United States v. Wieneberger AG, et al.; Proposed Final Judgment and Competitive Impact Statement, 58924-58940 [2021-23205]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Notices]
[Pages 58924-58940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23205]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Wieneberger AG, 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. Wienerberger AG, et al., Civil Action No. 1:21-cv-
02555. On October 1, 2021, the United States filed a Complaint alleging 
that General Shale's proposed acquisition of Meridian's manufacturing 
and distribution assets 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 General Shale to divest three

[[Page 58925]]

manufacturing plants and 14 distribution yards.
    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 Federal Register. Comments should be submitted in English and 
directed to Jay Owen, Acting Chief, Defense, Industrials, and Aerospace 
Section, Antitrust Division, Department of Justice, 450 Fifth Street 
NW, Suite8 700, Washington, DC 20530 (email address: 
[email protected]).

Suzanne Morris,
Chief, Premerger and Division Statistics, Antitrust Division, 
Department of Justice.

United States District Court for the District of Columbia

    United States of America, United States Department of Justice, 
Antitrust Division, 450 Fifth Street NW, Suite 8700, Washington, DC 
20530, Plaintiff, v. Wienerberger AG, Wienerbergerplatz 1, 1100 
Wien, Austria, General Shale Brick, Inc., 3015 Bristol Hwy., Johnson 
City, Tennessee 37601, LSF9 Stardust Super Holdings, L.P., 
Washington Mall, 7 Reid Street, Suite 304, Hamilton, Bermuda HM 11, 
Boral Limited, Level 18, 15 Blue Street, North Sydney, NSW 2060, 
Australia, and Meridian Brick LLC, 6455 Shiloh Rd., Alpharetta, 
Georgia 30005, Defendants.

Civil Action No.: 1:21-cv-02555 (CRC)

Complaint

    The United States of America (``United States''), acting under the 
direction of the Attorney General of the United States, brings this 
civil antitrust action against Defendants Wienerberger AG, its North 
American subsidiary General Shale Brick, Inc. (``General Shale''), 
Meridian Brick LLC (``Meridian''), and Meridian's parent companies 
Boral Limited and LSF9 Stardust Super Holdings, L.P. to enjoin General 
Shale's proposed acquisition of Meridian. The United States alleges as 
follows:

I. Nature of the Action

    1. General Shale's proposed acquisition of its rival, Meridian, 
would combine two of the largest residential brick manufacturers in 
numerous markets across the midwestern and southern United States. 
General Shale and Meridian compete daily to supply a variety of 
residential brick to customers ranging from local homebuilders to 
national construction companies. As a result of the transaction, 
homebuilders of all types likely will pay higher prices, face reduced 
innovation, and receive lower quality products for their residential 
brick supply.
    2. In numerous markets across the United States, General Shale and 
Meridian are the two most significant suppliers of residential brick or 
two of only a few such suppliers. Homebuilders, particularly in certain 
areas of Alabama, Indiana, Kentucky, Michigan, Ohio, and Tennessee 
depend on competition between General Shale and Meridian to ensure a 
supply of quality brick at competitive prices.
    3. Not only has competition between General Shale and Meridian 
driven residential brick prices down, it has also fostered product 
innovation that has resulted in new products and the broad portfolio 
that each firm offers today. For example, competition between these 
firms has resulted in the introduction of new color mixes, textures, 
and facing styles, as well as more efficient and environmentally 
sustainable production processes.
    4. By eliminating competition between General Shale and Meridian, 
the proposed acquisition would result in higher prices, reduced 
innovation, and lower quality in the markets for the design, 
manufacture, and sale of residential brick. Accordingly, General 
Shale's acquisition of Meridian would violate Section 7 of the Clayton 
Act, 15 U.S.C. 18, and therefore should be enjoined.

II. The Parties and the Transaction

    5. General Shale is a Delaware corporation headquartered in Johnson 
City, Tennessee. It is a leading U.S. producer of building material 
solutions and one of North America's largest brick, stone, and concrete 
block manufacturers. General Shale operates 11 production facilities in 
10 states and provinces. It also has a network of 21 sales locations 
and more than 200 affiliated distributors in North America.
    6. Wienerberger AG, an Austrian corporation, is General Shale's 
parent company. Based in Vienna, Austria, it is one of the world's 
largest building materials manufacturers. Wienerberger AG operates 
manufacturing and distribution facilities for brick and other 
construction materials in three continents, including in North America 
through General Shale. In 2020, Wienerberger AG's North American 
business generated revenues of approximately $370 million, 78% of which 
was derived from brick sales, including residential brick sales.
    7. Meridian is a Delaware limited liability company. Headquartered 
in Alpharetta, Georgia, Meridian manufactures and sells construction 
materials, including commercial and residential brick and masonry 
materials. Meridian is the largest brick supplier in the United States. 
During fiscal year 2020, it generated revenues of over $400 million, 
which primarily came from brick sales, including residential brick 
sales. Meridian and its sister company Meridian Brick Canada Ltd. make 
up the Meridian Group, which operates 20 manufacturing facilities and 
27 distribution centers throughout North America. The Meridian Group is 
directly and indirectly owned by Boral Limited (``Boral'') and LSF9 
Stardust Super Holdings, L.P. Boral is an Australian public company 
that produces and supplies building and construction materials 
primarily in North America and Australia. Boral and LSF9 Stardust Super 
Holdings, L.P. formed Meridian as a joint venture in 2016.
    8. On December 18, 2020, General Shale announced its intention to 
acquire Meridian from Boral and LSF9 Stardust Super Holdings, L.P. as 
part of a total transaction valued at approximately $250 million.

III. Jurisdiction and Venue

    9. The United States brings this action under Section 15 of the 
Clayton Act, 15 U.S.C. 25, as amended, to prevent and restrain 
Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
    10. Defendants' activities substantially affect interstate 
commerce. They manufacture and sell residential brick directly to 
customers and through third-party distributors throughout the southern 
and midwestern United States. This 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.
    11. Defendants have consented to venue and personal jurisdiction in 
this judicial district. Venue is proper in this district under Section 
12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391(b)(3) and 
(c)(2) for Meridian and

[[Page 58926]]

General Shale, and venue is proper for LSF9 Stardust Super Holdings, 
L.P., Boral Limited, and Wienerberger AG under 28 U.S.C. 1391(c)(3).

IV. Relevant Markets

A. Product Market: Residential Brick

    12. Residential brick is a type of exterior cladding that is used 
to protect homes and other buildings from weather and the elements. It 
comes in various sizes and colors and is primarily comprised of shale 
or red clay that has been fired in a kiln. Residential brick of each 
color and size is manufactured in a substantially similar process, with 
minor adjustments in the amount of clay or type of color additives used 
to make a particular brick model. Indeed, although residential brick 
comes in varying sizes (e.g., modular, queen, and king) and colors 
(e.g., red, white, or grey), all residential brick volumes are measured 
in Standard Brick Equivalents (``SBE'').\1\
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    \1\ The American Society for Testing and Materials has 
established a standard brick size for construction uses, which is 
referred to as the standard brick equivalent or ``SBE.'' Residential 
brick of different sizes is converted to SBE units when sold for 
purposes of measuring the volume sold.
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    13. Residential brick is distinct from commercial brick. 
Residential brick is less expensive than commercial brick due to 
different manufacturing processes. In particular, commercial brick is 
made by a process called through-body extrusion. Through-body extrusion 
entails a rigorous coloring process that ensures uniform coloring 
throughout the body of the brick. This achieves the higher color 
quality required of commercial brick. By contrast, residential brick is 
often colored only on the outer portion of the brick, and the 
residential brick manufacturing process requires fewer additives and 
other costly inputs.
    14. Residential brick must meet standard specifications for 
residential use that are set by the American Society for Testing and 
Materials (``ASTM''). These standards require certain durability and 
load capabilities that differentiate residential brick from decorative 
paving brick as well as ``thin'' brick, which is a fraction of the 
thickness of residential brick and has lower structural requirements 
because it is ornamental.
    15. Residential brick is distinct from other types of exterior 
cladding. It has both performance characteristics (such as durability 
and structural integrity) and aesthetic traits that distinguish it from 
products such as siding and other exterior claddings. Customers who 
prefer the look of residential brick, or whose projects require the 
unique properties of residential brick, cannot reasonably turn to 
alternative exterior cladding solutions.
    16. Because of these unique characteristics, substitution away from 
residential brick in the event of a small but significant increase in 
price by a hypothetical monopolist of residential brick would be 
insufficient to make such a price increase unprofitable. Accordingly, 
residential brick is a line of commerce, or relevant product market, 
for purposes of analyzing the effects of the proposed acquisition under 
Section 7 of the Clayton Act.

