and Relator shall promptly sign and file a Joint Stipulation of Dismissal, with prejudice, of the claims filed against GS Caltex in the Civil FCA Action, pursuant to Rule 41(a)(1), which dismissal shall be conditioned on the Court retaining jurisdiction over Relator’s claims to a relator’s share and recovery of attorneys’ fees and costs pursuant to 31 U.S.C. § 3730(d). 13. Except as provided herein, each Party shall bear its own legal and other costs incurred in connection with this matter. The Parties agree that Relator and GS Caltex will not seek to recover from the United States any costs or fees related to the preparation and performance of this Agreement. 14. Each party and signatory to this Agreement represents that it freely and voluntarily enters into this Agreement without any degree of duress or compulsion. 15. This Agreement is governed by the laws of the United States. The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United States District Court for the Southern District of Ohio. GS Caltex agrees that the United States District Court for the Southern District of Ohio has jurisdiction over it for purposes of the Civil FCA Action. For purposes of construing this Agreement, this Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed against any Party for that reason in any subsequent dispute. 16. This Agreement constitutes the complete agreement between the Parties on the subject matters addressed herein. This Agreement may not be amended except by written consent of the Parties. 17. The undersigned counsel represent and warrant that they are fully authorized to execute this Agreement on behalf of the persons and entities indicated below. 18. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 60313 19. This Agreement is binding on GS Caltex’s successors, transferees, heirs, and assigns. 20. This Agreement is binding on Relator’s successors, transferees, heirs, and assigns. 21. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public, as permitted by order of the Court. This Agreement shall not be released in un-redacted form until the Court unseals the entire Civil FCA Action. 22. This Agreement is effective on the date of signature of the last signatory to the Agreement (Effective Date of this Agreement). Electronic copies of signatures shall constitute acceptable, binding signatures for purposes of this Agreement The United States of America Dated: lllllllllllllllll By: lllllllllllllllllll Andrew A. Steinberg, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice Dated: lllllllllllllllll By: lllllllllllllllllll Mark T. D’Alessandro, Civil Chief Andrew Malek, Assistant United States Attorney, U.S. Attorney’s Office for the Southern District of Ohio GS Caltex Corporation—Defendant Dated: lllllllllllllllll By: lllllllllllllllllll Authorized Representative of GS Caltex Corporation Dated: lllllllllllllllll By: lllllllllllllllllll Marguerite M. Sullivan, Latham & Watkins LLP Scott D. Hammond, Gibson, Dunn & Crutcher LLP, Counsel for GS Caltex Corporation [Redacted]—Relator Dated: lllllllllllllllll By: lllllllllllllllllll [redacted] Dated: lllllllllllllllll By: lllllllllllllllllll Eric Havian, Constantine Cannon LLP, Counsel for Relator United States District Court for the Southern District of Ohio Eastern Division United States of America, Plaintiff, v. Hanjin Transportation Co., Ltd. Defendant. Case No. 2:18–cv–01456–ALM–CMV E:\FR\FM\23NON2.SGM 23NON2 60314 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices PROPOSED FINAL JUDGMENT AS TO DEFENDANT HANJIN TRANSPORTATION CO., LTD. WHEREAS Plaintiff, United States of America, filed its Complaint on November 14, 2018, the United States and Defendant Hanjin Transportation Co., Ltd. (‘‘Hanjin’’), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law; WHEREAS, on such date as may be determined by the Court, Hanjin will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ‘‘Plea Agreement’’) to an Information to be filed in United States v. Hanjin Transportation Co., Ltd. [to be assigned] (S.D.Ohio) (the ‘‘Criminal Action’’) that will allege a violation of Section 1 of the Sherman Act, 15 U.S. C. § 1, relating to the same events giving rise to the allegations described in the Complaint; WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; NOW, THEREFORE, before the taking of any testimony and without trial or final adjudication of any issue of fact or law herein, and upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED: I. JURISDICTION This Court has jurisdiction of the subject matter of this action and each of the parties consenting hereto. The Complaint states a claim upon which relief may be granted to the United States against Hanjin under Section 1 of the Sherman Act, 15 U.S.C. § 1. amozie on DSK3GDR082PROD with NOTICES2 II. APPLICABILITY This Final Judgment applies to Hanjin, 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. III. PAYMENT Hanjin shall pay to the United States within ten (10) business days of the entry of this Final Judgment the amount of six million, one hundred eighty-two thousand ($6,182,000), less the amount paid (excluding any interest) pursuant to the settlement agreement attached hereto as Attachment 1, to satisfy all civil antitrust claims alleged against Hanjin by the United States in the Complaint. Payment of the amount ordered hereby shall be made by wire transfer of funds or cashier’s check. If the payment is made by wire transfer, Hanjin shall contact Janie Ingalls of the Antitrust Division’s Antitrust VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Documents Group at (202) 514–2481 for instructions before making the transfer. If the payment is made by cashier’s check, the check shall be made payable to the United States Department of Justice and delivered to: Janie Ingalls, United States Department of Justice Antitrust Division, Antitrust Documents Group, 450 5th Street, NW, Suite 1024, Washington, D.C. 20530. In the event of a default in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of default to the date of payment. IV. COOPERATION Hanjin shall cooperate fully with the United States regarding any matter about which Hanjin has knowledge or information relating to any ongoing civil investigation, litigation, or other proceeding arising out of any ongoing federal investigation of the subject matter discussed in the Complaint (hereinafter, any such investigation, litigation, or proceeding shall be referred to as a ‘‘Civil Federal Proceeding’’). The United States agrees that any cooperation provided in connection with the Plea Agreement and/or pursuant to the settlement agreement attached hereto as Attachment 1 will be considered cooperation for purposes of this Final Judgment, and the United States will use its reasonable best efforts, where appropriate, to coordinate any requests for cooperation in connection with the Civil Federal Proceeding with requests for cooperation in connection with the Plea Agreement and the settlement agreement attached hereto as Attachment 1, so as to avoid unnecessary duplication and expense. Hanjin’s cooperation shall include, but not be limited to, the following: (a) Upon request, completely and truthfully disclosing and producing, to the offices of the United States and at no expense to the United States, copies of all non-privileged information, documents, materials, and records in its possession (and for any foreign-language information, documents, materials, or records, copies must be produced with an English translation), regardless of their geographic location, about which the United States may inquire in connection with any Civil Federal Proceeding, including but not limited to all information about activities of Hanjin and present and former officers, directors, employees, and agents of Hanjin; (b) Making available in the United States, at no expense to the United States, its present officers, directors, employees, and agents to provide PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; (c) Using its best efforts to make available in the United States, at no expense to the United States, its former officers, directors, employees, and agents to provide information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; (d) Providing testimony or information necessary to identify or establish the original location, authenticity, or other basis for admission into evidence of documents or physical evidence produced by Hanjin in any Civil Federal Proceeding as requested by the United States; and (e) Completely and truthfully responding to all other inquiries of the United States in connection with any Civil Federal Proceeding. However, notwithstanding any provision of this Final Judgment, Hanjin is not required to: (1) request of its current or former officers, directors, employees, or agents that they forgo seeking the advice of an attorney nor that they act contrary to that advice; (2) take any action against its officers, directors, employees, or agents for following their attorney’s advice; or (3) waive any claim of privilege or work product protection. The obligations of Hanjin to cooperate fully with the United States as described in this Section shall cease upon the conclusion of all Civil Federal Proceedings (which may include Civil Federal Proceedings related to the conduct of third parties), including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such Civil Federal Proceeding, at which point the United States will provide written notice to Hanjin that its obligations under this Section have expired. V. ANTITRUST COMPLIANCE PROGRAM A. Within thirty (30) days after entry of this Final Judgment, Hanjin shall appoint an Antitrust Compliance Officer and identify to the United States his or her name, business address, telephone number, and email address. Within E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices forty-five (45) days of a vacancy in the Antitrust Compliance Officer position, Hanjin shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer’s name, business address, telephone number, and email address. Hanjin’s initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall institute an antitrust compliance program for the company’s employees and directors with responsibility for bidding for any contract with the United States. The antitrust compliance program shall provide at least two hours of training annually on the antitrust laws of the United States, such training to be delivered by an attorney with relevant experience in the field of United States 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 Paragraph V.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 United States antitrust laws. E. Each Antitrust Compliance Offer shall provide to the United States 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 Hanjin’s compliance with Section V of this Final Judgment. amozie on DSK3GDR082PROD with NOTICES2 VI. RETENTION OF JURISDICTION This Court retains jurisdiction to enable any of the parties 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 or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions. VII. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including the right to seek an order of contempt from the Court. Hanjin agrees VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and Hanjin waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. Hanjin agrees that they may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that Hanjin has violated this Final Judgment, the United States may apply to the Court for a onetime extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against Hanjin, whether litigated or resolved prior to litigation, Hanjin agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts’ fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. VIII. EXPIRATION OF FINAL JUDGMENT Unless this Court grants an extension, this Final Judgment shall expire seven (7) years from the date of its entry, except that after five (5) years from the date of its entry, this Final Judgment may be terminated upon notice by the United States to the Court and Hanjin that the continuation of the Final Judgment no longer is necessary or in the public interest. IX. 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 60315 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: lllllllllllllllll llllllllllllllllllll United States District Judge ATTACHMENT 1 SETTLEMENT AGREEMENT This Settlement Agreement (Agreement) is entered into among the United States of America, acting through the Civil Division of the United States Department of Justice and the United States Attorney’s Office for the Southern District of Ohio, on behalf of the Defense Logistics Agency (DLA) and the Army and Air Force Exchange Service (AAFES) (collectively the ‘‘United States’’), Hanjin Transportation Co., Ltd. (Hanjin), and Relator [REDACTED] (hereafter collectively referred to as ‘‘the Parties’’), through their authorized representatives. RECITALS A. Hanjin is a South Korea-based logistics company with South Korean and international customers, including the United States Department of Defense (DoD). B. On February 28, 2018, Relator, a resident and citizen of South Korea, filed a qui tam action in the United States District Court for the Southern District of Ohio captioned United States ex rel. [REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the Civil FCA Action). Relator contends that Hanjin conspired with other South Korean entities to rig bids on DoD contracts to supply fuel to U.S. military bases throughout South Korea beginning in 2008 and continuing until 2016, including DLA Post, Camps, and Stations contracts executed in 2009 and 2013, and AAFES contracts executed in 2008. C. On such date as may be determined by the Court, Hanjin will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ‘‘Plea Agreement’’) to an Information to be filed in United States v. Hanjin Transportation Co., Ltd., Criminal Action No. [to be assigned] (S.D. Ohio) (the ‘‘Criminal Action’’) that will allege that Hanjin participated in a combination and conspiracy beginning at least in or around March 2005 and continuing until at least in or around October 2016, to suppress and eliminate E:\FR\FM\23NON2.SGM 23NON2 60316 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 competition on certain contracts solicited by the DoD to supply ultra-low sulfur diesel and gasoline to numerous U.S. Army, Navy, Marine, and Air Force installations in Korea, including PC&S contracts, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. D. Hanjin will execute a Stipulation with the Antitrust Division of the United States Department of Justice in which Hanjin will consent to the entry of a Final Judgment to be filed in United States v. Hanjin Transportation Co., Ltd., Civil Action No. [to be assigned] (S.D. Ohio) (the Civil Antitrust Action) that will settle any and all civil antitrust claims of the United States against Hanjin arising from any act or offense committed before the date of the Stipulation that was undertaken in furtherance of an attempted or completed antitrust conspiracy involving PC&S and/or AAFES fuel supply contracts with the U.S. military in South Korea during the period 2005 through 2016. E. The United States contends that it has certain civil claims against Hanjin arising from a conspiracy with other South Korean entities to rig bids on DoD contracts to supply fuel to U.S. military bases throughout South Korea beginning in 2008 and continuing to 2016, including DLA Post, Camps, and Stations contracts executed in 2009 and 2013, and AAFES contracts executed in 2008. The conduct described in in this Paragraph, as well as the conduct, actions, and claims alleged by Relator in the Civil FCA Action is referred to below as the Covered Conduct. F. With the exception of any admissions that are made by Hanjin in connection with the Plea Agreement in the Criminal Action, this Settlement Agreement is neither an admission of liability by Hanjin nor a concession by the United States or Relator that their claims are not well founded. G. Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the proceeds of this Settlement Agreement and to Relator’s reasonable expenses, attorneys’ fees, and costs. To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the above claims, and in consideration of the mutual promises and obligations of this Settlement Agreement, the Parties agree and covenant as follows: TERMS AND CONDITIONS 1. Hanjin agrees to pay to the United States $6,182,000 (FCA Settlement Amount) by electronic funds transfer no later than thirteen (13) business days after the Effective Date of this Agreement pursuant to written VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 instructions to be provided by the Civil Division of the United States Department of Justice. Relator claims entitlement under 31 U.S.C. § 3730(d) to Relator’s reasonable expenses, attorneys’ fees and costs. The FCA Settlement Amount does not include the Relator’s fees and costs, and Hanjin acknowledges (without waiving any applicable arguments or defenses) that Relator retains all rights to seek to recover such expenses, attorneys’ fees, and costs from Hanjin pursuant to 31 U.S.C. § 3730(d). 2. Subject to the exceptions in Paragraph 4 (concerning excluded claims) below, and conditioned upon Hanjin’s full payment of the FCA Settlement Amount, the United States releases Hanjin together with its current and former parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; current or former corporate owners; and the corporate successors and assigns of any of them from any civil or administrative monetary claim the United States has for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729–3733; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801–3812; Contract Disputes Act, 41 U.S.C. §§ 7101–7109; or the common law theories of breach of contract, payment by mistake, unjust enrichment, and fraud. 3. Except as set forth in Paragraph 1 (concerning Relator’s claims under 31 U.S.C. § 3730(d)), and subject to the exceptions in Paragraph 4 below, and conditioned upon Hanjin’s full payment of the FCA Settlement Amount, Relator, on behalf of: (a) his respective heirs, successors, assigns, agents and attorneys; and (b) his companies ([REDACTED], together with their direct and indirect subsidiaries, brother or sister corporations, divisions, current or former corporate owners, and the corporate successors and assigns of any of them); hereby fully and finally releases, waives, and forever discharges Hanjin, together with its direct and indirect subsidiaries, brother or sister corporations, divisions, current or former corporate owners, and the corporate successors and assigns of any of them, from: (i) any civil monetary claim Relator has on behalf of the United States for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729–3733; (ii) any claims or allegations Relator has asserted or could have asserted against Hanjin arising from the Covered Conduct; and (iii) all liability, claims, demands, actions or causes of action whatsoever, whether known or unknown, fixed or contingent, in law or in equity, in contract or in tort, under any federal, Korean, or state PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 statute or regulation or otherwise, or in common law, including claims for attorneys’ fees, costs, and expenses of every kind and however denominated, that Relator would have standing to bring or which Relator may now have or claim to have against Hanjin and/or its direct and indirect subsidiaries, brother or sister corporations, divisions, current or former corporate owners, and the corporate successors and assigns of any of them. 4. Notwithstanding the releases given in paragraphs 2 and 3 of this Agreement, or any other term of this Agreement, the following claims of the United States are specifically reserved and are not released: a. Any liability arising under Title 26, U.S. Code (Internal Revenue Code); b. Any criminal liability, except to the extent detailed in the Plea Agreement; c. Except as explicitly stated in this Agreement, any administrative liability, including the suspension and debarment rights of any federal agency; d. Any liability to the United States (or its agencies) for any conduct other than the Covered Conduct; e. Any liability based upon obligations created by this Agreement; f. Any liability of individuals; g. Any liability for express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services; h. Any liability for failure to deliver goods or services due; and i. Any liability for personal injury or property damage or for other consequential damages arising from the Covered Conduct. 5. Relator and his heirs, successors, attorneys, agents, and assigns shall not object to this Agreement but agree and confirm that this Agreement is fair, adequate, and reasonable under all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). In connection with this Agreement and this Civil FCA Action, Relator, on behalf of himself and his heirs, successors, attorneys, agents, and assigns, agrees that neither this Agreement, nor any intervention by the United States in the Civil FCA Action in order to dismiss the Civil FCA Action, nor any dismissal of the Civil FCA Action, shall waive or otherwise affect the ability of the United States to contend that provisions in the False Claims Act, including 31 U.S.C. § 3730(d)(3), bar Relator from sharing in the proceeds of this Agreement, except that the United States will not contend that Relator is barred from sharing in the proceeds of this Agreement pursuant to 31 U.S.C. § 3730(e)(4). Moreover, the United States and Relator, on behalf of E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices himself and his heirs, successors, attorneys, agents, and assigns agree that they each retain all of their rights pursuant to the False Claims Act on the issue of the share percentage, if any, that Relator should receive of any proceeds of the settlement of his claims, and that no agreements concerning Relator share have been reached to date. 6. Hanjin waives and shall not assert any defenses Hanjin may have to any criminal prosecution or administrative action relating to the Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action. 7. Hanjin fully and finally releases the United States, its agencies, officers, agents, employees, and servants, from any claims (including attorney’s fees, costs, and expenses of every kind and however denominated) that Hanjin has asserted, could have asserted, or may assert in the future against the United States, its agencies, officers, agents, employees, and servants, related to the Covered Conduct and the United States’ investigation and prosecution thereof. 8. Hanjin, together with its direct and indirect subsidiaries, brother or sister corporations, divisions, current or former corporate owners, and the corporate successors and assigns of any of them, hereby fully and finally releases, waives, and forever discharges the Relator, together with his respective heirs, successors, assigns, agents and attorneys, and his companies ([REDACTED]) from any claims or allegations Hanjin has asserted or could have asserted, arising from the Covered Conduct, and from all liability, claims, demands, actions or causes of action whatsoever, whether known or unknown, fixed or contingent, in law or in equity, in contract or in tort, under any federal, Korean, or state statute or regulation or otherwise, or in common law, including claims for attorneys’ fees, costs, and expenses of every kind and however denominated, that it would have standing to bring or which Hanjin may now have or claim to have against Relator and his heirs, successors, assigns, agents, and attorneys. Relator hereby represents that neither he nor his companies, [REDACTED], performed business with Hanjin. 9. a. Unallowable Costs Defined: All costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205–47) incurred by or on behalf of Hanjin, and its present or former VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 officers, directors, employees, shareholders, and agents in connection with: (1) the matters covered by this Agreement, any related plea agreement, and any related civil antitrust agreement; (2) the United States’ audit(s) and civil and any criminal investigation(s) of the matters covered by this Agreement; (3) Hanjin’s investigation, defense, and corrective actions undertaken in response to the United States’ audit(s) and civil and any criminal investigation(s) in connection with the matters covered by this Agreement (including attorney’s fees); (4) the negotiation and performance of this Agreement, any related plea agreement, and any related civil antitrust agreement; (5) the payment Hanjin makes to the United States pursuant to this Agreement and any payments that Hanjin may make to Relator, including costs and attorneys’ fees, are unallowable costs for government contracting purposes (hereinafter referred to as Unallowable Costs). b. Future Treatment of Unallowable Costs: Unallowable Costs will be separately determined and accounted for by Hanjin, and Hanjin shall not charge such Unallowable Costs directly or indirectly to any contract with the United States. c. Treatment of Unallowable Costs Previously Submitted for Payment: Within 90 days of the Effective Date of this Agreement, Hanjin shall identify and repay by adjustment to future claims for payment or otherwise any Unallowable Costs included in payments previously sought by Hanjin or any of its subsidiaries or affiliates from the United States. Hanjin agrees that the United States, at a minimum, shall be entitled to recoup from Hanjin any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previously-submitted requests for payment. The United States, including the Department of Justice and/or the affected agencies, reserves its rights to audit, examine, or re-examine Hanjin’s books and records and to disagree with any calculations submitted by Hanjin or any of its subsidiaries or affiliates regarding any Unallowable Costs included in payments previously sought by Hanjin, or the effect of any such Unallowable Costs on the amount of such payments. 10. Hanjin agrees to cooperate fully and truthfully with the United States in connection with the Civil FCA Action. Hanjin’s ongoing, full, and truthful PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 60317 cooperation shall include, but not be limited to: a. upon request by the United States with reasonable notice, producing at the offices of counsel for the United States in Washington, D.C. and not at the expense of the United States, complete and un-redacted copies of all nonprivileged documents related to the Covered Conduct wherever located in Hanjin’s possession, custody, or control, including but not limited to, reports, memoranda of interviews, and records concerning any investigation of the Covered Conduct that Hanjin has undertaken, or that has been performed by another on Hanjin’s behalf; b. upon request by the United States with reasonable notice, making current Hanjin directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong, unless another place is mutually agreed upon; c. upon request by the United States with reasonable notice, (i) using best efforts to assist in locating former Hanjin directors, officers, and employees identified by attorneys and/ or investigative agents of the United States, and (ii) using best efforts to make any such former Hanjin directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong, unless another place is mutually agreed upon; and d. upon request by the United States with reasonable notice, making current Hanjin directors, officers, and employees available, and using best efforts to make former Hanjin directors, officers, employees available, to testify, consistent with the rights and privileges of such individuals, fully, truthfully, and under oath, without falsely implicating any person or withholding any information, (i) at depositions in the United States, Hong Kong, or any other mutually agreed upon place, (ii) at trial in the United States, and (iii) at any other judicial proceedings wherever located related to the Civil FCA Action. 11. This Agreement is intended to be for the benefit of the Parties only. 12. Upon receipt of the payment of the FCA Settlement Amount described in Paragraph 1 above, the United States and Relator shall promptly sign and file a Joint Stipulation of Dismissal, with prejudice, of the claims filed against E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 60318 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices Hanjin in the Civil FCA Action, pursuant to Rule 41(a)(1) ), which dismissal shall be conditioned on the Court retaining jurisdiction over Relator’s claims to a relator’s share and recovery of attorneys’ fees and costs pursuant to 31 U.S.C. § 3730(d). 13. Except with respect to payment (if any) by Hanjin of Relator’s attorneys’ fees, expenses, and costs pursuant to 31 U.S.C. § 3730(d), each Party shall bear its own legal and other costs incurred in connection with this matter. The Parties agree that Relator and Hanjin will not seek to recover from the United States any costs or fees related to the preparation and performance of this Agreement. 14. Each party and signatory to this Agreement represents that it freely and voluntarily enters in to this Agreement without any degree of duress or compulsion. 15. This Agreement is governed by the laws of the United States. The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United States District Court for the Southern District of Ohio. Hanjin agrees that the United States District Court for the Southern District of Ohio has jurisdiction over it for purposes of the Civil FCA Action. For purposes of construing this Agreement, this Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed against any Party for that reason in any subsequent dispute. 16. This Agreement constitutes the complete agreement between the Parties on the subject matters addressed herein. This Agreement may not be amended except by written consent of the Parties. 17. The undersigned counsel represent and warrant that they are fully authorized to execute this Agreement on behalf of the persons and entities indicated below. 18. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. 19. This Agreement is binding on Hanjin’s successors, transferees, heirs, and assigns. 20. This Agreement is binding on Relator’s successors, transferees, heirs, and assigns. 21. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public, as permitted by order of the Court. This Agreement shall not be released in un-redacted form until the Court unseals the entire Civil FCA Action. 22. This Agreement is effective on the date of signature of the last signatory to VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 the Agreement (Effective Date of this Agreement). Facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Agreement. The United States of America Dated: lllllllllllllllll By: lllllllllllllllllll Andrew A. Steinberg, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice Dated: lllllllllllllllll By: lllllllllllllllllll Mark T. D’Alessandro Civil Chief Andrew Malek Assistant United States Attorney, U.S. Attorney’s Office for the Southern District of Ohio Hanjin Transportation Co., Ltd.—Defendant Dated: lllllllllllllllll By: lllllllllllllllllll Authorized Representative of Hanjin Transportation Co., Ltd. Dated: lllllllllllllllll By: lllllllllllllllllll William H. Stallings Counsel for Hanjin Transportation Co., Ltd. Dated: lllllllllllllllll By: lllllllllllllllllll Kelly B. Kramer Counsel for Hanjin Transportation Co., Ltd. [Redacted]—Relator Dated: lllllllllllllllll By: lllllllllllllllllll [Redacted] Dated: lllllllllllllllll By: lllllllllllllllllll Eric Havian Constantine Cannon LLP, Counsel for Relator United States District Court for the Southern District of Ohio Eastern Division United States of America, Plaintiff, v. SK Energy Co., Ltd. Defendant. Case No. 2:18-cv-01456-ALM-CMV PROPOSED FINAL JUDGMENT AS TO DEFENDANT SK ENERGY CO., LTD. WHEREAS Plaintiff, United States of America, filed its Complaint on November 14, 2018, the United States and Defendant SK Energy Co., Ltd. (‘‘SK Energy’’), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law; WHEREAS, on such date as may be determined by the Court, SK Energy will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ‘‘Plea Agreement’’) to an Information to be filed in United States v. SK Energy Co., Ltd. [to be assigned] (S.D.Ohio) (the ‘‘Criminal Action’’) that will allege a violation of PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 Section 1 of the Sherman Act, 15 U.S. C. § 1, relating to the same events giving rise to the allegations described in the Complaint; WHEREAS, this Final Judgment does not constitute any evidence against or admission by any party regarding any issue of fact or law; NOW, THEREFORE, before the taking of any testimony and without trial or final adjudication of any issue of fact or law herein, and upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED: I. JURISDICTION This Court has jurisdiction of the subject matter of this action and each of the parties consenting hereto. The Complaint states a claim upon which relief may be granted to the United States against SK Energy under Section 1 of the Sherman Act, 15 U.S.C. § 1. II. APPLICABILITY This Final Judgment applies to SK Energy, 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. III. PAYMENT SK Energy shall pay to the United States within ten (10) business days of the entry of this Final Judgment the amount of ninety million, three hundred eighty-four thousand, eight hundred and seventy-two dollars ($90,384,872), less the amount paid (excluding any interest) pursuant to the settlement agreement attached hereto as Attachment 1, to satisfy all civil antitrust claims alleged against SK Energy by the United States in the Complaint. Payment of the amount ordered hereby shall be made by wire transfer of funds or cashier’s check. If the payment is made by wire transfer, SK Energy shall contact Janie Ingalls of the Antitrust Division’s Antitrust Documents Group at (202) 514–2481 for instructions before making the transfer. If the payment is made by cashier’s check, the check shall be made payable to the United States Department of Justice and delivered to: Janie Ingalls, United States Department of Justice Antitrust Division, Antitrust Documents Group, 450 5th Street, NW, Suite 1024, Washington, D.C. 20530. In the event of a default in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of default to the date of payment. E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 IV. COOPERATION SK Energy shall cooperate fully with the United States regarding any matter about which SK Energy has knowledge or information relating to any ongoing civil investigation, litigation, or other proceeding arising out of any ongoing federal investigation of the subject matter discussed in the Complaint (hereinafter, any such investigation, litigation, or proceeding shall be referred to as a ‘‘Civil Federal Proceeding’’). The United States agrees that any cooperation provided in connection with the Plea Agreement and/or pursuant to the settlement agreement attached hereto as Attachment 1 will be considered cooperation for purposes of this Final Judgment, and the United States will use its reasonable best efforts, where appropriate, to coordinate any requests for cooperation in connection with the Civil Federal Proceeding with requests for cooperation in connection with the Plea Agreement and the settlement agreement attached hereto as Attachment 1, so as to avoid unnecessary duplication and expense. SK Energy’s cooperation shall include, but not be limited to, the following: (a) Upon request, completely and truthfully disclosing and producing, to the offices of the United States and at no expense to the United States, copies of all non-privileged information, documents, materials, and records in its possession (and for any foreign-language information, documents, materials, or records, copies must be produced with an English translation), regardless of their geographic location, about which the United States may inquire in connection with any Civil Federal Proceeding, including but not limited to all information about activities of SK Energy and present and former officers, directors, employees, and agents of SK Energy; (b) Making available in the United States, at no expense to the United States, its present officers, directors, employees, and agents to provide information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; (c) Using its best efforts to make available in the United States, at no expense to the United States, its former officers, directors, employees, and VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 agents to provide information and/or testimony as requested by the United States in connection with any Civil Federal Proceeding, including the provision of testimony in trial and other judicial proceedings, as well as interviews with law enforcement authorities, consistent with the rights and privileges of those individuals; (d) Providing testimony or information necessary to identify or establish the original location, authenticity, or other basis for admission into evidence of documents or physical evidence produced by SK Energy in any Civil Federal Proceeding as requested by the United States; and (e) Completely and truthfully responding to all other inquiries of the United States in connection with any Civil Federal Proceeding. However, notwithstanding any provision of this Final Judgment, SK Energy is not required to: (1) request of its current or former officers, directors, employees, or agents that they forgo seeking the advice of an attorney nor that they act contrary to that advice; (2) take any action against its officers, directors, employees, or agents for following their attorney’s advice; or (3) waive any claim of privilege or work product protection. The obligations of SK Energy to cooperate fully with the United States as described in this Section shall cease upon the conclusion of all Civil Federal Proceedings (which may include Civil Federal Proceedings related to the conduct of third parties), including exhaustion of all appeals or expiration of time for all appeals of any Court ruling in each such Civil Federal Proceeding, at which point the United States will provide written notice to SK Energy that its obligations under this Section have expired. V. ANTITRUST COMPLIANCE PROGRAM A. Within thirty (30) days after entry of this Final Judgment, SK Energy shall appoint an Antitrust Compliance Officer and identify to the United States his or her name, business address, telephone number, and email address. Within forty-five (45) days of a vacancy in the Antitrust Compliance Officer position, SK Energy shall appoint a replacement, and shall identify to the United States the Antitrust Compliance Officer’s name, business address, telephone number, and email address. SK Energy’s initial or replacement appointment of an Antitrust Compliance Officer is subject to the approval of the United States, in its sole discretion. B. The Antitrust Compliance Officer shall institute an antitrust compliance PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 60319 program for the company’s employees and directors with responsibility for bidding for any contract with the United States. The antitrust compliance program shall provide at least two hours of training annually on the antitrust laws of the United States, such training to be delivered by an attorney with relevant experience in the field of United States 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 Paragraph V.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 United States antitrust laws. E. Each Antitrust Compliance Offer shall provide to the United States 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 SK Energy’s compliance with Section V of this Final Judgment. VI. RETENTION OF JURISDICTION This Court retains jurisdiction to enable any of the parties 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 or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions. VII. ENFORCEMENT OF FINAL JUDGMENT A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including the right to seek an order of contempt from the Court. SK Energy agrees that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of this Final Judgment, the United States may establish a violation of the decree and the appropriateness of any remedy therefor by a preponderance of the evidence, and SK Energy waives any argument that a different standard of proof should apply. B. The Final Judgment should be interpreted to give full effect to the E:\FR\FM\23NON2.SGM 23NON2 60320 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 procompetitive purposes of the antitrust laws and to restore all competition the United States alleged was harmed by the challenged conduct. SK Energy agrees that they may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter. C. In any enforcement proceeding in which the Court finds that SK Energy has violated this Final Judgment, the United States may apply to the Court for a one-time extension of this Final Judgment, together with such other relief as may be appropriate. In connection with any successful effort by the United States to enforce this Final Judgment against SK Energy, whether litigated or resolved prior to litigation, SK Energy agrees to reimburse the United States for the fees and expenses of its attorneys, as well as any other costs including experts’ fees, incurred in connection with that enforcement effort, including in the investigation of the potential violation. ATTACHMENT 1 SETTLEMENT AGREEMENT This Settlement Agreement (Agreement) is entered into among the United States of America, acting through the Civil Division of the United States Department of Justice and the United States Attorney’s Office for the Southern District of Ohio, on behalf of the Defense Logistics Agency (DLA) and the Army and Air Force Exchange Service (AAFES) (collectively the ‘‘United States’’), SK Energy Co., Ltd. (SK Energy), and Relator [REDACTED] (hereafter collectively referred to as ‘‘the Parties’’), through their authorized representatives. RECITALS A. SK Energy is a South Korea-based energy company that produces various petroleum products that it sells to South Korean and international customers, including the United States Department of Defense (DoD). B. On February 28, 2018, Relator, a resident and citizen of South Korea, filed a qui tam action in the United States District Court for the Southern District of Ohio captioned United States ex rel. [REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the Civil FCA Action). Relator contends that VIII. EXPIRATION OF FINAL SK Energy conspired with other South JUDGMENT Korean entities to rig bids on DoD Unless this Court grants an extension, contracts to supply fuel to U.S. military this Final Judgment shall expire seven bases throughout South Korea beginning (7) years from the date of its entry, in 2005 and continuing until 2016, except that after five (5) years from the including DLA Post, Camps, and date of its entry, this Final Judgment Stations (PC&S) contracts executed in may be terminated upon notice by the 2006, 2009, and 2013, and AAFES United States to the Court and SK contracts executed in 2008. Energy that the continuation of the Final C. On such date as may be determined Judgment no longer is necessary or in by the Court, SK Energy will plead the public interest. guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ‘‘Plea Agreement’’) to an IX. PUBLIC INTEREST Information to be filed in United States DETERMINATION v. SK Energy Co., Ltd., Criminal Action Entry of this Final Judgment is in the No. [to be assigned] (S.D. Ohio) (the public interest. The parties have ‘‘Criminal Action’’) that will allege that complied with the requirements of the SK Energy participated in a combination Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies and conspiracy beginning at least in or around March 2005 and continuing available to the public of this Final until at least in or around October 2016, Judgment, the Competitive Impact to suppress and eliminate competition Statement, and any comments thereon on certain contracts solicited by the DoD and the United States’ responses to to supply fuel to numerous U.S. Army, comments. Based upon the record Navy, Marine, and Air Force before the Court, which includes the installations in Korea, including PC&S Competitive Impact Statement and any contracts and the 2008 AAFES contract, comments and response to comments in violation of the Sherman Antitrust filed with the Court, entry of this Final Act, 15 U.S.C. § 1. Judgment is in the public interest. D. SK Energy will execute a Dated: lllllllllllllllll Stipulation with the Antitrust Division lllllllllllllllllllll of the United States Department of Justice in which SK Energy will consent United States District Judge VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 to the entry of a Final Judgment to be filed in United States v. SK Energy Co., Ltd., Civil Action No. [to be assigned] (S.D. Ohio) (the Civil Antitrust Action) that will settle any and all civil antitrust claims of the United States against SK Energy arising from any act or offense committed before the date of the Stipulation that was undertaken in furtherance of an attempted or completed antitrust conspiracy involving PC&S and/or AAFES fuel supply contracts with the U.S. military in South Korea during the period 2005 through 2016. E. The United States contends that it has certain civil claims against SK Energy arising from the conduct described in the Plea Agreement in the Criminal Action and in the Stipulation in the Civil Antitrust Action, as well as the conduct, actions, and claims alleged by Relator in the Civil FCA Action. The conduct referenced in this Paragraph is referred to below as the Covered Conduct. F. With the exception of any admissions that are made by SK Energy in connection with the Plea Agreement in the Criminal Action, this Settlement Agreement is neither an admission of liability by SK Energy nor a concession by the United States that its claims are not well founded. G. Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the proceeds of this Settlement Agreement and to Relator’s reasonable expenses, attorneys’ fees and costs. To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the above claims, and in consideration of the mutual promises and obligations of this Settlement Agreement, the Parties agree and covenant as follows: TERMS AND CONDITIONS 1.a. SK Energy agrees to pay to the United States $71,866,000 (FCA Settlement Amount), of which $47,910,887 is restitution, by electronic funds transfer no later than thirteen (13) business days after the Effective Date of this Agreement pursuant to written instructions to be provided by the Civil Division of the Department of Justice. Relator claims entitlement under 31 U.S.C. § 3730(d) to Relator’s reasonable expenses, attorneys’ fees and costs. The FCA Settlement Amount does not include the Relator’s fees and costs, and SK Energy acknowledges that Relator retains all rights to recover such expenses, attorneys’ fees, and costs from SK Energy pursuant to 31 U.S.C. § 3730(d). 1.b. If SK Energy’s Plea Agreement in the Criminal Action is not accepted by E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices the Court or the Court does not enter a Final Judgment in the Civil Antitrust Action, this Agreement shall be null and void at the option of either the United States or SK Energy. If either the United States or SK Energy exercises this option, which option shall be exercised by notifying all Parties, through counsel, in writing within five (5) business days of the Court’s decision, the Parties will not object and this Agreement will be rescinded and the FCA Settlement Amount shall be returned to SK Energy. If this Agreement is rescinded, SK Energy will not plead, argue or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel or similar theories, to any civil or administrative claims, actions or proceedings arising from the Covered Conduct that are brought by the United States within ninety (90) calendar days of rescission, except to the extent such defenses were available on the day on which Relator’s qui tam complaint in the Civil FCA Action was filed. 2. Subject to the exceptions in Paragraph 4 (concerning excluded claims) below, and conditioned upon SK Energy’s full payment of the FCA Settlement Amount, the United States releases SK Energy together with its current and former parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; current or former corporate owners; and the corporate successors and assigns of any of them (the ‘‘SK Energy Released Parties’’) from any civil or administrative monetary claim the United States has for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729–3733; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801– 3812; Contract Disputes Act, 41 U.S.C. §§ 7101–7109; or the common law theories of breach of contract, payment by mistake, unjust enrichment, and fraud. 3. Except as set forth in Paragraph 1 (concerning Relator’s claims under 31 U.S.C. § 3730(d)), and conditioned upon SK Energy’s full payment of the FCA Settlement Amount, Relator, for himself and for his heirs, successors, attorneys, agents, and assigns, releases the SK Energy Released Parties from (a) any civil monetary claim the Relator has or may have for the claims set forth in the Civil FCA Action, the Civil Antitrust Action, the Criminal Action, and the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729–3733, up until the date of this Agreement; and (b) all liability, claims, demands, actions, or causes of action whatsoever, whether known or unknown, fixed or contingent, in law or in equity, in contract or in tort, under any federal, state, or Korean VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 statute, law, regulation or doctrine, that Relator, his heirs, successors, attorneys, agents, and assigns otherwise has brought or would have standing to bring as of the date of this Agreement, including any liability to Relator arising from or relating to the claims Relator asserted or could have asserted in the Civil FCA Action, up until the date of this Agreement. Relator further represents he does not know of any conduct by the SK Energy Released Parties or any current or former owners, officers, directors, trustees, shareholders, employees, executives, agents, or affiliates of the SK Energy Released Parties that would constitute a violation of the False Claims Act other than the claims set forth in the Civil FCA Action and the Covered Conduct, and Relator acknowledges and agrees that his representations are a material inducement to SK Energy’s willingness to enter into this Agreement. 4. Notwithstanding the releases given in paragraphs 2 and 3 of this Agreement, or any other term of this Agreement, the following claims of the United States are specifically reserved and are not released: a. Any liability arising under Title 26, U.S. Code (Internal Revenue Code); b. Any criminal liability, except to the extent detailed in the Plea Agreement; c. Except as explicitly stated in this Agreement, any administrative liability, including the suspension and debarment rights of any federal agency; d. Any liability to the United States (or its agencies) for any conduct other than the Covered Conduct; e. Any liability based upon obligations created by this Agreement; f. Any liability of individuals; g. Any liability for express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services; h. Any liability for failure to deliver goods or services due; and i. Any liability for personal injury or property damage or for other consequential damages arising from the Covered Conduct. 5. Relator and his heirs, successors, attorneys, agents, and assigns shall not object to this Agreement but agree and confirm that this Agreement is fair, adequate, and reasonable under all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). The determination of Relator’s share, if any, of the FCA Settlement Amount pursuant to 31 U.S.C. § 3730(d) is a matter that shall be handled separately by and between the Relator and the United States, without any direct involvement or input from SK Energy. In connection with this PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 60321 Agreement and this Civil FCA Action, Relator, on behalf of himself and his heirs, successors, attorneys, agents, and assigns agrees that neither this Agreement, nor any intervention by the United States in the Civil FCA Action in order to dismiss the Civil FCA Action, nor any dismissal of the Civil FCA Action, shall waive or otherwise affect the ability of the United States to contend that provisions in the False Claims Act, including 31 U.S.C. § 3730(d)(3), bar Relator from sharing in the proceeds of this Agreement, except that the United States will not contend that Relator is barred from sharing in the proceeds of this Agreement pursuant to 31 U.S.C. § 3730(e)(4). Moreover, the United States and Relator, on behalf of himself and his heirs, successors, attorneys, agents, and assigns agree that they each retain all of their rights pursuant to the False Claims Act on the issue of the share percentage, if any, that Relator should receive of any proceeds of the settlement of his claims, and that no agreements concerning Relator share have been reached to date. 6. SK Energy waives and shall not assert any defenses SK Energy may have to any criminal prosecution or administrative action relating to the Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action. 7. SK Energy fully and finally releases the United States, its agencies, officers, agents, employees, and servants, from any claims (including attorney’s fees, costs, and expenses of every kind and however denominated) that SK Energy has asserted, could have asserted, or may assert in the future against the United States, its agencies, officers, agents, employees, and servants, related to the Covered Conduct and the United States’ investigation and prosecution thereof. 8. Conditioned upon Relator’s agreement herein, the SK Energy Released Parties fully and finally release Relator his heirs, successors, assigns, agents and attorneys (the ‘‘Relator Released Parties’’), from (a) any civil monetary claim SK Energy has or may have now or in the future against the Relator Released Parties related to the claims set forth in the Civil FCA Action, the Civil Antitrust Action, the Criminal Action, and the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729– 3733, and the Relator’s investigation and prosecution thereof, including E:\FR\FM\23NON2.SGM 23NON2 amozie on DSK3GDR082PROD with NOTICES2 60322 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices attorney’s fees, costs, and expenses of every kind and however denominated, up until the date of this Agreement; and (b) all liability, claims, demands, actions, or causes of action whatsoever, whether known or unknown, fixed or contingent, in law or in equity, in contract or in tort, under any federal, state, or Korean statute, law, regulation or doctrine, that the SK Energy Released Parties otherwise have brought or would have standing to bring as of the date of this Agreement, including any liability to SK Energy arising from or relating to claims the SK Energy Released Parties asserted or could have asserted related to the Civil FCA Action, up until the date of this Agreement. The SK Energy Released Parties further acknowledge and agree that these representations are a material inducement to Relator’s willingness to enter into this Agreement. 9.a. Unallowable Costs Defined: All costs (as defined in the Federal Acquisition Regulation, 48 C.F.R. § 31.205–47) incurred by or on behalf of SK Energy, and its present or former officers, directors, employees, shareholders, and agents in connection with: (1) the matters covered by this Agreement, any related plea agreement, and any related civil antitrust agreement; (2) the United States’ audit(s) and civil and any criminal investigation(s) of the matters covered by this Agreement; (3) SK Energy’s investigation, defense, and corrective actions undertaken in response to the United States’ audit(s) and civil and any criminal investigation(s) in connection with the matters covered by this Agreement (including attorney’s fees); (4) the negotiation and performance of this Agreement, any related plea agreement, and any related civil antitrust agreement; (5) the payment SK Energy makes to the United States pursuant to this Agreement and any payments that SK Energy may make to Relator, including costs and attorneys’ fees, are unallowable costs for government contracting purposes (hereinafter referred to as Unallowable Costs). b. Future Treatment of Unallowable Costs: Unallowable Costs will be separately determined and accounted for by SK Energy, and SK Energy shall not charge such Unallowable Costs directly or indirectly to any contract with the United States. c. Treatment of Unallowable Costs Previously Submitted for Payment: Within 90 days of the Effective Date of this Agreement, SK Energy shall VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 identify and repay by adjustment to future claims for payment or otherwise any Unallowable Costs included in payments previously sought by SK Energy or any of its subsidiaries or affiliates from the United States. SK Energy agrees that the United States, at a minimum, shall be entitled to recoup from SK Energy any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previouslysubmitted requests for payment. The United States, including the Department of Justice and/or the affected agencies, reserves its rights to audit, examine, or re-examine SK Energy’s books and records and to disagree with any calculations submitted by SK Energy or any of its subsidiaries or affiliates regarding any Unallowable Costs included in payments previously sought by SK Energy, or the effect of any such Unallowable Costs on the amount of such payments. 10. SK Energy agrees to cooperate fully and truthfully with the United States in connection with the Civil FCA Action. The Civil Division of the United States Department of Justice will use reasonable best efforts, where appropriate, to coordinate any requests for cooperation in connection with the Civil FCA Action with requests for cooperation in connection with the Plea Agreement in the Criminal Action and the Civil Antitrust Action, so as to avoid unnecessary duplication and expense. SK Energy’s ongoing, full, and truthful cooperation shall include, but not be limited to: a. upon request by the United States with reasonable notice, producing at the offices of counsel for the United States in Washington, D.C. and not at the expense of the United States, complete and un-redacted copies of all nonprivileged documents related to the Covered Conduct wherever located in SK Energy’s possession, custody, or control, including but not limited to, reports, memoranda of interviews, and records concerning any investigation of the Covered Conduct that SK Energy has undertaken, or that has been performed by another on SK Energy’s behalf; b. upon request by the United States with reasonable notice, making current SK Energy directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong, unless another place is mutually agreed upon; c. upon request by the United States with reasonable notice, (i) using best PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 efforts to assist in locating former SK Energy directors, officers, and employees identified by attorneys and/ or investigative agents of the United States, and (ii) using best efforts to make any such former SK Energy directors, officers, and employees available for interviews, consistent with the rights and privileges of such individuals, by counsel for the United States and/or their investigative agents, not at the expense of the United States, in the United States or Hong Kong, unless another place is mutually agreed upon; and d. upon request by the United States with reasonable notice, making current SK Energy directors, officers, and employees available, and using best efforts to make former SK Energy directors, officers, employees available, to testify, consistent with the rights and privileges of such individuals, fully, truthfully, and under oath, without falsely implicating any person or withholding any information, (i) at depositions in the United States, Hong Kong, or any other mutually agreed upon place, (ii) at trial in the United States, and (iii) at any other judicial proceedings wherever located related to the Civil FCA Action. 11. This Agreement is intended to be for the benefit of the Parties only. 12. Upon receipt of the payment of the FCA Settlement Amount described in Paragraph 1 above, the Court’s acceptance of SK Energy’s Plea Agreement in the Criminal Action, and the Court’s entry of a Final Judgment in the Civil Antitrust Action, the United States and Relator shall promptly sign and file a Joint Stipulation of Dismissal, with prejudice, of the claims filed against SK Energy in the Civil FCA Action, pursuant to Rule 41(a)(1), which dismissal shall be conditioned on the Court retaining jurisdiction over Relator’s claims to a relator’s share and recovery of attorneys’ fees and costs pursuant to 31 U.S.C. § 3730(d). 13. Except with respect to the recovery of Relator’s attorneys’ fees, expenses, and costs pursuant to 31 U.S.C. § 3730(d), each Party shall bear its own legal and other costs incurred in connection with this matter. The Parties agree that Relator and SK Energy will not seek to recover from the United States any costs or fees related to the preparation and performance of this Agreement. 14. Each party and signatory to this Agreement represents that it freely and voluntarily enters in to this Agreement without any degree of duress or compulsion. 15. This Agreement is governed by the laws of the United States. The exclusive E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 jurisdiction and venue for any dispute relating to this Agreement is the United States District Court for the Southern District of Ohio. SK Energy agrees that the United States District Court for the Southern District of Ohio has jurisdiction over it for purposes of this case. For purposes of construing this Agreement, this Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed against any Party for that reason in any subsequent dispute. 16. This Agreement constitutes the complete agreement between the Parties on the subject matter addressed herein. This Agreement may not be amended except by written consent of the Parties. 17. The undersigned counsel represent and warrant that they are fully authorized to execute this Agreement on behalf of the persons and entities indicated below. 18. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. 19. This Agreement is binding on SK Energy’s successors, transferees, heirs, and assigns. 20. This Agreement is binding on Relator’s successors, transferees, heirs, and assigns. 21. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public, as permitted by order of the Court. This Agreement shall not be released in un-redacted form until the Court unseals the entire Civil FCA Action. 22. This Agreement is effective on the date of signature of the last signatory to the Agreement (Effective Date of this Agreement). Facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Agreement. The United States of America Dated: lllllllllllllllll By: lllllllllllllllllll Andrew A. Steinberg, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice Dated: lllllllllllllllll By: lllllllllllllllllll Mark T. D’Alessandro, Civil Chief Andrew Malek, Assistant United States Attorney, U.S. Attorney’s Office for the Southern District of Ohio SK Energy Co., Ltd.—Defendant Dated: lllllllllllllllll By: lllllllllllllllllll Myunghun Lee, VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Authorized Representative of SK Energy, Co., Ltd. Dated: lllllllllllllllll By: lllllllllllllllllll Phillip H. Warren, Counsel for SK Energy Co., Ltd. [Redacted]—Relator Dated: lllllllllllllllll By: lllllllllllllllllll [Redacted] Dated: lllllllllllllllll By: lllllllllllllllllll Eric Havian, Counsel for Relator UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION United States of America, Plaintiff, v. GS Caltex Corporation, Hanjin Transportation Co., Ltd., and SK Energy Co., Ltd. Defendants. Case No. 2:18–cv–01456–ALM–CMV COMPETITIVE IMPACT STATEMENT Plaintiff United States of America, pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. § 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgments submitted for entry in this civil antitrust proceeding. I. NATURE AND PURPOSE OF THE PROCEEDING On November 14, 2018, the United States filed a civil antitrust complaint against Defendants GS Caltex Corporation (‘‘GS Caltex’’), Hanjin Transportation Co., Ltd. (‘‘Hanjin’’), and SK Energy Co., Ltd. (‘‘SK Energy’’) alleging that Defendants violated Section 1 of the Sherman Act, 15 U.S.C. § 1. From at least March 2005 and continuing until at least October 2016 (‘‘the Relevant Period’’), Defendants and their co-conspirators conspired to fix prices and rig bids for the supply of fuel to the U.S. military for its operations in South Korea. As a result of this illegal conduct, Defendants and their coconspirators overcharged American taxpayers by well over $100 million. Defendants have agreed to plead guilty to an information charging a criminal violation of Section 1 of the Sherman Act for this unlawful conduct; in this parallel civil action, the United States seeks compensation for the injury it incurred as a result of the conspiracy. At the same time the Complaint was filed, the United States also filed agreedupon proposed Final Judgments that would remedy the violation by having GS Caltex, Hanjin, and SK Energy pay $57,500,000, $6,182,000, and $90,384,872, respectively, to the United States. These payments resolve all civil claims of the United States related to the PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 60323 conduct described in the Complaint. The United States and Defendants have stipulated that the proposed Final Judgments may be entered after compliance with the APPA. Entry of the proposed Final Judgments would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgments and to punish violations thereof. II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION A. Defendants GS Caltex is an oil company headquartered in Seoul, South Korea. GS Caltex is a joint venture between GS Energy, a South Korean corporation, and Chevron Corp., a Delaware corporation, which each own a 50 percent interest in GS Caltex. GS Caltex is engaged in the refining and supply of gasoline, diesel, kerosene, and other petroleum products for sale internationally. During the time of the conspiracy, GS Caltex supplied fuel to U.S. military installations in South Korea. Hanjin is a global transportation and logistics company based in Seoul, South Korea. Hanjin is a member of Hanjin Group, a South Korean conglomerate with U.S. subsidiaries, including Hanjin International America. Beginning in 2009, Hanjin partnered with oil companies, including a co-conspirator oil company (‘‘Company A’’), to supply fuel to U.S. military installations in South Korea. SK Energy is an oil company headquartered in Seoul, South Korea. SK Energy is engaged in the refining and supply of gasoline, diesel, kerosene, and other petroleum products for sale internationally. During the time of the conspiracy, SK Energy supplied fuel to U.S. military installations in South Korea. Other persons, not named as defendants in this action, participated as co-conspirators in the violation alleged in the Complaint and performed acts and made statements in furtherance thereof. These co-conspirators included, among others, a logistics firm (‘‘Company B’’) and an oil company (‘‘Company C’’) that jointly supplied fuel to the U.S. military. B. PC&S and AAFES Contracts The United States military procures fuel for its installations in South Korea through competitive solicitation processes. Oil companies, either independently or with a transportation company, submitted bids in response to these solicitations. E:\FR\FM\23NON2.SGM 23NON2 60324 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 The conduct at issue in this action relates to two types of contracts to supply fuel to the U.S. military in South Korea: Post, Camps, and Stations (‘‘PC&S’’) contracts and Army and Air Force Exchange Services (‘‘AAFES’’) contracts. PC&S contracts are issued and administered by the Defense Logistics Agency (‘‘DLA’’), a combat support agency of the U.S. Department of Defense. The fuel procured under PC&S contracts is used to power military vehicles and heat U.S. military buildings. During the Relevant Period, DLA issued PC&S solicitations listing the fuel requirements for installations across South Korea, with each delivery location identified by a separate line item. Bidders submitted initial bids, offering a price for each line item on which they chose to bid. After DLA reviewed the initial bids, bidders were allowed to submit revised final bids. DLA reviewed the bids and awarded contracts to the bidders offering the lowest price for each line item. Payments under the PC&S contracts were wired to the awardees by a finance and accounting agency of the U.S. Department of Defense from its office in Columbus, Ohio. AAFES is an agency of the Department of Defense headquartered in Dallas, Texas. AAFES operates official retail stores (known as ‘‘exchanges’’) on U.S. Army and Air Force installations worldwide, which U.S. military personnel and their families use to purchase everyday goods and services, including gasoline for use in their personal vehicles. AAFES procures fuel for these stores via contracts awarded through a competitive solicitation process. In 2008, AAFES issued a solicitation that listed the fuel requirements for installations in South Korea. Bidders submitted bids offering a price for each line item in the solicitation. Unlike DLA, AAFES awarded the entire 2008 contract to the bidder offering the lowest price across all the listed locations. C. The Alleged Violation The Complaint alleges that Defendants and their co-conspirators engaged in a series of meetings, telephone conversations, e-mails, and other communications to rig bids and fix prices for the supply of fuel to U.S. military installations in South Korea under several PC&S and AAFES contracts. First, the Complaint alleges that GS Caltex, SK Energy, and Companies B and C conspired to rig bids and fix prices on the contracts issued in VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 response to DLA solicitations SP0600– 05–R–0063 and SP0600–05–R–0063– 0001 (‘‘2006 PC&S contracts’’). The term of the 2006 PC&S contracts covered the supply of fuel from February 2006 through July 2009. The Complaint alleges that between early 2005 and mid-2006, GS Caltex, SK Energy, and other conspirators met multiple times and exchanged phone calls and e-mails to allocate the line items in the solicitations for the 2006 PC&S contracts. Through such communications, these conspirators agreed to inflate their bids to produce larger profit margins. For each line item allocated to a different co-conspirator, the other conspirators agreed not to bid or to bid high enough to ensure that they would not win that item. DLA awarded the 2006 PC&S line items according to the allocations made by the conspiracy. Second, the Complaint alleges that, as part of their discussions related to the 2006 PC&S contracts, GS Caltex and other conspirators agreed not to compete with SK Energy in bidding for the June 2008 AAFES solicitation (‘‘2008 AAFES contract’’). The initial term of the 2008 AAFES contract ran from July 2008 to July 2010; the contract was later extended through July 2013. Third, the Complaint alleges that Defendants and other co-conspirators conspired to rig bids and fix prices for the contracts issued in response to DLA solicitation SP0600–08–R–0233 (‘‘2009 PC&S contracts’’). Hanjin and Company A joined the conspiracy for the purpose of bidding on SP0600–08–R–0233. The term of the 2009 PC&S contracts covered the supply of fuel from October 2009 through August 2013. The Complaint explains that between late 2008 and mid-2009, Defendants and other co-conspirators met multiple times and exchanged phone calls and e-mails to allocate the line items in the solicitation for the 2009 PC&S contracts. As in 2006, these conspirators agreed to bid high so as to not win line items allocated to other co-conspirators. The original conspirators agreed to allocate to Hanjin and Company A certain line items that had previously been allocated to the original conspirators. Finally, the Complaint alleges that Defendants and other co-conspirators once again conspired to rig bids and fix prices for the contracts issued in response to DLA solicitation SP0600– 12–R–0332 (‘‘2013 PC&S contracts’’). The term of the 2013 PC&S contracts covered the supply of fuel from August 2013 through July 2016. The Complaint explains that Defendants and other co-conspirators communicated via phone calls and PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 e-mails to allocate and set the price for each line item in the solicitation for the 2013 PC&S contracts. Defendants and other co-conspirators believed that they had an agreement as to their bidding strategy and pricing for the 2013 PC&S contracts. As a result of this agreement, they submitted bids with pricing above what they would have offered absent collusion. Hanjin and Company A submitted bids for the 2013 PC&S contracts below the prices set by the other coconspirators, however. Although lower than the pricing agreed upon by the conspirators, Hanjin and Company A still submitted bids above a competitive, non-collusive price, knowing that they would likely win the contracts because the other conspirators would bid even higher prices. III. EXPLANATION OF THE PROPOSED FINAL JUDGMENTS For violations of Section 1 of the Sherman Act, the United States may seek damages, 15 U.S.C. § 15a, and equitable relief, 15 U.S.C. § 4, including equitable monetary remedies. See United States v. KeySpan Corp., 763 F. Supp. 2d 633, 638–641 (S.D.N.Y. 2011). This action is also related to a qui tam action currently filed under seal in the United States District Court for the Southern District of Ohio, alleging a violation of the False Claims Act, 31 U.S.C. § 3730, based on the same facts alleged in the Complaint. A. Payment and Cooperation The proposed Final Judgments require GS Caltex, Hanjin, and SK Energy respectively to pay $57,500,000, $6,182,000, and $90,384,872 to the United States within 10 business days of entry of the Final Judgment. These payments will satisfy all civil claims arising from the events described in Section II supra that the United States has against the Defendants under Section 1 of the Sherman Act and under the False Claims Act. The resolution of the United States’ claims under the False Claims Act is set forth in separate agreements reached between the Defendants, the U.S. Attorney’s Office for the Southern District of Ohio, and the U.S. Department of Justice’s Civil Division. See Attachment 1 to each of the proposed Final Judgments. As a result of the unlawful agreements in restraint of trade between Defendants and their co-conspirators, the United States paid more for the supply of fuel to U.S. military installations in South Korea than it would have if the companies had engaged in fair and honest competition. Defendants’ payments under the proposed Final E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 Judgments fully compensate the United States for losses it suffered and deprive Defendants of the illegitimate profits they gained as a result of the collusive bidding. In addition to the payment of damages, the proposed Final Judgments also require the Defendants to cooperate with the United States regarding any ongoing civil investigation, trial, or other proceeding related to the conduct described in the Complaint. To assist with these proceedings, Defendants are required to provide all non-privileged information in their possession, make available their present employees, and use best efforts to make available their former employees, for interviews or testimony, as requested by the United States. This cooperation will help the United States pursue compensation from co-conspirators not named in this action. Under Section 4A of the Clayton Act, the United States is entitled to treble damages for injuries it has suffered as a result of violations of the Sherman Act. Under the proposed Final Judgments, each Defendant will pay an amount that exceeds the overcharge but that reflects the value of the cooperation commitments the Defendants have made as a condition of settlement and the cost savings realized by avoiding extended litigation. The proposed Final Judgments also require each Defendant to appoint an Antitrust Compliance Officer and to institute an antitrust compliance program. Under the antitrust compliance program, employees and directors of Defendants with responsibility for bidding on contracts with the United States must undergo training and all employees must be informed that there will no reprisal for disclosing to the Antitrust Compliance Officer any potential violations of the United States antitrust laws. The Antitrust Compliance Officer is required annually to certify that Defendant is in compliance with this requirement. B. Enforcement of Final Judgments The proposed Final Judgments contain provisions designed to promote compliance and make the enforcement of Division consent decrees as effective as possible. Paragraph VII(A) provides that the United States retains and reserves all rights to enforce the provisions of the proposed Final Judgments, including its rights to seek an order of contempt from the Court. Defendants have agreed that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of the Final Judgments, the United States may establish the VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 violation and the appropriateness of any remedy by a preponderance of the evidence and that the Defendants have waived any argument that a different standard of proof should apply. This provision aligns the standard for compliance obligations with the standard of proof that applies to the underlying offense that the compliance commitments address. Paragraph VII(B) provides additional clarification regarding the interpretation of the provisions of the proposed Final Judgments. The proposed Final Judgments were drafted to restore all competition the United States alleged was harmed by the Defendants’ challenged conduct. The Defendants agree that they will abide by the proposed Final Judgments, and that they may be held in contempt of this Court for failing to comply with any provision of the proposed Final Judgments that is stated specifically and in reasonable detail, as interpreted in light of this procompetitive purpose. Paragraph VII(C) further provides that should the Court find in an enforcement proceeding that a Defendant has violated the Final Judgment, the United States may apply to the Court for a onetime extension of the Final Judgment, together with such other relief as may be appropriate. In addition, in order to compensate American taxpayers for any costs associated with the investigation and enforcement of violations of a proposed Final Judgment, Paragraph VII(C) provides that in any successful effort by the United States to enforce a Final Judgment against a Defendant, whether litigated or resolved before litigation, Defendants agree to reimburse the United States for any attorneys’ fees, experts’ fees, or costs incurred in connection with any enforcement effort, including the investigation of the potential violation. Finally, Section VIII of the proposed Final Judgments provide that each Final Judgment shall expire seven years from the date of its entry, except that after five years from the date of its entry, a Final Judgment may be terminated upon notice by the United States to the Court and the Defendant that the continuation of that Final Judgment is no longer necessary or in the public interest. IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS Entry of the proposed Final Judgments will neither impair nor assist the bringing of any private antitrust damages action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgments have no prima facie effect in PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 60325 any subsequent lawsuit that may be brought against Defendants. V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENTS The United States and Defendants have stipulated that the proposed Final Judgments 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 Judgments are in the public interest. The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgments within which any person may submit to the United States written comments regarding a 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, which remains free to withdraw its consent to a 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 Antitrust Division’s internet website and, in certain circumstances, published in the Federal Register. Written comments should be submitted by mail to: Kathleen S. O’Neill, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, United States Department of Justice, 450 5th Street NW, Suite 8000, Washington, DC 20530 The proposed Final Judgments provide that the Court retains jurisdiction over this action, and the parties may apply to the Court for any necessary or appropriate modification, interpretation, or enforcement of a Final Judgment. VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENTS The United States considered, as an alternative to the proposed Final Judgments, a full trial on the merits against Defendants. The United States is satisfied, however, that the relief in the proposed Final Judgments remedies the violation of the Sherman Act alleged in the Complaint. The proposed Final E:\FR\FM\23NON2.SGM 23NON2 60326 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES2 Judgments represent substantial monetary relief while avoiding the time, expense, and uncertainty of a full trial on the merits. Further, Defendants’ agreements to cooperate with the civil investigation and any potential litigation will enhance the ability of the United States to obtain relief from the remaining conspirators. VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENTS The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a 60-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). 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)(A) & (B). In considering these statutory factors, the court’s inquiry is necessarily a limited one as the government is entitled to ‘‘broad discretion to settle with the defendant within the reaches of the public interest.’’ United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v. Hillsdale Cmty. Health Ctr., 2015 U.S. Dist. LEXIS 162505, at *3 (E.D. Mich. 2015) (explaining that the ‘‘Court’s review is limited’’ in Tunney Act settlements); United States v. InBev N.V./S.A., No. 08–1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting that the court’s review of a consent judgment is limited and only inquires ‘‘into whether the government’s VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable’’). Under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations in the government’s complaint, whether the decree is sufficiently clear, whether its enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458–62; United States v. Medical Mut. of Ohio, 1998 U.S. Dist. LEXIS 21508, at *2–3 (N.D. Ohio 1998). With respect to the adequacy of the relief secured by the decree, a court may not ‘‘engage in an unrestricted evaluation of what relief would best serve the public.’’ United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460–62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Instead: [t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court’s role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is ‘‘within the reaches of the public interest.’’ More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree. Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).1 In determining whether a proposed settlement is in the public interest, a district court ‘‘must accord deference to the government’s predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.’’ SBC Commc’ns, 489 F. Supp. 2d at 17; see also United States v. U.S. Airways Group, Inc., 38 F. Supp. 3d 69, 74 (D.D.C. 2014) (noting that a court should 1 See also BNS, 858 F.2d at 464 (holding that the court’s ‘‘ultimate authority under the [APPA] is limited to approving or disapproving the consent decree’’); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to ‘‘look at the overall picture not hypercritically, nor with a microscope, but with an artist’s reducing glass’’). PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 not reject the proposed remedies because it believes others are preferable and that room must be made for the government to grant concessions in the negotiation process for settlements); United States v. Dairy Farmers of Am., Inc., 2007 U.S. Dist. LEXIS 33230, at *3 (E.D. Ky. 2007) (citing United States v. Microsoft, 231 F. Supp. 2d 144, 152 (D.D.C. 2002)) (noting that a court ‘‘must accord deference 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 government’s prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case’’). The ultimate question is 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.’ ’’ Microsoft, 56 F.3d at 1461 (quoting United States v. Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990)). 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 U.S. Airways, 38 F. Supp. 3d at 75 (noting that the court must simply determine whether there is a factual foundation for the government’s decisions such that its conclusions regarding the proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (‘‘the ‘public interest’ is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged.’’). Because the ‘‘court’s authority to review the decree depends entirely on the government’s 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; see also Dairy Farmers, 2007 U.S. Dist. LEXIS 33230 at *3 (citing Microsoft favorably). As the United States District Court for the District of Columbia confirmed in E:\FR\FM\23NON2.SGM 23NON2 Federal Register / Vol. 83, No. 226 / Friday, November 23, 2018 / Notices SBC Communications, courts ‘‘cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power.’’ SBC Commc’ns, 489 F. Supp. 2d at 15. In its 2004 amendments,2 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). This language explicitly wrote into the statute what amozie on DSK3GDR082PROD with NOTICES2 2 The 2004 amendments substituted ‘‘shall’’ for ‘‘may’’ in directing relevant factors for a court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. Compare 15 U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) (2006); see also SBC Commc’ns, 489 F. Supp. 2d at 11 (concluding that the 2004 amendments ‘‘effected minimal changes’’ to Tunney Act review). VerDate Sep<11>2014 21:15 Nov 21, 2018 Jkt 247001 Congress intended when it first 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. 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. See also 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’’); S. Rep. No. 93–298 93d Cong., 1st Sess., at 6 (1973) (‘‘Where the public PO 00000 Frm 00023 Fmt 4701 Sfmt 9990 60327 interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.’’). VIII. DETERMINATIVE DOCUMENTS There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment. Dated: November 14, 2018 Respectfully submitted, Benjamin C. Glassman, United States Attorney lllllllllllllllllllll Andrew M. Malek (Ohio Bar #0061442) Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, Columbus, Ohio 43215, Tel: (614) 469–5715, Fax: (614) 469–2769, E-mail: Andrew.Malek@usdoj.gov lllllllllllllllllllll J. Richard Doidge, Attorney, U.S. Department of Justice, Antitrust Division, 450 5th Street NW, Suite 8000, Washington, DC 20530, Tel: (202) 514– 8944, Fax: (202) 616–2441, E-mail: Dick.Doidge@usdoj.gov [FR Doc. 2018–25461 Filed 11–21–18; 8:45 am] BILLING CODE 4410–11–P E:\FR\FM\23NON2.SGM 23NON2

