United States v. Zen-Noh Grain Corporation, et al.; Proposed Final Judgment and Competitive Impact Statement, 30479-30494 [2021-11916]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30479-30494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11916]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Zen-Noh Grain Corporation, et al.; Proposed 
Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. Zen-Noh Grain Corporation, et al., Civil Action 
No. 1:21-cv-1482-RJL. On June 1, 2021, the United States filed a 
Complaint alleging that Zen-Noh Grain Corporation's proposed 
acquisition of 35 operating and 13 idled U.S. grain origination 
elevators from Bunge North America, Inc. would violate Section 7 of the 
Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed at the 
same time as the Complaint, requires Zen-Noh Grain Corporation to 
divest nine grain elevators located in five states along the 
Mississippi River and its tributaries.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at https://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the District of 
Columbia. Copies of these materials may be obtained from the Antitrust 
Division upon request and payment of the copying fee set by Department 
of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's website, 
filed with the Court, and, under certain circumstances, published in 
the

[[Page 30480]]

Federal Register. Comments should be submitted in English and directed 
to Robert Lepore, Chief, Transportation, Energy, and Agriculture 
Section, Antitrust Division, Department of Justice, 450 Fifth Street 
NW, Suite 8000, Washington, DC 20530 (email address: 
[email protected]).

Suzanne Morris,
Chief, Premerger and Division Statistics, Antitrust Division.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, U.S. Department of Justice, Antitrust 
Division, 450 Fifth Street NW, Suite 8000, Washington, DC 20530, 
Plaintiff, v. Zen-Noh Grain Corp., 1127 Highway 190, East Service 
Road, Covington, LA 70433 and Bunge North America, Inc., 1391 
Timberland Manor Parkway, Chesterfield, MO 63017, Defendants.

Civil Action No.: 1:21-cv-1482-RJL
Judge Richard J. Leon

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to prevent Zen-Noh Grain Corp. from acquiring assets of Bunge 
North America, Inc. The United States alleges as follows:

I. Introduction

    1. American farmers produce the crops that feed our nation and the 
world. The United States' primary crops are corn and soybeans 
(collectively referred to here as ``grain''). American farmers produced 
14.2 billion bushels of corn and 4.14 billion bushels of soybeans in 
2020, and roughly one-quarter of these grains were exported. In the 
United States, grain may flow from the farm directly to end users like 
ethanol plants and feed mills, or farmers can sell their grain to local 
grain elevators, where it is stored and aggregated, and later 
transported by train or barge to more distant domestic end users or to 
port elevators for export. To earn a fair return on their hard work and 
investments, farmers rely on vigorous competition between the companies 
that purchase their grain for direct use or further resale.
    2. Zen-Noh Grain Corp. (``ZGC'') seeks to acquire 35 operating and 
13 idled U.S. grain elevators from Bunge North America, Inc. 
(``Bunge''). These elevators are located in nine states, mainly along 
the Mississippi River and its tributaries. ZGC and Bunge are both grain 
traders and exporters, each purchasing millions of tons of corn and 
soybeans annually from farmers located across the United States' 
agricultural regions, and through their networks distributing the grain 
to customers throughout the United States and the rest of the world.
    3. Today, ZGC, along with its affiliate CGB Enterprises, Inc. 
(``CGB''), a 50-50 joint venture between ZGC and Itochu Corporation, 
competes against Bunge to purchase corn and soybeans at numerous U.S. 
grain elevators and at their port elevators. In particular, in some 
areas along the Mississippi and Ohio Rivers where the Defendants 
operate competing river elevators, farmers have few--if any--
alternative purchasers for their grain. The acquisition will eliminate 
competition between ZGC and Bunge in those locations; as a result, many 
U.S. farmers are likely to receive lower prices and poorer quality 
service when seeking to sell their grain.
    4. In nine geographic areas, a Bunge elevator and a nearby ZGC or 
CGB elevator represent two of only a small number of alternatives where 
area farmers can sell their grain. In those nine areas, ZGC and Bunge 
currently compete aggressively to win farmers' business by offering 
better prices and more attractive amenities such faster grain drop-off 
services and better grain grading. Faster drop-off services mean 
farmers can get back to their fields more quickly and make better use 
of their trucks and employees, ultimately saving time and money. If one 
elevator is grading grain more harshly or inconsistently, which may 
lead to a lower price paid to a farmer for the grain, the farmer has 
the option of selling to a competing elevator which may grade 
differently.
    5. If the proposed transaction proceeds in its current form, 
farmers located in these areas are likely to receive lower prices and 
lower quality services, and have fewer choices for the sale of their 
crops. The proposed transaction therefore is likely to lessen 
competition substantially in violation of Section 7 of the Clayton Act, 
15 U.S.C. 18, and the Court should enjoin this unlawful transaction.

II. Jurisdiction and Venue

    6. The United States brings this action pursuant to Section 15 of 
the Clayton Act, 15 U.S.C. 25, to prevent and restrain Defendants from 
violating Section 7 of the Clayton Act, 15 U.S.C. 18.
    7. Defendants are engaged in, and their activities substantially 
affect, interstate commerce. ZGC and Bunge both purchase, store, and 
sell grain throughout the United States. The Court has subject matter 
jurisdiction over this action pursuant to Section 15 of the Clayton 
Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
    8. ZGC and Bunge have each consented to personal jurisdiction and 
venue in this jurisdiction for purposes of this action. Venue is proper 
under 15 U.S.C. 22, and 28 U.S.C. 1391(b) and (c).

III. Defendants and the Proposed Transaction

    9. This case arises from ZGC's proposed acquisition of certain 
grain elevator assets from Bunge for approximately $300 million 
pursuant to an Asset Purchase Agreement entered on April 21, 2020.
    10. ZGC, headquartered in Covington, Louisiana, is a subsidiary of 
the National Federation of Agricultural Cooperative Associations of 
Japan. ZGC owns and operates a state-of-the-art export elevator located 
on the Mississippi River near Convent, Louisiana, from which it trades 
and exports corn, soybeans, sorghum, wheat, and grain by-products. 
Recently expanded in 2018 to handle up to 17 million tons of grain 
annually, ZGC's Convent elevator is the largest port elevator on the 
Mississippi. ZGC does not own any inland grain elevators and relies 
upon its affiliate, CGB, to supply the majority of the massive 
quantities of corn and soybeans ZGC exports annually from Convent. 
Post-acquisition, ZGC intends to lease the Bunge elevators to CGB to 
operate through CGB's wholly owned subsidiary, Consolidated Grain and 
Barge Co.
    11. CGB is a 50-50 joint venture between ZGC and Itochu 
Corporation, a global trading company. CGB operates more than 100 
elevators, many of which are located along the Mississippi, Ohio, 
Arkansas, and Illinois Rivers. CGB is the fifth-largest grain company 
in the United States by storage capacity. CGB's grain merchandizers are 
in daily contact with thousands of farmers, actively seeking to 
purchase grain from them. Currently, CGB sells approximately 60% of the 
grain it purchases to ZGC.
    12. Bunge, headquartered in Chesterfield, Missouri, is the North 
American subsidiary of Bunge Limited. Bunge is a large agribusiness and 
food ingredient company that owns and operates grain elevators, oilseed 
processing plants, and edible oil refineries, as well as grain export 
terminals. Bunge is the eighth-largest grain company in the United 
States by storage capacity. Post-acquisition, Bunge will continue 
purchase grain in the United States via its export elevator on the 
Mississippi River in Destrehan, Louisiana and its export terminal in 
Longview, Washington (a joint venture

[[Page 30481]]

with Itochu Corporation). In addition to the export terminals, Bunge 
will retain ownership interests in eight elevators in Illinois and 
Indiana.

IV. The Relevant Markets

    13. The livelihood of farmers depends on their ability to sell the 
corn and soybeans they grow to purchasers who offer them the best 
price, net of transportation and other selling costs that farmers 
incur. Ethanol plants and feed and crush mills purchase grain and 
process it into usable products such as soymeal or fuel. Rail and river 
elevators also purchase grain and store it until it is sold and 
transported to end users, in either domestic or export markets.
    14. For convenience, some farmers may sell their grain to smaller, 
``country'' elevators, located in closer proximity to the farmer than 
end users or rail and river elevators. Such elevators serve as grain 
collection and buying points in rural communities, and may provide 
other services like grain storage, drying, and conditioning services. 
Upon aggregating sufficient quantities of grain, or when market prices 
are most attractive, country elevators ultimately resell the grain to 
end users or to the larger rail or river elevators that can transport 
the grain to end users or export elevators.
    15. More than 45% of the grain exported from the U.S. is shipped 
out from port elevator export terminals located at the mouth of the 
Mississippi River near the Gulf of Mexico. The vast majority of this 
grain is sourced from river elevators located along the Mississippi and 
its tributaries. These river elevators, found as far north as 
Minnesota, purchase grain from surrounding farms, and load it onto 
barges for transport to the port elevators.

A. Relevant Product Markets

    16. ZGC (mainly through CGB) and Bunge own grain elevators, 
primarily located at rail terminals and along navigable rivers. They 
compete with other grain purchasers, including ethanol processors, feed 
mills, and crush processors, to purchase corn and soybeans from U.S. 
farmers, brokers and country elevators. Corn and soybeans are each 
distinct products without reasonable substitutes, differing from other 
agricultural commodities and one another in their physical 
characteristics, means of production, uses, and pricing. Because of the 
length of growing seasons, and the suitability of corn and soybeans to 
certain climates and regions, farmers of these crops would not switch 
to production of other agricultural commodities in sufficient numbers 
to render unprofitable a small but significant decrease in price by a 
hypothetical monopsonist of that crop. The purchase of corn and the 
purchase of soybeans for end use or for sale to the export market each 
constitute a relevant product market and line of commerce under Section 
7 of the Clayton Act, 15 U.S.C. 18.