B. The Relevant Geographic Markets Are Local

    17. Residential brick is generally transported by truck. 
Transportation costs can be substantial and typically range from 15% to 
30% of the total price of residential brick. As a result, the 
geographic markets for residential brick tend to be local, with the 
specific geographic boundaries of any local market also determined by 
road infrastructure, traffic conditions, and natural conditions, such 
as mountain ranges that impose significantly higher fuel costs on the 
transportation of residential brick to customers in local markets.
    18. The transaction would likely harm competition for residential 
brick in the following Metropolitan Statistical Areas (``MSAs'') \2\: 
(1) Nashville, Tennessee; (2) Memphis, Tennessee; (3) Huntsville, 
Alabama; (4) Lexington, Kentucky; (5) Louisville, Kentucky; (6) 
Indianapolis, Indiana; (7) Detroit, Michigan; and (8) Cincinnati, Ohio.
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    \2\ An MSA is a geographical region defined by the Office of 
Management and Budget for use by federal statistical agencies, such 
as the Census Bureau. It is based on the concept of a core area with 
a large concentrated population, plus adjacent communities having 
close economic and social ties to the core. For the purposes of this 
Complaint, it includes the dense central business districts in the 
named cities as well as the adjacent, connected communities.
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    19. In each of these relevant markets, a small but significant 
increase in price by a hypothetical monopolist of residential brick 
would not be defeated by substitution to commercial brick or other 
claddings, other construction materials, or by arbitrage--i.e., a buyer 
cannot purchase outside the MSA and transport the residential bricks 
itself without incurring prohibitive transportation costs. Accordingly, 
the sale of residential brick in each of these MSAs constitutes a 
relevant market for purposes of analyzing the effects of the 
acquisition under Section 7 of the Clayton Act.

V. Anticompetitive Effects

    20. The proposed transaction would significantly increase 
concentration in the relevant markets and harm consumers by eliminating 
the substantial head-to-head competition that currently exists between 
General Shale and Meridian.
    21. For each relevant market, General Shale and Meridian are among 
the top suppliers of residential brick by volume sold and have a 
competitive advantage because of the proximity of their manufacturing 
facilities to customers in each relevant market. Further, only two or 
three significant competitors, including General Shale and Meridian, 
supply each relevant market. Other residential brick suppliers face 
significantly higher transportation costs to serve these markets and 
thus have limited competitive significance. Competition between General 
Shale and Meridian has also spurred product innovation that has yielded 
higher quality and a variety of innovative residential brick products, 
including new colors, textures, and facing styles.
    22. Homebuilders and other customers in the relevant markets thus 
rely on competition between General Shale and Meridian to supply a 
variety of quality residential brick at competitive prices. By 
eliminating this competition, the proposed transaction would likely 
lead to higher prices and reduced investment in innovation and quality.

A. The Nashville, Tennessee MSA

    23. In 2020, Tennessee was the second-largest brick consuming state 
in the United States. General Shale and Meridian supplied approximately 
54% of the total brick volume sold in Tennessee in 2020. General Shale 
and Meridian are particularly important suppliers for the Nashville 
MSA, where they are the top two suppliers of residential brick by 
volume and face only each other as significant competitors. General 
Shale and Meridian are the only significant suppliers of residential 
brick that operate brick manufacturing facilities located within 150 
miles of Nashville, and no other significant supplier has a 
manufacturing facility located within 200 miles.

B. The Memphis, Tennessee MSA

    24. General Shale and Meridian are also important suppliers of 
residential brick for the Memphis MSA, where they face only one other 
significant competitor. These three firms are the only significant 
suppliers that operate brick manufacturing facilities within

[[Page 58927]]

200 miles of Memphis, and no other significant supplier of residential 
brick has a facility located within 350 miles.

C. The Huntsville, Alabama MSA

    25. Alabama consumed the fifth most bricks of any state in the 
nation in 2020. General Shale and Meridian are two of the top three 
residential brick suppliers in Alabama and combined supplied over 43% 
of the total brick volume sold in Alabama in 2020. General Shale and 
Meridian are particularly important suppliers for the Huntsville MSA, 
where they are two of the top three residential brick suppliers by 
volume and face only one other significant competitor. These three 
firms are the only significant suppliers that operate a residential 
brick manufacturing facility located within 125 miles of Huntsville.

D. The Lexington, Kentucky MSA

    26. General Shale and Meridian supplied over 50% of the total brick 
volume sold in Kentucky in 2020. General Shale and Meridian are 
particularly important suppliers for the Lexington MSA, where they are 
the two largest suppliers of residential brick by volume and face only 
each other as significant competitors. General Shale and Meridian are 
the only significant residential brick suppliers located within 50 
miles of Lexington; the next closest residential brick manufacturer is 
over 230 miles away.

E. The Louisville, Kentucky MSA

    27. General Shale and Meridian are also important residential brick 
suppliers for the Louisville MSA. In the Louisville MSA, the proposed 
acquisition would reduce the number of significant competitors for 
residential brick from three to two, as the merging parties own two of 
the three brick manufacturing facilities located within 200 miles of 
Louisville. Following the transaction, the third-closest significant 
residential brick manufacturer would be located over 300 miles away.

F. The Indianapolis, Indiana MSA

    28. General Shale and Meridian are the top two suppliers of 
residential brick to customers in Indiana. In 2020, they combined to 
supply over 45% of the total brick volume sold in the state. General 
Shale and Meridian are particularly important suppliers of residential 
brick for the Indianapolis MSA, where they face only one other 
significant competitor. These three firms are the only significant 
suppliers that operate a residential brick manufacturing facility 
located within 100 miles of Indianapolis, with the next closest 
competitor located almost 350 miles away.

G. The Detroit, Michigan MSA

    29. General Shale and Meridian are the first and third largest 
suppliers of brick to customers in Michigan. In 2020, General Shale and 
Meridian supplied 45% of the total brick volume sold in the state. 
General Shale and Meridian are particularly important suppliers for the 
Detroit MSA, where they are the top two competitors for residential 
brick by volume. In this market, the proposed acquisition would reduce 
the number of significant suppliers for residential brick from three to 
two with these three firms being the only significant suppliers that 
operate residential brick manufacturing facilities within 375 miles of 
Detroit.

H. The Cincinnati, Ohio MSA

    30. General Shale and Meridian are the top two residential brick 
suppliers to customers in Ohio. In 2020, General Shale and Meridian 
supplied 28% of the total brick volume sold in the state. General Shale 
and Meridian are particularly important suppliers for the Cincinnati 
MSA, where they are the top two competitors for residential brick by 
volume and face only one other significant supplier. These three firms 
are the only significant suppliers with residential brick manufacturing 
facilities located within 200 miles of Cincinnati, and no other 
significant manufacturer has a facility within 350 miles.

VI. Entry

    31. Entry into the relevant markets would be costly and time-
consuming and is unlikely to prevent the harm to competition that is 
likely to result from the proposed transaction. The time and expense 
required to construct manufacturing facilities, acquire necessary 
equipment, develop product formulas, and overcome regulatory obstacles, 
such as obtaining building and usage permits and ensuring environmental 
and workplace safety compliance, would take years of planning and 
significant financial investment.
    32. Additionally, repositioning by a commercial brick manufacturer 
is unlikely to mitigate the harm that would result from the proposed 
transaction. Switching from producing commercial brick to producing 
residential brick would come at a significant opportunity cost as 
commercial brick sales generally yield a higher profit margin than 
residential brick. Accordingly, it is unlikely that a manufacturer of 
commercial brick would be incentivized to switch to supplying 
residential brick.

VII. Violations Alleged

    33. General Shale's proposed acquisition of Meridian is likely to 
substantially lessen competition in each of the relevant markets for 
the design, manufacture, and sale of residential brick set forth above 
in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
    34. Unless enjoined, the acquisition likely would have the 
following anticompetitive effects, among others, in the relevant 
markets:
    (a) Actual and potential competition between General Shale and 
Meridian would be eliminated;
    (b) competition generally would be substantially lessened; and
    (c) prices for the relevant products would likely increase, and 
innovation and the quality of those products likely would decline.