Agencies

[Federal Register Volume 83, Number 226 (Friday, November 23, 2018)]
[Notices]
[Pages 60306-60327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25461]



[[Page 60305]]

Vol. 83

Friday,

No. 226

November 23, 2018

Part III





 Department of Justice





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Antitrust Division





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United States v. GS Caltex Corp. et al.; Proposed Final Judgments and 
Competitive Impact Statement; Notice

Federal Register / Vol. 83 , No. 226 / Friday, November 23, 2018 / 
Notices

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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. GS Caltex Corp. et al.; Proposed Final Judgments 
and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16(b)-(h), that proposed Final 
Judgments, Stipulations, and a Competitive Impact Statement have been 
filed with the United States District Court for the Southern District 
of Ohio in United States v. GS Caltex et al., Case No. 2:18-cv-01456-
ALM-CMV. On November 14, 2018, the United States filed a Complaint 
alleging that between 2005 and 2016, GS Caltex Corporation (``GS 
Caltex''), Hanjin Transportation Co., Ltd. (``Hanjin''), and SK Energy 
Co., Ltd. (``SK Energy''), along with unnamed co-conspirators, 
conspired to rig bids for Posts, Camps & Stations (PC&S) and Army and 
Air Force Exchange Service (AAFES) fuel supply contracts with the U.S. 
military in South Korea, in violation of Section 1 of the Sherman Act, 
15 U.S.C. Sec.  1. A proposed Final Judgment for each Defendant, filed 
at the same time as the Complaint, requires GS Caltex, Hanjin, and SK 
Energy to pay the United States, respectively, $57,500,000, $6,182,000, 
and $90,384,872. In addition, each Defendant has agreed to cooperate 
with further civil investigative and judicial proceedings and to 
institute an antitrust compliance program.
    Copies of the Complaint, proposed Final Judgments, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the Southern District 
of Ohio. 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 Antitrust Division's website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Kathleen S. 
O'Neill, Chief, Transportation, Energy & Agriculture Section, Antitrust 
Division, Department of Justice, 450 5th Street NW, Suite 8000, 
Washington, DC 20530.

Patricia A. Brink,
Director of Civil Enforcement.

United States District Court for the Southern District of Ohio Eastern 
Division

United States Of America, Plaintiff, v. GS Caltex Corporation, GS 
Tower, 508, Nonhyeon-ro, Gangnam-gu, Seoul, South Korea

Hanjin Transportation Co., Ltd., 20th Floor Hanjin New Bldg. 63, 
Namdaemun-ro, Jung-gu, Seoul, South Korea and SK Energy Co., Ltd., 
SK Bldg., 26, Jong-ro, Jongno-gu, Seoul, South Korea, Defendants.