B. Relevant Geographic Market

    17. Farmers typically haul grain by truck to nearby elevators or 
end users. Transportation costs increase significantly with every mile 
the farmers must transport the grain to reach a purchaser, reducing the 
farmers' profits. Transporting grain also consumes farmers' time. For 
these reasons, a small change in price would not likely cause farmers 
to significantly expand the distance they are willing to drive to sell 
their grain. The distance a farmer is willing to drive is determined in 
large part by the second-closest potential purchaser, which is the best 
competitive threat to the purchaser closest to the farmer.
    18. Rail or river elevators and other grain purchasing facilities, 
such as grain crush plants and ethanol plants, typically purchase grain 
from within the facility's draw area. ``Draw area'' is an industry term 
that describes the locations of farms from which the facility expects 
to acquire most of its grain. Each elevator or end user has a unique 
draw area due to characteristics such as surrounding road conditions, 
crop output, local topography, and proximity of competing purchasers. 
The draw area of a grain purchasing facility is determined by 
transportation time and costs and so is usually very localized.
    19. The draw area of one grain facility frequently will overlap 
with that of another, resulting in competition between the facilities 
to purchase grain from farmers. Some farming areas of the country may 
be located such that they fall within the overlapping draw areas of 
only a few competing grain purchasing facilities. In particular, in the 
following areas where the Defendants' river elevators have overlapping 
draw areas, there are only a small number of grain purchasers competing 
to purchase farmers' corn and soybeans:
    (a) The overlapping draw areas of elevators in the vicinity of 
McGregor, Iowa;
    (b) The overlapping draw areas of elevators in the vicinity of 
Albany/Fulton, Illinois;
    (c) The overlapping draw areas of elevators in the vicinity of 
Shawneetown, Illinois;
    (d) The overlapping draw areas of elevators in the vicinity of 
Caruthersville, Missouri;
    (e) The overlapping draw areas of elevators in the vicinity of 
Huffman, Arkansas;
    (f) The overlapping draw areas of elevators in the vicinity of 
Osceola, Arkansas;
    (g) The overlapping draws areas of elevators in the vicinity of 
Helena, Arkansas;
    (h) The overlapping draw areas of elevators in the vicinity of Lake 
Providence, Louisiana; and
    (i) The overlapping draw areas of elevators in the vicinity of 
Lettsworth, Louisiana.
    20. These geographic areas satisfy the hypothetical monopsonist 
test (a ``monopsonist'' is a buyer that controls the purchases in a 
given market), the buyer-side counterpart to the hypothetical 
monopolist test. A hypothetical monopsonist of the purchase of corn or 
soybeans in each of these areas would impose at least a small but 
significant and non-transitory decrease in the price paid to farmers. 
Such a price decrease for these products would not be defeated by 
farmers selling to purchasers outside their local area due to the added 
costs of transportation. As farmers in these areas have already 
determined the best use of their farmland, a price decrease would also 
not be defeated by farmers' switching to growing alternative crops. 
Farmers currently growing corn or soybeans are unlikely convert to 
production of other agricultural commodities in sufficient numbers to 
prevent a small but significant decrease in price. Nor could area 
farmers thwart a post-transaction price decrease by selling instead to 
local country elevators. Country elevators simply resell grain to river 
and rail elevators or to other end users; if Defendants lower prices 
post-transaction, country elevators would be forced to lower their own 
price to farmers to maintain profitability. Consequently, country 
elevators cannot mitigate a price decrease resulting from this 
transaction. Therefore, each of the overlapping draw areas above 
constitute a relevant geographic market within the meaning of Section 7 
of the Clayton Act, 15 U.S.C. 18, for the purposes of analyzing this 
transaction.

V. ZGC's Acquisition of Certain Grain Elevators From Bunge is Likely To 
Result in Anticompetitive Effects

    21. In each of the nine relevant geographic markets, ZGC (and its 
affiliate CGB) and Bunge are two of a very small number of grain 
purchasers competing to buy corn and soybeans; in

[[Page 30482]]

two of these markets, CGB and Bunge are the only elevators available to 
area farmers. Famers located within these geographic areas depend on 
this competition to obtain a competitive price for their grain. ZGC's 
acquisition of Bunge's elevators will substantially lessen competition 
for the purchase of corn and soybeans in these markets, enabling it to 
unilaterally depress prices paid to farmers for their crops.
    22. Because there are few alternative grain purchasers within these 
geographic areas, purchases of grain are highly concentrated, with the 
Defendants accounting for a majority of corn and/or soybean purchases 
in a given year. For example, in 2019, the Defendants purchased upwards 
of 95% of the total corn and soybean output of farmers in Pemiscot 
County, Missouri; Pemiscot County falls within the draw area of Bunge's 
Caruthersville, Missouri river elevator, and the draw areas of CGB's 
Caruthersville and Cottonwood, Missouri river elevators.
    23. By eliminating head-to-head competition between ZGC (and its 
affiliate CGB) and Bunge for grain purchases in these geographic 
markets, the proposed acquisition would result in lower prices paid to 
farmers, lower quality of services offered to farmers at the grain 
origination elevators, and reduced choice of outlets for farmers to 
sell their grain. The proposed transaction would substantially lessen 
competition and harm the many farmers selling their crops to river 
elevators along the Mississippi River and its tributaries.

V. Absence of Countervailing Factors

    24. New entry and expansion by competitors likely will not be 
timely and sufficient in scope to prevent the acquisition's likely 
anticompetitive effects. New elevators are unlikely to be constructed 
in these geographic markets because of the high cost of construction 
and the difficulty of finding appropriate locations to build such a 
facility along the Mississippi or its tributaries. Even assuming such a 
location could be found and regulatory and permitting requirements 
could be fulfilled, constructing a river elevator would take 
approximately two years to complete.
    25. The proposed acquisition is unlikely to generate verifiable, 
merger-specific efficiencies sufficient to reverse or outweigh the 
anticompetitive effects likely to occur.

VII. Violation Alleged

    26. The United States hereby incorporates the allegations of 
paragraphs 1 through 26 above as if set forth fully herein.
    27. ZGC's proposed acquisition of the Bunge elevators is likely to 
substantially lessen competition in the relevant markets, in violation 
of Section 7 of the Clayton Act, 15 U.S.C. 18.
    28. Unless enjoined, the proposed acquisition would likely have the 
following anticompetitive effects, among others:
    (a) Eliminate present and future competition between ZGC (and 
affiliate CGB) and Bunge in the each of the relevant geographic markets 
for the purchase of corn and the purchase of soybeans;
    (b) cause prices paid to farmers for corn and soybeans to be lower 
than they would be otherwise; and
    (c) reduce quality, service, and choice for American farmers.

VIII. Request for Relief

    29. The United States requests that the Court:
    (a) Adjudge ZGC's acquisition of Bunge's elevators to violate 
Section 7 of the Clayton Act, 15 U.S.C. 18;
    (b) permanently enjoin Defendants from consummating ZGC's proposed 
acquisition of Bunge's elevators or from entering into or carrying out 
any other agreement, understanding, or plan by which the assets or 
businesses of ZGC and Bunge would be combined;
    (c) award the United States its costs of this action; and
    (d) grant the United States such other relief the Court deems just 
and proper.

Dated: June 1, 2021.

Respectfully submitted,

FOR PLAINTIFF UNITED STATES:

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Richard A. Powers
Acting Assistant Attorney General for Antitrust
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Kathleen S. O'Neill
Senior Director of Investigations & Litigation
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Robert A. Lepore
Chief, Transportation, Energy & Agriculture Section
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Katherine A. Celeste
Assistant Chief, Transportation, Energy & Agriculture Section
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Jill Ptacek *
Michele B. Cano
Jessica Butler-Arkow (D.C. #43022)

Attorneys for the United States

U.S. Department of Justice, Antitrust Division, 450 Fifth Street NW, 
Suite 8000, Washington, DC 20530, Tel: (202) 307-6607, Fax: (202) 
616-2441, Email: [email protected]

* Lead attorney to be noticed

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Zen-Noh Grain Corp., and 
Bunge North America, Inc., Defendants.

Civil Action No.: 1:21-cv-1482-RJL
Judge Richard J. Leon

Proposed Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on ___, 2021;
    And whereas, the United States and Defendants, Zen-Noh Grain Corp. 
and Bunge North America, Inc., by their respective attorneys, have 
consented to entry of this Final Judgment without the taking of 
testimony, without trial or adjudication of any issue of fact or law, 
and without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    And whereas, Defendants agree to make certain divestitures to 
remedy the loss of competition alleged in the Complaint;
    And whereas, Defendants represent that the divestitures and other 
relief required by this Final Judgment can and will be made and that 
Defendants will not later raise a claim of hardship or difficulty as 
grounds for asking the Court to modify any provision of this Final 
Judgment;
    Now therefore, it is ordered, adjudged, and decreed:

I. Jurisdiction

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

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means Viserion or another entity 
or entities to which Defendants divest the Divestiture Assets.
    B. ``ZGC'' means Zen-Noh Grain Corp., a Louisiana corporation 
headquartered in Covington, Louisiana, its successors and assigns, and 
its subsidiaries, divisions, groups, affiliates (including CGB), 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    C. ``Bunge'' means Bunge North America, Inc., a New York 
corporation headquartered in Chesterfield, Missouri, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.