VIII. Request for Relief

    35. The United States request that this Court:
    (a) Adjudge and decree General Shale's proposed acquisition of 
Meridian to be unlawful and in violation of Section 7 of the Clayton 
Act, 15 U.S.C. 18;
    (b) preliminarily and permanently enjoin Defendants and all persons 
acting on their behalf from consummating the proposed acquisition by 
General Shale of Meridian or from entering into or carrying out any 
other contract, agreement, plan, or understanding, the effect of which 
would be to combine Meridian with the operations of General Shale;
    (c) award the United States the costs for this action; and
    (d) grant the United States such other relief as the Court deems 
just and proper.

    Dated: October 1, 2021.
    Respectfully Submitted,

For Plaintiff United States:
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Richard A. Powers,
Acting Assistant Attorney General, Antitrust Division.
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Kathleen S. O'Neill,
Senior Director of Investigations and Litigation, Antitrust 
Division.
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Jay D. Owen,
Acting Chief, Defense, Industrials, and Aerospace Section, Antitrust 
Division.
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Soyoung Choe,
Acting Assistant Chief, Defense, Industrials, and Aerospace Section, 
Antitrust Division.
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Daniel J. Monahan, Jr.*
Stephen A. Harris,

[[Page 58928]]

Matthew C. Fellows (D.C. Bar #1736656),
Trial Attorneys, United States Department of Justice, Antitrust 
Division, Defense, Industrials, and Aerospace Section, 450 Fifth 
Street NW, Suite 8700, Washington, DC 20530, Telephone: (202) 598-
8774, Facsimile: (202) 514-9033, Email: [email protected].
*Lead Attorney to be Noticed.

United States District Court, for the District of Columbia

    United States of America, Plaintiff, v. Wienerberger AG, General 
Shale Brick, Inc., Boral Limited, LSF9 Stardust Super Holdings, 
L.P., Meridian Brick LLC, Defendants.

Civil Action No.: 1:21-cv-02555 (CRC)

Proposed Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on October 1, 2021;
    And whereas, the United States and Defendants, Wienerberger AG, 
General Shale Brick, Inc., Boral Limited, LSF9 Stardust Super Holdings, 
L.P., and Meridian Brick LLC, 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 relating to 
any issue of fact or law;
    And whereas, Defendants agree to make a divestiture to remedy the 
loss of competition alleged in the Complaint;
    And whereas, Defendants represent that the divestiture 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 (15 U.S.C. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Boral'' means Defendant Boral Limited, an Australian public 
company with its headquarters in North Sydney, Australia, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    B. ``General Shale'' means Defendant General Shale Brick, Inc, a 
subsidiary of Wienerberger and a Delaware corporation with its 
headquarters in Johnson City, Tennessee, its successors and assigns, 
and its subsidiaries, divisions, groups, affiliates, partnerships, and 
joint ventures, and their directors, officers, managers, agents, and 
employees.
    C. ``Meridian'' means Defendant Meridian Brick LLC, a joint venture 
between Boral and LSF9 and a Delaware limited liability company with 
its headquarters in Alpharetta, Georgia, its successors and assigns, 
and its subsidiaries, divisions, groups, affiliates, partnerships, and 
joint ventures, and their directors, officers, managers, agents, and 
employees.
    D. ``LSF9'' means Defendant LSF9 Stardust Super Holdings, L.P., a 
Bermuda limited partnership with its principal place of business in 
Hamilton, Bermuda, its successors and assigns, and its subsidiaries, 
divisions, groups, affiliates, partnerships, and joint ventures, and 
their directors, officers, managers, agents, and employees.
    E. ``Wienerberger'' means Wienerberger AG, an Austrian corporation 
with its headquarters in Wien, Austria, its successors and assigns, and 
its subsidiaries, divisions, groups, affiliates, partnerships, and 
joint ventures, and their directors, officers, managers, agents, and 
employees.
    F. ``RemSom'' means RemSom LLC, a South Carolina limited liability 
company with its headquarters in Columbia, South Carolina, its 
successors and assigns, and its subsidiaries (including US Brick, LLC), 
divisions, groups, affiliates, partnerships, and joint ventures, and 
their directors, officers, managers, agents, and employees.
    G. ``Acquirer'' means RemSom or another entity approved by the 
United States in its sole discretion to which Defendants divest the 
Divestiture Assets.
    H. ``Divestiture Assets'' means all of Defendants' rights, titles, 
and interests in and to:
    1. The manufacturing facilities and mines listed in Appendix A;
    2. the distribution yards and stores listed in Appendix B;
    3. all property and assets, tangible and intangible, wherever 
located, relating to or used in connection with the manufacturing 
facilities and mines listed in Appendix A or the distribution yard and 
stores listed in Appendix B, including:
    a. All other real property, including fee simple interests, real 
property leasehold interests and renewal rights thereto, improvements 
to real property, and options to purchase any adjoining or other 
property, together with all buildings, facilities, and other 
structures;
    b. all tangible personal property, including fixed assets, 
machinery and manufacturing equipment, tools, vehicles, inventory, 
materials, office equipment and furniture, computer hardware, and 
supplies;
    c. all contracts, contractual rights, and customer and distributor 
relationships, and all other agreements, commitments, and 
understandings, including supply agreements, teaming agreements, 
leases, and all outstanding offers or solicitations to enter into a 
similar arrangement;
    d. all licenses, permits, certifications, approvals, consents, 
registrations, waivers, and authorizations issued or granted by any 
governmental organization, and all pending applications or renewals;
    e. all records and data, including (a) customer and distributor 
lists, accounts, sales, and credits records, (b) production, repair, 
maintenance, and performance records, (c) manuals and technical 
information Defendants provide to their own employees, customers, 
distributors, suppliers, agents, or licensees, (d) records and research 
data concerning historic and current research and development 
activities, including designs of experiments and the results of 
successful and unsuccessful designs and experiments, and (e) drawings, 
blueprints, and designs;
    f. all intellectual property owned, licensed, or sublicensed, 
either as licensor or licensee, including (a) patents, patent 
applications, and inventions and discoveries that may be patentable, 
(b) registered and unregistered copyrights and copyright applications, 
and (c) registered and unregistered trademarks, trade dress, service 
marks, trade names, and trademark applications; and
    g. all other intangible property, including (a) commercial names 
and d/b/a names, (b) technical information, (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), quality assurance and control procedures, (d) design tools 
and simulation capabilities, and (e) rights in internet websites and 
internet domain names.
    Provided, however, that the assets specified in Paragraphs 
II.H.3.a-g above do not include the assets identified in Appendix C or 
any trademarks, trade names, service marks, or service names containing 
the names ``General Shale,'' ``Meridian,'' ``Watsontown,''

[[Page 58929]]

``Columbus,'' ``Arriscraft,'' or ``Wienerberger''.
    I. ``Divestiture Date'' means the date on which the Divestiture 
Assets are divested to Acquirer pursuant to this Final Judgment.
    J. ``Including'' means including, but not limited to.
    K. ``Relevant Personnel'' means all full-time, part-time, or 
contract employees of General Shale or Meridian, located at one of the 
facilities, mines, yards, or stores included in the Divestiture Assets 
at any time between January 1, 2019, and the Divestiture Date. 
Provided, however, Relevant Personnel does not include employees of 
Defendants that the United States, in its sole discretion, deems to be 
primarily engaged in human resources, legal, or other general or 
administrative support functions. The United States, in its sole 
discretion, will resolve any disagreement relating to which employees 
are Relevant Personnel.
    L. ``Transaction'' means the proposed acquisition of Meridian by 
General Shale.

III. Applicability

    A. This Final Judgment applies to Boral, General Shale, Meridian, 
LSF9, and Wienerberger, 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 Acquirer.