Case No. 2:18-cv-01456-ALM-CMV
Complaint: Violation of Section 1 of the Sherman Act, 15 U.S.C. 
Sec.  1
Judge: Algenon L. Marbley

COMPLAINT

    The United States of America, acting under the direction of the 
Acting Attorney General of the United States, brings this civil 
antitrust action to obtain equitable monetary relief and recover 
damages from GS Caltex Corporation, Hanjin Transportation Co., Ltd., 
and SK Energy Co., Ltd., for conspiring to rig bids and fix prices, in 
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1, on the 
supply of fuel to the U.S. military for its operations in South Korea.

I. INTRODUCTION

    1. Since the end of the Korean War, the U.S. armed forces have 
maintained a significant presence in South Korea, protecting American 
interests in the region and safeguarding peace for the Korean people. 
To perform this important mission, American service members depend on 
fuel to power their bases and military vehicles. The U.S. military 
procures this fuel from oil refiners located in South Korea through a 
competitive bidding process.
    2. For at least a decade, rather than engage in fair and honest 
competition, Defendants and their co-conspirators defrauded the U.S. 
military by fixing prices and rigging bids for the contracts to supply 
this fuel. Defendants met and communicated in secret with other large 
South Korean oil refiners and logistics companies, and pre-determined 
which conspirator would win each contract. Defendants and their co-
conspirators then fraudulently submitted collusive bids to the U.S. 
military. Through this scheme, Defendants reaped vastly higher profit 
margins on the fuel they supplied to the U.S. military than on the fuel 
they sold to the South Korean military and to private parties.
    3. As a result of this conduct, Defendants and their co-
conspirators illegally overcharged American taxpayers by well over $100 
million. This conspiracy unreasonably restrained trade and commerce, in 
violation of Section 1 of the Sherman Act, 15 U.S.C. Sec.  1. 
Defendants have agreed to plead guilty to an information charging a 
criminal violation of Section 1 of the Sherman Act for this unlawful 
conduct, and in this civil action, the United States seeks compensation 
for the injuries it incurred as a result of this conspiracy.

II. DEFENDANTS

    4. GS Caltex Corporation (``GS Caltex'') is an oil company 
headquartered in Seoul, South Korea. GS Caltex is a joint venture 
between GS Energy, a South Korean corporation, and Chevron Corp., a 
Delaware corporation; each owns a 50 percent interest in GS Caltex. GS 
Caltex refines and supplies gasoline, diesel, kerosene, and other 
petroleum products for sale internationally. During the conspiracy, GS 
Caltex supplied fuel to U.S. military installations in South Korea.
    5. Hanjin Transportation Co., Ltd. (``Hanjin'') is a global 
transportation and logistics company based in Seoul, South Korea. 
Hanjin is a member of Hanjin Group, a South Korean conglomerate with 
U.S. subsidiaries, including Hanjin International America. Beginning in 
2009, Hanjin partnered with oil companies, including a co-conspirator 
oil company (``Company A''), to supply fuel to U.S. military 
installations in South Korea.
    6. SK Energy Co., Ltd. (``SK Energy'') is an oil company 
headquartered in Seoul, South Korea. SK Energy is a wholly-owned 
subsidiary of SK Innovation Co., Ltd., a South Korean company with U.S. 
subsidiaries, including SK Energy Americas Inc. SK Energy refines and 
supplies gasoline, diesel, kerosene, and other petroleum products for 
sale internationally. During the conspiracy, SK Energy supplied fuel to 
U.S. military installations in South Korea.
    7. Other persons, not named as defendants in this action, 
participated as co-conspirators in the offense alleged in this 
Complaint and performed acts and made statements in furtherance 
thereof. These co-conspirators include, among others, a logistics firm 
(``Company B'') and an oil company (``Company C'') that jointly 
supplied fuel to the U.S. military.
    8. Whenever this Complaint refers to any act, deed, or transaction 
of any

[[Page 60307]]

business entity, it means that the business entity engaged in the act, 
deed, or transaction by or through its officers, directors, employees, 
agents, or other representatives while they were actively engaged in 
the management, direction, control, or transaction of its business or 
affairs.

III. JURISDICTION AND VENUE

    9. The United States brings this action under Section 4 of the 
Sherman Act, 15 U.S.C. Sec.  4, and Section 4A of the Clayton Act, 15 
U.S.C. Sec.  15a, seeking equitable relief, including equitable 
monetary remedies, and damages from Defendants' violation of Section 1 
of the Sherman Act, 15 U.S.C. Sec.  1.
    10. This Court has subject matter jurisdiction over this action 
under 15 U.S.C. Sec. Sec.  4 and 15a and 28 U.S.C. Sec. Sec.  1331 and 
1337.
    11. Defendants have consented to venue and personal jurisdiction in 
this district for the purpose of this Complaint.
    12. Defendants entered into contracts with the U.S. military to 
supply and deliver fuel to U.S. military installations in South Korea. 
Under the terms of these contracts, Defendants agreed that the laws of 
the United States would govern all contractual disputes and that U.S. 
administrative bodies and courts would have exclusive jurisdiction to 
resolve all such disputes. To be eligible to enter into these 
contracts, Defendants registered in databases located in the United 
States. For certain contracts, Defendants submitted bids to U.S. 
Department of Defense offices in the United States. After being awarded 
these contracts, Defendants submitted invoices to and received payments 
from U.S. Department of Defense offices in Columbus, Ohio, which 
included use of wires and mails located in the United States.
    13. Through its contracts with the U.S. military, Defendants' 
activities had a direct, substantial, and reasonably foreseeable effect 
on interstate commerce, import trade or commerce, and commerce with 
foreign nations. Defendants' conspiracy had a substantial and intended 
effect in the United States. Defendants caused U.S. Department of 
Defense agencies to pay non-competitive prices for the supply of fuel 
to U.S. military installations. Defendants also caused a U.S. 
Department of Defense agency located in the Southern District of Ohio 
to transfer U.S. dollars to their foreign bank accounts.

IV. BACKGROUND

    14. From at least March 2005 and continuing until at least October 
2016 (``the Relevant Period''), the U.S. military procured fuel for its 
installations in South Korea through competitive solicitation 
processes. Oil companies, either independently or in conjunction with a 
logistics company, submitted bids in response to these solicitations.
    15. The conduct at issue relates to two types of contracts to 
supply fuel to the U.S. military for use in South Korea: Post, Camps, 
and Stations (``PC&S'') contracts and Army and Air Force Exchange 
Services (``AAFES'') contracts.
    16. PC&S contracts are issued and administered by the Defense 
Logistics Agency (``DLA''), a combat support agency in the U.S. 
Department of Defense. DLA, formerly known as the Defense Energy 
Support Center, is headquartered in Fort Belvoir, Virginia. The fuel 
procured under PC&S contracts is used for military vehicles and to heat 
U.S. military buildings. During the Relevant Period, PC&S contracts ran 
for a term of three or four years. DLA issued PC&S solicitations 
listing the fuel requirements for installations across South Korea, 
with each delivery location identified by a separate line item. Bidders 
offered a price for each line item on which they chose to bid. DLA 
awarded contracts to the bidders offering the lowest price for each 
line item. The Defense Finance and Accounting Service (``DFAS''), a 
finance and accounting agency of the U.S. Department of Defense, wired 
payments to the PC&S contract awardees from its office in Columbus, 
Ohio.
    17. AAFES is an agency of the Department of Defense headquartered 
in Dallas, Texas. AAFES operates official retail stores (known as 
``exchanges'') on U.S. Army and Air Force installations worldwide, 
which U.S. military personnel and their families use to purchase 
everyday goods and services, including gasoline for use in their 
personal vehicles. AAFES procures fuel for these stores via contracts 
awarded through a competitive solicitation process. The term of AAFES 
contracts is typically two years, but may be extended for additional 
years. In 2008, AAFES issued a solicitation that listed the fuel 
requirements for installations in South Korea. Unlike DLA, AAFES 
awarded the entire 2008 contract to the bidder offering the lowest 
price across all the listed locations.

V. DEFENDANTS' UNLAWFUL CONDUCT

    18. From at least March 2005 and continuing until at least October 
2016, Defendants and their co-conspirators engaged in a series of 
meetings, telephone conversations, e-mails, and other communications to 
rig bids and fix prices for the supply of fuel to U.S. military 
installations in South Korea.

2006 PC&S and 2008 AAFES Contracts

    19. GS Caltex, SK Energy, and Companies B and C conspired to rig 
bids and fix prices on the 2006 PC&S contracts, which were issued in 
response to solicitation SP0600-05-R-0063, supplemental solicitation 
SP0600-05-0063-0001, and their amendments. The term of the 2006 PC&S 
contracts covered the supply of fuel from February 2006 through July 
2009.
    20. Between early 2005 and mid-2006, GS Caltex, SK Energy, and 
other conspirators met multiple times and exchanged phone calls and e-
mails to allocate the line items in the solicitations for the 2006 PC&S 
contracts. For each line item allocated to a different co-conspirator, 
the other conspirators agreed not to bid or to bid high enough to 
ensure that they would not win that item. Through these communications, 
these conspirators agreed to inflate their bids to produce higher 
profit margins. DLA awarded the 2006 PC&S line items according to the 
allocations made by the conspiracy.
    21. As part of their discussions related to the 2006 PC&S 
contracts, GS Caltex and other conspirators agreed not to compete with 
SK Energy in bidding for the 2008 AAFES contract. In 2008, GS Caltex 
and other conspirators honored their agreement: GS Caltex bid 
significantly above the bid submitted by SK Energy for the AAFES 
contract, while Companies B and C declined to bid even after AAFES 
explicitly requested their participation in the bidding. The initial 
term of the 2008 AAFES contract ran from July 2008 to July 2010; the 
contract was later extended through July 2013. As envisioned by the 
conspiracy, AAFES awarded the 2008 contract to SK Energy.

2009 PC&S Contracts

    22. Continuing their conspiracy, Defendants and other co-
conspirators conspired to rig bids and fix prices for the 2009 PC&S 
contracts, which were issued in response to solicitation SP0600-08-R-
0233. Hanjin and Company A joined the conspiracy for the purpose of 
bidding on the solicitation for the 2009 PC&S contracts. Hanjin and 
Company A partnered to bid jointly on the 2009 PC&S contracts, with 
Company A providing the fuel and Hanjin providing transportation and 
logistics. The term of the 2009 PC&S contracts covered the supply of 
fuel from October 2009 through August 2013.

[[Page 60308]]

    23. Between late 2008 and mid-2009, Defendants and other co-
conspirators met multiple times and exchanged phone calls and e-mails 
to allocate the line items in the solicitation for the 2009 PC&S 
contracts. As in 2006, these conspirators agreed to bid high so as to 
not win line items allocated to other co-conspirators. The original 
conspirators agreed to allocate to Hanjin and Company A certain line 
items that had previously been allocated to the original conspirators.
    24. With one exception, DLA awarded the 2009 PC&S contracts in line 
with the allocations made by the Defendants and other co-conspirators. 
Companies B and C accidentally won one line item that the conspiracy 
had allocated to GS Caltex. To remedy this misallocation, Company B and 
GS Caltex agreed that GS Caltex, rather than Company C, would supply 
Company B with the fuel procured under this line item.

2013 PC&S Contracts

    25. Similar to 2006 and 2009, Defendants and other co-conspirators 
conspired to rig bids and fix prices for the 2013 PC&S contracts, which 
were issued in response to solicitation SP0600-12-R-0332. The term of 
the 2013 PC&S Contract covered the supply of fuel from August 2013 
through July 2016.
    26. Defendants and other co-conspirators communicated via phone 
calls and e-mails to allocate and set the price for each line item in 
the solicitation for the 2013 PC&S contracts. Defendants and other co-
conspirators believed that they had an agreement as to their bidding 
strategy and pricing for the 2013 PC&S contracts. As a result of this 
agreement, they bid higher prices than they would have in a competitive 
process.
    27. However, Hanjin and Company A submitted bids for the 2013 PC&S 
contracts below the prices set by the other co-conspirators. Although 
lower than the pricing agreed upon by the conspirators, Hanjin and 
Company A still submitted bids above a competitive, non-collusive 
price, knowing that they would likely win the contracts because the 
other conspirators would bid even higher prices.
    28. As a result of their bidding strategy, Hanjin and Company A 
jointly won nearly all the line items in the 2013 PC&S contracts. As in 
2009, Company A was to provide the fuel for these line items, and 
Hanjin was to provide transportation and logistics. GS Caltex and other 
co-conspirators won a few, small line items; SK Energy won none. DLA 
made inflated payments under the 2013 PC&S contracts through October 
2016.
    29. After the award of the 2013 PC&S contracts, Hanjin, Company A, 
and GS Caltex reached an understanding that GS Caltex, rather than 
Company A, would supply Hanjin with fuel for certain line items. Under 
this side agreement, Hanjin paid a much lower price to GS Caltex for 
fuel than the price it previously had agreed to pay Company A to 
acquire fuel for those line items. However, the price that Hanjin paid 
to GS Caltex exceeded a competitive price for fuel.

VI. VIOLATIONS ALLEGED

    30. The United States incorporates by reference the allegations in 
paragraphs 1 through 29.
    31. The conduct of Defendants and their co-conspirators 
unreasonably restrained trade and harmed competition for the supply of 
fuel to the U.S. military in South Korea in violation of Section 1 of 
the Sherman Act, 15 U.S.C. Sec.  1.
    32. The United States was injured as a result of the unlawful 
conduct because it paid more for the supply of fuel than it would have 
had the Defendants and their co-conspirators engaged in fair 
competition.

VIII. REQUEST FOR RELIEF

    33. The United States requests that this Court:
    (a) adjudge that Defendants' and their co-conspirators' conduct 
constitutes an unreasonable restraint of interstate commerce, import 
trade or commerce, and commerce with foreign nations in violation of 
Section 1 of the Sherman Act, 15 U.S.C. Sec.  1;
    (b) award the United States damages to which it is entitled for the 
losses incurred as the result of Defendants' and their co-conspirators' 
conduct;
    (c) award the United States equitable disgorgement of the ill-
gotten gains obtained by Defendants;
    (d) award the United States its costs of this action; and
    (e) award the United States other relief that the Court deems just 
and proper.

Dated: November 14, 2018

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA:

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Makan Delrahim,
Assistant Attorney General for Antitrust.

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Andrew C. Finch,
Principal Deputy Assistant Attorney General.

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Bernard A. Nigro Jr.,
Deputy Assistant Attorney General.

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Patricia A. Brink,
Director of Civil Enforcement.

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Kathleen S. O'Neill,
Chief, Transportation, Energy & Agriculture Section.

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Robert A. Lepore,
Assistant Chief, Transportation, Energy & Agriculture Section.

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J. Richard Doidge
Julie Elmer
Jeremy Evans
John A. Holler
Caroline Anderson
Jonathan Silberman
Patrick Kuhlmann
Attorneys for the United States

U.S. Department of Justice, Antitrust Division, 450 5th Street NW, 
Suite 8000, Washington, DC 20530, Tel.: (202) 514-8944, Fax: (202) 
616-2441, E-mail: [email protected].

Dated: November 14, 2018

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA

Benjamin C. Glassman,
United States Attorney

By:

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Andrew M. Malek (Ohio Bar #0061442)
Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, 
Columbus, Ohio 43215, Tel: (614) 469-5715, Fax: (614) 469-2769, E-
mail: [email protected].

United States District Court for the Southern District of Ohio Eastern 
Division

    United States of America, Plaintiff, v. GS Caltex Corporation, 
Defendant.

Case No. 2:18-cv-01456-ALM-CMV

PROPOSED FINAL JUDGMENT AS TO DEFENDANT GS CALTEX CORPORATION

    WHEREAS Plaintiff, United States of America, filed its Complaint on 
November 14, 2018, the United States and Defendant GS Caltex 
Corporation (``GS Caltex''), by their respective attorneys, have 
consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law;
    WHEREAS, on such date as may be determined by the Court, GS Caltex 
will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. GS 
Caltex Corporation [to be assigned] (S.D.Ohio) (the ``Criminal 
Action'') that will allege a violation of Section 1 of the Sherman Act, 
15 U.S.C. Sec.  1, relating to the same events giving rise to the 
allegations described in the Complaint;

[[Page 60309]]

    WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    NOW, THEREFORE, before the taking of any testimony and without 
trial or final adjudication of any issue of fact or law herein, and 
upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED:

I. JURISDICTION

    This Court has jurisdiction of the subject matter of this action 
and each of the parties consenting hereto. The Complaint states a claim 
upon which relief may be granted to the United States against GS Caltex 
under Section 1 of the Sherman Act, 15 U.S.C. Sec.  1.

II. APPLICABILITY

    This Final Judgment applies to GS Caltex, 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.

III. PAYMENT

    GS Caltex shall pay to the United States within ten (10) business 
days of the entry of this Final Judgment the amount of fifty-seven 
million, five hundred thousand dollars ($57,500,000), less the amount 
paid (excluding any interest) pursuant to the settlement agreement 
attached hereto as Attachment 1, to satisfy all civil antitrust claims 
alleged against GS Caltex by the United States in the Complaint. 
Payment of the amount ordered hereby shall be made by wire transfer of 
funds or cashier's check. If the payment is made by wire transfer, GS 
Caltex shall contact Janie Ingalls of the Antitrust Division's 
Antitrust Documents Group at (202) 514-2481 for instructions before 
making the transfer. If the payment is made by cashier's check, the 
check shall be made payable to the United States Department of Justice 
and delivered to: Janie Ingalls, United States Department of Justice 
Antitrust Division, Antitrust Documents Group, 450 5th Street, NW, 
Suite 1024, Washington, D.C. 20530. In the event of a default in 
payment, interest at the rate of eighteen (18) percent per annum shall 
accrue thereon from the date of default to the date of payment.

IV. COOPERATION

    GS Caltex shall cooperate fully with the United States regarding 
any matter about which GS Caltex has knowledge or information relating 
to any ongoing civil investigation, litigation, or other proceeding 
arising out of any ongoing federal investigation of the subject matter 
discussed in the Complaint (hereinafter, any such investigation, 
litigation, or proceeding shall be referred to as a ``Civil Federal 
Proceeding'').
    The United States agrees that any cooperation provided in 
connection with the Plea Agreement and/or pursuant to the settlement 
agreement attached hereto as Attachment 1 will be considered 
cooperation for purposes of this Final Judgment, and the United States 
will use its reasonable best efforts, where appropriate, to coordinate 
any requests for cooperation in connection with the Civil Federal 
Proceeding with requests for cooperation in connection with the Plea 
Agreement and the settlement agreement attached hereto as Attachment 1, 
so as to avoid unnecessary duplication and expense.
    GS Caltex's cooperation shall include, but not be limited to, the 
following:
    (a) Upon request, completely and truthfully disclosing and 
producing, to the offices of the United States and at no expense to the 
United States, copies of all non-privileged information, documents, 
materials, and records in its possession (and for any foreign-language 
information, documents, materials, or records, copies must be produced 
with an English translation), regardless of their geographic location, 
about which the United States may inquire in connection with any Civil 
Federal Proceeding, including but not limited to all information about 
activities of GS Caltex and present and former officers, directors, 
employees, and agents of GS Caltex;
    (b) Making available in the United States, at no expense to the 
United States, its present officers, directors, employees, and agents 
to provide information and/or testimony as requested by the United 
States in connection with any Civil Federal Proceeding, including the 
provision of testimony in trial and other judicial proceedings, as well 
as interviews with law enforcement authorities, consistent with the 
rights and privileges of those individuals;
    (c) Using its best efforts to make available in the United States, 
at no expense to the United States, its former officers, directors, 
employees, and agents to provide information and/or testimony as 
requested by the United States in connection with any Civil Federal 
Proceeding, including the provision of testimony in trial and other 
judicial proceedings, as well as interviews with law enforcement 
authorities, consistent with the rights and privileges of those 
individuals;
    (d) Providing testimony or information necessary to identify or 
establish the original location, authenticity, or other basis for 
admission into evidence of documents or physical evidence produced by 
GS Caltex in any Civil Federal Proceeding as requested by the United 
States; and
    (e) Completely and truthfully responding to all other inquiries of 
the United States in connection with any Civil Federal Proceeding.
    However, notwithstanding any provision of this Final Judgment, GS 
Caltex is not required to: (1) Request of its current or former 
officers, directors, employees, or agents that they forgo seeking the 
advice of an attorney nor that they act contrary to that advice; (2) 
take any action against its officers, directors, employees, or agents 
for following their attorney's advice; or (3) waive any claim of 
privilege or work product protection.
    The obligations of GS Caltex to cooperate fully with the United 
States as described in this Section shall cease upon the conclusion of 
all Civil Federal Proceedings (which may include Civil Federal 
Proceedings related to the conduct of third parties), including 
exhaustion of all appeals or expiration of time for all appeals of any 
Court ruling in each such Civil Federal Proceeding, at which point the 
United States will provide written notice to GS Caltex that its 
obligations under this Section have expired.

V. ANTITRUST COMPLIANCE PROGRAM

    A. Within thirty (30) days after entry of this Final Judgment, GS 
Caltex shall appoint an Antitrust Compliance Officer and identify to 
the United States his or her name, business address, telephone number, 
and email address. Within forty-five (45) days of a vacancy in the 
Antitrust Compliance Officer position, GS Caltex shall appoint a 
replacement, and shall identify to the United States the Antitrust 
Compliance Officer's name, business address, telephone number, and 
email address. GS Caltex's initial or replacement appointment of an 
Antitrust Compliance Officer is subject to the approval of the United 
States, in its sole discretion.
    B. The Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's employees and directors with 
responsibility for bidding for any contract with the United States. The 
antitrust compliance program shall provide at least two hours of 
training annually on the antitrust laws of the United States, such 
training to be delivered by an attorney with

[[Page 60310]]

relevant experience in the field of United States 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 Paragraph V.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 United States antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to the United 
States 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 
GS Caltex's compliance with Section V of this Final Judgment.

VI. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any of the parties 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 or terminate any of its 
provisions, to enforce compliance, and to punish violations of its 
provisions.

VII. ENFORCEMENT OF FINAL JUDGMENT

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. GS Caltex agrees that in any civil contempt 
action, any motion to show cause, or any similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of the decree and the 
appropriateness of any remedy therefor by a preponderance of the 
evidence, and GS Caltex waives any argument that a different standard 
of proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. GS Caltex agrees that they may be held in contempt of, and 
that the Court may enforce, any provision of this Final Judgment that, 
as interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In any enforcement proceeding in which the Court finds that GS 
Caltex has violated this Final Judgment, the United States may apply to 
the Court for a one-time extension of this Final Judgment, together 
with such other relief as may be appropriate. In connection with any 
successful effort by the United States to enforce this Final Judgment 
against GS Caltex, whether litigated or resolved prior to litigation, 
GS Caltex agrees to reimburse the United States for the fees and 
expenses of its attorneys, as well as any other costs including 
experts' fees, incurred in connection with that enforcement effort, 
including in the investigation of the potential violation.

VIII. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire seven (7) years from the date of its entry, except that after 
five (5) years from the date of its entry, this Final Judgment may be 
terminated upon notice by the United States to the Court and GS Caltex 
that the continuation of the Final Judgment no longer is necessary or 
in the public interest.

IX. PUBLIC INTEREST DETERMINATION

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16, including making copies available to 
the public of this Final Judgment, the Competitive Impact Statement, 
and any comments thereon and the United States' 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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United States District Judge


ATTACHMENT 1

SETTLEMENT AGREEMENT

    This Settlement Agreement (Agreement) is entered into among the 
United States of America, acting through the Civil Division of the 
United States Department of Justice and the United States Attorney's 
Office for the Southern District of Ohio, on behalf of the Defense 
Logistics Agency (DLA) and the Army and Air Force Exchange Service 
(AAFES) (collectively the ``United States''), GS Caltex Corporation (GS 
Caltex), and Relator [REDACTED] (hereafter collectively referred to as 
``the Parties''), through their authorized representatives.