[[Page 30483]]

    D. ``Bunge Elevators'' means the elevators located on the 
properties owned or leased by Bunge listed among the Divested 
Elevators.
    E. ``CGB'' means CGB Enterprises Inc., a Louisiana corporation 
headquartered in Covington, LA, its successors and assigns, and its 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    F. ``CGB Elevator'' means the elevator located on the property 
owned or leased by CGB listed among the Divested Elevators.
    G. ``Viserion'' means Viserion Grain, LLC and Viserion 
International Holdco, LLC, Delaware limited liability companies 
headquartered in Colorado, their successors and assigns, their 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures and their directors, officers, managers, agents, and 
employees.
    H. ``Divested Elevators'' means the following elevators:

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                   Geographic area                                    Elevator(s) to be divested
----------------------------------------------------------------------------------------------------------------
McGregor, IA........................................  The Bunge Elevator located at 311 E B St., McGregor, IA
                                                       52157.
Albany, IL..........................................  The Bunge Elevator located at 1002 N Main St., Albany, IL
                                                       61230 OR the CGB Elevator located at 561 Broderick Drive,
                                                       Savanna, IL 61074.
Shawneetown, IL.....................................  The Bunge Elevator located at 218 Market St., Shawneetown,
                                                       IL 62984.
Caruthersville, MO..................................  The Bunge Elevator located at 100 Ward Ave.,
                                                       Caruthersville, MO 63830.
Huffman, AR.........................................  The Bunge Elevator located at 7058 E County Rd. 54, Hwy.
                                                       37, Blytheville, AR 72315.
Osceola, MO.........................................  The Bunge Elevators located at 2220 E State Hwy. 198 and
                                                       Mississippi River, Osceola, AR 72370 and at Mississippi
                                                       County 661 S, Monroe Township, AR 72370.
Helena, AR..........................................  The Bunge Elevator located at 103 Hanks Ln., Helena, AR
                                                       72342.
Lake Providence, LA.................................  The Bunge Elevator located at 337 Port Rd., Lake
                                                       Providence, LA 71254.
Lettsworth, LA......................................  The Bunge Elevator located at 17783 Hwy. 418, Lettsworth,
                                                       LA 70753.
----------------------------------------------------------------------------------------------------------------

    I. ``Divestiture Assets'' means all of Defendants' rights, titles, 
and interests in and to:
    1. The Divested Elevators;
    2. all contracts, contractual rights, and relationships, including 
customer and supplier relationships, and all other agreements, 
commitments, and understandings, including, supply agreements, teaming 
agreements, and leases, and all outstanding offers or solicitations to 
enter into a similar arrangement that relate exclusively to the 
Divested Elevators; and
    3. all other property and assets, tangible and intangible, wherever 
located, relating to or used in connection with each Divested Elevator, 
including:
    a. All real property and real property rights, fee simple 
interests; buildings, facilities, and other structures, including bins, 
silos, other grain storage facilities, and dock facilities; easements; 
leasehold and rental rights, including all renewal or option rights; 
prepaid rent and security deposits; and fixtures, improvements, and 
assignable improvement warranties;
    b. all tangible personal property; equipment, machinery, and tools, 
such as those used for handling, receiving, unloading, weighing, 
sampling, grading, elevating, storing, drying, conditioning, loading, 
and buying and selling grain; vehicles and furniture; supplies, 
replacement parts, and spare parts; and inventory;
    c. all licenses, permits, certifications, approvals, consents, 
registrations, waivers, and authorizations issued or granted by any 
governmental organization, and all pending applications or renewals;
    d. all records and data, including (a) customer and supplier lists, 
accounts, sales, and credit records, (b) production, repair, 
maintenance, and performance records, (c) manuals and technical 
information Defendants provide to their own employees, customers, 
suppliers, agents, or licensees, (d) accounting and operating records 
and ledgers; (e) sales and marketing records, including local marketing 
plans and sales and advertising materials, (f) records and research 
data concerning historic and current research and development 
activities, and (g) drawings, blueprints, and designs; and
    e. all other intangible property, including, (a) technical 
information, (b) design tools and simulation capabilities, (c) computer 
software and related documentation, know-how, trade secrets, design 
protocols, specifications for materials, specifications for parts, 
specifications for devices, safety procedures (e.g., for the handling 
of materials and substances), and quality assurance and control 
procedures, provided, however, that any intellectual property 
associated with the brand names Bunge, CGB, Zen-Noh, and ZGC is not 
included in the Divestiture Assets.
    J. ``Divestiture Date'' means the date[s] on which the Divestiture 
Assets are divested to Acquirer[s] pursuant to this Final Judgment.
    K. ``Including'' means including, but not limited to.
    L. ``Relevant Personnel'' means: (1) All full-time, part-time, or 
contract employees employed at the Divested Elevators at any time 
between August 21, 2020, and the Divestiture Date; (2) all elevator 
managers, grain merchandisers, and elevator superintendents employed by 
Bunge or CGB whose job responsibilities are shared between or among 
Divested Elevators and any non-divested elevators, at any time between 
August 21, 2020, and the Divestiture Date; and (3) all regional 
managers employed by Bunge one organizational level above the elevator 
manager level, wherever located, whose job responsibilities support the 
grain purchasing business of any of the Bunge Elevators, at any time 
between August 21, 2020, and the Divestiture Date. The United States, 
in its sole discretion, will resolve any disagreement regarding which 
employees are Relevant Personnel.
    M. ``Transaction'' means ZGC's proposed acquisition of 35 operating 
and 13 idled grain elevators from Bunge.

III. Applicability

    A. This Final Judgment applies to Defendants ZGC and Bunge, as 
defined above, and all other persons in active concert or participation 
with any Defendant who receive actual notice of this Final Judgment.
    B. If, prior to complying with Section IV and Section V of this 
Final Judgment, Defendants sell or otherwise dispose of all or 
substantially all of their assets or of business units that include the 
Divestiture Assets, Defendants must require any purchaser to be bound 
by the provisions of this Final Judgment. Defendants need not obtain 
such an agreement from an Acquirer.

IV. Divestitures

    A. Defendant ZGC is ordered and directed within 30 calendar days 
after entry of the Asset Preservation Stipulation and Order to divest 
the Divestiture Assets in a manner

[[Page 30484]]

consistent with this Final Judgment to Viserion or to another Acquirer 
or Acquirers acceptable to the United States, in its sole discretion. 
The United States, in its sole discretion, may agree to one or more 
extensions of this time period not to exceed 90 calendar days in total 
and will notify the Court of any extensions.
    B. Defendant ZGC must use its best efforts to divest the 
Divestiture Assets as expeditiously as possible, and Defendants may not 
take any action to impede the permitting, licensing, operation, or 
divestiture of the Divestiture Assets. Defendants must take no action 
that would jeopardize the divestiture ordered by the Court.
    C. Unless the United States otherwise consents in writing, 
divestiture pursuant to this Final Judgment must include the entire 
Divestiture Assets and must be accomplished in such a way as to satisfy 
the United States, in its sole discretion, that the Divestiture Assets 
can and will be used by Acquirer as part of a viable, ongoing business 
of grain purchasing, and that the divestiture to Acquirer or Acquirers 
will remedy the competitive harm alleged in the Complaint.
    D. The divestiture must be made to an Acquirer or Acquirers that, 
in the United States' sole judgment, has or have the intent and 
capability (including the necessary managerial, operational, technical, 
and financial capability) to compete effectively in grain purchasing.
    E. The divestiture must be accomplished in a manner that satisfies 
the United States, in its sole discretion, that none of the terms of 
any agreement between an Acquirer and Defendant ZGC give Defendants the 
ability unreasonably to raise an Acquirer's costs, to lower an 
Acquirer's efficiency, or otherwise to interfere in the ability of an 
Acquirer to compete effectively in grain purchasing.
    F. Divestiture of the Divestiture Assets may be made to one or more 
Acquirers, in one or more transactions, provided that it is 
demonstrated to the sole satisfaction of the United States that the 
criteria required by Paragraphs IV(C), IV(D), and IV(E) will still be 
met.
    G. In the event Defendant ZGC is attempting to divest the 
Divestiture Assets to an Acquirer other than Viserion, Defendant ZGC 
promptly must make known, by usual and customary means, the 
availability of the Divestiture Assets. Defendant ZGC must inform any 
person making an inquiry regarding a possible purchase of the 
Divestiture Assets that the Divestiture Assets are being divested in 
accordance with this Final Judgment and must provide that person with a 
copy of this Final Judgment. Defendants must offer to furnish to all 
prospective Acquirers, subject to customary confidentiality assurances, 
all information and documents relating to the Divestiture Assets that 
are customarily provided in a due-diligence process; provided, however, 
that Defendants need not provide information or documents subject to 
the attorney-client privilege or work-product doctrine. Defendants must 
make all information and documents available to the United States at 
the same time that the information and documents are made available to 
any other person.
    H. Defendants must provide prospective Acquirers with (1) access to 
make inspections of the Divestiture Assets; (2) access to all 
environmental, zoning, and other permitting documents and information 
regarding the Divestiture Assets; and (3) access to all financial, 
operational, or other documents and information relating to the 
Divestiture Assets that customarily would be provided as part of a due-
diligence process. Defendants also must disclose all encumbrances on 
any part of the Divestiture Assets, including on intangible property.
    I. Defendants must cooperate with and assist an Acquirer in 
identifying and, at the option of Acquirer, hiring all Relevant 
Personnel, including:
    1. Within 10 business days following the filing of the Complaint in 
this matter, or, if the Divestiture Assets are divested to an Acquirer 
or Acquirers other than Viserion, within 10 business days of notice 
from the United States pursuant to Paragraph VI.C. that it does not 
object to a proposed Acquirer, Defendants must identify all Relevant 
Personnel to Acquirer and the United States, including by providing 
organization charts covering all Relevant Personnel.
    2. Within 10 business days following receipt of a request by an 
Acquirer or the United States, Defendants must provide to Acquirer and 
the United States additional information related to Relevant Personnel, 
including name, job title, reporting relationships, past experience, 
responsibilities, training and educational histories, relevant 
certifications, and job performance evaluations. Defendants must also 
provide to Acquirer and the United States current and accrued 
compensation and benefits, including most recent bonuses paid, 
aggregate annual compensation, current target or guaranteed bonus, any 
retention agreement or incentives, and any other payments due, 
compensation or benefited accrued, or promises made to the Relevant 
Personnel. If Defendants are barred by any applicable law from 
providing any of this information, Defendants must provide, within 10 
business days following receipt of the request, the requested 
information to the full extent permitted by law and also must provide a 
written explanation of Defendants' inability to provide the remaining 
information, including specifically identifying the provisions of the 
applicable laws.
    3. At the request of an Acquirer, Defendants must promptly make 
Relevant Personnel available for private interviews with Acquirer 
during normal business hours at a mutually agreeable location.
    4. Defendants must not interfere with any effort by an Acquirer to 
employ any Relevant Personnel. Interference includes, but is not 
limited to, offering to increase the compensation or improve the 
benefits of Relevant Personnel unless: (a) The offer is part of a 
company-wide increase in compensation or improvement in benefits that 
was announced prior to April 21, 2020, or (b) the offer is approved by 
the United States in its sole discretion. Defendants' obligations under 
this Paragraph will expire 6 months after the Divestiture Date.
    5. For Relevant Personnel who elect employment with an Acquirer 
within 6 months of the Divestiture Date, Defendants must waive all non-
compete and non-disclosure agreements, vest all unvested pension and 
other equity rights (or to the extent such accelerated vesting is not 
permitted, provide the equivalent benefits), provide any pay pro-rata, 
provide all other compensation and benefits that their Relevant 
Personnel have fully or partially accrued, and provide pro-rata all 
other benefits that those Relevant Personnel otherwise would have been 
provided had the Relevant Personnel continued employment with 
Defendants, including any vested retention bonuses or payments. 
Defendants may maintain reasonable restrictions on disclosure by 
Relevant Personnel of Defendants' proprietary non-public information 
that is unrelated to the Divestiture Assets and not otherwise required 
to be disclosed by this Final Judgment.
    6. For a period of 12 months from the Divestiture Date, Defendants 
may not solicit to rehire the following categories of Relevant 
Personnel hired by an Acquirer from Defendants within 6 months of the 
Divestiture Date: Regional and general managers, elevator managers, 
grain merchandisers, elevator superintendents, and bookkeepers. 
Defendants may solicit to rehire these categories of Relevant Personnel 
if (a) an