IV. Divestiture

    A. Defendants Wienerberger, General Shale, and Meridian are ordered 
and directed, within 30 calendar days after the Court's entry of the 
Asset Preservation Stipulation and Order in this matter, to divest the 
Divestiture Assets in a manner consistent with this Final Judgment to 
RemSom or another Acquirer 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 60 calendar days 
in total and will notify the Court of any extensions.
    B. Defendants Wienerberger, General Shale, and Meridian must use 
best efforts to divest the Divestiture Assets as expeditiously as 
possible. Defendants must take no action that would jeopardize the 
completion of the divestiture ordered by the Court, including any 
action to impede the permitting, operation, or divestiture of the 
Divestiture Assets.
    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 the design, manufacture, and sale of residential bricks and that the 
divestiture to Acquirer will remedy the competitive harm alleged in the 
Complaint.
    D. The divestiture must be made to an Acquirer that, in the United 
States' sole judgment, has the intent and capability, including the 
necessary managerial, operational, technical, and financial capability, 
to compete effectively in the design, manufacture, and sale of 
residential bricks.
    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 Acquirer and Defendants Wienerberger, General 
Shale, and Meridian gives those Defendants the ability unreasonably to 
raise Acquirer's costs, to lower Acquirer's efficiency, or otherwise 
interfere in the ability of Acquirer to compete effectively in the 
design, manufacture, and sale of residential bricks.
    F. In the event Defendants Wienerberger, General Shale, and 
Meridian are attempting to divest the Divestiture Assets to an Acquirer 
other than RemSom, Defendants Wienerberger, General Shale, and Meridian 
promptly must make known, by usual and customary means, the 
availability of the Divestiture Assets. Defendants Wienerberger, 
General Shale, and Meridian must inform any person making an inquiry 
relating to 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 Wienerberger, General Shale, and Meridian 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 Wienerberger, General 
Shale, and Meridian need not provide information or documents subject 
to the attorney-client privilege or work-product doctrine. Defendants 
Wienerberger, General Shale, and Meridian 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.
    G. Defendants Wienerberger, General Shale, and Meridian 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 relating to the Divestiture 
Assets; and (3) access to all financial, operational, or other 
documents and information relating to the Divestiture Assets that would 
customarily be provided as part of a due diligence process. Defendants 
Wienerberger, General Shale, and Meridian also must disclose all 
encumbrances on any part of the Divestiture Assets, including on 
intangible property.
    H. Defendants Wienerberger, General Shale, and Meridian must 
cooperate with and assist Acquirer in identifying and, at the option of 
Acquirer, in hiring all Relevant Personnel, including:
    1. Within 10 business days following the filing of the Complaint in 
this matter, Defendants Wienerberger, General Shale, and Meridian 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 
Acquirer or the United States, Defendants Wienerberger, General Shale, 
and Meridian must provide to Acquirer and the United States additional 
information relating to Relevant Personnel, including name, job title, 
reporting relationships, past experience, responsibilities, training 
and educational histories, relevant certifications, and job performance 
evaluations. Defendants Wienerberger, General Shale, and Meridian must 
also provide to Acquirer and the United States information relating to 
current and accrued compensation and benefits of Relevant Personnel, 
including most recent bonuses paid, aggregate annual compensation, 
current target or guaranteed bonus, if any, any retention agreement or 
incentives, and any other payments due, compensation or benefit 
accrued, or promises made to the Relevant Personnel. If Defendants 
Wienerberger, General Shale, and Meridian are barred by any applicable 
law from providing any of this information, those Defendants must 
provide, within 10 business days following receipt of the request, the 
requested information to the full extent

[[Page 58930]]

permitted by law and also must provide a written explanation of the 
inability of Defendants Wienerberger, General Shale, and Meridian to 
provide the remaining information, including specifically identifying 
the provisions of the applicable laws.
    3. At the request of Acquirer, Defendants Wienerberger, General 
Shale, and Meridian 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 Acquirer to 
employ any Relevant Personnel. Interference includes 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 the December 18, 
2020, or (b) the offer is approved by the United States in its sole 
discretion. Defendants' obligations under this Paragraph will expire 
180 days after the Divestiture Date.
    5. For Relevant Personnel who elect employment with Acquirer within 
180 days of the Divestiture Date, Defendants must waive all non-compete 
and non-disclosure agreements; vest and pay to the Relevant Personnel 
(or to Acquirer for payment to the employee) on a prorated basis any 
bonuses, incentives, other salary, benefits or other compensation fully 
or partially accrued at the time of the transfer of the employee to 
Acquirer; vest any unvested pension and other equity rights; and 
provide all other benefits that those Relevant Personnel otherwise 
would have been provided had the Relevant Personnel continued 
employment with Defendants, including any 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 design, manufacture, and sale of residential 
bricks and not otherwise required to be disclosed by this Final 
Judgment.
    6. For a period of 12 months from the Divestiture Date, Defendants 
Wienerberger, General Shale, and Meridian may not solicit to rehire 
Relevant Personnel who were hired by Acquirer within 180 days of the 
Divestiture Date unless (a) an individual is terminated or laid off by 
Acquirer or (b) Acquirer agrees in writing that Defendants 
Wienerberger, General Shale, and Meridian may solicit to re-hire that 
individual. Nothing in this Paragraph prohibits Defendants 
Wienerberger, General Shale, and Meridian from advertising employment 
openings using general solicitations or advertisements and re-hiring 
Relevant Personnel who apply for an employment opening through a 
general solicitation or advertisement.
    I. Defendants Wienerberger, General Shale, and Meridian must 
warrant to Acquirer that (1) the Divestiture Assets will be operational 
and without material defect 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) all encumbrances on any part of the Divestiture Assets, including 
on intangible property, have been disclosed. 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.
    J. Defendants Wienerberger, General Shale, and Meridian must 
assign, subcontract, or otherwise transfer all contracts, agreements, 
and customer and distributor relationships (or portions of such 
contracts, agreements, and relationships) included in the Divestiture 
Assets, including all supply and sales contracts to Acquirer; provided, 
however, that for any contract or agreement that requires the consent 
of another party to assign, subcontract, or otherwise transfer, 
Defendants Wienerberger, General Shale, and Meridian must use best 
efforts to accomplish the assignment, subcontracting, or transfer. 
Defendants must not interfere with any negotiations between Acquirer 
and a contracting party.
    K. Defendants Wienerberger, General Shale, and Meridian must use 
best efforts to assist Acquirer to obtain all necessary licenses, 
registrations, and permits to operate the Divestiture Assets. Until 
Acquirer obtains the necessary licenses, registrations, and permits, 
Defendants Wienerberger, General Shale, and Meridian must provide 
Acquirer with the benefit of the licenses, registrations, and permits 
of Defendants Wienerberger, General Shale, and Meridian to the full 
extent permissible by law.
    L. At the option of Acquirer, and subject to approval by the United 
States in its sole discretion, on or before the Divestiture Date, 
Defendants Wienerberger, General Shale, and Meridian must enter into a 
contract to provide transition services for back office, human 
resources, accounting, employee health and safety, and information 
technology services and support for a period of up to 12 months on 
terms and conditions reasonably related to market conditions for the 
provision of the transition services. Any amendment to or modification 
of any provision of a contract to provide transition services is 
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, for a total of up 
to an additional six months. If Acquirer seeks an extension of the term 
of any contract for transition services, Defendants Wienerberger, 
General Shale, and Meridian must notify the United States in writing at 
least three months prior to the date the contract expires. 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 commercially reasonable written notice. The employee(s) of 
Defendants Wienerberger, General Shale, and Meridian tasked with 
providing transition services must not share any competitively 
sensitive information of Acquirer with any other employee of Defendants 
Wienerberger, General Shale, and Meridian.
    M. If any term of an agreement between Defendants Wienerberger, 
General Shale, and Meridian and Acquirer, 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 
Wienerberger, General Shale, and Meridian cannot fully comply with 
both, this Final Judgment determines the obligations of Defendants 
Wienerberger, General Shale, and Meridian.