RECITALS

    A. GS Caltex is a South Korea-based energy company that produces 
various petroleum products that it sells to South Korean and 
international customers, including the United States Department of 
Defense (DoD).
    B. On February 28, 2018, Relator, a resident and citizen of South 
Korea, filed a qui tam action in the United States District Court for 
the Southern District of Ohio captioned United States ex rel. 
[REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant 
to the qui tam provisions of the False Claims Act, 31 U.S.C. Sec.  
3730(b) (the Civil FCA Action). Relator contends that GS Caltex 
conspired with other South Korean entities to rig bids on DoD contracts 
to supply fuel to U.S. military bases throughout South Korea beginning 
in 2005 and continuing until 2016, including DLA Post, Camps, and 
Stations contracts and/or contract amendments (``PC&S contracts'') 
executed in 2006, 2009, 2011, and 2013, and AAFES contracts executed in 
2008.
    C. On such date as may be determined by the Court, GS Caltex will 
plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. GS 
Caltex Corporation, Criminal Action No. [to be assigned] (S.D. Ohio) 
(the ``Criminal Action'') that will allege that GS Caltex participated 
in a combination and conspiracy beginning at least in or around March 
2005 and continuing until at least in or around October 2016, to 
suppress and eliminate competition on certain contracts solicited by 
the DoD to supply ultra[dash]low sulfur diesel and gasoline to numerous 
U.S. Army, Navy, Marine, and Air Force installations in Korea, known as 
PC&S contracts, in violation of the Sherman Antitrust Act, 15 U.S.C. 
Sec.  1.
    D. GS Caltex will execute a Stipulation with the Antitrust Division 
of the United States Department of Justice in which GS Caltex will 
consent to the entry of a Final Judgment to be filed in United States 
v. GS Caltex Corporation, Civil Action No. [to be assigned] (S.D. Ohio) 
(the Civil Antitrust Action) that will settle any and all civil 
antitrust claims of the United States

[[Page 60311]]

against GS Caltex arising from any act or offense committed before the 
date of the Stipulation that was undertaken in furtherance of an 
attempted or completed antitrust conspiracy involving PC&S and/or AAFES 
fuel supply contracts with the U.S. military in South Korea during the 
period 2005 through 2016.
    E. The United States contends that it has certain civil claims 
against GS Caltex arising from a conspiracy with other South Korean 
entities to rig bids on DoD contracts to supply fuel to U.S. military 
bases throughout South Korea executed between 2005 and 2013, including 
DLA PC&S contracts and AAFES contracts, as well as the conduct 
described in the Plea Agreement in the Criminal Action. The conduct 
referenced in this Paragraph, as well as the conduct, actions, and 
claims alleged by Relator in the Civil FCA Action is referred to below 
as the Covered Conduct.
    F. With the exception of any admissions that are made by GS Caltex 
in connection with the Plea Agreement in the Criminal Action, this 
Settlement Agreement is neither an admission of liability by GS Caltex 
nor a concession by the United States or Relator that their claims are 
not well founded.
    G. Relator claims entitlement under 31 U.S.C. Sec.  3730(d) to a 
share of the proceeds of this Settlement Agreement and to Relator's 
reasonable expenses, attorneys' fees and costs.
    To avoid the delay, uncertainty, inconvenience, and expense of 
protracted litigation of the above claims, and in consideration of the 
mutual promises and obligations of this Settlement Agreement, the 
Parties agree and covenant as follows:

TERMS AND CONDITIONS

    1.a. GS Caltex shall pay to the United States $42,621,000 (FCA 
Settlement Amount), of which $28,414,474 is restitution. Relator's 
right pursuant to 31 U.S.C. Sec.  3730(d) to reasonable expenses, 
attorneys' fees and costs will be addressed separately by Relator, 
Relator's counsel and GS Caltex.
    1.b. Interest at an annual rate of three (3) percent shall accrue 
on the FCA Settlement Amount beginning on the Effective Date of this 
Agreement and continuing until the date that both of the following 
events have occurred: (i) the Plea Agreement is accepted by the Court 
in the Criminal Action; and (ii) the proposed Final Judgment is entered 
by the Court in the Civil Antitrust Action (Accrued Interest).
    1.c. The total FCA payment due from GS Caltex shall be the FCA 
Settlement Amount plus any Accrued Interest (Total FCA Settlement 
Amount). GS Caltex shall pay the Total FCA Settlement Amount by 
electronic funds transfer no later than seven (7) business days after 
both events identified above in Paragraph 1.b. have occurred (Payment 
Due Date). The Civil Division of the United States Department of 
Justice shall provide to counsel for GS Caltex written payment 
instructions and confirmation of the Total FCA Settlement Amount no 
later than five (5) business days before the Payment Due Date. If GS 
Caltex does not pay the Total FCA Settlement Amount on or before the 
Payment Due Date, interest at an annual rate of nine (9) percent shall 
accrue on the Total FCA Settlement Amount beginning on the first 
calendar day after the Payment Due Date and shall continue to accrue 
until paid.
    1.d. If GS Caltex's Plea Agreement in the Criminal Action is not 
accepted by the Court or the Court does not enter the Final Judgment in 
the Civil Antitrust Action, this Agreement shall be null and void at 
the option of either the United States or GS Caltex. If either the 
United States or GS Caltex exercises this option, which option shall be 
exercised by notifying all Parties, through counsel, in writing within 
five (5) business days of the Court's decision, the Parties will not 
object and this Agreement will be rescinded. If this Agreement is 
rescinded, GS Caltex will not plead, argue or otherwise raise any 
defenses under the theories of statute of limitations, laches, estoppel 
or similar theories, to any civil or administrative claims, actions or 
proceedings arising from the Covered Conduct that are brought by the 
United States within ninety (90) calendar days of rescission, except to 
the extent such defenses were available on the day on which Relator's 
qui tam complaint in the Civil FCA Action was filed.
    2. Subject to the exceptions in Paragraph 3 (concerning excluded 
claims) below, and conditioned upon GS Caltex's full payment of the 
Total FCA Settlement Amount, the United States releases GS Caltex 
together with its current and former parent corporations; direct and 
indirect subsidiaries; brother or sister corporations; divisions; 
current or former corporate owners; and the corporate successors and 
assigns of any of them from any civil or administrative monetary claim 
the United States has for the Covered Conduct under the False Claims 
Act, 31 U.S.C. Sec. Sec.  3729-3733; the Program Fraud Civil Remedies 
Act, 31 U.S.C. Sec. Sec.  3801-3812; Contract Disputes Act, 41 U.S.C. 
Sec. Sec.  7101-7109; or the common law theories of breach of contract, 
payment by mistake, unjust enrichment, and fraud, or under any statute 
creating causes of action for civil damages or civil penalties which 
the Civil Division of the United States Department of Justice has 
authority to assert and compromise pursuant to 28 C.F.R. Part O, 
Subpart I, Sec.  0.45(d).
    3. Notwithstanding the release given in paragraph 2 of this 
Agreement, or any other term of this Agreement, the following claims of 
the United States are specifically reserved and are not released:
    a. Any liability arising under Title 26, U.S. Code (Internal 
Revenue Code);
    b. Any criminal liability, except to the extent detailed in the 
Plea Agreement;
    c. Except as explicitly stated in this Agreement, any 
administrative liability, including the suspension and debarment rights 
of any federal agency;
    d. Any liability to the United States (or its agencies) for any 
conduct other than the Covered Conduct;
    e. Any liability based upon obligations created by this Agreement;
    f. Any liability of individuals;
    g. Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services;
    h. Any liability for failure to deliver goods or services due; and
    i. Any liability for personal injury or property damage or for 
other consequential damages arising from the Covered Conduct.
    4. Relator and his heirs, successors, attorneys, agents, and 
assigns shall not object to this Agreement but agree and confirm that 
this Agreement is fair, adequate, and reasonable under all the 
circumstances, pursuant to 31 U.S.C. Sec.  3730(c)(2)(B). The 
determination of Relator's share, if any, of the FCA Settlement Amount 
pursuant to 31 U.S.C. Sec.  3730(d) is a matter that shall be handled 
separately by and between the Relator and the United States, without 
any direct involvement or input from GS Caltex. In connection with this 
Agreement and this Civil FCA Action, Relator, on behalf of himself and 
his heirs, successors, attorneys, agents, and assigns agrees that 
neither this Agreement, nor any intervention by the United States in 
the Civil FCA Action in order to dismiss the Civil FCA Action, nor any 
dismissal of the Civil FCA Action, shall waive or otherwise affect the 
ability of the United States to contend that provisions in the False 
Claims Act, including 31 U.S.C. Sec.  3730(d)(3), bar Relator from 
sharing in the proceeds of this Agreement, except that the United 
States will not contend that Relator is barred from sharing in the 
proceeds of this Agreement pursuant to

[[Page 60312]]

31 U.S.C. Sec.  3730(e)(4). Moreover, the United States and Relator, on 
behalf of himself and his heirs, successors, attorneys, agents, and 
assigns agree that they each retain all of their rights pursuant to the 
False Claims Act on the issue of the share percentage, if any, that 
Relator should receive of any proceeds of the settlement of his claims, 
and that no agreements concerning Relator share have been reached to 
date.
    5. Relator, for himself, and for his heirs, successors, attorneys, 
agents, and assigns, releases GS Caltex, together with its 
predecessors, successors, assigns, shareholders, subsidiaries, 
businesses, affiliates, divisions, sister companies, owners, directors, 
officers, agents, employees, and counsel, from any action, in law or in 
equity, suits, debts, liens, contracts, agreements, covenants, 
promises, liability, obligations, claims, demands, rights of 
subrogation, contribution and indemnity, damages, loss, cost or 
expenses, direct or indirect, of any kind or nature whatsoever 
(including without limitation any civil monetary claim Relator has on 
behalf of the United States for the Covered Conduct under the False 
Claims Act. 31 U.S.C. Sec. Sec.  3729-3733), known or unknown, fixed or 
contingent, foreign (including Korean), state or federal, under common 
law, statute or regulation, liquidated or unliquidated, claimed or 
concealed, and without regard to the date of occurrence, which Relator 
ever had, now has, may assert, or may in the future claim to have, 
against GS Caltex by reason of any act, cause, matter, or thing 
whatsoever from the beginning of time to the date hereof. Relator 
represents and warrants that he and his counsel are the exclusive owner 
of the rights, claims, and causes of action herein released and none of 
them have previously assigned, reassigned, or transferred or purported 
to assign, reassign or transfer, through bankruptcy or by any other 
means, any or any portion of any claim, demand, action, cause of 
action, or other right released or discharged under this Agreement 
except between themselves and their counsel. Notwithstanding the 
foregoing, or any other terms of this Agreement, this Agreement does 
not resolve or release Relator's right pursuant to 31 U.S.C. Sec.  
3730(d) to reasonable expenses necessarily incurred, plus reasonable 
attorneys' fees and costs relating to the Covered Conduct, the amount 
of which will be addressed separately by Relator, Relator's counsel, 
and GS Caltex.
    6. GS Caltex waives and shall not assert any defenses GS Caltex may 
have to any criminal prosecution or administrative action relating to 
the Covered Conduct that may be based in whole or in part on a 
contention that, under the Double Jeopardy Clause in the Fifth 
Amendment of the Constitution, or under the Excessive Fines Clause in 
the Eighth Amendment of the Constitution, this Agreement bars a remedy 
sought in such criminal prosecution or administrative action.
    7. GS Caltex fully and finally releases the United States, its 
agencies, officers, agents, employees, and servants, from any claims 
(including attorney's fees, costs, and expenses of every kind and 
however denominated) that GS Caltex has asserted, could have asserted, 
or may assert in the future against the United States, its agencies, 
officers, agents, employees, and servants, related to the Covered 
Conduct and the United States' investigation and prosecution thereof.
    8. GS Caltex, for itself and on behalf of its predecessors, 
successors, assigns, shareholders, subsidiaries, businesses, 
affiliates, divisions, sister companies, owners, directors, officers, 
agents, employees, and counsel, releases Relator, together with his 
heirs, successors, attorneys, agents, and assigns from any action, in 
law or in equity, suits, debts, liens, contracts, agreements, 
covenants, promises, liability, obligations, claims, demands, rights of 
subrogation, contribution and indemnity, damages, loss, cost or 
expenses, direct or indirect, of any kind or nature whatsoever, known 
or unknown, fixed or contingent, foreign (including Korean), state or 
federal, under common law, statute or regulation, liquidated or 
unliquidated, claimed or concealed, and without regard to the date of 
occurrence, which GS Caltex ever had, now has, may assert, or may in 
the future claim to have, against Relator by reason of any act, cause, 
matter, or thing whatsoever from the beginning of time to the date 
hereof. GS Caltex represents and warrants that it and its counsel are 
the exclusive owner of the rights, claims, and causes of action herein 
released and none of them have previously assigned, reassigned, or 
transferred or purported to assign, reassign or transfer, through 
bankruptcy or by any other means, any or any portion of any claim, 
demand, action, cause of action, or other right released or discharged 
under this Agreement except between themselves and their counsel. 
Notwithstanding the foregoing, or any other terms of this Agreement, 
this Agreement does not resolve or release GS Caltex's right pursuant 
to 31 U.S.C. Sec.  3730(d) to assert defenses to Relator's claimed 
attorneys' fees, expenses, and costs relating to the Covered Conduct, 
the amount of which will be addressed separately by Relator, Relator's 
counsel, and GS Caltex.
    9. a. Unallowable Costs Defined: All costs (as defined in the 
Federal Acquisition Regulation, 48 C.F.R. Sec.  31.205-47) incurred by 
or on behalf of GS Caltex, and its present or former officers, 
directors, employees, shareholders, and agents in connection with:
    (1) the matters covered by this Agreement, any related plea 
agreement, and any related civil antitrust agreement;
    (2) the United States' audit(s) and civil and any criminal 
investigation(s) of the matters covered by this Agreement;
    (3) GS Caltex's investigation, defense, and corrective actions 
undertaken in response to the United States' audit(s) and civil and any 
criminal investigation(s) in connection with the matters covered by 
this Agreement (including attorney's fees);
    (4) the negotiation and performance of this Agreement, any related 
plea agreement, and any related civil antitrust agreement;
    (5) the payment GS Caltex makes to the United States pursuant to 
this Agreement and any payments that GS Caltex may make to Relator, 
including costs and attorneys' fees, are unallowable costs for 
government contracting purposes (hereinafter referred to as Unallowable 
Costs).
    b. Future Treatment of Unallowable Costs: Unallowable Costs will be 
separately determined and accounted for by GS Caltex, and GS Caltex 
shall not charge such Unallowable Costs directly or indirectly to any 
contract with the United States.
    c. Treatment of Unallowable Costs Previously Submitted for Payment: 
Within 90 days of the Effective Date of this Agreement, GS Caltex shall 
identify and repay by adjustment to future claims for payment or 
otherwise any Unallowable Costs included in payments previously sought 
by GS Caltex or any of its subsidiaries or affiliates from the United 
States. GS Caltex agrees that the United States, at a minimum, shall be 
entitled to recoup from GS Caltex any overpayment plus applicable 
interest and penalties as a result of the inclusion of such Unallowable 
Costs on previously-submitted requests for payment. The United States, 
including the Department of Justice and/or the affected agencies, 
reserves its rights to audit, examine, or re-examine GS Caltex's books 
and records and to disagree with any calculations submitted by GS 
Caltex or any of its subsidiaries or affiliates regarding any 
Unallowable Costs included in payments previously sought

[[Page 60313]]

by GS Caltex, or the effect of any such Unallowable Costs on the amount 
of such payments.
    10. GS Caltex agrees to cooperate fully and truthfully with the 
United States in connection with the Civil FCA Action. The Civil 
Division of the United States Department of Justice will use reasonable 
best efforts, where appropriate, to coordinate any requests for 
cooperation in connection with the Civil FCA Action with requests for 
cooperation in connection with the Plea Agreement in the Criminal 
Action and the Civil Antitrust Action, so as to avoid unnecessary 
duplication and expense. GS Caltex's ongoing, full, and truthful 
cooperation shall include, but not be limited to:
    a. upon request by the United States with reasonable notice, 
producing at the offices of counsel for the United States in 
Washington, D.C. and not at the expense of the United States, complete 
and un-redacted copies of all non-privileged documents related to the 
Covered Conduct wherever located in GS Caltex's possession, custody, or 
control;
    b. upon request by the United States with reasonable notice, making 
current GS Caltex directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong unless another place is mutually agreed 
upon;
    c. upon request by the United States with reasonable notice, (i) 
using best efforts to assist in locating former GS Caltex directors, 
officers, and employees identified by attorneys and/or investigative 
agents of the United States, and (ii) using best efforts to make any 
such former GS Caltex directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong unless another place is mutually agreed 
upon; and
    d. upon request by the United States with reasonable notice, making 
current GS Caltex directors, officers, and employees available, and 
using best efforts to make former GS Caltex directors, officers, 
employees available, to testify, consistent with the rights and 
privileges of such individuals, fully, truthfully, and under oath, 
without falsely implicating any person or withholding any information, 
(i) at depositions in the United States, Hong Kong, or any other 
mutually agreed upon place, (ii) at trial in the United States, and 
(iii) at any other judicial proceedings wherever located related to the 
Civil FCA Action.
    11. This Agreement is intended to be for the benefit of the Parties 
only.
    12. Upon receipt of the payment of the Total FCA Settlement Amount 
described in Paragraph 1.a-c., above, or receipt of the Total FCA 
Settlement Amount and any additional interest that accrues if GS Caltex 
does not pay on or before the Payment Due Date, the United States and 
Relator shall promptly sign and file a Joint Stipulation of Dismissal, 
with prejudice, of the claims filed against GS Caltex in the Civil FCA 
Action, pursuant to Rule 41(a)(1), which dismissal shall be conditioned 
on the Court retaining jurisdiction over Relator's claims to a 
relator's share and recovery of attorneys' fees and costs pursuant to 
31 U.S.C. Sec.  3730(d).
    13. Except as provided herein, each Party shall bear its own legal 
and other costs incurred in connection with this matter. The Parties 
agree that Relator and GS Caltex will not seek to recover from the 
United States any costs or fees related to the preparation and 
performance of this Agreement.
    14. Each party and signatory to this Agreement represents that it 
freely and voluntarily enters into this Agreement without any degree of 
duress or compulsion.
    15. This Agreement is governed by the laws of the United States. 
The exclusive jurisdiction and venue for any dispute relating to this 
Agreement is the United States District Court for the Southern District 
of Ohio. GS Caltex agrees that the United States District Court for the 
Southern District of Ohio has jurisdiction over it for purposes of the 
Civil FCA Action. For purposes of construing this Agreement, this 
Agreement shall be deemed to have been drafted by all Parties to this 
Agreement and shall not, therefore, be construed against any Party for 
that reason in any subsequent dispute.
    16. This Agreement constitutes the complete agreement between the 
Parties on the subject matters addressed herein. This Agreement may not 
be amended except by written consent of the Parties.
    17. The undersigned counsel represent and warrant that they are 
fully authorized to execute this Agreement on behalf of the persons and 
entities indicated below.
    18. This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same 
Agreement.
    19. This Agreement is binding on GS Caltex's successors, 
transferees, heirs, and assigns.
    20. This Agreement is binding on Relator's successors, transferees, 
heirs, and assigns.
    21. All parties consent to the United States' disclosure of this 
Agreement, and information about this Agreement, to the public, as 
permitted by order of the Court. This Agreement shall not be released 
in un-redacted form until the Court unseals the entire Civil FCA 
Action.
    22. This Agreement is effective on the date of signature of the 
last signatory to the Agreement (Effective Date of this Agreement). 
Electronic copies of signatures shall constitute acceptable, binding 
signatures for purposes of this Agreement

The United States of America

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Andrew A. Steinberg,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 
Department of Justice

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Mark T. D'Alessandro,
Civil Chief
Andrew Malek,
Assistant United States Attorney, U.S. Attorney's Office for the 
Southern District of Ohio

GS Caltex Corporation--Defendant

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Authorized Representative of GS Caltex Corporation

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Marguerite M. Sullivan,
Latham & Watkins LLP

Scott D. Hammond, Gibson, Dunn & Crutcher LLP, Counsel for GS Caltex 
Corporation

[Redacted]--Relator

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

[redacted]

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Eric Havian,
Constantine Cannon LLP, Counsel for Relator

United States District Court for the Southern District of Ohio Eastern 
Division

    United States of America, Plaintiff, v. Hanjin Transportation 
Co., Ltd. Defendant.

Case No. 2:18-cv-01456-ALM-CMV


[[Page 60314]]



PROPOSED FINAL JUDGMENT AS TO DEFENDANT HANJIN TRANSPORTATION CO., LTD.

    WHEREAS Plaintiff, United States of America, filed its Complaint on 
November 14, 2018, the United States and Defendant Hanjin 
Transportation Co., Ltd. (``Hanjin''), by their respective attorneys, 
have consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law;
    WHEREAS, on such date as may be determined by the Court, Hanjin 
will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. Hanjin 
Transportation Co., Ltd. [to be assigned] (S.D.Ohio) (the ``Criminal 
Action'') that will allege a violation of Section 1 of the Sherman Act, 
15 U.S. C. Sec.  1, relating to the same events giving rise to the 
allegations described in the Complaint;
    WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    NOW, THEREFORE, before the taking of any testimony and without 
trial or final adjudication of any issue of fact or law herein, and 
upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED:

I. JURISDICTION

    This Court has jurisdiction of the subject matter of this action 
and each of the parties consenting hereto. The Complaint states a claim 
upon which relief may be granted to the United States against Hanjin 
under Section 1 of the Sherman Act, 15 U.S.C. Sec.  1.

II. APPLICABILITY

    This Final Judgment applies to Hanjin, 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.

III. PAYMENT

    Hanjin shall pay to the United States within ten (10) business days 
of the entry of this Final Judgment the amount of six million, one 
hundred eighty-two thousand ($6,182,000), less the amount paid 
(excluding any interest) pursuant to the settlement agreement attached 
hereto as Attachment 1, to satisfy all civil antitrust claims alleged 
against Hanjin by the United States in the Complaint. Payment of the 
amount ordered hereby shall be made by wire transfer of funds or 
cashier's check. If the payment is made by wire transfer, Hanjin shall 
contact Janie Ingalls of the Antitrust Division's Antitrust Documents 
Group at (202) 514-2481 for instructions before making the transfer. If 
the payment is made by cashier's check, the check shall be made payable 
to the United States Department of Justice and delivered to: Janie 
Ingalls, United States Department of Justice Antitrust Division, 
Antitrust Documents Group, 450 5th Street, NW, Suite 1024, Washington, 
D.C. 20530. In the event of a default in payment, interest at the rate 
of eighteen (18) percent per annum shall accrue thereon from the date 
of default to the date of payment.