[[Page 30485]]

individual is terminated or laid off by Acquirer, or (b) Acquirer 
agrees in writing that Defendants may solicit to rehire that 
individual. Nothing in this Paragraph IV.H.6. prohibits Defendants from 
advertising employment openings using general solicitations or 
advertisements and rehiring Relevant Personnel who apply for an 
employment opening through a general solicitation or advertisement.
    J. Defendant ZGC must warrant to Acquirer or Acquirers that (1) the 
Divestiture Assets will be operational and without material defects on 
the date of their transfer to Acquirer; (2) there are no material 
defects in the environmental, zoning, or other permits relating to the 
operation of the Divestiture Assets; and (3) Defendant ZGC has 
disclosed all encumbrances on any part of the Divestiture Assets, 
including on intangible property. Following the sale of the Divestiture 
Assets, Defendants must not undertake, directly or indirectly, 
challenges to the environmental, zoning, or other permits relating to 
the operation of the Divestiture Assets.
    K. For any contract or agreement that requires the consent of 
another party to assign, subcontract, or otherwise transfer, Defendants 
must use best efforts to accomplish the assignment, subcontracting, or 
transfer. Defendants must not interfere with any negotiations between 
an Acquirer and a contracting party.
    L. Defendants must make best efforts to assist Acquirer or 
Acquirers to obtain all necessary licenses, registrations, 
certifications, and permits to operate the Divestiture Assets, 
including those issued by governmental entities. Until an Acquirer 
obtains the necessary licenses, registrations, certifications, and 
permits, Defendants must provide Acquirer with the benefit of 
Defendants' licenses, registrations, certifications, and permits to the 
full extent permissible by law.
    M. At the option of Acquirer or Acquirers, and subject to approval 
by the United States in its sole discretion, on or before the 
Divestiture Date, Defendants must enter into contracts to provide 
transition services for back office, human resources, and information 
technology, for a period of up to six months after the divestiture 
occurs on terms and conditions reasonably related to market conditions 
for the provision of the transition services. Any amendments to or 
modifications of any provision of any contract between either or both 
Defendants, and Acquirer or Acquirers, to provide transition services 
are subject to approval by the United States, in its sole discretion. 
The United States, in its sole discretion, may approve one or more 
extensions of any contract for transition services between Defendants 
and Viserion, for a total of up to an additional six months. In the 
event the Divestiture Assets are divested to an Acquirer or Acquirers 
other than Viserion, the United States, in its sole discretion, may 
approve an extension of any contract for transition services for up to 
12 months after the divestiture is completed. If an Acquirer seeks an 
extension of the term of any contract for transition services, the 
relevant Defendant must notify the United States in writing at least 
two months prior to the date the contract expires. An Acquirer may 
terminate a contract for transition services, or any portion of a 
contract for transition services, without cost or penalty at any time 
upon 30 days' written notice. The employee(s) of Defendants tasked with 
providing transition services must not share any competitively 
sensitive information of an Acquirer with any other employee of 
Defendants.
    N. If any term of an agreement between Defendants and Acquirer or 
Acquirers, including an agreement to effectuate the divestiture 
required by this Final Judgment, varies from a term of this Final 
Judgment, to the extent that Defendants cannot fully comply with both, 
this Final Judgment determines Defendants' obligations.

V. Appointment of Divestiture Trustee

    A. If Defendant ZGC has not divested the Divestiture Assets within 
the period specified in Paragraph IV.A., Defendant ZGC must immediately 
notify the United States of that fact in writing. Upon application of 
the United States, which Defendants may not oppose, the Court will 
appoint a divestiture trustee selected by the United States and 
approved by the Court to effect the divestiture of the Divestiture 
Assets.
    B. After the appointment of a divestiture trustee by the Court, 
only the divestiture trustee will have the right to sell the 
Divestiture Assets. The divestiture trustee will have the power and 
authority to accomplish the divestiture to an Acquirer or Acquirer(s) 
acceptable to the United States, in its sole discretion, at a price and 
on terms obtainable through reasonable effort by the divestiture 
trustee, subject to the provisions of Sections IV, V, and VI of this 
Final Judgment, and will have other powers as the Court deems 
appropriate. The divestiture trustee will have sole discretion to 
select the Divested Elevator to be divested in each geographic area 
listed in Paragraph II.H. The divestiture trustee must sell the 
Divestiture Assets as quickly as possible.
    C. Defendants may not object to a sale by the divestiture trustee 
on any ground other than malfeasance by the divestiture trustee. 
Objections by Defendants must be conveyed in writing to the United 
States and the divestiture trustee within 10 calendar days after the 
divestiture trustee has provided the notice of proposed divestiture 
required by Section VI.
    D. The divestiture trustee will serve at the cost and expense of 
Defendant ZGC pursuant to a written agreement, on terms and conditions, 
including confidentiality requirements and conflict of interest 
certifications, that are approved by the United States in its sole 
discretion.
    E. The divestiture trustee may hire at the cost and expense of 
Defendant ZGC any agents or consultants, including, but not limited to, 
investment bankers, attorneys, and accountants, that are reasonably 
necessary in the divestiture trustee's judgment to assist with the 
divestiture trustee's duties. These agents or consultants will be 
accountable solely to the divestiture trustee and will serve on terms 
and conditions, including terms and conditions governing 
confidentiality requirements and conflict-of-interest certifications, 
that are approved by the United States in its sole discretion.
    F. The compensation of the divestiture trustee and agents or 
consultants hired by the divestiture trustee must be reasonable in 
light of the value of the Divestiture Assets and based on a fee 
arrangement that provides the divestiture trustee with incentives based 
on the price and terms of the divestiture and the speed with which it 
is accomplished. If the divestiture trustee and Defendant ZGC are 
unable to reach agreement on the divestiture trustee's compensation or 
other terms and conditions of engagement within 14 calendar days of the 
appointment of the divestiture trustee by the Court, the United States, 
in its sole discretion, may take appropriate action, including by 
making a recommendation to the Court. Within three business days of 
hiring an agent or consultant, the divestiture trustee must provide 
written notice of the hiring and rate of compensation to Defendant ZGC 
and the United States.
    G. The divestiture trustee must account for all monies derived from 
the sale of the Divestiture Assets sold by the divestiture trustee and 
all costs and expenses incurred. Within 30 calendar days of the 
Divestiture Date, the divestiture trustee must submit that accounting 
to the Court for approval.

[[Page 30486]]

After approval by the Court of the divestiture trustee's accounting, 
including fees for unpaid services and those of agents or consultants 
hired by the divestiture trustee, all remaining money must be paid to 
Defendant ZGC and the trust will then be terminated.
    H. Defendants must use their best efforts to assist the divestiture 
trustee to accomplish the required divestiture. Subject to reasonable 
protection for trade secrets, other confidential research, development, 
or commercial information, or any applicable privileges, Defendants 
must provide the divestiture trustee and agents or consultants retained 
by the divestiture trustee with full and complete access to all 
personnel, books, records, and facilities of the Divestiture Assets. 
Defendants also must provide or develop financial and other information 
relevant to the Divestiture Assets that the divestiture trustee may 
reasonably request. Defendants must not take any action to interfere 
with or to impede the divestiture trustee's accomplishment of the 
divestiture.
    I. The divestiture trustee must maintain complete records of all 
efforts made to sell the Divestiture Assets, including by filing 
monthly reports with the United States setting forth the divestiture 
trustee's efforts to accomplish the divestiture ordered by this Final 
Judgment. The reports must include the name, address, and telephone 
number of each person who, during the preceding month, made an offer to 
acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or was contacted or made an inquiry about acquiring any 
interest in the Divestiture Assets and must describe in detail each 
contact with any such person.
    J. If the divestiture trustee has not accomplished the divestiture 
ordered by this Final Judgment within six months of appointment, the 
divestiture trustee must promptly provide the United States with a 
report setting forth: (1) The divestiture trustee's efforts to 
accomplish the required divestiture; (2) the reasons, in the 
divestiture trustee's judgment, why the required divestitures have not 
been accomplished; and (3) the divestiture trustee's recommendations 
for completing the divestitures. Following receipt of that report, the 
United States may make additional recommendations to the Court. The 
Court thereafter may enter such orders as it deems appropriate to carry 
out the purpose of this Final Judgment, which may include extending the 
trust and the term of the divestiture trustee's appointment.
    K. The divestiture trustee will serve until divestiture of all 
Divestiture Assets is completed or for a term otherwise ordered by the 
Court.
    L. If the United States determines that the divestiture trustee is 
not acting diligently or in a reasonably cost-effective manner, the 
United States may recommend that the Court appoint a substitute 
divestiture trustee.