V. Appointment of Divestiture Trustee

    A. If Defendants Wienerberger, General Shale, and Meridian have not 
divested the Divestiture Assets within the period specified in 
Paragraph IV.A, Defendants Wienerberger, General Shale, and Meridian 
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 acceptable to 
the United States, in its sole discretion, at a price and on terms 
obtainable

[[Page 58931]]

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 must sell the Divestiture Assets as quickly as possible.
    C. Defendants Wienerberger, General Shale, and Meridian may not 
object to a sale by the divestiture trustee on any ground other than 
malfeasance by the divestiture trustee. Objections by Defendants 
Wienerberger, General Shale, and Meridian 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 
Defendants Wienerberger, General Shale, and Meridian pursuant to a 
written agreement, on terms and conditions, including confidentiality 
requirements and conflict of interest certifications, approved by the 
United States in its sole discretion.
    E. The divestiture trustee may hire at the cost and expense of 
Defendants Wienerberger, General Shale, and Meridian any agents or 
consultants, including 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 confidentiality 
requirements and conflict-of-interest certifications, 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 Defendants 
Wienerberger, General Shale, and Meridian 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 Defendants 
Wienerberger, General Shale, and Meridian 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. 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 Defendants Wienerberger, General 
Shale, and Meridian and the trust will then be terminated.
    H. Defendants Wienerberger, General Shale, and Meridian must use 
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 Wienerberger, 
General Shale, and Meridian 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 Wienerberger, General Shale, and 
Meridian 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.
    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 divestiture has not 
been accomplished; and (3) the divestiture trustee's recommendations 
for completing the divestiture. 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 by a period 
requested by the United States.
    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 with an Acquirer other than RemSom to divest the Divestiture 
Assets, Defendants Wienerberger, General Shale, and Meridian 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 Defendants 
Wienerberger, General Shale, and Meridian. 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 the 
notice required by Paragraph VI.A, the United States may request from 
Defendants Wienerberger, General Shale, and Meridian, the proposed 
Acquirer, other third parties, or the divestiture trustee additional 
information concerning the proposed divestiture, the proposed Acquirer, 
and other prospective Acquirers. Defendants Wienerberger, General 
Shale, and Meridian 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

[[Page 58932]]

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 Defendants Wienerberger, General Shale, and Meridian 
and any divestiture trustee that states whether the United States, in 
its sole discretion, objects to the proposed Acquirer or any other 
aspect of the proposed divestiture. 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 the limited right to 
object to the sale under Paragraph V.C of this Final Judgment. Upon 
objection by Defendants Wienerberger, General Shale, and Meridian 
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 
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, 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

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

IX. Affidavits

    A. Within 20 calendar days of the filing of the Complaint in this 
matter, and every 30 calendar days thereafter until the divestiture 
required by this Final Judgment has been completed, Defendant 
Wienerberger must deliver to the United States an affidavit, signed by 
Defendant Wienerberger's Chief Executive Officer and General Counsel, 
Defendant General Shale must deliver to the United States an affidavit, 
signed by Defendant General Shale's Chief Executive Officer and Chief 
Financial Officer, and Defendant Meridian must deliver to the United 
States an affidavit signed by Defendant Meridian's Chief Executive 
Officer and Chief Financial Officer, describing in reasonable detail 
the fact and manner of that Defendant's compliance with this Final 
Judgment. The United States, in its sole discretion, may approve 
different signatories for the affidavits.
    B. In the event Defendants Wienerberger, General Shale, and 
Meridian are attempting to divest the Divestiture Assets to an Acquirer 
other than RemSom, 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 Wienerberger, General Shale, and Meridian 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 Wienerberger, 
General Shale, and Meridian on information provided to prospective 
Acquirers. Objection by the United States to information provided by 
Defendants Wienerberger, General Shale, and Meridian 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 Wienerberger, General Shale, and Meridian 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, Defendant Wienerberger, Defendant General Shale, and Defendant 
Meridian must deliver to the United States an affidavit signed by each 
Defendant's Chief Executive Officer and Chief Financial Officer, that 
describes in reasonable detail all actions that Defendants have taken 
and all steps that Defendants Wienerberger, General Shale, and Meridian 
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 
described in affidavits provided pursuant to Paragraph IX.D, the 
Defendant must, within 15 calendar days after any change is 
implemented, deliver to the United States an affidavit describing those 
changes.
    F. Defendants Wienerberger, General Shale, and Meridian 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 purposes of determining or securing compliance with this 
Final Judgment or of related orders such as the Asset Preservation 
Stipulation and Order or 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

[[Page 58933]]

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 this 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 matters contained in this Final 
Judgment.
    C. No information or documents obtained by the United States 
pursuant to this Section 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 ten 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, 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 ten (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''), 
Defendants Wienerberger, General Shale, and Meridian 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 an entity involved in the design, manufacture, or sale of 
residential bricks in Alabama, Indiana, Kentucky, Michigan, Ohio, or 
Tennessee during the term of this Final Judgment.
    B. Defendants Wienerberger, General Shale, and Meridian must 
provide the notification required by this Section 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 the design, manufacture, and sale of residential 
bricks in the United States.
    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 transaction on behalf of each party, 
and all management or strategic plans discussing the proposed 
transaction. If, within the 30 calendar days following notification, 
representatives of the United States make a written request for 
additional information, Defendants Wienerberger, General Shale, and 
Meridian 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 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 must be broadly 
construed, and any ambiguity or uncertainty relating to whether to file 
a notice under this Section must be resolved in favor of filing notice.

XII. No Reacquisition

    Defendants Wienerberger, General Shale, and Meridian may not 
reacquire any part of or any interest in the Divestiture Assets during 
the term of this Final Judgment without prior authorization of 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 relating to 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 an 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 this 
Final Judgment, including in the investigation of the potential 
violation.

[[Page 58934]]

    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.

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 
divestiture has been completed and continuation of this Final Judgment 
is no longer 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 
response to comments filed with the Court, entry of this Final Judgment 
is in the public interest.

Date:------------------------------------------------------------------
[Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16]
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United States District Judge

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Wienerberger AG, General 
Shale Brick, Inc., LSF9 Stardust Super Holdings, L.P., Boral 
Limited, and Meridian Brick LLC, Defendants.

Civil Action No.: 1:21-cv-02555 (CRC)

Competitive Impact Statement

    In accordance with the Antitrust Procedures and Penalties Act, 15 
U.S.C. 16(b)-(h) (the ``APPA'' or ``Tunney Act''), the United States of 
America files this Competitive Impact Statement related to the proposed 
Final Judgment filed in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    On December, 18, 2020, General Shale Brick, Inc. (``General 
Shale''), a subsidiary of Wienerberger AG, announced its intention to 
acquire Meridian Brick LLC (``Meridian'') from Meridian's parent 
companies, Boral Limited and LSF9 Stardust Super Holdings, L.P. as part 
of a total transaction valued at approximately $250 million. The United 
States filed a civil antitrust Complaint on October 1, 2021, seeking to 
enjoin the proposed acquisition. The Complaint alleges that the likely 
effect of this acquisition would be to substantially lessen competition 
for the design, manufacture, and sale of residential brick in eight 
geographic markets in the midwestern and southern 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 Stipulation and Order 
(``Stipulation and Order''), which are designed to remedy the loss of 
competition alleged in the Complaint.
    Under the proposed Final Judgment, which is explained more fully 
below, Defendants are required to divest specified residential brick 
manufacturing and sales assets located within seven states.
    Under the terms of the Stipulation and Order, Defendants must take 
certain steps to ensure that the assets that must be divested are 
operated as ongoing, economically viable, competitive assets for the 
design, manufacture, and sale of residential brick and must take all 
other actions to preserve and maintain the full economic viability, 
marketability, and competitiveness of the assets to be divested. On 
October 5, 2021, the Court entered the Stipulation and Order.
    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 proposed Final Judgment and to punish violations 
thereof.

II. Description of Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

    On December 18, 2020, General Shale announced its intention to 
acquire Meridian from Boral Limited and LSF9 Stardust Super Holdings, 
L.P. in a total transaction valued at approximately $250 million.
    General Shale is a Delaware corporation headquartered in Johnson 
City, Tennessee. It is a leading U.S. producer of building material 
solutions and one of North America's largest brick, stone, and concrete 
block manufacturers. General Shale operates 11 production facilities in 
10 states and provinces. It also has a network of 21 sales locations 
and more than 200 affiliated distributors in North America.
    Wienerberger AG is General Shale's parent company. Based in Vienna, 
Austria, it is one of the world's largest building materials 
manufacturers. Wienerberger AG operates manufacturing and distribution 
facilities for brick and other construction materials in three 
continents, including in North America through its subsidiary General 
Shale. In 2020, Wienerberger AG's North American business generated 
revenues of approximately $370 million, 78% of which was derived from 
brick sales, including residential brick sales.
    Meridian is a Delaware limited liability company headquartered in 
Alpharetta, Georgia. Meridian manufactures and sells construction 
materials, including commercial and residential brick and masonry 
materials. Meridian is the largest brick supplier in the United States. 
During the fiscal year 2020, Meridian generated over $400 million in 
revenues, primarily from brick sales, including residential brick 
sales. Meridian and its sister company Meridian Brick Canada Ltd. make 
up the Meridian Group. The Meridian Group is directly and indirectly 
owned by Boral Limited and LSF9 Stardust Super Holdings, L.P. Boral 
Limited and LSF9 Stardust Super Holdings, L.P. formed Meridian as a 
joint venture in 2016.