IV. COOPERATION

    Hanjin shall cooperate fully with the United States regarding any 
matter about which Hanjin has knowledge or information relating to any 
ongoing civil investigation, litigation, or other proceeding arising 
out of any ongoing federal investigation of the subject matter 
discussed in the Complaint (hereinafter, any such investigation, 
litigation, or proceeding shall be referred to as a ``Civil Federal 
Proceeding'').
    The United States agrees that any cooperation provided in 
connection with the Plea Agreement and/or pursuant to the settlement 
agreement attached hereto as Attachment 1 will be considered 
cooperation for purposes of this Final Judgment, and the United States 
will use its reasonable best efforts, where appropriate, to coordinate 
any requests for cooperation in connection with the Civil Federal 
Proceeding with requests for cooperation in connection with the Plea 
Agreement and the settlement agreement attached hereto as Attachment 1, 
so as to avoid unnecessary duplication and expense. Hanjin's 
cooperation shall include, but not be limited to, the following:
    (a) Upon request, completely and truthfully disclosing and 
producing, to the offices of the United States and at no expense to the 
United States, copies of all non-privileged information, documents, 
materials, and records in its possession (and for any foreign-language 
information, documents, materials, or records, copies must be produced 
with an English translation), regardless of their geographic location, 
about which the United States may inquire in connection with any Civil 
Federal Proceeding, including but not limited to all information about 
activities of Hanjin and present and former officers, directors, 
employees, and agents of Hanjin;
    (b) Making available in the United States, at no expense to the 
United States, its present officers, directors, employees, and agents 
to provide information and/or testimony as requested by the United 
States in connection with any Civil Federal Proceeding, including the 
provision of testimony in trial and other judicial proceedings, as well 
as interviews with law enforcement authorities, consistent with the 
rights and privileges of those individuals;
    (c) Using its best efforts to make available in the United States, 
at no expense to the United States, its former officers, directors, 
employees, and agents to provide information and/or testimony as 
requested by the United States in connection with any Civil Federal 
Proceeding, including the provision of testimony in trial and other 
judicial proceedings, as well as interviews with law enforcement 
authorities, consistent with the rights and privileges of those 
individuals;
    (d) Providing testimony or information necessary to identify or 
establish the original location, authenticity, or other basis for 
admission into evidence of documents or physical evidence produced by 
Hanjin in any Civil Federal Proceeding as requested by the United 
States; and
    (e) Completely and truthfully responding to all other inquiries of 
the United States in connection with any Civil Federal Proceeding.
    However, notwithstanding any provision of this Final Judgment, 
Hanjin is not required to: (1) request of its current or former 
officers, directors, employees, or agents that they forgo seeking the 
advice of an attorney nor that they act contrary to that advice; (2) 
take any action against its officers, directors, employees, or agents 
for following their attorney's advice; or (3) waive any claim of 
privilege or work product protection.
    The obligations of Hanjin to cooperate fully with the United States 
as described in this Section shall cease upon the conclusion of all 
Civil Federal Proceedings (which may include Civil Federal Proceedings 
related to the conduct of third parties), including exhaustion of all 
appeals or expiration of time for all appeals of any Court ruling in 
each such Civil Federal Proceeding, at which point the United States 
will provide written notice to Hanjin that its obligations under this 
Section have expired.

V. ANTITRUST COMPLIANCE PROGRAM

    A. Within thirty (30) days after entry of this Final Judgment, 
Hanjin shall appoint an Antitrust Compliance Officer and identify to 
the United States his or her name, business address, telephone number, 
and email address. Within

[[Page 60315]]

forty-five (45) days of a vacancy in the Antitrust Compliance Officer 
position, Hanjin shall appoint a replacement, and shall identify to the 
United States the Antitrust Compliance Officer's name, business 
address, telephone number, and email address. Hanjin's initial or 
replacement appointment of an Antitrust Compliance Officer is subject 
to the approval of the United States, in its sole discretion.
    B. The Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's employees and directors with 
responsibility for bidding for any contract with the United States. The 
antitrust compliance program shall provide at least two hours of 
training annually on the antitrust laws of the United States, such 
training to be delivered by an attorney with relevant experience in the 
field of United States 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 Paragraph V.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 United States antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to the United 
States 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 
Hanjin's compliance with Section V of this Final Judgment.

VI. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any of the parties 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 or terminate any of its 
provisions, to enforce compliance, and to punish violations of its 
provisions.

VII. ENFORCEMENT OF FINAL JUDGMENT

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. Hanjin agrees that in any civil contempt 
action, any motion to show cause, or any similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of the decree and the 
appropriateness of any remedy therefor by a preponderance of the 
evidence, and Hanjin waives any argument that a different standard of 
proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. Hanjin agrees that they may be held in contempt of, and that 
the Court may enforce, any provision of this Final Judgment that, as 
interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In any enforcement proceeding in which the Court finds that 
Hanjin has violated this Final Judgment, the United States may apply to 
the Court for a one-time extension of this Final Judgment, together 
with such other relief as may be appropriate. In connection with any 
successful effort by the United States to enforce this Final Judgment 
against Hanjin, whether litigated or resolved prior to litigation, 
Hanjin agrees to reimburse the United States for the fees and expenses 
of its attorneys, as well as any other costs including experts' fees, 
incurred in connection with that enforcement effort, including in the 
investigation of the potential violation.

VIII. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire seven (7) years from the date of its entry, except that after 
five (5) years from the date of its entry, this Final Judgment may be 
terminated upon notice by the United States to the Court and Hanjin 
that the continuation of the Final Judgment no longer is necessary or 
in the public interest.

IX. PUBLIC INTEREST DETERMINATION

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16, including making copies available to 
the public of this Final Judgment, the Competitive Impact Statement, 
and any comments thereon and the United States' 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:-----------------------------------------------------------------

-----------------------------------------------------------------------
United States District Judge

ATTACHMENT 1

SETTLEMENT AGREEMENT

    This Settlement Agreement (Agreement) is entered into among the 
United States of America, acting through the Civil Division of the 
United States Department of Justice and the United States Attorney's 
Office for the Southern District of Ohio, on behalf of the Defense 
Logistics Agency (DLA) and the Army and Air Force Exchange Service 
(AAFES) (collectively the ``United States''), Hanjin Transportation 
Co., Ltd. (Hanjin), and Relator [REDACTED] (hereafter collectively 
referred to as ``the Parties''), through their authorized 
representatives.

RECITALS

    A. Hanjin is a South Korea-based logistics company with South 
Korean and international customers, including the United States 
Department of Defense (DoD).
    B. On February 28, 2018, Relator, a resident and citizen of South 
Korea, filed a qui tam action in the United States District Court for 
the Southern District of Ohio captioned United States ex rel. 
[REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant 
to the qui tam provisions of the False Claims Act, 31 U.S.C. Sec.  
3730(b) (the Civil FCA Action). Relator contends that Hanjin conspired 
with other South Korean entities to rig bids on DoD contracts to supply 
fuel to U.S. military bases throughout South Korea beginning in 2008 
and continuing until 2016, including DLA Post, Camps, and Stations 
contracts executed in 2009 and 2013, and AAFES contracts executed in 
2008.
    C. On such date as may be determined by the Court, Hanjin will 
plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. Hanjin 
Transportation Co., Ltd., Criminal Action No. [to be assigned] (S.D. 
Ohio) (the ``Criminal Action'') that will allege that Hanjin 
participated in a combination and conspiracy beginning at least in or 
around March 2005 and continuing until at least in or around October 
2016, to suppress and eliminate

[[Page 60316]]

competition on certain contracts solicited by the DoD to supply 
ultra[dash]low sulfur diesel and gasoline to numerous U.S. Army, Navy, 
Marine, and Air Force installations in Korea, including PC&S contracts, 
in violation of the Sherman Antitrust Act, 15 U.S.C. Sec.  1.
    D. Hanjin will execute a Stipulation with the Antitrust Division of 
the United States Department of Justice in which Hanjin will consent to 
the entry of a Final Judgment to be filed in United States v. Hanjin 
Transportation Co., Ltd., Civil Action No. [to be assigned] (S.D. Ohio) 
(the Civil Antitrust Action) that will settle any and all civil 
antitrust claims of the United States against Hanjin arising from any 
act or offense committed before the date of the Stipulation that was 
undertaken in furtherance of an attempted or completed antitrust 
conspiracy involving PC&S and/or AAFES fuel supply contracts with the 
U.S. military in South Korea during the period 2005 through 2016.
    E. The United States contends that it has certain civil claims 
against Hanjin arising from a conspiracy with other South Korean 
entities to rig bids on DoD contracts to supply fuel to U.S. military 
bases throughout South Korea beginning in 2008 and continuing to 2016, 
including DLA Post, Camps, and Stations contracts executed in 2009 and 
2013, and AAFES contracts executed in 2008. The conduct described in in 
this Paragraph, as well as the conduct, actions, and claims alleged by 
Relator in the Civil FCA Action is referred to below as the Covered 
Conduct.
    F. With the exception of any admissions that are made by Hanjin in 
connection with the Plea Agreement in the Criminal Action, this 
Settlement Agreement is neither an admission of liability by Hanjin nor 
a concession by the United States or Relator that their claims are not 
well founded.
    G. Relator claims entitlement under 31 U.S.C. Sec.  3730(d) to a 
share of the proceeds of this Settlement Agreement and to Relator's 
reasonable expenses, attorneys' fees, and costs.
    To avoid the delay, uncertainty, inconvenience, and expense of 
protracted litigation of the above claims, and in consideration of the 
mutual promises and obligations of this Settlement Agreement, the 
Parties agree and covenant as follows:

TERMS AND CONDITIONS

    1. Hanjin agrees to pay to the United States $6,182,000 (FCA 
Settlement Amount) by electronic funds transfer no later than thirteen 
(13) business days after the Effective Date of this Agreement pursuant 
to written instructions to be provided by the Civil Division of the 
United States Department of Justice. Relator claims entitlement under 
31 U.S.C. Sec.  3730(d) to Relator's reasonable expenses, attorneys' 
fees and costs. The FCA Settlement Amount does not include the 
Relator's fees and costs, and Hanjin acknowledges (without waiving any 
applicable arguments or defenses) that Relator retains all rights to 
seek to recover such expenses, attorneys' fees, and costs from Hanjin 
pursuant to 31 U.S.C. Sec.  3730(d).
    2. Subject to the exceptions in Paragraph 4 (concerning excluded 
claims) below, and conditioned upon Hanjin's full payment of the FCA 
Settlement Amount, the United States releases Hanjin together with its 
current and former parent corporations; direct and indirect 
subsidiaries; brother or sister corporations; divisions; current or 
former corporate owners; and the corporate successors and assigns of 
any of them from any civil or administrative monetary claim the United 
States has for the Covered Conduct under the False Claims Act, 31 
U.S.C. Sec. Sec.  3729-3733; the Program Fraud Civil Remedies Act, 31 
U.S.C. Sec. Sec.  3801-3812; Contract Disputes Act, 41 U.S.C. 
Sec. Sec.  7101-7109; or the common law theories of breach of contract, 
payment by mistake, unjust enrichment, and fraud.
    3. Except as set forth in Paragraph 1 (concerning Relator's claims 
under 31 U.S.C. Sec.  3730(d)), and subject to the exceptions in 
Paragraph 4 below, and conditioned upon Hanjin's full payment of the 
FCA Settlement Amount, Relator, on behalf of: (a) his respective heirs, 
successors, assigns, agents and attorneys; and (b) his companies 
([REDACTED], together with their direct and indirect subsidiaries, 
brother or sister corporations, divisions, current or former corporate 
owners, and the corporate successors and assigns of any of them); 
hereby fully and finally releases, waives, and forever discharges 
Hanjin, together with its direct and indirect subsidiaries, brother or 
sister corporations, divisions, current or former corporate owners, and 
the corporate successors and assigns of any of them, from: (i) any 
civil monetary claim Relator has on behalf of the United States for the 
Covered Conduct under the False Claims Act, 31 U.S.C. Sec. Sec.  3729-
3733; (ii) any claims or allegations Relator has asserted or could have 
asserted against Hanjin arising from the Covered Conduct; and (iii) all 
liability, claims, demands, actions or causes of action whatsoever, 
whether known or unknown, fixed or contingent, in law or in equity, in 
contract or in tort, under any federal, Korean, or state statute or 
regulation or otherwise, or in common law, including claims for 
attorneys' fees, costs, and expenses of every kind and however 
denominated, that Relator would have standing to bring or which Relator 
may now have or claim to have against Hanjin and/or its direct and 
indirect subsidiaries, brother or sister corporations, divisions, 
current or former corporate owners, and the corporate successors and 
assigns of any of them.
    4. Notwithstanding the releases given in paragraphs 2 and 3 of this 
Agreement, or any other term of this Agreement, the following claims of 
the United States are specifically reserved and are not released:
    a. Any liability arising under Title 26, U.S. Code (Internal 
Revenue Code);
    b. Any criminal liability, except to the extent detailed in the 
Plea Agreement;
    c. Except as explicitly stated in this Agreement, any 
administrative liability, including the suspension and debarment rights 
of any federal agency;
    d. Any liability to the United States (or its agencies) for any 
conduct other than the Covered Conduct;
    e. Any liability based upon obligations created by this Agreement;
    f. Any liability of individuals;
    g. Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services;
    h. Any liability for failure to deliver goods or services due; and
    i. Any liability for personal injury or property damage or for 
other consequential damages arising from the Covered Conduct.
    5. Relator and his heirs, successors, attorneys, agents, and 
assigns shall not object to this Agreement but agree and confirm that 
this Agreement is fair, adequate, and reasonable under all the 
circumstances, pursuant to 31 U.S.C. Sec.  3730(c)(2)(B). In connection 
with this Agreement and this Civil FCA Action, Relator, on behalf of 
himself and his heirs, successors, attorneys, agents, and assigns, 
agrees that neither this Agreement, nor any intervention by the United 
States in the Civil FCA Action in order to dismiss the Civil FCA 
Action, nor any dismissal of the Civil FCA Action, shall waive or 
otherwise affect the ability of the United States to contend that 
provisions in the False Claims Act, including 31 U.S.C. Sec.  
3730(d)(3), bar Relator from sharing in the proceeds of this Agreement, 
except that the United States will not contend that Relator is barred 
from sharing in the proceeds of this Agreement pursuant to 31 U.S.C. 
Sec.  3730(e)(4). Moreover, the United States and Relator, on behalf of

[[Page 60317]]

himself and his heirs, successors, attorneys, agents, and assigns agree 
that they each retain all of their rights pursuant to the False Claims 
Act on the issue of the share percentage, if any, that Relator should 
receive of any proceeds of the settlement of his claims, and that no 
agreements concerning Relator share have been reached to date.
    6. Hanjin waives and shall not assert any defenses Hanjin may have 
to any criminal prosecution or administrative action relating to the 
Covered Conduct that may be based in whole or in part on a contention 
that, under the Double Jeopardy Clause in the Fifth Amendment of the 
Constitution, or under the Excessive Fines Clause in the Eighth 
Amendment of the Constitution, this Agreement bars a remedy sought in 
such criminal prosecution or administrative action.
    7. Hanjin fully and finally releases the United States, its 
agencies, officers, agents, employees, and servants, from any claims 
(including attorney's fees, costs, and expenses of every kind and 
however denominated) that Hanjin has asserted, could have asserted, or 
may assert in the future against the United States, its agencies, 
officers, agents, employees, and servants, related to the Covered 
Conduct and the United States' investigation and prosecution thereof.
    8. Hanjin, together with its direct and indirect subsidiaries, 
brother or sister corporations, divisions, current or former corporate 
owners, and the corporate successors and assigns of any of them, hereby 
fully and finally releases, waives, and forever discharges the Relator, 
together with his respective heirs, successors, assigns, agents and 
attorneys, and his companies ([REDACTED]) from any claims or 
allegations Hanjin has asserted or could have asserted, arising from 
the Covered Conduct, and from all liability, claims, demands, actions 
or causes of action whatsoever, whether known or unknown, fixed or 
contingent, in law or in equity, in contract or in tort, under any 
federal, Korean, or state statute or regulation or otherwise, or in 
common law, including claims for attorneys' fees, costs, and expenses 
of every kind and however denominated, that it would have standing to 
bring or which Hanjin may now have or claim to have against Relator and 
his heirs, successors, assigns, agents, and attorneys. Relator hereby 
represents that neither he nor his companies, [REDACTED], performed 
business with Hanjin.
    9. a. Unallowable Costs Defined: All costs (as defined in the 
Federal Acquisition Regulation, 48 C.F.R. Sec.  31.205-47) incurred by 
or on behalf of Hanjin, and its present or former officers, directors, 
employees, shareholders, and agents in connection with:
    (1) the matters covered by this Agreement, any related plea 
agreement, and any related civil antitrust agreement;
    (2) the United States' audit(s) and civil and any criminal 
investigation(s) of the matters covered by this Agreement;
    (3) Hanjin's investigation, defense, and corrective actions 
undertaken in response to the United States' audit(s) and civil and any 
criminal investigation(s) in connection with the matters covered by 
this Agreement (including attorney's fees);
    (4) the negotiation and performance of this Agreement, any related 
plea agreement, and any related civil antitrust agreement;
    (5) the payment Hanjin makes to the United States pursuant to this 
Agreement and any payments that Hanjin may make to Relator, including 
costs and attorneys' fees,

are unallowable costs for government contracting purposes (hereinafter 
referred to as Unallowable Costs).

    b. Future Treatment of Unallowable Costs: Unallowable Costs will be 
separately determined and accounted for by Hanjin, and Hanjin shall not 
charge such Unallowable Costs directly or indirectly to any contract 
with the United States.
    c. Treatment of Unallowable Costs Previously Submitted for Payment: 
Within 90 days of the Effective Date of this Agreement, Hanjin shall 
identify and repay by adjustment to future claims for payment or 
otherwise any Unallowable Costs included in payments previously sought 
by Hanjin or any of its subsidiaries or affiliates from the United 
States. Hanjin agrees that the United States, at a minimum, shall be 
entitled to recoup from Hanjin any overpayment plus applicable interest 
and penalties as a result of the inclusion of such Unallowable Costs on 
previously-submitted requests for payment. The United States, including 
the Department of Justice and/or the affected agencies, reserves its 
rights to audit, examine, or re-examine Hanjin's books and records and 
to disagree with any calculations submitted by Hanjin or any of its 
subsidiaries or affiliates regarding any Unallowable Costs included in 
payments previously sought by Hanjin, or the effect of any such 
Unallowable Costs on the amount of such payments.
    10. Hanjin agrees to cooperate fully and truthfully with the United 
States in connection with the Civil FCA Action. Hanjin's ongoing, full, 
and truthful cooperation shall include, but not be limited to:
    a. upon request by the United States with reasonable notice, 
producing at the offices of counsel for the United States in 
Washington, D.C. and not at the expense of the United States, complete 
and un-redacted copies of all non-privileged documents related to the 
Covered Conduct wherever located in Hanjin's possession, custody, or 
control, including but not limited to, reports, memoranda of 
interviews, and records concerning any investigation of the Covered 
Conduct that Hanjin has undertaken, or that has been performed by 
another on Hanjin's behalf;
    b. upon request by the United States with reasonable notice, making 
current Hanjin directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon;
    c. upon request by the United States with reasonable notice, (i) 
using best efforts to assist in locating former Hanjin directors, 
officers, and employees identified by attorneys and/or investigative 
agents of the United States, and (ii) using best efforts to make any 
such former Hanjin directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon; and
    d. upon request by the United States with reasonable notice, making 
current Hanjin directors, officers, and employees available, and using 
best efforts to make former Hanjin directors, officers, employees 
available, to testify, consistent with the rights and privileges of 
such individuals, fully, truthfully, and under oath, without falsely 
implicating any person or withholding any information, (i) at 
depositions in the United States, Hong Kong, or any other mutually 
agreed upon place, (ii) at trial in the United States, and (iii) at any 
other judicial proceedings wherever located related to the Civil FCA 
Action.
    11. This Agreement is intended to be for the benefit of the Parties 
only.
    12. Upon receipt of the payment of the FCA Settlement Amount 
described in Paragraph 1 above, the United States and Relator shall 
promptly sign and file a Joint Stipulation of Dismissal, with 
prejudice, of the claims filed against

[[Page 60318]]

Hanjin in the Civil FCA Action, pursuant to Rule 41(a)(1) ), which 
dismissal shall be conditioned on the Court retaining jurisdiction over 
Relator's claims to a relator's share and recovery of attorneys' fees 
and costs pursuant to 31 U.S.C. Sec.  3730(d).
    13. Except with respect to payment (if any) by Hanjin of Relator's 
attorneys' fees, expenses, and costs pursuant to 31 U.S.C. Sec.  
3730(d), each Party shall bear its own legal and other costs incurred 
in connection with this matter. The Parties agree that Relator and 
Hanjin will not seek to recover from the United States any costs or 
fees related to the preparation and performance of this Agreement.
    14. Each party and signatory to this Agreement represents that it 
freely and voluntarily enters in to this Agreement without any degree 
of duress or compulsion.
    15. This Agreement is governed by the laws of the United States. 
The exclusive jurisdiction and venue for any dispute relating to this 
Agreement is the United States District Court for the Southern District 
of Ohio. Hanjin agrees that the United States District Court for the 
Southern District of Ohio has jurisdiction over it for purposes of the 
Civil FCA Action. For purposes of construing this Agreement, this 
Agreement shall be deemed to have been drafted by all Parties to this 
Agreement and shall not, therefore, be construed against any Party for 
that reason in any subsequent dispute.
    16. This Agreement constitutes the complete agreement between the 
Parties on the subject matters addressed herein. This Agreement may not 
be amended except by written consent of the Parties.
    17. The undersigned counsel represent and warrant that they are 
fully authorized to execute this Agreement on behalf of the persons and 
entities indicated below.
    18. This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same 
Agreement.
    19. This Agreement is binding on Hanjin's successors, transferees, 
heirs, and assigns.
    20. This Agreement is binding on Relator's successors, transferees, 
heirs, and assigns.
    21. All parties consent to the United States' disclosure of this 
Agreement, and information about this Agreement, to the public, as 
permitted by order of the Court. This Agreement shall not be released 
in un-redacted form until the Court unseals the entire Civil FCA 
Action.
    22. This Agreement is effective on the date of signature of the 
last signatory to the Agreement (Effective Date of this Agreement). 
Facsimiles of signatures shall constitute acceptable, binding 
signatures for purposes of this Agreement.

The United States of America

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Andrew A. Steinberg,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 
Department of Justice

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Mark T. D'Alessandro
Civil Chief

Andrew Malek
Assistant United States Attorney, U.S. Attorney's Office for the 
Southern District of Ohio

Hanjin Transportation Co., Ltd.--Defendant

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Authorized Representative of Hanjin Transportation Co., Ltd.

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

William H. Stallings
Counsel for Hanjin Transportation Co., Ltd.

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Kelly B. Kramer
Counsel for Hanjin Transportation Co., Ltd.

[Redacted]--Relator

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

[Redacted]

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Eric Havian
Constantine Cannon LLP, Counsel for Relator

United States District Court for the Southern District of Ohio Eastern 
Division

    United States of America, Plaintiff, v. SK Energy Co., Ltd. 
Defendant.

Case No. 2:18-cv-01456-ALM-CMV

PROPOSED FINAL JUDGMENT AS TO DEFENDANT SK ENERGY CO., LTD.