VI. Notice of Proposed Divestiture

    A. Within two business days following execution of a definitive 
agreement to divest the Divestiture Assets to an Acquirer or Acquirers 
other than Viserion, Defendant ZGC or the divestiture trustee, 
whichever is then responsible for effecting the divestiture, must 
notify the United States of the proposed divestiture. If the 
divestiture trustee is responsible for completing the divestiture, the 
divestiture trustee also must notify Defendant ZGC. The notice must set 
forth the details of the proposed divestiture and list the name, 
address, and telephone number of each person not previously identified 
who offered or expressed an interest in or desire to acquire any 
ownership interest in the Divestiture Assets.
    B. Within 15 calendar days of receipt by the United States of 
receipt of the notice required by Paragraph IV.A., the United States 
may request from Defendants, the proposed Acquirer, other third 
parties, or the divestiture trustee additional information concerning 
the proposed divestiture, the proposed Acquirer, and other prospective 
Acquirers. Defendants and the divestiture trustee must furnish the 
additional information requested within 15 calendar days of the receipt 
of the request unless the United States provides written agreement to a 
different period.
    C. Within 45 calendar days after receipt of the notice required by 
Paragraph VI.A. or within 20 calendar days after the United States has 
been provided the additional information requested pursuant to 
Paragraph VI.B., whichever is later, the United States will provide 
written notice to Defendant ZGC and any divestiture trustee that states 
whether or not the United States, in its sole discretion, objects to an 
Acquirer or Acquirers or any other aspect of the proposed divestitures. 
Without written notice that the United States does not object, a 
divestiture may not be consummated. If the United States provides 
written notice that it does not object, the divestiture may be 
consummated, subject only to Defendants' limited right to object to the 
sale under Paragraph V.C. of this Final Judgment. Upon objection by 
Defendants pursuant to Paragraph V.C., a divestiture by the divestiture 
trustee may not be consummated unless approved by the Court.
    D. No information or documents obtained pursuant to this Section VI 
may be divulged by the United States to any person other than an 
authorized representative of the executive branch of the United States, 
except in the course of legal proceedings to which the United States is 
a party, including grand-jury proceedings, for the purpose of 
evaluating a proposed Acquirer or securing compliance with this Final 
Judgment, or as otherwise required by law.
    E. In the event of a request by a third party for disclosure of 
information under the Freedom of Information Act, 5 U.S.C. 552, the 
United States Department of Justice's Antitrust Division will act in 
accordance with that statute, and the Department of Justice regulations 
at 28 CFR part 16, including the provision on confidential commercial 
information, at 28 CFR 16.7. Persons submitting information to the 
Antitrust Division should designate the confidential commercial 
information portions of all applicable documents and information under 
28 CFR 16.7. Designations of confidentiality expire ten years after 
submission, ``unless the submitter requests and provides justification 
for a longer designation period.'' See 28 CFR 16.7(b).
    F. If at the time that a person furnishes information or documents 
to the United States pursuant to this Section VI, that person 
represents and identifies in writing information or documents for which 
a claim of protection may be asserted under Rule 26(c)(1)(G) of the 
Federal Rules of Civil Procedure, and marks each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(1)(G) of 
the Federal Rules of Civil Procedure,'' the United States must give 
that person ten calendar days' notice before divulging the material in 
any legal proceeding (other than a grand-jury proceeding).

VII. Financing

    Defendants may not finance all or any part of Acquirer's purchase 
of all or part of the Divestiture Assets.

VIII. Asset Preservation and Hold Separate Obligations

    Defendants must take all steps necessary to comply with the Asset 
Preservation and Hold Separate Stipulation and Order entered by the 
Court.

[[Page 30487]]

IX. Affidavits

    A. Within 20 calendar days of the filing of the Complaint in this 
matter, and every 30 calendar days thereafter until the divestitures 
required by this Final Judgment have been completed, each Defendant 
must deliver to the United States an affidavit, signed by each 
Defendant's Chief Financial Officer and General Counsel, describing in 
reasonable detail the fact and manner of Defendants' compliance with 
this Final Judgment. The United States, in its sole discretion, may 
approve different signatories for the affidavits. Defendant Bunge's 
obligations under this Paragraph IX.A shall cease 30 calendar days 
after the closing of the Transaction.
    B. Each affidavit required by Paragraph IX.A. must include: (1) The 
name, address, and telephone number of each person who, during the 
preceding 30 calendar days, made an offer to acquire, expressed an 
interest in acquiring, entered into negotiations to acquire, or was 
contacted or made an inquiry about acquiring, an interest in the 
Divestiture Assets and describe in detail each contact with such 
persons during that period; (2) a description of the efforts Defendants 
have taken to solicit buyers for and complete the sale of the 
Divestiture Assets and to provide required information to prospective 
Acquirers; and (3) a description of any limitations placed by 
Defendants on information provided to prospective Acquirers. Objection 
by the United States to information provided by Defendants to 
prospective Acquirers must be made within 14 calendar days of receipt 
of the affidavit, except that the United States may object at any time 
if the information set forth in the affidavit is not true or complete.
    C. Defendants must keep all records of any efforts made to divest 
the Divestiture Assets until one year after the Divestiture Date.
    D. Within 20 calendar days of the filing of the Complaint in this 
matter, each Defendant must also deliver to the United States an 
affidavit signed by each Defendant's Chief Financial Officer and 
General Counsel, describing in reasonable detail all actions Defendants 
have taken and all steps Defendants have implemented on an ongoing 
basis to comply with Section VIII of this Final Judgment. The United 
States, in its sole discretion, may approve different signatories for 
the affidavits.
    E. If a Defendant makes any changes to the actions and steps 
outlined in any earlier affidavits provided pursuant to Paragraph 
IX.D., Defendants must, within 15 calendar days after any change is 
implemented, deliver to the United States an affidavit describing those 
changes.
    F. Defendants must keep all records of any efforts made to comply 
with Section VIII until one year after the Divestiture Date.

X. Compliance Inspection

    A. For the purpose of determining or securing compliance with this 
Final Judgment, or related orders such as the Hold Separate Stipulation 
and Order, or for the purpose of determining whether this Final 
Judgment should be modified or vacated, upon written request of an 
authorized representative of the Assistant Attorney General for the 
Antitrust Division, and reasonable notice to Defendants, Defendants 
must permit, from time to time and subject to legally recognized 
privileges, authorized representatives, including agents retained by 
the United States:
    1. To have access during Defendants' office hours to inspect and 
copy, or at the option of the United States, to require Defendants to 
provide electronic copies of all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of 
Defendants relating to any matters contained in this Final Judgment; 
and
    2. to interview, either informally or on the record, Defendants' 
officers, employees, or agents, who may have their individual counsel 
present, relating to any matters contained in the Final Judgment. The 
interviews must be subject to the reasonable convenience of the 
interviewee and without restraint or interference by Defendants.
    B. Upon the written request of an authorized representative of the 
Assistant Attorney General for the Antitrust Division, Defendants must 
submit written reports or respond to written interrogatories, under 
oath if requested, relating to any of the matters contained in this 
Final Judgment.
    C. No information or documents obtained pursuant to this Section XI 
may be divulged by the United States to any person other than an 
authorized representative of the executive branch of the United States, 
except in the course of legal proceedings to which the United States is 
a party, including grand jury proceedings, for the purpose of securing 
compliance with this Final Judgment, or as otherwise required by law.
    D. In the event of a request by a third party for disclosure of 
information under the Freedom of Information Act, 5 U.S.C. 552, the 
Antitrust Division will act in accordance with that statute, and the 
Department of Justice regulations at 28 CFR part 16, including the 
provision on confidential commercial information, at 28 CFR 16.7. 
Defendants submitting information to the Antitrust Division should 
designate the confidential commercial information portions of all 
applicable documents and information under 28 CFR 16.7. Designations of 
confidentiality expire 10 years after submission, ``unless the 
submitter requests and provides justification for a longer designation 
period.'' See 28 CFR 16.7(b).
    E. If at the time that Defendants furnish information or documents 
to the United States pursuant to this Section X, Defendants represent 
and identify in writing information or documents for which a claim of 
protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules 
of Civil Procedure, and Defendants mark each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(1)(G) of 
the Federal Rules of Civil Procedure,'' the United States must give 
Defendants 10 calendar days' notice before divulging the material in 
any legal proceeding (other than a grand jury proceeding).

XI. Notification

    A. Unless a transaction is otherwise subject to the reporting and 
waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
Defendant ZGC, may not, without first providing at least 30 calendar 
days advance notification to the United States, directly or indirectly 
acquire any assets of or any interest, including a financial, security, 
loan, equity, or management interest, in grain purchasing facilities, 
including grain elevators and crush mills, located within a 100-mile 
radius any Divested Elevator during the term of this Final Judgment; 
provided, however, that the obligations in this Section XI do not apply 
to Defendant ZGC's acquisition of grain purchasing facilities that were 
leased by Defendant ZGC as of January 1, 2021.
    B. Defendant ZGC must provide the notification required by this 
Section XI in the same format as, and in accordance with the 
instructions relating to, the Notification and Report Form set forth in 
the Appendix to Part 803 of Title 16 of the Code of Federal Regulations 
as amended, except that the information requested in Items 5 through 8 
of the instructions must be provided only about grain purchasing 
facilities located within a 100-mile radius of any Divested Elevator.
    C. Notification must be provided at least 30 calendar days before 
acquiring any assets or interest, and must include, beyond the 
information required by the instructions, the names of the principal 
representatives who negotiated the

[[Page 30488]]

transaction on behalf of each party, and all management or strategic 
plans relating to the proposed transaction. If, within the 30 calendar 
days following notification, representatives of the United States make 
a written request for additional information, Defendant ZGC may not 
consummate the proposed transaction until 30 calendar days after 
submitting all requested information.
    D. Early termination of the waiting periods set forth in this 
Section XI may be requested and, where appropriate, granted in the same 
manner as is applicable under the requirements and provisions of the 
HSR Act and rules promulgated thereunder. This Section XI must be 
broadly construed, and any ambiguity or uncertainty regarding whether 
to file a notice under this Section XI must be resolved in favor of 
filing notice.