B. Relevant Product Market: Residential Brick

    Residential brick is a type of exterior cladding that is used to 
protect homes and other buildings from weather and the elements. It 
comes in various sizes and colors and is primarily comprised of shale 
or red clay that has been fired in a kiln. Residential brick of each 
color and size is manufactured in a substantially similar process, with 
minor adjustments in the amount of clay or type of color additives used 
to make a particular brick model. Indeed, although residential brick 
comes in varying sizes (e.g., modular, queen, and king) and colors 
(e.g., red, white, or grey), all residential brick volumes are

[[Page 58935]]

measured in Standard Brick Equivalents (``SBE'').\3\
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    \3\ The American Society for Testing and Materials has 
established a standard brick size for construction uses, which is 
referred to as the standard brick equivalent or ``SBE.'' Residential 
brick of different sizes is converted to SBE units when sold for 
purposes of measuring the volume sold.
---------------------------------------------------------------------------

    Residential brick is distinct from commercial brick. Residential 
brick is less expensive than commercial brick due to different 
manufacturing processes. In particular, commercial brick is made by a 
process called through-body extrusion. Through-body extrusion entails a 
rigorous coloring process that ensures uniform coloring throughout the 
body of the brick. This achieves the higher color quality required of 
commercial brick. By contrast, residential brick is often colored only 
on the outer portion of the brick, and the residential brick 
manufacturing process requires fewer additives and other costly inputs.
    Residential brick must meet standard specifications for residential 
use that are set by the American Society for Testing and Materials 
(``ASTM''). These standards require certain durability and load 
capabilities that differentiate residential brick from decorative 
paving brick as well as ``thin'' brick, which is a fraction of the 
thickness of residential brick and has lower structural requirements 
because it is ornamental.
    Residential brick is distinct from other types of exterior 
cladding. It has both performance characteristics (such as durability 
and structural integrity) and aesthetic traits that distinguish it from 
products such as siding and other exterior claddings. Customers who 
prefer the look of residential brick, or whose projects require the 
unique properties of residential brick, cannot reasonably turn to 
alternative exterior cladding solutions.
    As alleged in the Complaint, because of these unique 
characteristics, substitution away from residential brick in the event 
of a small but significant increase in price by a hypothetical 
monopolist of residential brick would be insufficient to make such a 
price increase unprofitable. Accordingly, residential brick is a line 
of commerce, or relevant product market, for purposes of analyzing the 
effects of the proposed acquisition under Section 7 of the Clayton Act.

C. The Relevant Geographic Markets Are Local

    Residential brick is generally transported by truck. Transportation 
costs can be substantial and typically range from 15% to 30% of the 
total price of residential brick. As a result, the Complaint alleges 
the geographic markets for residential brick tend to be local, with the 
specific geographic boundaries of any local market also determined by 
road infrastructure, traffic conditions, and natural conditions, such 
as mountain ranges that impose significantly higher fuel costs on the 
transportation of residential brick to customers in local markets.
    As alleged in the Complaint, the transaction would likely harm 
competition for residential brick in the following Metropolitan 
Statistical Areas (``MSAs''): \4\ (1) Nashville, Tennessee; (2) 
Memphis, Tennessee; (3) Huntsville, Alabama; (4) Lexington, Kentucky; 
(5) Louisville, Kentucky; (6) Indianapolis, Indiana; (7) Detroit, 
Michigan; and (8) Cincinnati, Ohio.
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    \4\ An MSA is a geographical region defined by the Office of 
Management and Budget for use by federal statistical agencies, such 
as the Census Bureau. It is based on the concept of a core area with 
a large concentrated population, plus adjacent communities having 
close economic and social ties to the core. For the purposes of the 
Complaint, it includes the dense central business districts in the 
named cities as well as the adjacent, connected communities.
---------------------------------------------------------------------------

    In each of these relevant markets, the Complaint alleges a small 
but significant increase in price by a hypothetical monopolist of 
residential brick would not be defeated by substitution to commercial 
brick or other claddings, other construction materials, or by 
arbitrage--i.e., a buyer cannot purchase outside the MSA and transport 
the residential bricks itself without incurring prohibitive 
transportation costs. Accordingly, the sale of residential brick in 
each of these MSAs constitutes a relevant market for purposes of 
analyzing the effects of the acquisition under Section 7 of the Clayton 
Act.

D. Anticompetitive Effects of the Proposed Transaction

    The Complaint alleges the proposed transaction would significantly 
increase concentration in the relevant markets and harm consumers by 
eliminating the substantial head-to-head competition that currently 
exists between General Shale and Meridian.
    For each relevant market, General Shale and Meridian are among the 
top suppliers of residential brick by volume sold and have a 
competitive advantage because of the proximity of their manufacturing 
facilities to customers in each relevant market. Further, only two or 
three significant competitors, including General Shale and Meridian, 
supply each relevant market. Other residential brick suppliers face 
significantly higher transportation costs to serve these markets and 
thus have limited competitive significance. Competition between General 
Shale and Meridian has also spurred product innovation that has yielded 
higher quality and a variety of innovative residential brick products, 
including new colors, textures, and facing styles.
    As alleged in the Complaint, homebuilders and other customers in 
the relevant markets thus rely on competition between General Shale and 
Meridian to supply a variety of quality residential brick at 
competitive prices. By eliminating this competition, the proposed 
transaction would likely lead to higher prices and reduced investment 
in innovation and quality.
1. The Nashville, Tennessee MSA
    In 2020, Tennessee was the second-largest brick consuming state in 
the United States. General Shale and Meridian supplied approximately 
54% of the total brick volume sold in Tennessee in 2020. General Shale 
and Meridian are particularly important suppliers for the Nashville 
MSA, where they are the top two suppliers of residential brick by 
volume and face only each other as significant competitors. General 
Shale and Meridian are the only significant suppliers of residential 
brick that operate brick manufacturing facilities located within 150 
miles of Nashville, and no other significant supplier has a 
manufacturing facility located within 200 miles.
2. The Memphis, Tennessee MSA
    General Shale and Meridian are also important suppliers of 
residential brick for the Memphis MSA, where they face only one other 
significant competitor. These three firms are the only significant 
suppliers that operate brick manufacturing facilities within 200 miles 
of Memphis, and no other significant supplier of residential brick has 
a facility located within 350 miles.
3. The Huntsville, Alabama MSA
    Alabama consumed the fifth most bricks of any state in the nation 
in 2020. General Shale and Meridian are two of the top three 
residential brick suppliers in Alabama and combined supplied over 43% 
of the total brick volume sold in Alabama in 2020. General Shale and 
Meridian are particularly important suppliers for the Huntsville MSA, 
where they are two of the top three residential brick suppliers by 
volume and face only one other significant competitor. These three 
firms are the only significant suppliers that operate a residential 
brick manufacturing facility located within 125 miles of Huntsville.