    WHEREAS Plaintiff, United States of America, filed its Complaint on 
November 14, 2018, the United States and Defendant SK Energy Co., Ltd. 
(``SK Energy''), by their respective attorneys, have consented to the 
entry of this Final Judgment without trial or adjudication of any issue 
of fact or law;
    WHEREAS, on such date as may be determined by the Court, SK Energy 
will plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. SK 
Energy Co., Ltd. [to be assigned] (S.D.Ohio) (the ``Criminal Action'') 
that will allege a violation of Section 1 of the Sherman Act, 15 U.S. 
C. Sec.  1, relating to the same events giving rise to the allegations 
described in the Complaint;
    WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    NOW, THEREFORE, before the taking of any testimony and without 
trial or final adjudication of any issue of fact or law herein, and 
upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED:

I. JURISDICTION

    This Court has jurisdiction of the subject matter of this action 
and each of the parties consenting hereto. The Complaint states a claim 
upon which relief may be granted to the United States against SK Energy 
under Section 1 of the Sherman Act, 15 U.S.C. Sec.  1.

II. APPLICABILITY

    This Final Judgment applies to SK Energy, 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.

III. PAYMENT

    SK Energy shall pay to the United States within ten (10) business 
days of the entry of this Final Judgment the amount of ninety million, 
three hundred eighty-four thousand, eight hundred and seventy-two 
dollars ($90,384,872), less the amount paid (excluding any interest) 
pursuant to the settlement agreement attached hereto as Attachment 1, 
to satisfy all civil antitrust claims alleged against SK Energy by the 
United States in the Complaint. Payment of the amount ordered hereby 
shall be made by wire transfer of funds or cashier's check. If the 
payment is made by wire transfer, SK Energy shall contact Janie Ingalls 
of the Antitrust Division's Antitrust Documents Group at (202) 514-2481 
for instructions before making the transfer. If the payment is made by 
cashier's check, the check shall be made payable to the United States 
Department of Justice and delivered to: Janie Ingalls, United States 
Department of Justice Antitrust Division, Antitrust Documents Group, 
450 5th Street, NW, Suite 1024, Washington, D.C. 20530. In the event of 
a default in payment, interest at the rate of eighteen (18) percent per 
annum shall accrue thereon from the date of default to the date of 
payment.

[[Page 60319]]

IV. COOPERATION

    SK Energy shall cooperate fully with the United States regarding 
any matter about which SK Energy has knowledge or information relating 
to any ongoing civil investigation, litigation, or other proceeding 
arising out of any ongoing federal investigation of the subject matter 
discussed in the Complaint (hereinafter, any such investigation, 
litigation, or proceeding shall be referred to as a ``Civil Federal 
Proceeding'').
    The United States agrees that any cooperation provided in 
connection with the Plea Agreement and/or pursuant to the settlement 
agreement attached hereto as Attachment 1 will be considered 
cooperation for purposes of this Final Judgment, and the United States 
will use its reasonable best efforts, where appropriate, to coordinate 
any requests for cooperation in connection with the Civil Federal 
Proceeding with requests for cooperation in connection with the Plea 
Agreement and the settlement agreement attached hereto as Attachment 1, 
so as to avoid unnecessary duplication and expense.
    SK Energy's cooperation shall include, but not be limited to, the 
following:
    (a) Upon request, completely and truthfully disclosing and 
producing, to the offices of the United States and at no expense to the 
United States, copies of all non-privileged information, documents, 
materials, and records in its possession (and for any foreign-language 
information, documents, materials, or records, copies must be produced 
with an English translation), regardless of their geographic location, 
about which the United States may inquire in connection with any Civil 
Federal Proceeding, including but not limited to all information about 
activities of SK Energy and present and former officers, directors, 
employees, and agents of SK Energy;
    (b) Making available in the United States, at no expense to the 
United States, its present officers, directors, employees, and agents 
to provide information and/or testimony as requested by the United 
States in connection with any Civil Federal Proceeding, including the 
provision of testimony in trial and other judicial proceedings, as well 
as interviews with law enforcement authorities, consistent with the 
rights and privileges of those individuals;
    (c) Using its best efforts to make available in the United States, 
at no expense to the United States, its former officers, directors, 
employees, and agents to provide information and/or testimony as 
requested by the United States in connection with any Civil Federal 
Proceeding, including the provision of testimony in trial and other 
judicial proceedings, as well as interviews with law enforcement 
authorities, consistent with the rights and privileges of those 
individuals;
    (d) Providing testimony or information necessary to identify or 
establish the original location, authenticity, or other basis for 
admission into evidence of documents or physical evidence produced by 
SK Energy in any Civil Federal Proceeding as requested by the United 
States; and
    (e) Completely and truthfully responding to all other inquiries of 
the United States in connection with any Civil Federal Proceeding.
    However, notwithstanding any provision of this Final Judgment, SK 
Energy is not required to: (1) request of its current or former 
officers, directors, employees, or agents that they forgo seeking the 
advice of an attorney nor that they act contrary to that advice; (2) 
take any action against its officers, directors, employees, or agents 
for following their attorney's advice; or (3) waive any claim of 
privilege or work product protection.
    The obligations of SK Energy to cooperate fully with the United 
States as described in this Section shall cease upon the conclusion of 
all Civil Federal Proceedings (which may include Civil Federal 
Proceedings related to the conduct of third parties), including 
exhaustion of all appeals or expiration of time for all appeals of any 
Court ruling in each such Civil Federal Proceeding, at which point the 
United States will provide written notice to SK Energy that its 
obligations under this Section have expired.

V. ANTITRUST COMPLIANCE PROGRAM

    A. Within thirty (30) days after entry of this Final Judgment, SK 
Energy shall appoint an Antitrust Compliance Officer and identify to 
the United States his or her name, business address, telephone number, 
and email address. Within forty-five (45) days of a vacancy in the 
Antitrust Compliance Officer position, SK Energy shall appoint a 
replacement, and shall identify to the United States the Antitrust 
Compliance Officer's name, business address, telephone number, and 
email address. SK Energy's initial or replacement appointment of an 
Antitrust Compliance Officer is subject to the approval of the United 
States, in its sole discretion.
    B. The Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's employees and directors with 
responsibility for bidding for any contract with the United States. The 
antitrust compliance program shall provide at least two hours of 
training annually on the antitrust laws of the United States, such 
training to be delivered by an attorney with relevant experience in the 
field of United States 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 Paragraph V.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 United States antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to the United 
States 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 
SK Energy's compliance with Section V of this Final Judgment.

VI. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any of the parties 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 or terminate any of its 
provisions, to enforce compliance, and to punish violations of its 
provisions.

VII. ENFORCEMENT OF FINAL JUDGMENT

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. SK Energy agrees that in any civil contempt 
action, any motion to show cause, or any similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of the decree and the 
appropriateness of any remedy therefor by a preponderance of the 
evidence, and SK Energy waives any argument that a different standard 
of proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the

[[Page 60320]]

procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. SK Energy agrees that they may be held in contempt of, and 
that the Court may enforce, any provision of this Final Judgment that, 
as interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In any enforcement proceeding in which the Court finds that SK 
Energy has violated this Final Judgment, the United States may apply to 
the Court for a one-time extension of this Final Judgment, together 
with such other relief as may be appropriate. In connection with any 
successful effort by the United States to enforce this Final Judgment 
against SK Energy, whether litigated or resolved prior to litigation, 
SK Energy agrees to reimburse the United States for the fees and 
expenses of its attorneys, as well as any other costs including 
experts' fees, incurred in connection with that enforcement effort, 
including in the investigation of the potential violation.

VIII. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire seven (7) years from the date of its entry, except that after 
five (5) years from the date of its entry, this Final Judgment may be 
terminated upon notice by the United States to the Court and SK Energy 
that the continuation of the Final Judgment no longer is necessary or 
in the public interest.

IX. PUBLIC INTEREST DETERMINATION

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16, including making copies available to 
the public of this Final Judgment, the Competitive Impact Statement, 
and any comments thereon and the United States' 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:-----------------------------------------------------------------

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

United States District Judge

ATTACHMENT 1

SETTLEMENT AGREEMENT

    This Settlement Agreement (Agreement) is entered into among the 
United States of America, acting through the Civil Division of the 
United States Department of Justice and the United States Attorney's 
Office for the Southern District of Ohio, on behalf of the Defense 
Logistics Agency (DLA) and the Army and Air Force Exchange Service 
(AAFES) (collectively the ``United States''), SK Energy Co., Ltd. (SK 
Energy), and Relator [REDACTED] (hereafter collectively referred to as 
``the Parties''), through their authorized representatives.

RECITALS

    A. SK Energy is a South Korea-based energy company that produces 
various petroleum products that it sells to South Korean and 
international customers, including the United States Department of 
Defense (DoD).
    B. On February 28, 2018, Relator, a resident and citizen of South 
Korea, filed a qui tam action in the United States District Court for 
the Southern District of Ohio captioned United States ex rel. 
[REDACTED] v. GS Caltex, et al., Civil Action No. [REDACTED], pursuant 
to the qui tam provisions of the False Claims Act, 31 U.S.C. Sec.  
3730(b) (the Civil FCA Action). Relator contends that SK Energy 
conspired with other South Korean entities to rig bids on DoD contracts 
to supply fuel to U.S. military bases throughout South Korea beginning 
in 2005 and continuing until 2016, including DLA Post, Camps, and 
Stations (PC&S) contracts executed in 2006, 2009, and 2013, and AAFES 
contracts executed in 2008.
    C. On such date as may be determined by the Court, SK Energy will 
plead guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C) (the ``Plea 
Agreement'') to an Information to be filed in United States v. SK 
Energy Co., Ltd., Criminal Action No. [to be assigned] (S.D. Ohio) (the 
``Criminal Action'') that will allege that SK Energy participated in a 
combination and conspiracy beginning at least in or around March 2005 
and continuing until at least in or around October 2016, to suppress 
and eliminate competition on certain contracts solicited by the DoD to 
supply fuel to numerous U.S. Army, Navy, Marine, and Air Force 
installations in Korea, including PC&S contracts and the 2008 AAFES 
contract, in violation of the Sherman Antitrust Act, 15 U.S.C. Sec.  1.
    D. SK Energy will execute a Stipulation with the Antitrust Division 
of the United States Department of Justice in which SK Energy will 
consent to the entry of a Final Judgment to be filed in United States 
v. SK Energy Co., Ltd., Civil Action No. [to be assigned] (S.D. Ohio) 
(the Civil Antitrust Action) that will settle any and all civil 
antitrust claims of the United States against SK Energy arising from 
any act or offense committed before the date of the Stipulation that 
was undertaken in furtherance of an attempted or completed antitrust 
conspiracy involving PC&S and/or AAFES fuel supply contracts with the 
U.S. military in South Korea during the period 2005 through 2016.
    E. The United States contends that it has certain civil claims 
against SK Energy arising from the conduct described in the Plea 
Agreement in the Criminal Action and in the Stipulation in the Civil 
Antitrust Action, as well as the conduct, actions, and claims alleged 
by Relator in the Civil FCA Action. The conduct referenced in this 
Paragraph is referred to below as the Covered Conduct.
    F. With the exception of any admissions that are made by SK Energy 
in connection with the Plea Agreement in the Criminal Action, this 
Settlement Agreement is neither an admission of liability by SK Energy 
nor a concession by the United States that its claims are not well 
founded.
    G. Relator claims entitlement under 31 U.S.C. Sec.  3730(d) to a 
share of the proceeds of this Settlement Agreement and to Relator's 
reasonable expenses, attorneys' fees and costs.
    To avoid the delay, uncertainty, inconvenience, and expense of 
protracted litigation of the above claims, and in consideration of the 
mutual promises and obligations of this Settlement Agreement, the 
Parties agree and covenant as follows:

TERMS AND CONDITIONS

    1.a. SK Energy agrees to pay to the United States $71,866,000 (FCA 
Settlement Amount), of which $47,910,887 is restitution, by electronic 
funds transfer no later than thirteen (13) business days after the 
Effective Date of this Agreement pursuant to written instructions to be 
provided by the Civil Division of the Department of Justice. Relator 
claims entitlement under 31 U.S.C. Sec.  3730(d) to Relator's 
reasonable expenses, attorneys' fees and costs. The FCA Settlement 
Amount does not include the Relator's fees and costs, and SK Energy 
acknowledges that Relator retains all rights to recover such expenses, 
attorneys' fees, and costs from SK Energy pursuant to 31 U.S.C. Sec.  
3730(d).
    1.b. If SK Energy's Plea Agreement in the Criminal Action is not 
accepted by

[[Page 60321]]

the Court or the Court does not enter a Final Judgment in the Civil 
Antitrust Action, this Agreement shall be null and void at the option 
of either the United States or SK Energy. If either the United States 
or SK Energy exercises this option, which option shall be exercised by 
notifying all Parties, through counsel, in writing within five (5) 
business days of the Court's decision, the Parties will not object and 
this Agreement will be rescinded and the FCA Settlement Amount shall be 
returned to SK Energy. If this Agreement is rescinded, SK Energy will 
not plead, argue or otherwise raise any defenses under the theories of 
statute of limitations, laches, estoppel or similar theories, to any 
civil or administrative claims, actions or proceedings arising from the 
Covered Conduct that are brought by the United States within ninety 
(90) calendar days of rescission, except to the extent such defenses 
were available on the day on which Relator's qui tam complaint in the 
Civil FCA Action was filed.
    2. Subject to the exceptions in Paragraph 4 (concerning excluded 
claims) below, and conditioned upon SK Energy's full payment of the FCA 
Settlement Amount, the United States releases SK Energy together with 
its current and former parent corporations; direct and indirect 
subsidiaries; brother or sister corporations; divisions; current or 
former corporate owners; and the corporate successors and assigns of 
any of them (the ``SK Energy Released Parties'') from any civil or 
administrative monetary claim the United States has for the Covered 
Conduct under the False Claims Act, 31 U.S.C. Sec. Sec.  3729-3733; the 
Program Fraud Civil Remedies Act, 31 U.S.C. Sec. Sec.  3801-3812; 
Contract Disputes Act, 41 U.S.C. Sec. Sec.  7101-7109; or the common 
law theories of breach of contract, payment by mistake, unjust 
enrichment, and fraud.
    3. Except as set forth in Paragraph 1 (concerning Relator's claims 
under 31 U.S.C. Sec.  3730(d)), and conditioned upon SK Energy's full 
payment of the FCA Settlement Amount, Relator, for himself and for his 
heirs, successors, attorneys, agents, and assigns, releases the SK 
Energy Released Parties from (a) any civil monetary claim the Relator 
has or may have for the claims set forth in the Civil FCA Action, the 
Civil Antitrust Action, the Criminal Action, and the Covered Conduct 
under the False Claims Act, 31 U.S.C. Sec. Sec.  3729-3733, up until 
the date of this Agreement; and (b) all liability, claims, demands, 
actions, or causes of action whatsoever, whether known or unknown, 
fixed or contingent, in law or in equity, in contract or in tort, under 
any federal, state, or Korean statute, law, regulation or doctrine, 
that Relator, his heirs, successors, attorneys, agents, and assigns 
otherwise has brought or would have standing to bring as of the date of 
this Agreement, including any liability to Relator arising from or 
relating to the claims Relator asserted or could have asserted in the 
Civil FCA Action, up until the date of this Agreement. Relator further 
represents he does not know of any conduct by the SK Energy Released 
Parties or any current or former owners, officers, directors, trustees, 
shareholders, employees, executives, agents, or affiliates of the SK 
Energy Released Parties that would constitute a violation of the False 
Claims Act other than the claims set forth in the Civil FCA Action and 
the Covered Conduct, and Relator acknowledges and agrees that his 
representations are a material inducement to SK Energy's willingness to 
enter into this Agreement.
    4. Notwithstanding the releases given in paragraphs 2 and 3 of this 
Agreement, or any other term of this Agreement, the following claims of 
the United States are specifically reserved and are not released:
    a. Any liability arising under Title 26, U.S. Code (Internal 
Revenue Code);
    b. Any criminal liability, except to the extent detailed in the 
Plea Agreement;
    c. Except as explicitly stated in this Agreement, any 
administrative liability, including the suspension and debarment rights 
of any federal agency;
    d. Any liability to the United States (or its agencies) for any 
conduct other than the Covered Conduct;
    e. Any liability based upon obligations created by this Agreement;
    f. Any liability of individuals;
    g. Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services;
    h. Any liability for failure to deliver goods or services due; and
    i. Any liability for personal injury or property damage or for 
other consequential damages arising from the Covered Conduct.
    5. Relator and his heirs, successors, attorneys, agents, and 
assigns shall not object to this Agreement but agree and confirm that 
this Agreement is fair, adequate, and reasonable under all the 
circumstances, pursuant to 31 U.S.C. Sec.  3730(c)(2)(B). The 
determination of Relator's share, if any, of the FCA Settlement Amount 
pursuant to 31 U.S.C. Sec.  3730(d) is a matter that shall be handled 
separately by and between the Relator and the United States, without 
any direct involvement or input from SK Energy. In connection with this 
Agreement and this Civil FCA Action, Relator, on behalf of himself and 
his heirs, successors, attorneys, agents, and assigns agrees that 
neither this Agreement, nor any intervention by the United States in 
the Civil FCA Action in order to dismiss the Civil FCA Action, nor any 
dismissal of the Civil FCA Action, shall waive or otherwise affect the 
ability of the United States to contend that provisions in the False 
Claims Act, including 31 U.S.C. Sec.  3730(d)(3), bar Relator from 
sharing in the proceeds of this Agreement, except that the United 
States will not contend that Relator is barred from sharing in the 
proceeds of this Agreement pursuant to 31 U.S.C. Sec.  3730(e)(4). 
Moreover, the United States and Relator, on behalf of himself and his 
heirs, successors, attorneys, agents, and assigns agree that they each 
retain all of their rights pursuant to the False Claims Act on the 
issue of the share percentage, if any, that Relator should receive of 
any proceeds of the settlement of his claims, and that no agreements 
concerning Relator share have been reached to date.
    6. SK Energy waives and shall not assert any defenses SK Energy may 
have to any criminal prosecution or administrative action relating to 
the Covered Conduct that may be based in whole or in part on a 
contention that, under the Double Jeopardy Clause in the Fifth 
Amendment of the Constitution, or under the Excessive Fines Clause in 
the Eighth Amendment of the Constitution, this Agreement bars a remedy 
sought in such criminal prosecution or administrative action.
    7. SK Energy fully and finally releases the United States, its 
agencies, officers, agents, employees, and servants, from any claims 
(including attorney's fees, costs, and expenses of every kind and 
however denominated) that SK Energy has asserted, could have asserted, 
or may assert in the future against the United States, its agencies, 
officers, agents, employees, and servants, related to the Covered 
Conduct and the United States' investigation and prosecution thereof.
    8. Conditioned upon Relator's agreement herein, the SK Energy 
Released Parties fully and finally release Relator his heirs, 
successors, assigns, agents and attorneys (the ``Relator Released 
Parties''), from (a) any civil monetary claim SK Energy has or may have 
now or in the future against the Relator Released Parties related to 
the claims set forth in the Civil FCA Action, the Civil Antitrust 
Action, the Criminal Action, and the Covered Conduct under the False 
Claims Act, 31 U.S.C. Sec. Sec.  3729-3733, and the Relator's 
investigation and prosecution thereof, including

[[Page 60322]]

attorney's fees, costs, and expenses of every kind and however 
denominated, up until the date of this Agreement; and (b) all 
liability, claims, demands, actions, or causes of action whatsoever, 
whether known or unknown, fixed or contingent, in law or in equity, in 
contract or in tort, under any federal, state, or Korean statute, law, 
regulation or doctrine, that the SK Energy Released Parties otherwise 
have brought or would have standing to bring as of the date of this 
Agreement, including any liability to SK Energy arising from or 
relating to claims the SK Energy Released Parties asserted or could 
have asserted related to the Civil FCA Action, up until the date of 
this Agreement. The SK Energy Released Parties further acknowledge and 
agree that these representations are a material inducement to Relator's 
willingness to enter into this Agreement.
    9.a. Unallowable Costs Defined: All costs (as defined in the 
Federal Acquisition Regulation, 48 C.F.R. Sec.  31.205-47) incurred by 
or on behalf of SK Energy, and its present or former officers, 
directors, employees, shareholders, and agents in connection with:
    (1) the matters covered by this Agreement, any related plea 
agreement, and any related civil antitrust agreement;
    (2) the United States' audit(s) and civil and any criminal 
investigation(s) of the matters covered by this Agreement;
    (3) SK Energy's investigation, defense, and corrective actions 
undertaken in response to the United States' audit(s) and civil and any 
criminal investigation(s) in connection with the matters covered by 
this Agreement (including attorney's fees);
    (4) the negotiation and performance of this Agreement, any related 
plea agreement, and any related civil antitrust agreement;
    (5) the payment SK Energy makes to the United States pursuant to 
this Agreement and any payments that SK Energy may make to Relator, 
including costs and attorneys' fees,

are unallowable costs for government contracting purposes (hereinafter 
referred to as Unallowable Costs).

    b. Future Treatment of Unallowable Costs: Unallowable Costs will be 
separately determined and accounted for by SK Energy, and SK Energy 
shall not charge such Unallowable Costs directly or indirectly to any 
contract with the United States.
    c. Treatment of Unallowable Costs Previously Submitted for Payment: 
Within 90 days of the Effective Date of this Agreement, SK Energy shall 
identify and repay by adjustment to future claims for payment or 
otherwise any Unallowable Costs included in payments previously sought 
by SK Energy or any of its subsidiaries or affiliates from the United 
States. SK Energy agrees that the United States, at a minimum, shall be 
entitled to recoup from SK Energy any overpayment plus applicable 
interest and penalties as a result of the inclusion of such Unallowable 
Costs on previously-submitted requests for payment. The United States, 
including the Department of Justice and/or the affected agencies, 
reserves its rights to audit, examine, or re-examine SK Energy's books 
and records and to disagree with any calculations submitted by SK 
Energy or any of its subsidiaries or affiliates regarding any 
Unallowable Costs included in payments previously sought by SK Energy, 
or the effect of any such Unallowable Costs on the amount of such 
payments.
    10. SK Energy agrees to cooperate fully and truthfully with the 
United States in connection with the Civil FCA Action. The Civil 
Division of the United States Department of Justice will use reasonable 
best efforts, where appropriate, to coordinate any requests for 
cooperation in connection with the Civil FCA Action with requests for 
cooperation in connection with the Plea Agreement in the Criminal 
Action and the Civil Antitrust Action, so as to avoid unnecessary 
duplication and expense. SK Energy's ongoing, full, and truthful 
cooperation shall include, but not be limited to:
    a. upon request by the United States with reasonable notice, 
producing at the offices of counsel for the United States in 
Washington, D.C. and not at the expense of the United States, complete 
and un-redacted copies of all non-privileged documents related to the 
Covered Conduct wherever located in SK Energy's possession, custody, or 
control, including but not limited to, reports, memoranda of 
interviews, and records concerning any investigation of the Covered 
Conduct that SK Energy has undertaken, or that has been performed by 
another on SK Energy's behalf;
    b. upon request by the United States with reasonable notice, making 
current SK Energy directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon;
    c. upon request by the United States with reasonable notice, (i) 
using best efforts to assist in locating former SK Energy directors, 
officers, and employees identified by attorneys and/or investigative 
agents of the United States, and (ii) using best efforts to make any 
such former SK Energy directors, officers, and employees available for 
interviews, consistent with the rights and privileges of such 
individuals, by counsel for the United States and/or their 
investigative agents, not at the expense of the United States, in the 
United States or Hong Kong, unless another place is mutually agreed 
upon; and
    d. upon request by the United States with reasonable notice, making 
current SK Energy directors, officers, and employees available, and 
using best efforts to make former SK Energy directors, officers, 
employees available, to testify, consistent with the rights and 
privileges of such individuals, fully, truthfully, and under oath, 
without falsely implicating any person or withholding any information, 
(i) at depositions in the United States, Hong Kong, or any other 
mutually agreed upon place, (ii) at trial in the United States, and 
(iii) at any other judicial proceedings wherever located related to the 
Civil FCA Action.
    11. This Agreement is intended to be for the benefit of the Parties 
only.
    12. Upon receipt of the payment of the FCA Settlement Amount 
described in Paragraph 1 above, the Court's acceptance of SK Energy's 
Plea Agreement in the Criminal Action, and the Court's entry of a Final 
Judgment in the Civil Antitrust Action, the United States and Relator 
shall promptly sign and file a Joint Stipulation of Dismissal, with 
prejudice, of the claims filed against SK Energy in the Civil FCA 
Action, pursuant to Rule 41(a)(1), which dismissal shall be conditioned 
on the Court retaining jurisdiction over Relator's claims to a 
relator's share and recovery of attorneys' fees and costs pursuant to 
31 U.S.C. Sec.  3730(d).
    13. Except with respect to the recovery of Relator's attorneys' 
fees, expenses, and costs pursuant to 31 U.S.C. Sec.  3730(d), each 
Party shall bear its own legal and other costs incurred in connection 
with this matter. The Parties agree that Relator and SK Energy will not 
seek to recover from the United States any costs or fees related to the 
preparation and performance of this Agreement.
    14. Each party and signatory to this Agreement represents that it 
freely and voluntarily enters in to this Agreement without any degree 
of duress or compulsion.
    15. This Agreement is governed by the laws of the United States. 
The exclusive

[[Page 60323]]

jurisdiction and venue for any dispute relating to this Agreement is 
the United States District Court for the Southern District of Ohio. SK 
Energy agrees that the United States District Court for the Southern 
District of Ohio has jurisdiction over it for purposes of this case. 
For purposes of construing this Agreement, this Agreement shall be 
deemed to have been drafted by all Parties to this Agreement and shall 
not, therefore, be construed against any Party for that reason in any 
subsequent dispute.
    16. This Agreement constitutes the complete agreement between the 
Parties on the subject matter addressed herein. This Agreement may not 
be amended except by written consent of the Parties.
    17. The undersigned counsel represent and warrant that they are 
fully authorized to execute this Agreement on behalf of the persons and 
entities indicated below.
    18. This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same 
Agreement.
    19. This Agreement is binding on SK Energy's successors, 
transferees, heirs, and assigns.
    20. This Agreement is binding on Relator's successors, transferees, 
heirs, and assigns.
    21. All parties consent to the United States' disclosure of this 
Agreement, and information about this Agreement, to the public, as 
permitted by order of the Court. This Agreement shall not be released 
in un-redacted form until the Court unseals the entire Civil FCA 
Action.
    22. This Agreement is effective on the date of signature of the 
last signatory to the Agreement (Effective Date of this Agreement). 
Facsimiles of signatures shall constitute acceptable, binding 
signatures for purposes of this Agreement.