XII. Limitations on Reacquisition

    Defendant ZGC may not reacquire any part of or any interest in the 
Divestiture Assets during the term of this Final Judgment without prior 
authorization by the United States.

XIII. Retention of Jurisdiction

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

XIV. 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. Defendants agree that in a civil contempt 
action, a motion to show cause, or a similar action brought by the 
United States regarding an alleged violation of this Final Judgment, 
the United States may establish a violation of this Final Judgment and 
the appropriateness of a remedy therefor by a preponderance of the 
evidence, and Defendants waive any argument that a different standard 
of proof should apply.
    B. This Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore the 
competition the United States alleges was harmed by the challenged 
conduct. Defendants agree 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 an enforcement proceeding in which the Court finds that 
Defendants have violated this Final Judgment, the United States may 
apply to the Court for a one-time extension of this Final Judgment, 
together with other relief that may be appropriate. In connection with 
a successful effort by the United States to enforce this Final Judgment 
against a Defendant, whether litigated or resolved before litigation, 
that Defendant agrees to reimburse the United States for the fees and 
expenses of its attorneys, as well as all other costs including 
experts' fees, incurred in connection with that effort to enforce the 
Final Judgment, including in the investigation of the potential 
violation.
    D. For a period of four years following the expiration of this 
Final Judgment, if the United States has evidence that a Defendant 
violated this Final Judgment before it expired, the United States may 
file an action against that Defendant in this Court requesting that the 
Court order: (1) Defendant to comply with the terms of this Final 
Judgment for an additional term of at least four years following the 
filing of the enforcement action; (2) all appropriate contempt 
remedies; (3) additional relief needed to ensure the Defendant complies 
with the terms of this Final Judgment; and (4) fees or expenses as 
called for by this Section XIV.

XV. Expiration of Final Judgment

    Unless the Court grants an extension, this Final Judgment will 
expire 10 years from the date of its entry, except that after five 
years from the date of its entry, this Final Judgment may be terminated 
upon notice by the United States to the Court and Defendants that the 
divestitures have been completed and continuation of this Final 
Judgment no longer is necessary or in the public interest.

XVI. 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 by making available to the 
public copies of this Final Judgment and the Competitive Impact 
Statement, public comments thereon, and any response to comments by the 
United States. Based upon the record before the Court, which includes 
the Competitive Impact Statement and, if applicable, any comments and 
responses to comments filed with the Court, entry of this Final 
Judgment is in the public interest.

Date: ____

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

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

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Zen-Noh Grain Corp., and 
Bunge North America, Inc., Defendants.

Civil Action No.: 1:21-cv-1482-RJL
Judge Richard J. Leon

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    On April 21, 2020, Zen-Noh Grain Corp. (``ZGC'') agreed to acquire 
35 operating and 13 idled U.S. grain elevators from Bunge North 
America, Inc. (``Bunge'') for approximately $300 million (``the 
Transaction''). The United States filed a civil antitrust Complaint on 
June 1, 2021, seeking to enjoin the proposed Transaction. The Complaint 
alleges that the likely effect of the Transaction would be to 
substantially lessen competition for purchases of corn and soybeans in 
nine geographic areas of the United States in violation of Section 7 of 
the Clayton Act, 15 U.S.C. 18.
    At the same time the Complaint was filed, the United States filed a 
proposed Final Judgment and an Asset Preservation and Hold Separate 
Stipulation and Order (``Stipulation''), which are designed to address 
the anticompetitive effects of the Transaction. The proposed Final 
Judgment, explained more fully below, requires the Defendants to divest 
certain grain elevators and related assets of Bunge or ZGC affiliate 
CGB Enterprises, Inc. (``the Divestiture Assets'') to Viserion Grain 
LLC and Viserion International Holdco LLC (``Viserion''), or to another 
acquirer or acquirers acceptable to the United States, within 30 
calendar days after entry of the Stipulation.
    Under the terms of the Stipulation, the Defendants will take 
certain steps to ensure that the Divestiture Assets remain independent; 
that all of the

[[Page 30489]]

Divestiture Assets remain economically viable, competitive, and 
saleable; that Defendants will preserve and maintain the Divestiture 
Assets; and that the level of competition that existed between 
Defendants prior to the Transaction is maintained during the pendency 
of the required divestiture.
    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment will terminate this action, except that the 
Court will retain jurisdiction to construe, modify, or enforce the 
provisions of the Final Judgment and to punish violations thereof.

II. Description of Events Giving Rise to the Alleged Violation

(A) The Defendants and the Proposed Transaction

    Defendant ZGC, headquartered in Covington, Louisiana, is a 
subsidiary of the National Federation of Agricultural Cooperative 
Associations of Japan. ZGC owns and operates a state-of-the-art export 
elevator located on the Mississippi River near Convent, Louisiana, from 
which it trades and exports corn, soybeans, sorghum, wheat, and grain 
by-products. Export elevators receive grain, largely via barge or rail, 
that has been purchased from farmers by inland elevators. Export 
elevators store the aggregated grain until it can be loaded onto ocean 
going ships. ZGC does not own any inland grain elevators and relies 
upon its affiliate, CGB Enterprises Inc. (``CGB''), to supply the 
majority of the corn, soybeans and other agricultural commodities ZGC 
exports annually from Convent. Post-acquisition, ZGC intends to lease 
the elevators that it proposes to acquire from Bunge to CGB to operate 
through CGB's wholly owned subsidiary, Consolidated Grain and Barge Co.
    CGB is a 50-50 joint venture between ZGC and Itochu Corporation, a 
global trading company. CGB operates more than 100 elevators in the 
United States, many of which are located along the Mississippi, Ohio, 
Arkansas, and Illinois Rivers. CGB is the fifth-largest grain company 
in the United States by storage capacity. CGB's grain merchandisers are 
in daily contact with thousands of farmers, actively seeking to 
purchase grain from them. Currently, CGB sells approximately 60% of the 
grain it purchases to ZGC.
    Defendant Bunge is the North American subsidiary of Bunge Limited. 
Bunge is a large agribusiness and food ingredient company that owns and 
operates grain elevators, oilseed processing plants, and edible oil 
refineries, as well as grain export terminals. Bunge is the eighth-
largest grain company in the United States by storage capacity. Post-
acquisition, Bunge will continue to purchase grain in the United States 
via its export elevator on the Mississippi River in Destrehan, 
Louisiana and its export terminal in Longview, Washington (a joint 
venture with Itochu Corporation). In addition to the export terminals, 
Bunge will retain ownership interests in eight grain elevators in 
Illinois and Indiana.
    The 35 operating elevators ZGC proposes to acquire from Bunge are 
located in nine states--Arkansas, Iowa, Illinois, Indiana, Kentucky, 
Louisiana, Missouri, Mississippi and Tennessee--primarily along the 
Mississippi River and its tributaries, and predominantly handle corn 
and soybeans.

(B) Relevant Markets and the Competitive Effects of the Transaction

    American consumers benefit from the productivity and efficiency of 
American farmers, who annually produce far more volume than needed to 
meet domestic demand. Corn and soybeans (collectively referred to here 
as ``grain'') are the primary crops grown in the United States. 
American farmers produced 14.2 billion bushels of corn and 4.14 billion 
bushels of soybeans in 2020, and roughly one-quarter of these grains 
were exported. In the United States, grain may flow from the farm 
directly to end users like ethanol plants and feed mills, or farmers 
may sell their grain to nearby rail or river grain elevators, where it 
is stored, aggregated, and later transported by train or barge to more 
distant domestic end users or to port elevators for export.
    More than 45% of the grain exported from the United States is 
shipped out from port elevator export terminals located at the mouth of 
the Mississippi River near the Gulf of Mexico. The vast majority of 
this grain is sourced from river elevators located along the 
Mississippi and its tributaries. These river elevators, found as far 
north as Minnesota, purchase grain from surrounding farms and load it 
onto barges for transport to port elevators. Nearly all of the 
elevators ZGC seeks to acquire from Bunge are river elevators located 
on the Mississippi or its tributaries.
    The livelihood of farmers depends on their ability to sell the corn 
and soybeans they grow to purchasers who offer them the best price, net 
of transportation and other selling costs that farmers incur. Ethanol 
plants and feed and crush mills purchase grain and process it into 
usable products such as soymeal or fuel. Rail and river elevators also 
purchase grain and store it until it is sold and transported to end 
users, in either domestic or export markets.
    For convenience, some farmers may sell their grain to smaller, 
``country'' elevators, located in closer proximity to the farmer than 
end users or rail and river elevators. Such elevators serve as grain 
collection and buying points in rural communities, and may provide 
other services like grain storage, drying, and conditioning services. 
Upon aggregating sufficient quantities of grain, or when market prices 
are most attractive, country elevators ultimately resell the grain to 
end users or to the larger rail or river elevators that can transport 
the grain to end users or export elevators.
    Today, ZGC and its affiliate CGB compete against Bunge to purchase 
corn and soybeans from farmers. In particular, in nine geographic areas 
a Bunge river elevator and a nearby ZGC or CGB elevator represent two 
of only a handful of grain purchasing alternatives for area farmers. In 
those nine geographic areas, ZGC and Bunge currently compete 
aggressively to win farmers' business by offering better prices and 
more attractive amenities such as faster grain drop-off services and 
better grain grading. Faster drop-off services mean farmers can get 
back to their fields more quickly and make better use of their trucks 
and employees, ultimately saving time and money. If one elevator is 
grading grain more harshly or inconsistently, which may lead to a lower 
price paid, the farmer has the option of selling to a competing 
elevator which may grade differently. The Transaction will eliminate 
competition between ZGC and Bunge in those locations. As result, many 
U.S. farmers are likely to receive lower prices and poorer quality 
service when seeking to sell their grain.
1. Relevant Product Markets
    ZGC (mainly through CGB) and Bunge own grain elevators, primarily 
located at rail terminals and along navigable rivers. They compete with 
other grain purchasers, including ethanol processors, feed mills, and 
crush processors, to purchase corn and soybeans from U.S. farmers, 
brokers, and country elevators. Corn and soybeans are each distinct 
products without reasonable substitutes, differing from other 
agricultural commodities and one another in their physical 
characteristics, means of production, uses, and pricing. Because of the 
length of growing seasons, and the suitability of corn and soybeans to 
certain climates