[[Page 58936]]

4. The Lexington, Kentucky MSA
    General Shale and Meridian supplied over 50% of the total brick 
volume sold in Kentucky in 2020. General Shale and Meridian are 
particularly important suppliers for the Lexington MSA, where they are 
the two largest suppliers of residential brick by volume and face only 
each other as significant competitors. General Shale and Meridian are 
the only significant residential brick suppliers located within 50 
miles of Lexington; the next closest residential brick manufacturer is 
over 230 miles away.
5. The Louisville, Kentucky MSA
    General Shale and Meridian are also important residential brick 
suppliers for the Louisville MSA. In the Louisville MSA, the proposed 
acquisition would reduce the number of significant competitors for 
residential brick from three to two, as the merging parties own two of 
the three brick manufacturing facilities located within 200 miles of 
Louisville. Following the transaction, the third-closest significant 
residential brick manufacturer would be located over 300 miles away.
6. The Indianapolis, Indiana MSA
    General Shale and Meridian are the top two suppliers of residential 
brick to customers in Indiana. In 2020, they combined to supply over 
45% of the total brick volume sold in the state. General Shale and 
Meridian are particularly important suppliers of residential brick for 
the Indianapolis MSA, where they face only one other significant 
competitor. These three firms are the only significant suppliers that 
operate a residential brick manufacturing facility located within 100 
miles of Indianapolis, with the next closest competitor located almost 
350 miles away.
7. The Detroit, Michigan MSA
    General Shale and Meridian are the first and third largest 
suppliers of brick to customers in Michigan. In 2020, General Shale and 
Meridian supplied 45% of the total brick volume sold in the state. 
General Shale and Meridian are particularly important suppliers for the 
Detroit MSA, where they are the top two competitors for residential 
brick by volume. In this market, the proposed acquisition would reduce 
the number of significant suppliers for residential brick from three to 
two with these three firms being the only significant suppliers that 
operate residential brick manufacturing facilities within 375 miles of 
Detroit.
8. The Cincinnati, Ohio MSA
    General Shale and Meridian are the top two residential brick 
suppliers to customers in Ohio. In 2020, General Shale and Meridian 
supplied 28% of the total brick volume sold in the state. General Shale 
and Meridian are particularly important suppliers for the Cincinnati 
MSA, where they are the top two competitors for residential brick by 
volume and face only one other significant supplier. These three firms 
are the only significant suppliers with residential brick manufacturing 
facilities located within 200 miles of Cincinnati, and no other 
significant manufacturer has a facility within 350 miles.

E. Difficulty of Entry

    As alleged in the Complaint, entry of new competitors into the 
relevant residential brick markets would be costly, time consuming, and 
is unlikely to prevent the harm to competition that is likely to result 
if the proposed transaction were to proceed unremedied. The time and 
expense required to construct manufacturing facilities, acquire 
necessary equipment, develop product formulas, and overcome various 
regulatory hurdles would take years of planning and significant 
financial investment.
    Additionally, repositioning by a commercial brick manufacturer is 
also unlikely to lessen the harm that would likely result from the 
proposed transaction. This is because commercial brick yields higher 
profit margin than residential brick, and, accordingly, such a switch 
would come at a significant opportunity cost that commercial brick 
manufacturers are unlikely to be incentivized to make.

III. Explanation of the Proposed Final Judgment

    The relief required by the proposed Final Judgment will remedy the 
loss of competition alleged in the Complaint by establishing an 
independent and economically viable competitor in the design, 
manufacture, and sale of residential brick in the eight geographic 
markets alleged in the Complaint.

A. The Divestiture Assets

    Paragraph IV(A) of the proposed Final Judgment requires Defendants, 
within 30 days after the entry of the Stipulation and Order by the 
Court, to divest the Divestiture Assets (capitalized terms are defined 
in the proposed Final Judgment) to RemSom, LLC or an alternative 
acquirer acceptable to the United States, in its sole discretion. The 
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 
used by the Acquirer as part of a viable, ongoing business that can 
compete effectively in the design, manufacture, and sale of residential 
brick in the eight geographic markets alleged in the Complaint 
(proposed Final Judgment Paragraphs IV(C) and (D)). Defendants 
Wienerberger AG, General Shale, and Meridian must use best efforts to 
divest the Divestiture Assets expeditiously and may not take actions 
that would jeopardize the completion of the divestiture (proposed Final 
Judgment Paragraph IV(B)).
    The Divestiture Assets are defined at Paragraph II(H) of the 
proposed Final Judgment. The Divestiture Assets are defined to include 
three manufacturing facilities, 14 Distribution Yards, and six mines, 
identified in Appendices A and B. The Divestiture Assets also include 
all tangible and intangible property and assets related or used in 
connection with the manufacturing facilities, mines, and Distribution 
Yards, except for the assets identified in Appendix C of the proposed 
Final Judgment and any trademarks, trade names, service marks, or 
service names containing the names ``General Shale,'' ``Meridian,'' 
``Watsontown,'' ``Columbus,'' ``Arriscraft,'' or ``Wienerberger.'' The 
Divestiture Assets include all of the assets necessary for the Acquirer 
to operate an economically viable business that will remedy the harm 
that the United States allege would otherwise result from the 
transaction.

B. Divestiture Provisions

    The proposed Final Judgment contains several provisions to 
facilitate the transition of the Divestiture Assets to the Acquirer. 
First, Paragraph IV(J) of the proposed Final Judgment facilitates the 
transfer of customers and other contractual relationships to the 
Acquirer. Defendants Wienerberger AG, General Shale, and Meridian must 
transfer all contracts, agreements, and relationships included in the 
Divestiture Assets to the Acquirer and must make best efforts to 
assign, subcontract, or otherwise transfer contracts or agreements that 
require the consent of another party before assignment, subcontracting, 
or other transfer.
    Second, Paragraph IV(K) requires Defendants Wienerberger AG, 
General Shale, and Meridian to use their best efforts to assist the 
Acquirer in obtaining all of the licenses, registrations, and permits 
necessary to operate the Divestiture Assets. Paragraph IV(K) further 
requires Defendants Wienerberger AG, General Shale, and Meridian to 
provide the Acquirer with the benefit of Defendants

[[Page 58937]]

Wienerberger AG's, General Shale's, and Meridian's licenses, 
registrations, and permits to the full extent permissible by law until 
the Acquirer obtains the necessary licenses, registrations, and 
permits.
    Third, Paragraph IV(L) of the proposed Final Judgment requires 
Defendants Wienerberger AG, General Shale, and Meridian, at the option 
of the Acquirer, and subject to the approval by the United States in 
its sole discretion, on or before the date of the divestiture, to enter 
into an agreement to provide transition services for back office, human 
resources, accounting, employee health and safety, and information 
technology services and support for the Divestiture Assets for a period 
of up to 12 months. The Acquirer may terminate the transition services 
agreement, or any portion of it, without cost or penalty at any time 
upon commercially reasonable written notice. The paragraph further 
provides that if the Acquirer seeks an extension of the term of any 
contract for transition services, Defendants Wienerberger AG, General 
Shale, and Meridian must notify the United States in writing at least 
three months prior to the date the contract expires. Paragraph IV(L) 
also provides that employees of Defendants Wienerberger AG, General 
Shale, and Meridian tasked with supporting this agreement must not 
share any competitively sensitive information of the Acquirer with any 
other employee of Defendants Wienerberger AG, General Shale, and 
Meridian.
    The proposed Final Judgment also contains provisions intended to 
facilitate efforts by the Acquirer to hire certain employees. 
Specifically, Paragraph IV(H) of the proposed Final Judgment requires 
Defendants Wienerberger AG, General Shale, and Meridian to provide the 
Acquirer and the United States with organization charts and information 
relating to these employees and to make them available for interviews. 
It also provides that all Defendants must not interfere with any 
negotiations by the Acquirer to hire these employees. In addition, for 
employees who elect employment with the Acquirer, Defendants must waive 
all non-compete and non-disclosure agreements, vest and pay on a 
prorated basis any bonuses, incentive, other salary, benefits or other 
compensation fully or partially accrued at the time the employee 
transfers to the Acquirer, vest any unvested pension and other equity 
rights, and provide all other benefits that those employees otherwise 
would have been provided had those employees continued employment with 
Defendants, including but not limited to any retention bonuses or 
payments. This paragraph further provides that the Defendants 
Wienerberger AG, General Shale, and Meridian may not solicit to hire 
any employees who elect employment with the Acquirer, unless that 
individual is terminated or laid off by the Acquirer or the Acquirer 
agrees in writing that the Defendants Wienerberger AG, General Shale, 
and Meridian may solicit or hire that individual. The non-solicitation 
period runs for 12 months from the date of the divestiture. This 
paragraph does not prohibit Defendants Wienerberger AG, General Shale, 
and Meridian from advertising employment openings using general 
solicitations or advertisements and rehiring employees who apply for a 
position through a general solicitation or advertisement.