The United States of America
Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Andrew A. Steinberg,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 
Department of Justice

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Mark T. D'Alessandro,
Civil Chief

Andrew Malek,
Assistant United States Attorney, U.S. Attorney's Office for the 
Southern District of Ohio

SK Energy Co., Ltd.--Defendant

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Myunghun Lee,
Authorized Representative of SK Energy, Co., Ltd.
Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Phillip H. Warren,
Counsel for SK Energy Co., Ltd.
[Redacted]--Relator

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

[Redacted]

Dated:-----------------------------------------------------------------

By:--------------------------------------------------------------------

Eric Havian,
Counsel for Relator

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN 
DIVISION

    United States of America, Plaintiff, v. GS Caltex Corporation, 
Hanjin Transportation Co., Ltd., and SK Energy Co., Ltd. Defendants.

Case No. 2:18-cv-01456-ALM-CMV

COMPETITIVE IMPACT STATEMENT

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

I. NATURE AND PURPOSE OF THE PROCEEDING

    On November 14, 2018, the United States filed a civil antitrust 
complaint against Defendants GS Caltex Corporation (``GS Caltex''), 
Hanjin Transportation Co., Ltd. (``Hanjin''), and SK Energy Co., Ltd. 
(``SK Energy'') alleging that Defendants violated Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1. From at least March 2005 and continuing 
until at least October 2016 (``the Relevant Period''), Defendants and 
their co-conspirators conspired to fix prices and rig bids for the 
supply of fuel to the U.S. military for its operations in South Korea. 
As a result of this illegal conduct, Defendants and their co-
conspirators overcharged American taxpayers by well over $100 million. 
Defendants have agreed to plead guilty to an information charging a 
criminal violation of Section 1 of the Sherman Act for this unlawful 
conduct; in this parallel civil action, the United States seeks 
compensation for the injury it incurred as a result of the conspiracy.
    At the same time the Complaint was filed, the United States also 
filed agreed-upon proposed Final Judgments that would remedy the 
violation by having GS Caltex, Hanjin, and SK Energy pay $57,500,000, 
$6,182,000, and $90,384,872, respectively, to the United States. These 
payments resolve all civil claims of the United States related to the 
conduct described in the Complaint. The United States and Defendants 
have stipulated that the proposed Final Judgments may be entered after 
compliance with the APPA. Entry of the proposed Final Judgments would 
terminate this action, except that the Court would retain jurisdiction 
to construe, modify, or enforce the provisions of the proposed Final 
Judgments and to punish violations thereof.

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

A. Defendants

    GS Caltex is an oil company headquartered in Seoul, South Korea. GS 
Caltex is a joint venture between GS Energy, a South Korean 
corporation, and Chevron Corp., a Delaware corporation, which each own 
a 50 percent interest in GS Caltex. GS Caltex is engaged in the 
refining and supply of gasoline, diesel, kerosene, and other petroleum 
products for sale internationally. During the time of the conspiracy, 
GS Caltex supplied fuel to U.S. military installations in South Korea.
    Hanjin is a global transportation and logistics company based in 
Seoul, South Korea. Hanjin is a member of Hanjin Group, a South Korean 
conglomerate with U.S. subsidiaries, including Hanjin International 
America. Beginning in 2009, Hanjin partnered with oil companies, 
including a co-conspirator oil company (``Company A''), to supply fuel 
to U.S. military installations in South Korea.
    SK Energy is an oil company headquartered in Seoul, South Korea. SK 
Energy is engaged in the refining and supply of gasoline, diesel, 
kerosene, and other petroleum products for sale internationally. During 
the time of the conspiracy, SK Energy supplied fuel to U.S. military 
installations in South Korea.
    Other persons, not named as defendants in this action, participated 
as co-conspirators in the violation alleged in the Complaint and 
performed acts and made statements in furtherance thereof. These co-
conspirators included, among others, a logistics firm (``Company B'') 
and an oil company (``Company C'') that jointly supplied fuel to the 
U.S. military.

B. PC&S and AAFES Contracts

    The United States military procures fuel for its installations in 
South Korea through competitive solicitation processes. Oil companies, 
either independently or with a transportation company, submitted bids 
in response to these solicitations.

[[Page 60324]]

    The conduct at issue in this action relates to two types of 
contracts to supply fuel to the U.S. military in South Korea: Post, 
Camps, and Stations (``PC&S'') contracts and Army and Air Force 
Exchange Services (``AAFES'') contracts.
    PC&S contracts are issued and administered by the Defense Logistics 
Agency (``DLA''), a combat support agency of the U.S. Department of 
Defense. The fuel procured under PC&S contracts is used to power 
military vehicles and heat U.S. military buildings. During the Relevant 
Period, DLA issued PC&S solicitations listing the fuel requirements for 
installations across South Korea, with each delivery location 
identified by a separate line item. Bidders submitted initial bids, 
offering a price for each line item on which they chose to bid. After 
DLA reviewed the initial bids, bidders were allowed to submit revised 
final bids. DLA reviewed the bids and awarded contracts to the bidders 
offering the lowest price for each line item. Payments under the PC&S 
contracts were wired to the awardees by a finance and accounting agency 
of the U.S. Department of Defense from its office in Columbus, Ohio.
    AAFES is an agency of the Department of Defense headquartered in 
Dallas, Texas. AAFES operates official retail stores (known as 
``exchanges'') on U.S. Army and Air Force installations worldwide, 
which U.S. military personnel and their families use to purchase 
everyday goods and services, including gasoline for use in their 
personal vehicles. AAFES procures fuel for these stores via contracts 
awarded through a competitive solicitation process.
    In 2008, AAFES issued a solicitation that listed the fuel 
requirements for installations in South Korea. Bidders submitted bids 
offering a price for each line item in the solicitation. Unlike DLA, 
AAFES awarded the entire 2008 contract to the bidder offering the 
lowest price across all the listed locations.

C. The Alleged Violation

    The Complaint alleges that Defendants and their co-conspirators 
engaged in a series of meetings, telephone conversations, e-mails, and 
other communications to rig bids and fix prices for the supply of fuel 
to U.S. military installations in South Korea under several PC&S and 
AAFES contracts.
    First, the Complaint alleges that GS Caltex, SK Energy, and 
Companies B and C conspired to rig bids and fix prices on the contracts 
issued in response to DLA solicitations SP0600-05-R-0063 and SP0600-05-
R-0063-0001 (``2006 PC&S contracts''). The term of the 2006 PC&S 
contracts covered the supply of fuel from February 2006 through July 
2009.
    The Complaint alleges that between early 2005 and mid-2006, GS 
Caltex, SK Energy, and other conspirators met multiple times and 
exchanged phone calls and e-mails to allocate the line items in the 
solicitations for the 2006 PC&S contracts. Through such communications, 
these conspirators agreed to inflate their bids to produce larger 
profit margins. For each line item allocated to a different co-
conspirator, the other conspirators agreed not to bid or to bid high 
enough to ensure that they would not win that item. DLA awarded the 
2006 PC&S line items according to the allocations made by the 
conspiracy.
    Second, the Complaint alleges that, as part of their discussions 
related to the 2006 PC&S contracts, GS Caltex and other conspirators 
agreed not to compete with SK Energy in bidding for the June 2008 AAFES 
solicitation (``2008 AAFES contract''). The initial term of the 2008 
AAFES contract ran from July 2008 to July 2010; the contract was later 
extended through July 2013.
    Third, the Complaint alleges that Defendants and other co-
conspirators conspired to rig bids and fix prices for the contracts 
issued in response to DLA solicitation SP0600-08-R-0233 (``2009 PC&S 
contracts''). Hanjin and Company A joined the conspiracy for the 
purpose of bidding on SP0600-08-R-0233. The term of the 2009 PC&S 
contracts covered the supply of fuel from October 2009 through August 
2013.
    The Complaint explains that between late 2008 and mid-2009, 
Defendants and other co-conspirators met multiple times and exchanged 
phone calls and e-mails to allocate the line items in the solicitation 
for the 2009 PC&S contracts. As in 2006, these conspirators agreed to 
bid high so as to not win line items allocated to other co-
conspirators. The original conspirators agreed to allocate to Hanjin 
and Company A certain line items that had previously been allocated to 
the original conspirators.
    Finally, the Complaint alleges that Defendants and other co-
conspirators once again conspired to rig bids and fix prices for the 
contracts issued in response to DLA solicitation SP0600-12-R-0332 
(``2013 PC&S contracts''). The term of the 2013 PC&S contracts covered 
the supply of fuel from August 2013 through July 2016.
    The Complaint explains that Defendants and other co-conspirators 
communicated via phone calls and e-mails to allocate and set the price 
for each line item in the solicitation for the 2013 PC&S contracts. 
Defendants and other co-conspirators believed that they had an 
agreement as to their bidding strategy and pricing for the 2013 PC&S 
contracts. As a result of this agreement, they submitted bids with 
pricing above what they would have offered absent collusion.
    Hanjin and Company A submitted bids for the 2013 PC&S contracts 
below the prices set by the other co-conspirators, however. Although 
lower than the pricing agreed upon by the conspirators, Hanjin and 
Company A still submitted bids above a competitive, non-collusive 
price, knowing that they would likely win the contracts because the 
other conspirators would bid even higher prices.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENTS

    For violations of Section 1 of the Sherman Act, the United States 
may seek damages, 15 U.S.C. Sec.  15a, and equitable relief, 15 U.S.C. 
Sec.  4, including equitable monetary remedies. See United States v. 
KeySpan Corp., 763 F. Supp. 2d 633, 638-641 (S.D.N.Y. 2011).
    This action is also related to a qui tam action currently filed 
under seal in the United States District Court for the Southern 
District of Ohio, alleging a violation of the False Claims Act, 31 
U.S.C. Sec.  3730, based on the same facts alleged in the Complaint.

A. Payment and Cooperation

    The proposed Final Judgments require GS Caltex, Hanjin, and SK 
Energy respectively to pay $57,500,000, $6,182,000, and $90,384,872 to 
the United States within 10 business days of entry of the Final 
Judgment. These payments will satisfy all civil claims arising from the 
events described in Section II supra that the United States has against 
the Defendants under Section 1 of the Sherman Act and under the False 
Claims Act. The resolution of the United States' claims under the False 
Claims Act is set forth in separate agreements reached between the 
Defendants, the U.S. Attorney's Office for the Southern District of 
Ohio, and the U.S. Department of Justice's Civil Division. See 
Attachment 1 to each of the proposed Final Judgments.
    As a result of the unlawful agreements in restraint of trade 
between Defendants and their co-conspirators, the United States paid 
more for the supply of fuel to U.S. military installations in South 
Korea than it would have if the companies had engaged in fair and 
honest competition. Defendants' payments under the proposed Final

[[Page 60325]]

Judgments fully compensate the United States for losses it suffered and 
deprive Defendants of the illegitimate profits they gained as a result 
of the collusive bidding. In addition to the payment of damages, the 
proposed Final Judgments also require the Defendants to cooperate with 
the United States regarding any ongoing civil investigation, trial, or 
other proceeding related to the conduct described in the Complaint. To 
assist with these proceedings, Defendants are required to provide all 
non-privileged information in their possession, make available their 
present employees, and use best efforts to make available their former 
employees, for interviews or testimony, as requested by the United 
States. This cooperation will help the United States pursue 
compensation from co-conspirators not named in this action.
    Under Section 4A of the Clayton Act, the United States is entitled 
to treble damages for injuries it has suffered as a result of 
violations of the Sherman Act. Under the proposed Final Judgments, each 
Defendant will pay an amount that exceeds the overcharge but that 
reflects the value of the cooperation commitments the Defendants have 
made as a condition of settlement and the cost savings realized by 
avoiding extended litigation.
    The proposed Final Judgments also require each Defendant to appoint 
an Antitrust Compliance Officer and to institute an antitrust 
compliance program. Under the antitrust compliance program, employees 
and directors of Defendants with responsibility for bidding on 
contracts with the United States must undergo training and all 
employees must be informed that there will no reprisal for disclosing 
to the Antitrust Compliance Officer any potential violations of the 
United States antitrust laws. The Antitrust Compliance Officer is 
required annually to certify that Defendant is in compliance with this 
requirement.

B. Enforcement of Final Judgments

    The proposed Final Judgments contain provisions designed to promote 
compliance and make the enforcement of Division consent decrees as 
effective as possible. Paragraph VII(A) provides that the United States 
retains and reserves all rights to enforce the provisions of the 
proposed Final Judgments, including its rights to seek an order of 
contempt from the Court. Defendants have agreed that in any civil 
contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of the 
Final Judgments, the United States may establish the violation and the 
appropriateness of any remedy by a preponderance of the evidence and 
that the Defendants have waived any argument that a different standard 
of proof should apply. This provision aligns the standard for 
compliance obligations with the standard of proof that applies to the 
underlying offense that the compliance commitments address.
    Paragraph VII(B) provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgments. The 
proposed Final Judgments were drafted to restore all competition the 
United States alleged was harmed by the Defendants' challenged conduct. 
The Defendants agree that they will abide by the proposed Final 
Judgments, and that they may be held in contempt of this Court for 
failing to comply with any provision of the proposed Final Judgments 
that is stated specifically and in reasonable detail, as interpreted in 
light of this procompetitive purpose.
    Paragraph VII(C) further provides that should the Court find in an 
enforcement proceeding that a Defendant has violated the Final 
Judgment, the United States may apply to the Court for a one-time 
extension of the Final Judgment, together with such other relief as may 
be appropriate. In addition, in order to compensate American taxpayers 
for any costs associated with the investigation and enforcement of 
violations of a proposed Final Judgment, Paragraph VII(C) provides that 
in any successful effort by the United States to enforce a Final 
Judgment against a Defendant, whether litigated or resolved before 
litigation, Defendants agree to reimburse the United States for any 
attorneys' fees, experts' fees, or costs incurred in connection with 
any enforcement effort, including the investigation of the potential 
violation.
    Finally, Section VIII of the proposed Final Judgments provide that 
each Final Judgment shall expire seven years from the date of its 
entry, except that after five years from the date of its entry, a Final 
Judgment may be terminated upon notice by the United States to the 
Court and the Defendant that the continuation of that Final Judgment is 
no longer necessary or in the public interest.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Entry of the proposed Final Judgments will neither impair nor 
assist the bringing of any private antitrust damages action. Under the 
provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec.  16(a), 
the proposed Final Judgments have no prima facie effect in any 
subsequent lawsuit that may be brought against Defendants.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL 
JUDGMENTS

    The United States and Defendants have stipulated that the proposed 
Final Judgments 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 Judgments are in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgments within which any 
person may submit to the United States written comments regarding a 
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, which remains free to withdraw 
its consent to a 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 Antitrust Division's internet website and, in certain 
circumstances, published in the Federal Register.
    Written comments should be submitted by mail to:

Kathleen S. O'Neill, Chief, Transportation, Energy & Agriculture 
Section, Antitrust Division, United States Department of Justice, 450 
5th Street NW, Suite 8000, Washington, DC 20530

    The proposed Final Judgments provide that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any necessary or appropriate modification, interpretation, or 
enforcement of a Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENTS

    The United States considered, as an alternative to the proposed 
Final Judgments, a full trial on the merits against Defendants. The 
United States is satisfied, however, that the relief in the proposed 
Final Judgments remedies the violation of the Sherman Act alleged in 
the Complaint. The proposed Final

[[Page 60326]]

Judgments represent substantial monetary relief while avoiding the 
time, expense, and uncertainty of a full trial on the merits. Further, 
Defendants' agreements to cooperate with the civil investigation and 
any potential litigation will enhance the ability of the United States 
to obtain relief from the remaining conspirators.

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

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a 60-day comment period, after which the court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. Sec.  16(e)(1). In making that 
determination, the court, in accordance with the statute as amended in 
2004, is required to consider:
    (A) the competitive impact of such judgment, including termination 
of alleged violations, provisions for enforcement and modification, 
duration of relief sought, anticipated effects of alternative remedies 
actually considered, whether its terms are ambiguous, and any other 
competitive considerations bearing upon the adequacy of such judgment 
that the court deems necessary to a determination of whether the 
consent judgment is in the public interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and individuals 
alleging specific injury from the violations set forth in the complaint 
including consideration of the public benefit, if any, to be derived 
from a determination of the issues at trial.

15 U.S.C. Sec.  16(e)(1)(A) & (B). In considering these statutory 
factors, the court's inquiry is necessarily a limited one as the 
government is entitled to ``broad discretion to settle with the 
defendant within the reaches of the public interest.'' United States v. 
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act); United 
States v. Hillsdale Cmty. Health Ctr., 2015 U.S. Dist. LEXIS 162505, at 
*3 (E.D. Mich. 2015) (explaining that the ``Court's review is limited'' 
in Tunney Act settlements); United States v. InBev N.V./S.A., No. 08-
1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) 
(noting that the court's review of a consent judgment is limited and 
only inquires ``into whether the government's determination that the 
proposed remedies will cure the antitrust violations alleged in the 
complaint was reasonable, and whether the mechanism to enforce the 
final judgment are clear and manageable'').
    Under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations in 
the government's complaint, whether the decree is sufficiently clear, 
whether its enforcement mechanisms are sufficient, and whether the 
decree may positively harm third parties. See Microsoft, 56 F.3d at 
1458-62; United States v. Medical Mut. of Ohio, 1998 U.S. Dist. LEXIS 
21508, at *2-3 (N.D. Ohio 1998). With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. Instead:
    [t]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to the 
decree. The court is required to determine not whether a particular 
decree is the one that will best serve society, but whether the 
settlement is ``within the reaches of the public interest.'' More 
elaborate requirements might undermine the effectiveness of antitrust 
enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\1\
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    \1\ See also BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass'').
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    In determining whether a proposed settlement is in the public 
interest, a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also United States v. U.S. Airways 
Group, Inc., 38 F. Supp. 3d 69, 74 (D.D.C. 2014) (noting that a court 
should not reject the proposed remedies because it believes others are 
preferable and that room must be made for the government to grant 
concessions in the negotiation process for settlements); United States 
v. Dairy Farmers of Am., Inc., 2007 U.S. Dist. LEXIS 33230, at *3 (E.D. 
Ky. 2007) (citing United States v. Microsoft, 231 F. Supp. 2d 144, 152 
(D.D.C. 2002)) (noting that a court ``must accord deference 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 
government's prediction as to the effect of proposed remedies, its 
perception of the market structure, and its views of the nature of the 
case''). The ultimate question is 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.' '' Microsoft, 56 F.3d 
at 1461 (quoting United States v. Western Elec. Co., 900 F.2d 283, 309 
(D.C. Cir. 1990)). 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 U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the `public 
interest' is not to be measured by comparing the violations alleged in 
the complaint against those the court believes could have, or even 
should have, been alleged.''). Because the ``court's authority to 
review the decree depends entirely on the government's 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; see also Dairy Farmers, 2007 U.S. Dist. LEXIS 33230 at 
*3 (citing Microsoft favorably). As the United States District Court 
for the District of Columbia confirmed in

[[Page 60327]]

SBC Communications, courts ``cannot look beyond the complaint in making 
the public interest determination unless the complaint is drafted so 
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. 
Supp. 2d at 15.
    In its 2004 amendments,\2\ Congress made clear its intent to 
preserve the practical benefits of utilizing consent decrees in 
antitrust enforcement, adding the unambiguous instruction that 
``[n]othing in this section shall be construed to require the court to 
conduct an evidentiary hearing or to require the court to permit anyone 
to intervene.'' 15 U.S.C. Sec.  16(e)(2); 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). This language explicitly wrote into the statute 
what Congress intended when it first 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. 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. See also 
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''); S. Rep. No. 93-298 93d 
Cong., 1st Sess., at 6 (1973) (``Where the public interest can be 
meaningfully evaluated simply on the basis of briefs and oral 
arguments, that is the approach that should be utilized.'').
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    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
Sec.  16(e) (2004), with 15 U.S.C. Sec.  16(e)(1) (2006); see also 
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 
amendments ``effected minimal changes'' to Tunney Act review).
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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: November 14, 2018

Respectfully submitted,

Benjamin C. Glassman,
United States Attorney

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Andrew M. Malek (Ohio Bar #0061442)

Assistant United States Attorney, 303 Marconi Boulevard, Suite 200, 
Columbus, Ohio 43215, Tel: (614) 469-5715, Fax: (614) 469-2769, E-
mail: [email protected]

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J. Richard Doidge,
Attorney, U.S. Department of Justice, Antitrust Division, 450 5th 
Street NW, Suite 8000, Washington, DC 20530, Tel: (202) 514-8944, 
Fax: (202) 616-2441, E-mail: [email protected]

[FR Doc. 2018-25461 Filed 11-21-18; 8:45 am]
BILLING CODE 4410-11-P