[[Page 30490]]

and regions, farmers of these crops would not switch to production of 
other agricultural commodities in sufficient numbers to render 
unprofitable a small but significant decrease in price by a 
hypothetical monopsonist of that crop. The purchase of corn and the 
purchase of soybeans for end use or for sale to the export market each 
constitute a relevant product market and line of commerce under Section 
7 of the Clayton Act, 15 U.S.C. 18.
2. Relevant Geographic Markets
    Farmers typically haul grain by truck to nearby elevators or end 
users. Transportation costs increase significantly with every mile the 
farmers must transport the grain to reach a purchaser, reducing the 
farmers' profits. Transporting grain also consumes farmers' time. For 
these reasons, a small change in price would not likely cause farmers 
to significantly expand the distance they are willing to drive to sell 
their grain. The distance a farmer is willing to drive is determined in 
large part by the second-closest potential purchaser, which is the best 
competitive threat to the purchaser closest to the farmer.
    Rail or river elevators and other grain purchasing facilities, such 
as grain crush plants and ethanol plants, typically purchase grain from 
within the facility's draw area. ``Draw area'' is an industry term that 
describes the locations of farms from which the facility expects to 
acquire most of its grain. Each elevator or end user has a unique draw 
area due to characteristics such as surrounding road conditions, crop 
output, local topography, and proximity of competing purchasers. The 
draw area of a grain purchasing facility is determined by 
transportation time and costs and so is usually very localized.
    The draw area of one grain facility frequently will overlap with 
that of another, resulting in competition between the facilities to 
purchase grain from farmers. Some farming areas of the country may be 
located such that they fall within the overlapping draw areas of only a 
few competing grain purchasing facilities. In particular, in the 
following areas where the Defendants' river elevators have overlapping 
draw areas, there are only a small number of grain purchasers competing 
to purchase farmers' corn and soybeans:
    (a) The overlapping draw areas of elevators in the vicinity of 
McGregor, Iowa;
    (b) The overlapping draw areas of elevators in the vicinity of 
Albany/Fulton, Illinois;
    (c) The overlapping draw areas of elevators in the vicinity of 
Shawneetown, Illinois;
    (d) The overlapping draw areas of elevators in the vicinity of 
Caruthersville, Missouri;
    (e) The overlapping draw areas of elevators in the vicinity of 
Huffman, Arkansas;
    (f) The overlapping draw areas of elevators in the vicinity of 
Osceola, Arkansas;
    (g) The overlapping draws areas of elevators in the vicinity of 
Helena, Arkansas;
    (h) The overlapping draw areas of elevators in the vicinity of Lake 
Providence, Louisiana; and
    (i) The overlapping draw areas of elevators in the vicinity of 
Lettsworth, Louisiana.
    These geographic areas satisfy the hypothetical monopsonist test (a 
``monopsonist'' is a buyer that controls the purchases in a given 
market), the buyer-side counterpart to the hypothetical monopolist 
test. A hypothetical monopsonist of the purchase of corn or soybeans in 
each of these areas would impose at least a small but significant and 
non-transitory decrease in the price paid to farmers. Such a price 
decrease for these products would not be defeated by farmers selling to 
purchasers outside their local area due to the added costs of 
transportation. As farmers in these areas have already determined the 
best use of their farmland, a price decrease would also not be defeated 
by farmers' switching to growing alternative crops. Farmers currently 
growing corn or soybeans are unlikely convert to production of other 
agricultural commodities in sufficient numbers to prevent a small but 
significant decrease in price. Nor could area farmers thwart a post-
transaction price decrease by selling instead to local country 
elevators. Country elevators simply resell grain to river and rail 
elevators or to other end users; if Defendants lower prices post-
transaction, country elevators would be forced to lower their own price 
to farmers to maintain profitability. Consequently, country elevators 
cannot mitigate a price decrease resulting from the Transaction. 
Therefore, each of the overlapping draw areas above constitute a 
relevant geographic market within the meaning of Section 7 of the 
Clayton Act, 15 U.S.C. 18, for the purposes of analyzing this 
transaction.
3. Competitive Effects
    In the each of the nine relevant geographic markets, ZGC (and its 
affiliate CGB) and Bunge are two of a very small number of grain 
purchasers competing to buy corn and soybeans; in two of these markets, 
CGB and Bunge are the only elevators available to area farmers. Famers 
located within these geographic areas depend on this competition to 
obtain a competitive price for their grain. ZGC's acquisition of 
Bunge's elevators will substantially lessen competition for the 
purchase of corn and soybeans in these markets, enabling it to 
unilaterally depress prices paid to farmers for their crops.
    Because there are few alternative grain purchasers within these 
geographic areas, purchases of grain are highly concentrated, with the 
Defendants accounting for a majority of corn and/or soybean purchases 
in a given year. For example, in 2019, the Defendants purchased upwards 
of 95% of the total corn and soybean output of farmers in Pemiscot 
County, Missouri; Pemiscot County falls within the draw area of Bunge's 
Caruthersville, Missouri river elevator, and the draw areas of CGB's 
Caruthersville and Cottonwood, Missouri river elevators.
    By eliminating head-to-head competition between ZGC (and its 
affiliate CGB) and Bunge for grain purchases in these geographic 
markets, the Transaction would result in lower prices paid to farmers, 
lower quality of services offered to farmers at the grain origination 
elevators, and reduced choice of outlets for farmers to sell their 
grain. The Transaction would substantially lessen competition and harm 
the many farmers selling their crops to river elevators along the 
Mississippi River and its tributaries.
4. Entry
    New entry and expansion by competitors likely will not be timely 
and sufficient in scope to prevent the likely anticompetitive effects 
of Defendant ZGC's acquisition of Bunge's elevators. Competitors are 
unlikely to construct new elevators in these geographic markets because 
of the high cost of construction and the difficulty of finding 
appropriate locations to build along the Mississippi or its 
tributaries. Even assuming such a location could be found and 
regulatory and permitting requirements could be fulfilled, constructing 
a river elevator would take approximately two years to complete.

III. Explanation of the Proposed Final Judgment

    The divestiture required by the proposed Final Judgment will remedy 
the loss of competition alleged in the Complaint by establishing an 
independent and economically viable competitor for the purchase of corn 
and soybeans in certain geographic markets

[[Page 30491]]

along the Mississippi and Ohio Rivers. The proposed Final Judgment 
requires the Defendants to divest nine elevators \1\ in nine geographic 
markets within 30 days after the entry of the Stipulation by the Court 
to Viserion or another acquirer or acquirers approved by the United 
States. In each of those nine geographic markets, a Bunge elevator 
competes head to head with one or more ZGC or CGB elevators.
---------------------------------------------------------------------------

    \1\ In Osceola, Arkansas, Bunge has two elevator locations, 
``Riverside,'' which as the name implies, abuts the Mississippi, and 
``Landside,'' a former soy crush plant located a bit inland from the 
river. Bunge currently operates the two locations as one combined 
entity, with Landside being used primarily for overflow storage in 
support of Riverside; similarly, the proposed Final Judgment and 
Stipulation view the two Bunge Osceola locations as one asset for 
purposes of remedying the likely harm from the proposed Transaction.
---------------------------------------------------------------------------