C. Divestiture Trustee

    If Defendants Wienerberger AG, General Shale, and Meridian do not 
accomplish the divestiture within the period prescribed in Paragraph 
IV(A) of the proposed Final Judgment, Section V of the proposed Final 
Judgment provides that the Court will appoint a divestiture trustee 
selected by the United States to effect the divestiture. If a 
divestiture trustee is appointed, the proposed Final Judgment provides 
that Defendants Wienerberger AG, General Shale, and Meridian must pay 
all costs and expenses of the trustee. The divestiture trustee's 
compensation must be structured so as to provide an incentive for the 
trustee based on the price and terms obtained and the speed with which 
the divestiture is accomplished. After the divestiture trustee's 
appointment becomes effective, the trustee must provide monthly reports 
to the United States setting forth his or her efforts to accomplish the 
divestiture. If the divestiture has not been accomplished within six 
months of the divestiture trustee's appointment, the United States may 
make recommendations to the Court, which will enter such orders as 
appropriate, in order to carry out the purpose of the Final Judgment, 
including by extending the trust or the term of the divestiture 
trustee's appointment by a period requested by the United States.

D. Other Provisions

    Section XI of the proposed Final Judgment requires Defendants 
Wienerberger AG, General Shale, and Meridian, 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''), to not directly or indirectly acquire 
any assets of or any interest, including a financial, security, loan, 
equity, or management interest, in an entity involved in the design, 
manufacture, and sale of residential brick in Alabama, Indiana, 
Kentucky, Michigan, Ohio, or Tennessee without first providing at least 
30 calendar days advance notification to the United States. Pursuant to 
the proposed Final Judgment, during the term of the proposed Final 
Judgment, Defendants Wienerberger AG, General Shale, and Meridian must 
notify the United States of such acquisitions as it would for a 
required HSR Act filing, as specified in the Appendix to Part 803 of 
Title 16 of the Code of Federal Regulations. The proposed Final 
Judgment further provides for waiting periods and opportunities for the 
United States to obtain additional information analogous to the 
provisions of the HSR Act before such acquisitions can be consummated. 
Requiring notification of any such acquisition will permit the United 
States, as relevant, to assess the competitive effects of that 
acquisition before it is consummated and, if necessary, seek to enjoin 
the transaction.
    The proposed Final Judgment also contains provisions designed to 
promote compliance with and make 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 Final Judgment, 
including the right 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 
with the Final Judgment with the standard of proof that applies to the 
underlying offense that the Final Judgment addresses.
    Paragraph XIV(B) provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgment. The 
proposed Final Judgment is intended to remedy the loss of competition 
the United States alleges would otherwise be caused by the transaction. 
Defendants agree that they will abide by the proposed Final Judgment 
and that they may be held in contempt of the Court for failing to 
comply with any provision of the proposed Final Judgment that is stated

[[Page 58938]]

specifically and in reasonable detail, as interpreted in light of this 
procompetitive purpose.
    Paragraph XIV(C) provides that if the Court finds in an enforcement 
proceeding that a Defendant has violated the Final Judgment, the United 
States may apply to the Court for an 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 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, the Defendant must reimburse the United 
States for attorneys' fees, experts' fees, and other costs incurred in 
connection with that effort to enforce this Final Judgment, 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 10 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 
continuation of the Final Judgment is no longer necessary or in the 
public interest.

IV. Remedies Available to Potential Private Plaintiffs

    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, the comments and the United 
States' responses will be published in the Federal Register unless the 
Court agrees that the United States instead may publish them on the 
U.S. Department of Justice, Antitrust Division's internet website.
    Written comments should be submitted in English to: Jay D. Owen, 
Acting Chief, Defense, Industrials, and Aerospace Section, Antitrust 
Division, U.S. Department of Justice, 450 Fifth Street NW, Suite 8700, 
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 General Shale's acquisition of Meridian. 
The United States is satisfied, however, that the relief required by 
the proposed Final Judgment will remedy the anticompetitive effects 
alleged in the Complaint, preserving competition for the design, 
manufacture, and sale of residential brick in the eight geographic 
markets alleged in the Complaint. 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.

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

    Under the Clayton Act and APPA, proposed Final Judgments, or 
``consent decrees,'' in antitrust cases brought by the United States 
are subject to a 60-day comment period, after which the Court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In making that determination, 
the Court, in accordance with the statute as amended in 2004, is 
required to consider:

    (A) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, 
the Court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); 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

[[Page 58939]]

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 proposed Final 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 ``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); see also United States v. Deutsche Telekom AG, No. 19-2232 
(TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020). More demanding 
requirements would ``have enormous practical consequences for the 
government's ability to negotiate future settlements,'' contrary to 
congressional intent. Microsoft, 56 F.3d 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 (``[T]he 
`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 judgments proposed by the 
United States in antitrust enforcement, Pub. L. 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: October19, 2021
    Respectfully submitted,

For Plaintiff United States of America:
-----------------------------------------------------------------------
Daniel J. Monahan, Jr.,
Defense, Industrials, and Aerospace Section, Antitrust Division, 
U.S. Department of Justice, 450 Fifth Street NW, Suite 8700, 
Washington, DC 20530, Telephone: (202) 598-8774, 
[email protected].

APPENDIX A

1. General Shale's Mooresville, IN manufacturing facility at 148 
Sycamore Lane, Mooresville, IN 46158;
2. General Shale's Edwards Mine, at West Merriman Road, Mooresville, 
IN;
3. Meridian's Gleason, TN manufacturing facility at 4970 Old State 
Highway 22, Gleason, TN 38229;
4. Meridian's Rich Mine at 179 Cypress Lane, Gleason TN;
5. Meridian's Collins Mine at 1300 Finch Road, Gleason, TN;
6. Meridian's Lease agreement for the Wingo Mine, Humphrey Road, 
Hickman, KY;
7. Meridian's Bessemer, AL manufacturing facility at 8250 Hopewell 
Road SE, Bessemer, AL 35022;
8. Meridian's Vulcan Mine at Vulcan Road SE, Bessemer, AL 35022; and
9. Meridian's Centreville Mine, Parcel 1 and Parcel 2 Highway 5, 
Brent, AL 35034.

APPENDIX B

1. General Shale's Mooresville, IN distribution yard located at 148 
Sycamore Lane, Mooresville, IN 46158;

[[Page 58940]]

2. General Shale's Evansville, IN distribution yard located at 3401 
Mt Vernon Ave, Evansville, IN 47712;
3. General Shale's Sterling Heights, MI distribution yard located at 
42374 Mound Rd, Sterling Heights, MI 48314;
4. General Shale's Whitmore Lake, MI distribution yard located at 
6556 Whitmore Lake Rd, Whitmore Lake, MI 48189;
5. Meridian's Bessemer AL distribution yard located at 8250 Hopewell 
Road SE, Bessemer, AL 35022;
6. Meridian's Clarksville, TN distribution yard located at 181 
Terminal Road, Clarksville, TN 37040
7. Meridian's Florence, AL distribution yard located at 3309 Hough 
Road, Florence, AL 35630;
8. Meridian's Huntsville, AL distribution yard located at 154 
Slaughter Rd, Madison, AL 35758;
9. Meridian's Knoxville, TN distribution yard located at 641 
Corporate Point Way, Knoxville, TN 37932
10. Meridian's Memphis, TN distribution yard located at 9525 Macon 
Road, Cordova, TN 38016;
11. Meridian's Nashville, TN distribution yard located at 7140 
Centennial Place, Nashville, TN 37209;
12. Meridian's Nashville, TN leased property located at 7230 
Centennial Place, Nashville, TN 37209;
13. Meridian's Pelham Store located at Pelham Town Center, 381 
Huntley Pkwy, Pelham, AL 35124; and
14. Meridian's Tupelo, MS distribution yard located at 1735 
McCullough Blvd., Tupelo, MS 38801.

APPENDIX C: List of Retained Assets

1. With respect to the Centennial (Nashville), Tennessee 
Distribution Yard only, all equipment used in or related to 
Meridian's ``tint center'' operations for its stucco business;
2. With respect to the Whitmore Lake (Detroit), Michigan 
Distribution Yard, one trailer with a purchase order dated February 
11, 2021; and
3. With respect to the Mooresville Plant, the non-essential real 
property, being approximately 78+/- acres, Parcel 55-05-12-400-
003.000-005, Morgan County, Indiana.

[FR Doc. 2021-23205 Filed 10-22-21; 8:45 am]
BILLING CODE 4410-11-P