    The Divestiture Assets include the real property and real property 
rights, fee simple interests; buildings, facilities, and other 
structures, including bins, silos, other grain storage facilities, and 
dock facilities associated with the nine grain elevators. The 
Divestiture Assets also encompass all existing grain inventories at the 
elevators, and all contracts (including grain contracts), contractual 
rights, and relationships, including customer and supplier 
relationships, and all other agreements, commitments, and 
understandings, including, supply agreements, teaming agreements, and 
leases, and all outstanding offers or solicitations to enter into a 
similar arrangement that relate exclusively to the elevators that will 
be divested.
    The Divestiture Assets must be divested in such a way as to satisfy 
the United States in its sole discretion that the Divestiture Assets 
can and will be operated by the purchaser as a viable, ongoing business 
that can compete effectively in the market for the purchase of corn and 
the market for the purchase of soybeans. Defendants must take all 
reasonable steps necessary to accomplish the divestiture quickly and 
must cooperate with any acquirer.
    If Defendants do not accomplish the divestiture within the period 
prescribed in the proposed Final Judgment, the proposed Final Judgment 
provides that the Court will appoint a divestiture trustee selected by 
the United States to execute the divestiture. If a divestiture trustee 
is appointed, the proposed Final Judgment provides that Defendant ZGC 
will pay all costs and expenses of the trustee. The divestiture 
trustee's commission will be structured so as to provide an incentive 
for the trustee based on the price obtained and the speed with which 
the divestiture is accomplished. After the divestiture trustee's 
appointment becomes effective, the trustee will provide periodic 
reports to the United States setting forth his or her efforts to 
accomplish the divestiture. If the divestiture has not been 
accomplished at the end of six months, the divestiture trustee and the 
United States will make recommendations to the Court, which will enter 
such orders as appropriate, in order to carry out the purpose of the 
trust, including by extending the trust or the term of the divestiture 
trustee's appointment.
    Under Paragraph IV.I. of the proposed Final Judgment, Defendants 
must cooperate with and assist the acquirer in identifying and, at the 
option of acquirer, hiring (1) all full time, part time, or contract 
employees employed at the divested elevators at any time between August 
21, 2020, and the divestiture date; (2) all elevator managers, grain 
merchandisers, and elevator superintendents employed by Bunge or CGB 
whose job responsibilities are shared between or among divested 
elevators and any non-divested elevators, at any time between August 
21, 2020, and the divestiture date; and (3) all regional managers 
employed by Bunge one organizational level above the elevator manager 
level, wherever located, whose job duties support the grain purchasing 
business of any of the Bunge elevators, at any time between August 21, 
2020, and the divestiture date. Defendants must provide Viserion, or 
any other acquirer or acquirers, with information on these employees 
and are prohibited from interfering with the efforts of Viserion, or 
any other acquirer or acquirers, to hire them.
    The proposed Final Judgment includes a non-solicit provision 
(Paragraph IV.I.6.) prohibiting the Defendants from attempting to 
rehire relevant personnel that have agreed to work for the acquirer, 
subject to certain narrow exceptions, such as if an individual is laid 
off by the acquirer. The non-solicit provision is limited in duration 
to 12 months, which is a length of time intended to encompass the first 
harvest season for which the acquirer will be operating the divested 
elevators. It is also limited in scope to apply only to certain 
relevant personnel--regional/general managers, elevator managers, 
merchandisers, bookkeepers, and site superintendents--the employees 
most intimately involved with farmer outreach and elevator operation. 
The categories of employees protected by the non-solicit provision are 
integral to maintaining customer relations while ownership of the 
assets is transitioning; elevator managers and the grain merchandisers, 
in particular, are needed to develop and keep strong customer 
relationships to get grain into the elevators. Defendants are not 
restricted, however, from advertising employment openings using general 
solicitations or advertisements and rehiring relevant personnel who 
apply for an employment opening through a general solicitation or 
advertisement.
    Under Paragraph IV.M. of the proposed Final Judgment, at the option 
of the acquirer or acquirers, and subject to approval by the United 
States in its sole discretion, Defendants must enter into one or more 
contracts to provide the acquirer or acquirers with transition services 
for back office, human resources, or information technology, for a 
period of up to six months after the divestiture occurs, on terms and 
conditions reasonably related to market conditions for the provision of 
the transition services. The transition services covered by the 
proposed Final Judgment are those that might reasonably be necessary to 
ensure that an acquirer or acquirers can readily and promptly use the 
assets to compete in the relevant markets.
    For the term of the proposed Final Judgment, Paragraph XI.A. 
requires Defendant ZGC to provide at least 30 calendar days advance 
notification to the United States of its intent to directly or 
indirectly acquire any assets of, or any interest in, grain purchasing 
facilities located within a 100-mile radius any divested elevator. The 
notification requirement of Paragraph XI.A. applies to transactions 
that are not subject to the reporting and waiting period requirements 
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as 
amended, 15 U.S.C. 18a (the ``HSR Act'').\2\ Notification of such non-
reportable transactions is necessary because acquisition of a single 
elevator from another grain purchasing company is not uncommon in the 
grain industry, and such an acquisition, or even an acquisition of a 
small suite of elevators, likely would not meet the notification 
thresholds of the HSR Act, but nevertheless could have a substantial 
anticompetitive effect.
---------------------------------------------------------------------------

    \2\ Paragraph XI.M. exempts from this reporting requirement 
Defendant ZGC's acquisition of grain purchasing facilities that were 
leased by Defendant ZGC as of January 1, 2021. The United States has 
already accounted for ZGC's control over those assets in its 
competitive analysis of the Transaction and structuring of the 
divestiture.
---------------------------------------------------------------------------

    The proposed Final Judgment also contains provisions designed to 
promote compliance and make the enforcement of the Final Judgment as 
effective as possible. Paragraph XIV.A. provides that the United States 
retains and reserves all rights to enforce the provisions of the 
proposed Final Judgment, including its

[[Page 30492]]

rights to seek an order of contempt from the Court. Under the terms of 
this paragraph, 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 Judgment, the 
United States may establish the violation and the appropriateness of 
any remedy by a preponderance of the evidence and that 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 XIV.B. provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgment. The 
proposed Final Judgment was drafted to restore competition that would 
otherwise be harmed by the transaction. Defendants agree that they will 
abide by the proposed Final Judgment, and that they may be held in 
contempt of this Court for failing to comply with any provision of the 
proposed Final Judgment that is stated specifically and in reasonable 
detail, as interpreted in light of this procompetitive purpose.
    Paragraph XIV.C. of the proposed Final Judgment provides that if 
the Court finds in an enforcement proceeding that Defendants have 
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, to compensate American 
taxpayers for any costs associated with investigating and enforcing 
violations of the proposed Final Judgment, Paragraph XIV.C. provides 
that in any successful effort by the United States to enforce the Final 
Judgment against a Defendant, whether litigated or resolved before 
litigation, that Defendants will reimburse the United States for 
attorneys' fees, experts' fees, and other costs incurred in connection 
with any enforcement effort, including the investigation of the 
potential violation.
    Paragraph XIV.D. states that the United States may file an action 
against a Defendant for violating the Final Judgment for up to four 
years after the Final Judgment has expired or been terminated. This 
provision is meant to address circumstances such as when evidence that 
a violation of the Final Judgment occurred during the term of the Final 
Judgment is not discovered until after the Final Judgment has expired 
or been terminated or when there is not sufficient time for the United 
States to complete an investigation of an alleged violation until after 
the Final Judgment has expired or been terminated. This provision, 
therefore, makes clear that, for four years after the Final Judgment 
has expired or been terminated, the United States may still challenge a 
violation that occurred during the term of the Final Judgment.
    Finally, Section XV of the proposed Final Judgment provides that 
the Final Judgment will expire ten years from the date of its entry, 
except that after five years from the date of its entry, the Final 
Judgment may be terminated upon notice by the United States to the 
Court and Defendants that the divestiture has been completed and that 
the continuation of the Final Judgment is no longer necessary or in the 
public interest.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment neither impairs 
nor assists the bringing of any private antitrust damage action. Under 
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the 
proposed Final Judgment has no prima facie effect in any subsequent 
private lawsuit that may be brought against Defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 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 U.S. 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time before the Court's entry of the 
Final Judgment. The comments and the response of the United States will 
be filed with the Court. In addition, comments will be posted on the 
U.S. Department of Justice, Antitrust Division's internet website and, 
under certain circumstances, published in the Federal Register.
    Written comments should be submitted to:
    Robert Lepore, Chief, Transportation, Energy and Agriculture 
Section, Antitrust Division, U.S. Department of Justice, 450 Fifth 
Street NW, Suite 8000, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    As an alternative to the proposed Final Judgment, the United States 
considered a full trial on the merits against Defendants. The United 
States could have continued the litigation and sought preliminary and 
permanent injunctions against ZGC's acquisition of grain elevators from 
Bunge. The United States is satisfied, however, that the divestiture of 
assets described in the proposed Final Judgment will remedy the 
anticompetitive effects alleged in the Complaint, preserving 
competition for the purchase of corn and soybeans in the nine relevant 
geographic markets along the Mississippi and Ohio Rivers. Thus, the 
proposed Final Judgment achieves all or substantially all of the relief 
the United States would have obtained through litigation, but avoids 
the time, expense, and uncertainty of a full trial on the merits of the 
Complaint.

VII. Standard of Review Under the APPA for the Proposed Final Judgment

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a 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

[[Page 30493]]

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); United States v. U.S. Airways Grp., 
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry 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 a 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'').
    As the U.S. Court of Appeals for the District of Columbia Circuit 
has held, under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations in 
the government's complaint, whether the proposed Final Judgment is 
sufficiently clear, whether its enforcement mechanisms are sufficient, 
and whether it may positively harm third parties. See Microsoft, 56 
F.3d at 1458-62. With respect to the adequacy of the relief secured by 
the proposed Final Judgment, a court may ``not to make de novo 
determination of facts and issues.'' United States v. W. Elec. Co., 993 
F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted); see also 
Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F. 
Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107 F. 
Supp. 2d 10, 16 (D.D.C. 2000); 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.'' W. 
Elec. Co., 993 F.2d at 1577 (quotation marks omitted). ``The court 
should bear in mind the flexibility of the public interest inquiry: The 
court's function is not to determine whether the resulting array of 
rights and liabilities is one that will best serve society, but only to 
confirm that the resulting settlement is within the reaches of the 
public interest.'' Microsoft, 56 F.3d at 1460 (quotation marks 
omitted). More demanding requirements would ``have enormous practical 
consequences for the government's ability to negotiate future 
settlements,'' contrary to congressional intent. Id. at 1456. ``The 
Tunney Act was not intended to create a disincentive to the use of the 
consent decree.'' Id.
    The United States' predictions about the efficacy of the remedy are 
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 
1461 (recognizing courts should give ``due respect to the Justice 
Department's . . . view of the nature of its case''); United States v. 
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In 
evaluating objections to settlement agreements under the Tunney Act, a 
court must be mindful that [t]he government need not prove that the 
settlements will perfectly remedy the alleged antitrust harms[;] it 
need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'') (internal 
citations omitted); United States v. Republic Servs., Inc., 723 F. 
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to 
which the government's proposed remedy is accorded''); United States v. 
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A 
district court must accord due respect to the government's prediction 
as to the effect of proposed remedies, its perception of the market 
structure, and its view of the nature of the case''). The ultimate 
question is whether ``the remedies [obtained by the Final Judgment 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 W. Elec. Co., 900 F.2d at 309).
    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.
    In its 2004 amendments to the APPA, Congress made clear its intent 
to preserve the practical benefits of using consent judgments proposed 
by the United States in antitrust enforcement, Public Law. 108-237 
Sec.  221, and added 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 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). ``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 (citing Enova 
Corp., 107 F. Supp. 2d at 17).

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: June 1, 2021.

Respectfully submitted,

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Jill Ptacek,
U.S. Department of Justice Antitrust Division, Transportation, 
Energy and Agriculture Section, 450 Fifth Street NW, Suite 8000,

[[Page 30494]]

Washington, DC 20530, 202-307-6607, [email protected].

[FR Doc. 2021-11916 Filed 6-7-21; 8:45 am]
BILLING CODE 4410-11-P